Defamation Act 2013: Northern Ireland

Lord Lester of Herne Hill Excerpts

Thursday 27th June 2013 Grand Committee

[Lord Lester of Herne Hill]

My Lords, we are grateful to my noble friend Lord Lexden for initiating this debate with such a powerful speech on an issue of great importance to everyone within the United Kingdom and beyond, including the media and public. It concerns the refusal by the Northern Ireland Government to consent to the application of the Defamation Act 2013 in that part of the UK or to introduce matching legislation.

The Chief Commissioner of the Northern Ireland Human Rights Commission drew attention to the problem in his letter of 3 May, and my noble friend Lord McNally wrote a further detailed letter on 29 May to the Minister of Finance and Personnel, Mr Sammy Wilson MP MLA, to assist him in considering the position in Northern Ireland. Mr Sammy Wilson is the DUP Member for East Antrim. He replied yesterday as follows:

“I have noted that the new provisions will be brought into force later this year and it will be interesting to see how they operate. However, at this stage, I have no plans to review the law on defamation in Northern Ireland”.

I do not know whether this reply was cleared with his coalition partners in Sinn Fein, whose support for the Good Friday agreement and the effective protection of human rights is so important. But it is in line with the comments made by his colleague, Ian Paisley Jr, the DUP MP for North Antrim, during the Second Reading debate on 12 June 2012, in cols. 204-5, and also those made by the Belfast libel lawyer, Paul Tweed, with whose negative views he agreed.

The Defamation Act was three years in the making. It has support among all three main political parties and was the subject of public consultation and careful scrutiny by a Joint Committee of both Houses. It is a model of how to make law and strike a fair balance between the right to protect a good reputation and the right to freedom of expression. The Bill was introduced in the light of widespread international criticism from the UN Human Rights Committee, the United States and beyond, and our own libel reform campaign, because of the chilling effect of our libel laws on freedom of speech.

The Joint Committee on Human Rights, on which I serve, scrutinised the Defamation Bill and received a detailed memorandum from the Ministry of Justice explaining how the new legislation would comply with the convention rights to free speech, a good reputation and access to justice. The memorandum made it clear that the Bill was intended to redress the balance in favour of freedom of speech. We published our report on the Bill on 12 December 2012.

Article 6 of the convention protects access to justice and Article 13 the right to effective domestic remedies for breaches of the convention. Article 8 protects the right to a good reputation. Article 10 protects the right to,

“receive and impart information and ideas without interference by public authority and”—

I emphasise—

“regardless of frontier”.

That includes the public authorities of Northern Ireland and the frontier across the Irish Sea.

Those who publish in England and Wales inevitably publish in Northern Ireland. If libel law in Northern Ireland remains unreformed, as my noble friend said, its chilling effects will interfere with the fundamental rights not only of those who seek to publish information and opinions on matters of public interest and concern, but everyone living within Northern Ireland and the rest of the UK. It will also mean that the courts will have to operate in a situation of legal uncertainty to resolve the conflict of law across the Irish Sea and between the UK and the European Court of Human Rights in Strasbourg.

Those who signed the Good Friday or Belfast agreement dedicated themselves to,

“the protection and vindication of the human rights of all”.

The agreement referred to the convention as a necessary safeguard for the protection of all sections of the community. It recognised the right of the Westminster Parliament to,

“legislate as necessary to ensure the United Kingdom’s international obligations are met in respect of Northern Ireland”.

Article 1 of the convention obliges the UK to secure to everyone within its jurisdiction the convention rights and freedoms. The Northern Ireland Act 1998 gave effect to the Good Friday or Belfast agreement and to the UK’s international legal obligations. Section 26(2) says:

“If the Secretary of State considers that any action capable of being taken by a Minister or Northern Ireland department is required for the purpose of giving effect to any international obligations … he may … direct that the action shall be taken”.

However, because we lack a federal system, the only way in which fundamental human rights can be secured by law to everyone is by giving effect to the convention rights protected by the Devolution Acts and the Human Rights Act. It should not be necessary for the Secretary of State to have to use the power of direction vested in her. However, if it becomes necessary and if she fails to do so, she will become vulnerable to legal challenge under the Human Rights Act for failing to act in a way that is compatible with convention rights. The Northern Ireland Executive and legislature will also be vulnerable to legal challenge. It would be highly regrettable if it were necessary to use the power to direct or to resort to expensive and lengthy litigation.

What is needed is common sense and a political solution in Northern Ireland. It would be a stain on the reputation of Northern Ireland if it were to replace London as the libel tourist capital by clinging to archaic, unbalanced and uncertain common law, which would be great for the vested interests of wealthy clients and their lawyers in Belfast, but wholly against the public interest. It is profoundly ironic that I am addressing this indirectly to the Democratic Unionist Party, which believes in the union, but seeking help from Sinn Fein, which does not.

--- Later in debate ---

[Baroness Randerson]

My Lords, I congratulate the noble Lord, Lord Lexden, on securing this debate and I thank all noble Lords who have spoken for their positive remarks on the merits of the Defamation Act, which was recently passed by Parliament. I can confirm that the Government are taking forward the necessary procedural steps to enable the Act to be brought into force in England and Wales by the end of the year.

As the Committee is aware, defamation, in common with other civil law issues, is a devolved area, so the law in Northern Ireland is a matter for the Northern Ireland Executive and Assembly. That theme has run throughout this debate, although I have detected a strong requirement from the noble Lords who have participated that the UK Government should step in at this point. I recognise the concerns expressed about the possibility that the law in Northern Ireland may become out of step with that in England and Wales. I do not wish to speculate about the extent to which those concerns may come to be justified, but it is inevitable, as part of having devolved responsibilities, that differences in the law may arise between the different parts of the United Kingdom.

My noble friend Lord Lester expressed his frustration at the lack of a federal system and at the shortcomings of our constitutional settlement. I might share some of his frustration from time to time, but it is very important in this debate that we recognise where we are now in our constitutional settlement. Under the Sewel convention, the UK Parliament remains sovereign but will not normally pass primary legislation relating to areas in which a devolved legislature has legislative competence, except with the agreement of the devolved legislature in the form of a legislative consent Motion. I will give way.

[Lord Lester of Herne Hill]

I am grateful to the Minister. Will she accept the fundamental point made throughout this debate that Northern Ireland law, like all our law, must comply with the European human rights convention, which is embedded in the devolution statutes and the Human Rights Act?

[Baroness Randerson]

I accept that of course, and I will return to that issue later. The memorandum of understanding between the UK Government and the devolved Administrations recognises that the UK Government retain authority to legislate on any issue, whether devolved or not. However, in this instance we do not consider that it would have been right for us to have sought to impose the Defamation Act on Northern Ireland without any concession to the sentiments of the Northern Ireland Executive on the constitutional propriety of such a move, or to its views on the substance of the proposed legislation.

In that context, I can confirm that, in accordance with the Sewel convention, prior to the introduction of the Defamation Bill officials at the Ministry of Justice contacted their counterparts in the Northern Ireland Executive. They asked whether the Executive wished to seek the approval of the Northern Ireland Assembly for an LCM in relation to any aspects of the Bill. In the event, an LCM was not requested, and I am not in a position to comment or speculate as to why that was.

Concerns were raised by the noble Lords, Lord Lester and Lord Bew, at a very late stage in the passage of the Bill—namely, during the Lords’ consideration of Commons reasons. In the light of that, following completion of the Bill’s passage, my noble friend Lord McNally wrote to the Minister for Finance and Personnel in the Northern Ireland Executive to commend the Act to him, and to set out the benefits which we believe it has—and which have been expressed around this Chamber today—so that these can be taken into account by the Executive in considering the way forward in Northern Ireland. As the noble Lord, Lord Lester, indicated, the Minister for Finance and Personnel has just replied to the letter from my noble friend Lord McNally indicating that he currently has no plans to review the law. However, as has also been mentioned, the relevant departmental committee in the Assembly is currently taking evidence on the issue and a Private Member’s Bill on the subject may well be introduced.

It is important to point out that, although the debate in the Assembly has taken some time to ignite, it is alive at this moment. I have here a research paper produced for the Northern Ireland Assembly on the Defamation Act 2013, so efforts are now being made to inform the debate in the Assembly. I hope that these developments will ensure that the issue is fully debated and considered in Northern Ireland and throughout civil society in Northern Ireland.

In that context, it continues to be our view that the action that we have taken represents the limit of what it is proper for the Government to do. I join noble Lords in hoping that the Northern Ireland Executive and Assembly give very careful consideration to the question of whether legislation along the lines of the Act is appropriate in Northern Ireland. However, we retain the view that the matter is entirely one for them.

The noble Lord, Lord Browne, said that this has been an extremely good debate and indeed it has. However, it is important that we draw it to the attention of those in the Northern Ireland Assembly and Executive to contribute to the public debate that several noble Lords have referred to this afternoon.

I will reply briefly to some specific points. My noble friend Lord Lexden referred to the “antiquated” libel laws and pointed out what he saw as the anomaly that the responsibility for this issue in Northern Ireland is with the Minister for Finance and Personnel. Noble Lords are very well aware of this, but it is important to point out for the record that the arrangements in the Northern Ireland Executive are complex and balanced. It is therefore possible that which department it lies with is of less significance than those balanced and complex relationships. The noble Lord, Lord Lexden, also pointed out that the Executive have not taken this decision; this issue has not come to the Executive. He also pointed out the potential importance of Mike Nesbitt’s Private Member’s Bill on defamation. I am confident that this debate will run in Northern Ireland.

I have already referred to the comments from my noble friend Lord Lester, who intervened to refer to the importance of the human rights implications. It is obviously key that UK Ministers have regard to our international obligations on human rights at all times. However, it is always a matter of balancing one set of human rights against another. Those human rights also bind and oblige the Northern Ireland Executive in the way that they make their decisions. I refer, particularly, to the reference by the noble Lord, Lord Lester, to the ECHR memorandum that was prepared by the MoJ at the request of the Joint Committee on Human Rights to assist its consideration of the Defamation Bill. That memorandum focused on issues relating to the compatibility of the provisions contained in the Bill, not on the compatibility of the existing law.

I move rapidly on to the noble Viscount, Lord Colville, who speculated on why Northern Ireland politicians were not keen to have free comment. The key point that I want to draw out from what he said is the possibility of libel tourism. We do not consider that likely. However, we acknowledge that, once the Act is brought into force in England and Wales, there might be attempts to exploit the differences in law between the two jurisdictions. I am sure that the Northern Ireland Executive and Assembly will take that into consideration as they look at this issue. The noble Lord also pointed out that newspapers cross borders and spoke of the complexities of the situation for the newspaper industry. That was also referred to by my noble friend Lord Black.

The noble Viscount talked about the liberalising and modernising Act and making our law fit for the digital age. He talked about the importance of global media and said that we cannot declare UDI on that. His core point, which will perhaps be of particular interest to those in Northern Ireland reading or possibly even listening to this debate, was on the 6,000 people who work in the media—the publishing and broadcasting industries—and the implications for them and, indeed, for the blogging citizen journalists to whom he referred. I very much hope that the prediction that UK newspapers might withdraw from Northern Ireland will prove to be unfounded, but I understand the logic of what he said.

The noble Lord, Lord Bew, referred to the human rights at the heart of the Belfast agreement. He made a very important point—a new one, not emphasised by other noble Lords—about the impact on academics and the fact that leading academics might not be encouraged to go to Northern Ireland universities if they felt that they were not given the freedom that they get elsewhere.

Finally, the noble Lord, Lord Browne, asked whether I accepted the dilemma at the core of the question whether the UK Government should intervene. I say to noble Lords and, in particular, to the noble Lord, Lord Browne, that I have observed the frequency with which UK Ministers are asked to intervene in Northern Ireland for one side or another. I acknowledge the cause of concern on this issue. However, I feel as I do every time people say that UK Ministers should intervene. I acknowledge the frustration but, as the noble Lord said, this is a period of transition. It is important that we support and encourage the Northern Ireland Executive and Northern Ireland democracy. We must resist the temptation to take over whenever we have a sense of frustration.