Lord Lexden proposed that the following amendment be inserted into the Northern Ireland Miscellaneous Provisions) Bill:
3: After Clause 25, insert the following new Clause—
(1) Section 17 of the Defamation Act 2013 (short title, extent and commencement) is amended as follows.
Lord Bew, Lord Empey and Lord Black of Brentwood continued to lend Lord Lexden their support for his tabled amendment. Other Lords stood to support the move. All made compelling points in favour of forcing reform, especially Viscount Colville of Culross and Lord Lester of Herne Hill. Here what each said in turn about oppressively censorious politicians and the deleterious state of libel law in Northern Ireland that actually empowers and emboldens those politicians.(2) In subsection (2), after “Wales” insert “and Northern Ireland”.”
Viscount Colville of Culross shared two stories which gave material evidence to how libel laws have been used to intimidate journalists and misused to shield the powerful and corrupt. He made 3 points.
Firstly on the judiciary:
"I support this amendment and add my concerns to those of other noble Lords at the refusal of the Northern Ireland Executive to implement the Defamation Act 2013...
The failure to implement the Act is having a deleterious effect on free speech in Northern Ireland. Even before the Defamation Act 2013 was implemented in England and Wales, Northern Ireland was particularly blighted as a place where free speech could flourish. The conservative nature of the libel judiciary in Northern Ireland means that a judge has to decide that a jury would be perverse to decide a libel case in favour of one party or the other. This sets the bar very high for the prompt resolution of disputes and allows a plaintiff to say that matters must go before a jury. As a result, trials are lengthy and expensive, whereas, in England and Wales, the judge can, at an early stage, determine the questions of fact about whether a statement is defamatory on a simple balance of probabilities test, which considerably shortens the process."Secondly, protecting corrupt business persons:
"The disadvantages facing authors in Northern Ireland have been fully exploited by both politicians and putative plaintiffs. The BBC is one of the few organisations big enough to defy the threats of those who want to chill free speech and stop investigative journalism. My indefatigable and courageous colleagues who work on Northern Ireland’s investigative programme “Spotlight” find themselves under attack in a way that is hard to believe in the rest of the UK.
I cite two recent cases."One:
"In October 2012 “Spotlight” broadcast a programme called “Belize Oil” which investigated the business affairs of Susan Morrice, a Belfast-born businesswoman, now based in Denver. She raised money for an oil exploratory company called International Natural Energy. Astonishingly, the company struck oil in Belize and made millions of dollars. However, the class B shareholders—many from Northern Ireland—who were not professional investors, did not receive a penny in dividends. They sued Ms Morrice, who was found guilty in a Caribbean court of having siphoned off thousands of pounds of company money for her personal use.
As the programme was being prepared for transmission, the journalists involved were bombarded with daily, sometimes hourly, threats of defamation. After transmission, a libel writ was issued against the programme. Tens of thousands of pounds of licence payers’ money was spent as BBC journalists and lawyers prepared the defence case, only for Ms Morrice to drop the case. This is the woman who has Northern Ireland’s gas and oil exploration rights."Second:
"Likewise, in July last year “Spotlight” transmitted a programme looking at the history of a housing maintenance company, Red Sky, which lost its contract with the Northern Ireland Housing Executive. The company had been accused of poor workmanship and charging for work that it had not done. Prior to a meeting of the housing executive to reconsider the ending of the company’s contract, a DUP member of the executive, Jenny Palmer, told BBC’s “Spotlight” that the DUP Social Development Minister Nelson McCausland’s special adviser had put pressure on her to change her vote at a key housing executive board meeting and to vote in favour of extending the firm’s contract.
“Spotlight” made public part of an e-mail from the leader of the DUP, the First Minister, Peter Robinson, which was sent to the BBC prior to transmission. The e-mail warned the BBC that if it went ahead and broadcast the criticisms levelled against him in the programme, he would instruct a lawyer to begin libel action against the BBC. The programme was transmitted and included criticisms of him, but he did not follow up on that threat. Yet again, thousands of pounds of licence payers’ money was spent to defend the threat of that libel action. All the people I have spoken to felt sure that the public interest defence in Clause 4 of the Defamation Act would have been a great foil against those threats. Newspapers in Northern Ireland publish some brave reporting, but they do not have the power and the money to be able to defend themselves against those threats in the same way as the BBC.
It is not just the big media organisations which suffer the chilling effect on free speech from the libel laws of Northern Ireland. I have spoken to lawyers who read books for small publishers in the country to advise on possible libel risk. They tell me that, in Northern Ireland, the threat of libel is so great that they raise many more points of libel risk than they would when advising on publication in the rest of the United Kingdom.
As noble Lords have pointed out, there is no substantial political opposition in Northern Ireland, so in no other part of the United Kingdom is it so important that the media scrutinise the actions of politicians, yet this is the very place where they find it so hard to do so. I say to the Minister: now is the time to ensure that the major provisions of the Defamation Act are implemented in Northern Ireland, in the interests of transparency and democratic accountability."Lord Lester of Herne Hill:
"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.
The Minister may argue in her reply that the amendment of the noble Lord, Lord Lexden, would breach the Sewel convention. But that is just a convention. It is not enshrined in the Northern Ireland Act and has not been approved by Parliament. Parliament as a sovereign body retains full legal power to legislate on devolved matters. Normally the power would not be exercised in relation to a devolved matter without the consent of the Northern Ireland Assembly, but we are not dealing with a normal situation.
Since the Secretary of State will not use the power given by the Northern Ireland Act to require legislation on defamation to comply with the convention, it seems to me—the Minister will correct me in her reply—that the only course left is for Parliament to pass this amendment, or for the Northern Ireland authorities to do what they are supposed to do, which is to exercise their public powers in accordance with freedom of speech and the right to protect a good reputation.
Almost 50 years ago, when Parliament was debating the Race Relations Bill in 1965, two Conservative MPs tried to persuade the then Government to include religious discrimination in the Bill and to apply it to Northern Ireland. The Home Secretary—I think that it was Sir Frank Soskice—explained that the Northern Ireland Government had opposed the application of the Bill. Robert Chichester-Clark, the then Member for Londonderry, claimed that the safeguards against religious discrimination in the Government of Ireland Act 1920 were, in his words, “completely adequate”.
Another Ulster MP, Captain Orr, insisted that Parliament had,
“set up a subordinate Parliament representing the people of Northern Ireland. Surely that is the place to test the matter”
I do not want to dig up unhappy memories of those 50 years and their consequences in the Province, but I suggest that we have to learn from that experience. If the Minister is unable to accept the amendment or to use the power conferred by Section 26(2) of the Northern Ireland Act, I would ask her to indicate what possible measure she proposes instead to guarantee the right to free speech as well as the right to a good reputation across the Irish Sea.However, the matter of libel law is a reserved matter for the Northern Ireland Assembly. Therefore, as the Belfast Telegraph reported:
"Junior Minister Baroness Randerson said: "It is for the Assembly and not the government to hold the Executive to account"."Lord Lexden finished like this:
"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."Hansard minutes in full here.