Lord Lester of Herne Hill QC, the original architect of the Defamation Act 2013, delivered the opening speech to the Hong Kong University Conference Media Law Policy in the Internet Age on October 18 2013 here, 'Free Speech, Reputation and Media Intrusion: Law Reform Now'.
"A difficult problem has arisen since the enactment of the Defamation Act. Under our system of devolved government, the Westminster Parliament may legislate in this area for England and Wales, but not for Scotland and Northern Ireland to whose governments and legislatures public powers has been devolved. Defamation law is a devolved subject. Historically, the law of defamation has been the same in England and Wales and Northern Ireland. Scotland’s government has adopted some very limited aspects of the legislation. Northern Ireland’s coalition government of opposing parties indicated initially that it had no plans to review the law of defamation. It was ironical that the DUP, committed to keeping Northern Ireland within the UK should decide to sever Northern Ireland from England and Wales in this area of law. During a debate in the House of Lords in June, reference was made to the view of a senior Belfast lawyerwho wrote this:
“The refusal of the Northern Ireland Executive to extend to Northern Ireland the remit of the Defamation Act, and the legal clarity and free speech protection it brings, is quite simply unjustifiable. 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? Why, as the rest of the United Kingdom embraces the digital revolution, should Northern Ireland be confined by archaic and unfocused freedom of expression laws, some of which were conceived when computing was in its infancy?
“The development of a dual defamation system may also have consequences extending across the Irish Sea. Publishers and broadcasters may be forced to sanitize their once uniform national output lest they fall foul of the antiquated laws still operating in Belfast. Investigations in the public interest which concern well-funded organizations will effectively be subject to censorship by the back door, as regional publications will be unable to report on matters for fear of court action in this libel-friendly, free speech limiting UK outpost.”
This impasse undermined the very essence of the new statutory scheme, fashioned with such care and democratic scrutiny. It would mean that the media, publishing across the UK, would have to comply with the antiquated common law and its chilling effects in Northern Ireland and modern statute law in England and Wales. Publishers cannot choose to publish only in England and Wales, and the Northern Ireland judiciary would be faced with intractable problems in reconciling the situation with the right to free speech, protected by the Human Rights Act and the Northern Ireland Act.
The Secretary of State for Northern Ireland has the power to require the devolved executive to introduce legislation to comply with the Convention right to free speech, but is understandably hesitant about using this power.
There is vigorous political debate in Northern Ireland about whether to enact matching legislation, whether by means of a Private Member’s Bill or otherwise. On 13 September 2013, leading authors and other from Northern Ireland and the Irish Republic wrote to Northern Ireland’s First Minister, Peter Robinson, and his deputy, Martin McGuinness warning that “Northern Ireland may become a new forum for libel bullies.” The letter said:
“As writers, we are particularly concerned about the impact of the unreformed libel laws on the freedom to write: biographers, historians, journalists and even novelists will remain vulnerable to libel actions on trivial and vexatious grounds. The mere threat of a libel action is enough to discourage publishers from touching controversial subjects.”
There is a ray of hope. Simon Hamilton, the new Finance Minister, has commissioned an official report by the Northern Ireland Law Commission on whether the legislation should be extended to Northern Ireland. On 19th September, Mike Nesbitt, the leader of the Ulster Unionist Party, launched a Private Members’ Bill to extend the legislation. However, the Bill is unlikely to proceed further. It remains to be seen, therefore, whether the problem will be resolved - either politically or by the courts. There may also be a similar problem about applying the Defamation Act to Scotland."
Lord Lester speech in full here. Video here. On the issue of the decision to veto the libel reform, Lord Lester QC had previously said:
"I can’t think of any good reason to do that, unless it’s because politicians in Northern Ireland want to be able to sue newspapers more readily, which doesn’t seem to me to be a very good reason."He said here that:
"It is a very good step for lawyers in Northern Ireland who want to make a fortune out of an archaic libel law... Those lawyers will profit, but it will be at the expense of free speech for the people of Northern Ireland."