Northern Ireland: Defamation Act 2013

Lord Stewart of Dirleton Excerpts

Monday 11th January 2021 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what recent discussions they have had with the Northern Ireland Executive about extending the Defamation Act 2013 to Northern Ireland.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, no recent discussions have taken place on this issue. The civil law of defamation is a devolved issue and the development of the law in this area is a matter for the Northern Ireland Executive. I understand that the Northern Ireland Minister of Finance recently updated the Assembly on this matter. He noted that work is under way to review defamation law, and this will inform legislative change under the next mandate of the Assembly.

[Lord Lexden (Con)]

During a debate on this subject which I initiated in 2013, I asked a question sent to me by a leading Belfast solicitor. More than seven years on, I will ask the question again. Why should the citizens and journalists of Northern Ireland not be afforded the same protection as those in the rest of the United Kingdom, whether they are expressing opinions online or holding government to account? Secondly, will the Government extract from the Northern Ireland Executive clear reasons—cogent and convincing reasons, I hope—for the long delay in extending the benefits of this landmark human rights legislation to our fellow countrymen and countrywomen in Northern Ireland, who have been given no explanation by the Executive?

[Lord Stewart of Dirleton (Con)]

My Lords, I respectfully echo my noble friend’s views on the benefits flowing from the legislation to which he refers. I remind the House that, under the Sewel convention, Parliament remains sovereign. However, the United Kingdom Government will not normally pass primary legislation relating to areas in which a devolved legislature has legislative competence, except with the agreement of that devolved legislature. The Northern Ireland Executive must have the scope to set their own priorities for legislation, but I can reassure my noble friend that the work on the law of defamation in Northern Ireland put in place by the Assembly recommenced in February 2020.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, what work has been done by the Northern Ireland Executive on updating the defamation laws in view of the fact that the Northern Ireland Law Commission has indicated that there are six times as many claims for defamation in Northern Ireland as in other regions in the UK, thereby highlighting the need to update our defamation laws?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Baroness has, to a certain extent, been answered by my answer to my noble friend Lord Lexden. Work on the matter recommenced as of February 2020. As to the statistic which the noble Baroness puts forward on the comparative number of defamation actions, I put the question to officials and am satisfied with the answer that, despite concern that a libel tourism industry might arise in the law of Northern Ireland, this has not taken place.

[Lord Garnier (Con)]

I declare my interest as a media law practitioner at the Bar of England and Wales and the Bar of Northern Ireland but not, as my noble and learned friend will be glad to hear, as a member of the Scottish Bar. That said, will he accept that, although the 2013 Act confuses the difference between a defamatory statement and one that is actionable, among other positive things it enacted the serious harm rule, the public interest defence, the website operators defence and the single publication rule adjusting the limitation period, and it widened the ambit of reporting provision? Will he further agree that, so long as the Act does not apply to Northern Ireland, freedom of expression and freedom to criticise those in positions of power and influence are curtailed in what is, and I trust will remain, an integral part of the United Kingdom?

[Lord Stewart of Dirleton (Con)]

My Lords, in relation to the matters raised by my noble and learned friend, although extension of the provisions of the Defamation Act 2013 might be desirable, existing common law and statute law in Northern Ireland, informed as it is by human rights considerations, is not so deficient as to curtail freedom of expression and the legitimate criticism of those in authority and in positions of power and influence. I note my noble and learned friend’s membership of the Bar of England and Wales and the Bar of Northern Ireland but not that of Scotland, and I hope that at some point in the not-too-distant future the opportunity may arise for him to complete a much-deserved triple crown.

[Lord Loomba (CB) [V]]

My Lords, it is now eight years since the defamation law was changed in England and Wales to bring about a fairer system, and it is nearly five years since the Stormont Executive commissioned a report recommending bringing Northern Ireland into line. Does the Minister agree that making the Northern Ireland legislation consistent is long overdue, and that not applying the serious harm test there is benefiting claimants over respondents and breaching the rule of law?

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord makes useful points in relation to the benefits flowing from this statute. I repeat my previous answer that the law of defamation is a devolved matter for the Northern Ireland Assembly. I am aware that work relating to a Bill of the sort that applies in England and Wales may shortly restart. Indeed, I can advise the noble Lord that similar provisions are currently under contemplation by the Scottish Parliament.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, the Society of Editors has made clear that meaningful reform of libel laws in Northern Ireland is part of a broader package of issues that threaten press freedom and freedom of speech there. There are the issues of media plurality, the use of private injunctions to try to stifle legislation and, more worryingly, continuous online abuse and paramilitary threats to journalists. Surely this is a shared responsibility between the UK Government and the devolved Administration. I understand that the Government are not discussing libel laws with the Northern Ireland Executive, but what are they discussing with them to try to resolve these problems?

[Lord Stewart of Dirleton (Con)]

My Lords, as I say, the matter is a priority for the Northern Ireland Assembly. There are discussions between it and the UK Government, albeit that I am not aware of their specific focus regarding defamation. It is a pleasure to reply to the noble Lord; I followed him in this place as I followed him at the Scots Bar, and it seems not too long ago that he and I were sweating over our books in Parliament Hall in preparation for our exams.

[Lord McNally (LD) [V]]

My Lords, I declare the interest that I was the Minister who carried through the 2013 legislation as Minister of State at the Ministry of Justice. I am pleased to have heard how well it has worked, and I pay tribute to Simon Singh and the late Lord Lester of Herne Hill in helping me to get that legislation through. I want to put a thought to the Minister. As he rightly says, this is a devolved matter but, remembering that it was the DUP that blocked the legislation last time, does he not think those who are most committed to the union would have a really vested interest in demonstrating that Northern Ireland was in step with the rest of the United Kingdom in important legislation such as this?

[Lord Stewart of Dirleton (Con)]

In my view, my Lords, commitment to the union is not best expressed by railroading the devolved Assembly into a particular course of action.

[Lord Caine (Con)]

My Lords, does the fact that, uniquely in these islands, Northern Ireland has a Government but currently no Official Opposition not place an even greater burden on journalists to scrutinise Ministers and hold them to account? To do that effectively, they need the same legal framework and protections as those in the rest of the United Kingdom. Would not the quickest route to achieving that be for the Northern Ireland Assembly to get behind the Private Member’s Bill on this matter that is shortly to be introduced by my Ulster Unionist colleague Mike Nesbitt?

[Lord Stewart of Dirleton (Con)]

My Lords, freedom of expression and the ability to hold Ministers to account on matters of public interest are of course of the greatest importance, and I am sure that the Northern Ireland Assembly will wish to consider the position carefully in considering that Private Member’s Bill and any measures that the Northern Ireland Executive may themselves bring forward.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed, and that brings Question Time to an end.