Last Tuesday, Lord Lexden alongside Lord Bew and Lord Black tabled an amendment to the Northern Ireland (Miscellaneous Provisions) Bill to extend the Defamation Act 2013 to Northern Ireland. Seeing the impact on freedom of expression and the opaque manner in which this issue has been handled, respected parliamentarians spoke up for the amendment. The government refused to accept the motion and it was not put to the vote, but the debate itself had the desired impact. The amendment was a direct challenge to the DUP who feel that they alone can decide on libel reform for Northern Ireland.
It remains the case that very few know why the Defamation Bill does not apply to Northern Ireland, an outrageous decision that has created a gaping loophole in the government's attempts to reform the UK's libel laws. As I noted in the Huffington Post, the humiliating rebuke by the United Nations Human Rights Council to the previous state of the libel law in England, Wales and Northern Ireland led to:
“the three major political parties to make a commitment to libel reform in their general election manifestos in 2010. They didn't qualify this bold commitment with "except in Northern Ireland". Why would they? The law in Northern Ireland has always been substantially the same as the law in England and Wales, that is until the government reformed it. At no point in the parliamentary debate did the government signal the Defamation Bill would not apply to the citizens of Northern Ireland.”
There was cross-party support by Peers for the amendment and for the need for libel reform in Northern Ireland. Much was made of the DUP’s single-handed veto of this important legislation. It cannot be said enough, former Finance Minister Sammy Wilson withdrew the paper relating to the Defamation Act, meaning it did not receive consideration by either the Northern Ireland Executive or the Northern Irish Assembly. Parliament told to the DUP that while justice may be a devolved issue, human rights are not. This echoes previous criticism that the approach taken by the DUP may not be compliant with international human rights norms.
Lord Pannick QC said:
"[T]here may possibly be something unique about free speech and reputation in Northern Ireland that demands the retention of laws that purport to address communications but were developed before the internet, blogs and tweets and, in many cases, before the invention of radio and television - but I doubt it. No credible explanation has been provided as to why Northern Ireland law should remain in the dark ages."
Lord Alderdice added:
“[The concept of devolution] does not seem to be a matter of saying, "We're devolved; we don't have to give any kind of explanation to anyone for what we do. We can simply make arbitrary decisions". It was not ever intended for that purpose. It was intended in general terms, and in particular in Northern Ireland, to ensure that decisions were made on a cross-community basis”
Other Peers highlighted the very real impact on freedom of expression and the cost in economic growth that not applying the new law would have. Lord Black expressed his concerns:
"There is the damage that could be done to the creative economy in Northern Ireland and to academic freedoms in higher education as well as the real dangers of media plurality ... Already Northern Ireland is becoming an anarchic force in UK-wide media policy. It is opting out of defamation laws which in many ways will punish ordinary people and is clinging to an oppressive, outdated regime."
Viscount Colville gave evidence of how the law of libel was being used against investigative journalism:
"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."
And further, on the matter of opposition:
"[T]here 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."
Lord Lexden argued that the non-application of the law will divide the common jurisdiction between England and Wales and Northern Ireland:
"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."
Peers felt that the unreformed law of Northern Ireland could encourage forum shopping and lead to a series of judgements at the Supreme Court where Northern Ireland’s archaic law was scrutinised for its compliance with the Human Rights Act.
Lord Bew argued:
"[T]he problem for the Northern Ireland judiciary is that it is now stuck with the interpretation of an antiquated law, while the rest of the United Kingdom, in particular the media, will be operating fundamentally according to a rhythm set by the Defamation Act 2013.
There is a sense within European law in general that forum shopping is not something to be encouraged, and yet Northern Ireland is stuck with legislation-our old libel law-which actually encourages forum shopping."
Lord Lester added, contrasting England and Wales with Northern Ireland:
"it can in a particular case be left to the poor old courts-the Northern Ireland courts and, if necessary, the Supreme Court of the United Kingdom-to try to solve the following problem. What are they to do when a newspaper or other periodical is published across the United Kingdom and they find themselves confronted by an archaic, uncertain, unsatisfactory, chilling old common law of libel ... applying to Northern Ireland, and meanwhile in England and Wales they find a modern, well balanced, new defamation code? What are the courts to do? It is unfair on the judiciary to leave it to solve the problem because Parliament will not solve it itself."
The former Lord Chief Justice, Lord Carswell, praised the hard work of those behind libel law reform and contrasted this with the failure of the Northern Irish Executive to bring forward reform of the law:
"My Lords, the Defamation Act 2013 was wholly admirable legislation which righted and rebalanced the law of libel and slander in a thoroughly excellent way. It needed to be done and had been required for some time and I applaud the efforts of those who supported its enactment and who pioneered the hard work required to get it into legislation. I cannot understand, and I can think of no sensible or acceptable reason, why the Northern Ireland Executive and Assembly have failed to adopt the Act and put it into effect."
Lord Empey suggested a solution to the problem, that the Northern Ireland Assembly would pass a legislative consent motion applying the Defamation Act to Northern Ireland arguing:
"Of course, human rights have an international obligation, which is excluded from the devolution settlement and reserved to Westminster.
There is a simple solution to this, and I hope that the pressure from all sides in this House will direct us towards the solution, which is for the Northern Ireland Executive to encourage the Assembly to pass a legislative consent Motion. Alternatively, if that opportunity has now passed, the Assembly has the Private Member's Bill in front of it; it could take over that Bill and introduce it very quickly. That is the course of action that I hope it will follow."
As much as a minority in the Northern Ireland Assembly may wish, this issue will not go away quietly. The Libel Reform Campaign will continue to put pressure on politicians to move quickly to reform the law. The Northern Ireland Law Commission inquiry is a strong step in the right direction, but while the citizens of Northern Ireland remain subject to an archaic law (elements of which pre-date the light bulb), then freedom of expression in the province will remain chilled.
Mike Harris (@mjrharris) is an advisor to the Libel Reform Campaign and English PEN.
Our previous reports and articles on the House of Lords intervention here, here, here, here, here and here.