Northern Ireland (Miscellaneous Provisions) Bill

Lord Lexden Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Lexden (Con)]

My Lords, I supported my noble friend Lord Empey’s amendment in Committee and I support the current version of this valuable amendment with no less vigour. He has explained its aims and objectives fully and I have only a little to add from my own Conservative and Unionist perspective, which is identical to that of my noble friend, who is the chairman of the Ulster Unionist Party. The not unimportant constitutional issue which the amendment seeks to address is simple and straightforward. The Northern Ireland Act 1998, which created the devolved institutions through which the Province is largely governed today, made no provision for the establishment of an Official Opposition with the appropriate rights and privileges. My noble friend has explained the reasons for that omission and this amendment would fill that constitutional lacuna.

It contains, as my noble friend has emphasised, no element of dictation or compulsion. It makes soundly based constitutional provision for the establishment of an Official Opposition, while leaving the Northern Ireland Assembly entirely free to judge when it would be appropriate to invoke this valuable addition to the constitutional order under which it conducts its affairs. In other words, by inserting provision for an Opposition into the 1998 Act, this amendment would supply the one element which is missing from Northern Ireland’s remarkable constitutional dispensation that followed from the Good Friday agreement, and so complete that dispensation. It therefore has great significance but it would do something else of importance as well. It would signal this Parliament’s support and encouragement for the evolution of Northern Ireland’s devolved institutions in the direction that public opinion in the Province increasingly favours: towards a state of affairs in which the Government are challenged in detail, day by day, by an Opposition who fulfil the great constitutional function prescribed for them of providing,

“a standing censorship of the government, subjecting all its acts and measures to a close and jealous scrutiny”,

as one leading late 19th-century authority on the constitution put it in resounding language.

Is it not right—is it not indeed the duty of the Parliament which brought into being Northern Ireland’s unique constitutional order—to support and encourage its evolution so that the devolved institutions that operate under it can carry out their work with ever growing success as the years advance? Your Lordships might consider what beneficial effect an Official Opposition could have had if they had been in existence today. They could have prevented the restrictions that limit so worryingly the operations of the new National Crime Agency in Northern Ireland—a matter that aroused grave disquiet when we discussed it in Committee. An Official Opposition might also have made it unnecessary for us to hold the debate on defamation which is to follow shortly.

Some say, “Leave the Assembly entirely free to follow its own course. Do not trouble it with advice from Westminster. Do not disturb it by strengthening the constitutional basis on which it operates by making statutory provision for an Opposition and placing that provision at the Assembly’s disposal for its introduction”. That does not seem to me the right, constitutionally sound approach. As my noble friend has explained, the Assembly could establish an Official Opposition under its own Standing Orders. However, that, in his own striking phrase, would be a grace and favour Opposition, existing through the good will of the Executive with their commanding majority in the Assembly. To work well, an Opposition would need stability and confidence. If they rested on a statutory basis under this Parliament’s legislation they could not be removed precipitously or capriciously. Let us now take the Northern Ireland Act 1998 to the point that is now needed by adopting this amendment.

In replying to the debate in Committee the Minister said:

“It is important that a formal Opposition should have sufficient status if they are to be effective in holding the Executive to account. The Government will reflect on what has been said in the debate and we will certainly return to this on Report”.—[Official Report, 3/2/14; col. 22.]

I hope at the end of this debate my noble friend will be able to tell the House that the Government will either adopt this amendment or will bring forward something similar at Third Reading.

[Lord Trimble (Con)]

My Lords, when the noble Lord, Lord Empey, tabled his amendment on this matter in Committee I added my name to it. I make clear that the absence of my name from this amendment today does not mean that I have changed my mind. I agree with what the noble Lord has said and I hope he gets a very positive response from the Minister.

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Moved by

[Lord Lexden]

3: After Clause 25, insert the following new Clause—
“Defamation
(1) Section 17 of the Defamation Act 2013 (short title, extent and commencement) is amended as follows.
(2) In subsection (2), after “Wales” insert “and Northern Ireland”.”

[Lord Lexden]

My Lords, I brought forward this amendment in Committee. I am reintroducing it because of the immense importance of the issues that it seeks to address and because of the urgent need to make progress with regard to it in Northern Ireland. My interest in Northern Ireland is of very long standing, stemming from the days when I lived there while teaching at Queen’s University in Belfast in the 1970s.

On 1 January, a new Defamation Act came into effect in England and Wales. By common consent, it will confer great benefits. Those benefits were three years in the making, they have the full support of all three main political parties, they were subject to careful scrutiny by a Joint Committee of both Houses and a full public consultation took place across the whole United Kingdom. The new, widely welcomed libel law has perhaps been more carefully thought through than any other piece of legislation in recent years, and your Lordships will immediately think of many other pieces of legislation that could usefully have been thought through with the care given to the new Defamation Act.

There is practically universal agreement that the new law strikes the right balance between protecting individual reputations and upholding freedom of expression. The benefits of this major, far-reaching reform will be enjoyed fully throughout England and Wales but not in Northern Ireland. For the first time ever, Northern Ireland now has a different libel law—the old law, which belongs firmly in the past because it cannot provide properly for the needs of the present, let alone the future.

In this immensely important area of our law, which directly affects so many people and so many publications, Northern Ireland has been split from England and Wales. The union of our country has been weakened. A common jurisdiction has been divided into two—not after careful consideration of the effects of such a rupture but without any inquiry whatever into the consequences. Whereas the new law in force in England and Wales was prepared with great care, the old law has been retained in Northern Ireland without any explanation being offered by the Northern Ireland Executive, who are responsible for its retention there.

The Executive do not even seem to have held a collective discussion on the matter, despite its importance. It was only through the persistence of journalists that it finally emerged last year that a single Minister was responsible for the Executive’s inaction because he had withdrawn a proposal that would have led to collective discussion in the Executive. Not a word of all this formally reached the Assembly, to which the Executive are accountable. It is an extraordinary state of affairs. I have the words of my old friend the noble Lord, Lord Kilclooney, about the danger of declining faith in the Assembly ringing in my ears.

The Northern Ireland Executive’s inaction is fraught with risk and peril for the community whom the Executive exist to serve. More than 6,000 people work in publishing and the broadcast media in this part of our country. Their jobs are now at risk. The costly hazards of the old law could drive out the media companies which provide those jobs. New investment by international companies at the cutting edge of the digital revolution—so badly needed to bring down unemployment and enlarge the Province’s shrunken private sector—will be seriously imperilled. The impact on ordinary people using the internet could be severe. The new defences to an action enshrined in the new law will not be available to our fellow countrymen and women in the Province. They could find themselves facing huge bills, long-running court cases and financial ruin for what they believe to be a piece of harmless content on the web.

Consider, too, the position of those who might have to use the law to protect their reputation. Fortunately, it is rare that people have to take out injunctions on grounds of a potential libel to protect their reputation, but it does happen and it can often mean the difference between protecting and destroying someone’s life. A man or a woman in Northern Ireland faced with such a prospect would, in order to make an injunction work, now have to take one out in four jurisdictions under very different laws: one in Northern Ireland under the out-of-date common law; one covering England and Wales with a modern regime; one covering Scotland; and potentially one covering the Republic of Ireland, where the law is different again. Failure to do so would mean that the injunction is not worth the expensive paper on which it is written. Such a prospect, and the huge costs involved, would be beyond the ability of most people other than the super-rich. Therefore the action—or rather, inaction—of the Northern Ireland Executive is, in effect, not only exposing ordinary people to great risk but removing the ability of ordinary people to use the law to protect themselves.

The old libel law that the Northern Ireland Executive has retained without explanation can have literally fatal consequences. Last July a senior NHS cardiologist told a committee of the Northern Ireland Assembly that a large American company had used the old law to prosecute him and suppress his research evidence that revealed serious problems with one of its products, used to close holes in the heart. He told the committee that while he was gagged by the old law some patients who had been forced to have faulty heart devices surgically removed had died as a result. He said that Northern Ireland must ditch the old law to stop such outrageous instances of the suppression of freedom of speech.

Yet the Northern Ireland Executive ignore such powerful evidence of the need for change. All they have been prepared to do is to seek a review by the Northern Ireland Law Commission, but all the relevant information is in the public domain already. A review could take a very long time. The Executive should back the Private Member’s Bill introduced at Stormont by the Ulster Unionist leader, Mr Mike Nesbitt, to replace the discredited old law with the new one. That they have so far failed to do. Freedom of speech, human rights and the integrity of the law itself: those three fundamental elements of our democracy and our free society stand at the heart of the crisis—I do not think that that is too strong a word—that my amendment seeks to address.

This issue cannot be evaded by maintaining, as the Labour Front Bench has sought to do, that devolution removes from the Government and this Parliament the duty or the responsibility to take action. My amendment is about freedom of speech above all. While devolution is a core value of modern British constitutionalism and the Sewel convention is the central principle within our current devolutionary arrangements, freedom of speech is an even more fundamental value of our constitution.

In conclusion, I have three questions for the Government and I would be grateful for my noble friend’s comments. First, will the Government secure from the Northern Ireland Executive a clear, public explanation of their inaction, which they have so far failed to provide? Secondly, will the Government establish and place on public record what, if anything, the Northern Ireland Executive now intend belatedly to do? Thirdly, if the Executive prove unresponsive, what further action will the Government take? I beg to move.

[Lord Lester of Herne Hill]

My Lords, I was unable to be present for the earlier stages of the Bill, but I have read all the debates, including the discussion on 3 February about the amendment then moved by my noble friend Lord Lexden, with the powerful support of the noble Lords, Lord Bew, Lord Black of Brentwood and Lord Empey, and now moved again by my noble friend Lord Lexden, with my support and that of the noble Lords, Lord Black and Lord Pannick. I noted then the welcome support from the Minister for the aim of the amendment, even though she was unable to support the amendment itself.

I have a particular interest—I say this with some trepidation, as I sit opposite the noble Lord, Lord Carswell, in case what I am about to say in any way disturbs him—in that my experience as leading counsel for the Irish News in the Northern Ireland Court of Appeal in the Convery case brought home to me, as nothing else had, the importance of persuading Parliament to strike a fair balance between the right to protect a good reputation and the right to freedom of expression.

The Irish News was sued for libel for a review written by Caroline Workman, an experienced food critic. She was highly critical of the quality of the food, drink, staff and smoky atmosphere at the Belfast Italian restaurant, Goodfellas. The owner, Ciarnan Convery, claimed that the article was a hatchet job, and the jury agreed. After a lengthy trial, he was awarded £25,000 damages and four times that amount in legal costs. Caroline Workman was subjected to detailed and lengthy cross-examination about the accuracy of her article. The experience was so traumatic that she gave up her profession as a journalist. Everyone at the trial was confused about the difference between truth, fact and honest opinion. We succeeded in the appeal but the state of the common law remained unsatisfactory. That is one of the factors that caused me to think that it was about time Parliament intervened.

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[Baroness Randerson]

My Lords, I know that the concerns expressed so eloquently by my noble friends Lord Lester and Lord Lexden are shared widely across the House. That has been obvious from the debate today. There can be no doubt, either in Westminster or in Stormont, about the strength of concern felt by many noble Lords about the failure so far to reform the law on defamation.

Many organisations and individuals have also highlighted concerns about the possible effects of there being differences in the law between Northern Ireland and England and Wales. For example, the noble Lord, Lord Bew, referred to the problems for the judiciary in trying to deal with an out-of-date law and the noble Lord, Lord Black, and other noble Lords referred to the impact on the media. As we have heard, there has been an active campaign in Northern Ireland involving civil society organisations, academics, the media and some political parties. It is not quite true, as the noble Lord, Lord Pannick, implied, that nothing has happened since the Defamation Act was passed here. Things have moved on in Northern Ireland. There have been responses; they just have not been very fast or gone very far. It is not true to say that nothing has happened, because the campaign has certainly had an impact. The noble Lord, Lord Browne, outlined that there is action now in the Assembly, both by Mike Nesbitt and with reference to the Law Commission. Some scepticism has been expressed about whether this will lead to a result or whether it is just a delaying tactic by the Executive. I will not speculate on that, but I put it to noble Lords that the Law Commission is a well-respected, expert institution and if there were any intention to use the commission to avoid the issue, it seems to me that that would be likely to backfire. We have also heard about the consultation and the Private Member’s Bill brought forward by the leader of the Ulster Unionist Party, Mike Nesbitt. Undoubtedly his consultation produced some valuable responses and information. These are real changes and developments that have happened in Northern Ireland since the Defamation Act was passed here.

As I have said on previous occasions, the Government believe that the Defamation Act makes some very important improvements to the law that was previously in place. It introduces a tougher serious harm test to discourage trivial claims and a single publication rule so that a publisher cannot be repeatedly sued about the same material. It addresses libel tourism and prevents claims being brought in the English courts where the parties have little connection to this country. It provides simpler and clearer defences to those accused of defamation—for example, the creation of new statutory defences of honest opinion and truth and a new statutory defence for publications on matters of public interest. The Act also takes specific action to help encourage robust scientific and academic debate. It is important that those improvements and advantages are emphasised time and again as that is the way in which the Executive in Northern Ireland will be encouraged to develop their own legislation on this and to adopt the Defamation Act for themselves.

The noble Lord, Lord Lexden, asked some specific questions. It seems a very long time ago now but it is important that I respond to them. In response to his first question on whether the Government will secure a public explanation from the Executive of their inaction, I repeat that this is a devolved issue and it is important that we respect that devolution. However, that does not mean that the UK Government have not asked the question and would not appreciate an explanation.

[Lord Lexden]

Assuming that the question has been asked, should the House draw the inference and the conclusion that no answer has been given to the Government—no answer to the people of Northern Ireland, no answer to those in this House who have raised the question, and no answer to the Government either?

[Baroness Randerson]

It has been said several times this afternoon—more times than I can count—that the Northern Ireland Executive have not given any explanation. Of course, the most important group to which the explanation is owed is the people of Northern Ireland.

The second question asked by the noble Lord was whether we would establish what the Executive intend to do. I repeat that it is for the Assembly and not the Government to hold the Executive to account, and it is for the Assembly to seek an explanation. That goes along with my comment that the people of Northern Ireland are those to whom the Executive should be explaining themselves in the first instance.

In response to the third question put by the noble Lord, Lord Lexden, we have of course set out to the Executive what we see as the benefits of the Act and we will continue to discuss the issue. When my noble friend Lord McNally was Minister for Justice, he wrote to the Executive commending the Act, and I am absolutely sure that the Executive will in due course become aware of our debate this afternoon.

Therefore, the Government have been active in encouraging the Executive to consider the need for change. Prior to the introduction of the Defamation Bill before Parliament, there was contact at official level to establish whether the Executive wished to seek the approval of the Assembly to a legislative consent Motion. Following completion of the Bill’s passage, as I said, my noble friend Lord McNally wrote commending it to the Executive.

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[Baroness Randerson]

However, as was pointed out earlier this afternoon, Sinn Fein has a considerable interest in promoting free speech in Northern Ireland. I believe that my noble friend Lord Lester referred to the noble Lord, Lord Pannick, in that regard, as the two of them had worked together in relation to the broadcasting of Sinn Fein. It has an interest in the issue, but that probably goes beyond our debate.

I welcome the continued efforts made by the noble Lords, Lord Lester and Lord Lexden, on this issue. I am pleased that we have been able to continue our debate on this matter but regret to say that the Government are unable to support the amendment. I therefore urge the noble Lord to withdraw it.

[Lord Lexden]

My Lords, this has been a tremendous debate and I am deeply grateful to all those who have taken part in it with such vigour and authority. I reassure the noble Lord, Lord McAvoy, that it is purely a matter of coincidence that I so readily sit under the arms of the House of Orange. I must say at once that the views of certain members, particularly of the monarch of the House of Orange in the 17th century, played no part whatever in the views that I have formed.

The noble and learned Lord, Lord Carswell, in his particularly powerful speech spoke for us all when he urged the Executive to adopt the Defamation Act, and to do it quickly. Our debate was also enriched by his cautionary words, and those of the noble and learned Lord, Lord Hope, on the Sewel convention. Clearly that needs to be borne carefully in mind. As my great friend, the noble Lord, Lord Empey, said, the Government must be mindful of their wider obligations. That is the note on which we need to end.

My final question is this: if the Northern Ireland Executive fail to pursue this matter properly, what further action will the Government take? That is the note on which we should end. I have constituted myself into a kind of watching brief on this matter and I shall seek opportunities, by one means or another, to raise this fundamentally important issue from time to time in the House. I hope that we shall be able to note progress: it is extremely important that we keep a watching brief on it. On that note, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.