Unpleasant odour coming from NI libel law says QC

David Pannick QC, a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords wrote in the Times on July 18 2013. He said here:

"The recently passed Defamation Act 2013 will introduce much-needed reform of an area of the law that has become an anachronistic, obscure and unjustifiable fetter on freedom of speech. It comes into force later this year. But not in Northern Ireland. The reluctance of Northern Ireland politicians to adopt the 2013 Act will, as a libel lawyer would say, lower them in the estimation of right-thinking people.

The coalition agreement promised a review of the law of defamation. The Government published a draft Bill, which was the subject of public consultation and pre-legislative scrutiny. This led to all-party agreement on the necessary reforms.

The Act will allow a libel claim to be brought only if the claimant can show “serious harm” to his or her reputation. The defences of truth, honest opinion and publication on a matter of public interest are clarified.The application of libel law to the operators of websites is addressed. Peer-reviewed statements in scientific or academic journals are given greater legal protection. 

Limits are also placed on libel tourism, that is the ability of people not domiciled in the United Kingdom or another member state of the EU to bring legal proceedings in our courts. And the Act removes the presumption in favour of jury trial for libel claims. 

All of these necessary, valuable and essentially uncontroversial reforms will help to secure a much fairer balance between freedom of expression and the protection of reputation. 

Shakespeare’s Iago complained that “he that filches from me my good name /Robs me of that which not enriches him /And makes me poor indeed”. Modern-day Iagos will now find it much more difficult to make themselves very rich indeed from awards of compensation or to abuse the law of libel to deter criticisms that are justified or in the public interest. 

David Pannick QC then looked at the specific actions taken by Sammy Wilson, the Minister with portfolio responsible for this devolved matter:

But these welcome reforms are not being adopted in Northern Ireland. Defamation, like other civil law issues, is a devolved area. So the law on this topic is a matter for the Northern Ireland Executive and Assembly. The Westminster Parliament remains sovereign, but will not normally enact primary legislation on devolved matters except with the agreement of the Assembly in the form of a “legislative consent motion”. 

Because of concern about the absence of such a motion, the Minister of State for Justice, Lord McNally, wrote a detailed letter to the Northern Ireland Minister, Sammy Wilson, in May explaining the purpose and effect of the new Act. 

Mr Wilson replied on June 26: 

“I have no plans to review the law on defamation in Northern Ireland.” Martin McGuinness, the Deputy First Minister, told the Assembly last month that the question has “never appeared on the agenda of any Executive meeting”. 

 David Pannick QC then looked at the debates in the House of Lords:

In a debate on this subject in the House of Lords on June 27, led by Lord Lexden, the damaging consequences of such inaction were spelt out. 

So the Northern Ireland public will not enjoy the same rights to free speech, courts will continue to apply antiquated legal rules and, as Lord Lester of Herne Hill emphasised, the United Kingdom Government will be answerable in Strasbourg for breaches of human rights principles that the 2013 Act was designed to rectify. 

Lord Black of Brentwood explained that publishers and other media companies will be reluctant to set up business in Northern Ireland, and will face the difficulty of either sanitising content for Northern Ireland publication or adopting a lowest common denominator approach to publications because of the risk of legal action there. 

Lord Bew added that academics at Queen’s University Belfast will not enjoy the same legal protection of their academic freedom as will be guaranteed in England and Wales. 

 David Pannick QC then drew some conclusions and asked some open questions:

There may, of course, be some justification for the reluctance of Northern Ireland politicians to bring the law of libel into the 21st century and to adopt the legal principles that have been widely welcomed in England and Wales. 

Perhaps there is 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 respects even before (in the words of the Ira Gershwin lyric) “they told Marconi, wireless was a phoney”. 

It is impossible to say why Northern Ireland is to be kept in the dark ages of libel law, since the Northern Ireland Executive is so reluctant to address the issue. 

But what can be said with some confidence is that libel lawyers often quote the biblical statement that “a good name smells sweeter than the finest ointment”, and a very unpleasant odour can be detected in the law in Northern Ireland.'