I understand that Mark H Durkan still hopes to introduce a private Member's Bill and to get it through all its stages in the remaining five days of the mandate. This Bill is the opposite. It is certainly not built for speed. It has been 3,106 days since Lord Black of Brentwood came to the Building to launch my consultation on the Defamation Bill. As this is the Bill's Final Stage, I thank him and some others. I thank the Lords Lexden and Empey for keeping the issue alive in the Palace of Westminster. I thank Jeff Dudgeon, Brian Garrett and Austen Morgan, who helped to shape the Bill, which, of course, flows from the Defamation Act 2013 in England and Wales. I thank the former members of the Northern Ireland Law Commission, particularly Judena Leslie and Dr Andrew Scott. Judena was chief executive, and Andrew was the academic who consulted deeply on the issue and then wrote the report that was published in 2016. I also thank Dr Mark Hanna from the school of law at Queen's University Belfast for his assistance recently.
I will not risk the wrath of the Speaker, who said in his written encouragement yesterday that it is not the norm for Members to name officials in the House. Therefore, there are about nine or 10 officials from the Bill Office, the Office of the Legislative Counsel (OLC) and the Department of Finance whom I will not name, but I thank them. I thank the Minister for allowing that engagement, which I found extremely useful. There is one official whom I particularly thank for his expert knowledge of the life and times of Kenny Rogers. That is an in-joke that you will have to ask him for an explanation for.
There have been a lot of developments over the past 102 months, including developments with regard to the passage of the Bill, not least at Consideration Stage, when the House decided that it did not wish to support my redefinition of the test of defamation as being one that caused serious harm. I accept the will of the Committee and the House in that regard. I also accept that Dr Scott, who has been monitoring the 2013 Act in England and Wales, has come to the conclusion that it has not delivered as was particularly intended.
Another development of late is the so-called SLAPP: the strategic lawsuit against public participation. SLAPPs have no legal definition at this stage, but, broadly, it is where somebody of wealth and potential influence brings forward a defamation case that, they understand, has absolutely no merit in law in order to frustrate publication that might be in the public interest. Given that the House has agreed, through the Bill, to place a duty on the Department to keep under review not only the workings of the Bill but developments in the realm of defamation, I hope that the Minister will confirm that SLAPPs will be part of that review.
The biggest impact of the 2013 Act in England and Wales — Dr Scott referred to this in his evidence to the Committee — is non-jury trials. It was described by Dr Scott in October of last year as having highly beneficial consequences. He said:
"The importance of this change — the move to judge-only trials — cannot be overstated."
I hope that, in agreeing to remove the presumption of jury trials in this jurisdiction, we will make it speedier, more easily understood and less expensive for plaintiffs to take cases of defamation.
My biggest regret is that we are not doing anything about the internet, where reputations are trashed minute by minute if not second by second, but I understand that I have failed to persuade the House of my proposals. Again, I hope that that will be part of the review that the departmental officials in Finance will undertake over the next couple of years. We also look to what other jurisdictions will be doing in this area because it is not just an issue for us, and it is not just a national issue. It is an international issue with which it is very difficult to grapple.
Dr Scott said that my Bill was far from perfect and was not a panacea, but it was a decent first step in the right direction. That is how I commend it to the House today. I am pleased that, with the Bill, I have achieved, I think, two things. The first is, hopefully, getting defamation law on the statute book if the House agrees today. The second is getting the issue of defamation on our political agenda for the next mandate. I leave my remarks there.
I thank the Bill sponsor for his opening remarks and for the oral and written briefing information that was provided to the Committee during Committee Stage. I thank the Minister for the information that his officials provided to the Committee.
As was indicated during the Consideration Stage debate, it is to a Member's credit that they bring a private Member's Bill to the Assembly. It is a lengthy and demanding process, all 3,106 days of it, and it can prove to be quite testing for the Member involved. The issues in the Bill were certainly important and included free speech; a free press; the excesses of social media commentary; and the protection of reputation. The Bill underwent quite a lot of changes during its passage. I think that all Members will welcome the conversion of common law precedents into statute and the requirement for a further review of those matters. The removal of the presumption against jury trial for defamation actions was a little more controversial, but all the debates have been useful and illuminating and certainly helped to inform the Assembly's consideration of the Bill. I will conclude by congratulating Mike on what is likely to be a successful conclusion of this legislative journey.
I welcome the opportunity to contribute to the Final Stage debate on the Defamation Bill. From the outset, Sinn Féin has been clear that we wanted to see reform in the area of defamation, and a number of factors made that all the more pressing. First, we have all witnessed how online defamation has become a serious problem over the past number of years. Social media platforms are awash with anonymous trolls hiding behind fake profiles who wish to harm and defame others with impunity. Our current defamation laws date back to the 1990s, and it is clear that they are ineffectual in dealing with those issues. Secondly, England and Wales reformed their defamation laws in 2013, resulting in widely varying libel laws among jurisdictions. The fact that eight years have passed since the 2013 Act presented us with an opportunity to analyse those reforms and to see what has worked and what has not. Thirdly, two reports have been published that are relevant to the discussion. The first one is from Professor Andrew Scott, and the second is from the Irish Government and was released a number of weeks ago.
The Minister indicated his intention to introduce a Bill once he had carried out a proper analysis to review all the evidence from England, and with the benefit of the two reports, to inform legislation that would meet the needs of people here. The sponsor initially proposed the Bill a number of years ago. I understand that he has a background in journalism and that he has experience in the subject. While it is fair to say that the Bill sponsor has been patient, I cannot help but feel that the Bill is still being rushed, even after that passage of time. The initial draft was a straight replica of the Defamation Act 2013. From our point of view, there are a number of issues with that Act that we do not believe should be introduced here.
There was much discussion about the serious harm threshold and how it raised the bar and made it more difficult for the man in the street to defend his reputation.
The 2013 Act has not had an impact on the growing issue of online defamation, and it could be argued that things have moved on since then and that the provisions for operators of websites are outdated.
We also highlighted our opposition to the removal of juries from defamation cases. We need to be very careful, particularly in this jurisdiction, when we begin to roll back from affording citizens the right to have a jury of their peers, rather than a judge alone, to decide their guilt or innocence. People have confidence in the justice system when they see that fairness is being demonstrated.
The Bill sponsor tabled an amendment that called for a review of defamation law within two years. That is welcome because, unfortunately, we do not have the luxury of time in this mandate to consider carefully all the available evidence from England or to digest the report recently published in the South, both of which would have informed a state-of-the-art and up-to-date Bill that met the needs of citizens and achieved the right balance between freedom of expression and the right to defend one's name.
Sinn Féin, along with others, was not convinced by a number of the clauses in the initial Bill. Some of those were removed at Consideration Stage. The Bill that we are voting on today has radically changed from the one that was initially presented to the House, and we believe that it has changed for the better.
The Bill will bring positive changes in a number of areas. The common law defences of fair comment and justification will be made into statutory defences of truth and honest opinion. There will be a statutory defence for matters that are in the public interest. The Bill will provide protection for academics and scientists. Any publications of an academic nature will be privileged, provided that they are peer-reviewed.
The Bill deals with any potential libel tourism that may arise in the future. After the 2013 Act, there was a fear that the North would become a libel hotspot, with throngs of wealthy individuals from abroad taking cases here to take advantage of our stronger libel laws. Although that did not happen, we do not see the harm in preventing it from happening in the future.
For the reasons stated, we remain opposed to the move away from jury trials. However, as it seems that a majority in the House is in favour of clause 7, we will not, despite our reservations, oppose the Bill's passage. The area of defamation law is fluid, and I have no doubt that it will not be long before we are back here debating defamation again. With that, I conclude my remarks.
I start by declaring an interest as the chair of the all-party group on press freedom and media sustainability, which has done some work in this mandate, although not as much in recent months as we would have liked. Hopefully, it will be re-established in the new mandate.
I am pleased that the Defamation Bill has moved to Final Stage, and I sincerely and wholeheartedly commend and congratulate my colleague on the all-party group Mike Nesbitt, who has championed this for a decade. The Bill is testament to his consistency and to his dedication to bring about reform in this area. It has been clear for a number of years that Northern Ireland's defamation regime was not fit for purpose, and, basically, that was the finding of Dr Scott's review. Once the Defamation Act 2013 went through in England and Wales and there were reforms in the Republic and in Scotland, it was fairly clear that we had become an outlier, frankly, in that we had a defamation law regime that relied almost exclusively on the common law and on interpretations of the common law that, according to an overwhelming amount of anecdotal evidence, academic testimony and industry experience — this is a critical part — had come to have a chilling effect on the operation of a free media in Northern Ireland.
This is the important point when we come to discuss these matters: virtually every media organisation that I have spoken to — our all-party group took evidence from some last year on the state of local media and areas for reform — talked about the effect of Northern Ireland's defamation law regime. Those organisations ranged from the small local weekly titles, selling a few thousand copies in rural areas of the region, to the BBC, which is one of the biggest journalism organisations in the world. A senior news executive from the BBC who gave evidence to the Finance Committee on the Defamation Bill was clear that Northern Ireland is a particular area of concern and that the law has a chilling effect on BBC reporting. That is not just on the reporting of a small weekly newspaper, although that is important too, because those newspapers hold to account all of us in the Chamber and in courtrooms and council chambers and, indeed, those local businesses that are engaging in sharp practices, but on what is, by some measures, the largest media organisation in the world. The BBC said that Northern Ireland's defamation law regime has a chilling impact on its reporting or that it is an area in which it is particularly aware of the risks to its reporting.
It was vital that we did something. The argument has been made that the Bill was a rushed job. Mr Nesbitt spoke previously and again today about how it took nearly a decade to get to this Final Stage, so that argument simply does not stand up. Indeed, the idea that we might be legislating in haste is answered in part by the review clause that is now in the Bill, which will allow the Assembly — we can assume and hope that people come back here to do their jobs after the election — and the Finance Department to review how it is working. I very much echo Mr Nesbitt's call for the review to look at what happens in the South of Ireland, because, as in many other areas, there is both an east-west and a North/South component to defamation law. We are a media market that consumes content from across the water and from across the border, as it were, so we need to ensure that our defamation law interacts properly with that. Another area that has been mentioned is strategic lawsuits against public participation. That is really important. We now have the review clause, and that has answered some of the concerns on that.
I would rather that the serious harm test had not come out. It has, but there are still many positive things, such as putting truth and honest opinion defences in statute. Creating a higher threshold for jury trial in defamation proceedings has been talked about, including by Dr Scott and Mark Hanna, as being particularly critical to removing the baleful impact that our current defamation law regime has on the free press and freedom of expression.
It is important to make again another point that I have repeatedly made in the debates on the Bill. Something that has come out as we have debated the Bill is how much we do not and cannot know, because the overwhelming amount of our defamation law has been in the common law and a huge amount of custom and practice in how defamation law operates is about conversations that happen before writs are issued. Those conversations happen between libel lawyers and legal departments, or, even before we get to that stage, between editors and journalists. That is perhaps the most chilling bit of all. I was made aware of a conversation between an editor and a journalist after which an important piece of reporting did not happen because of caution that was, frankly, not unrelated to the defamation law regime that we have in this place. We are doing something today to make that a little bit more manageable so that the balance is weighted in favour of freedom of expression and a free media. Given the issues that we know that our defamation law regime has created in this place for those areas, that is a positive step forward.
As I said, the Bill does not totally remove the right to jury trial for defamation law cases. It makes the threshold higher. It is important that we do not conflate jury trials in this matter with jury trials in criminal matters.
They are fundamentally different, and the average punter in the street would recognise that they are fundamentally different. There is, of course, a range of areas of civil and commercial law where it is very unlikely that the matters will ever get near a jury. The reform is not unprecedented.
In closing, I am very pleased that the Bill will pass into law. Of the things that I have done over the past couple of years as a legislator in the Assembly, my work on this Bill has been really important. Mr Nesbitt can be proud of the Bill and I very much hope that it secures safe passage.
At the outset, like Matthew O'Toole, I declare membership of the all-party group on press freedom and media sustainability. I will speak as the finance spokesperson for the Alliance Party. I am pleased to be able to give my support and my party's support for the Defamation Bill.
In too many areas, Northern Ireland lags behind the progress on these islands. Defamation law reform has been one of those areas. The opportunity to implement a legislative consent motion on the Defamation Bill that was passing through Westminster in 2012 was missed and rejected by the then Finance Minister, DUP MLA and also MP, Sammy Wilson. It is not surprising that the DUP voted against that Bill in Westminster. The DUP, alongside Sinn Féin, has played a significant part in diluting the content of this Bill. If people feel that this Bill is rushed, I would like to see a Bill that is proceeding slowly.
The removal of the serious harm test at Consideration Stage was very disappointing. The Bill that is before us is a vastly watered-down version of what was originally presented to the House in June of last year. It is disheartening that such a significant change to defamation law was rejected by the House. Previous engagement with the Bill sponsor suggested that he may have been open to tabling, at Further Consideration Stage, amendments to the Bill that would mirror anti-SLAPP mechanisms, which were recommended as part of the review of Ireland's defamation laws. That mechanism would have offered greater protection to weaker parties who are faced with groundless and exaggerated lawsuits from wealthy individuals. With the removal of the serious harm test at Consideration Stage, I am disappointed that that mechanism is not part of the Bill.
While I welcome the improvement to our defamation laws, I reiterate that we still have a long way to go to combat the abhorrent online abuse that we see so regularly on social media and other online platforms. I look forward to learning more about the Westminster online safety legislation and how best we can make significant and much wanted and needed change in that area.
One of the more significant changes that the Bill, if passed, will bring about is the removal of the presumption in favour of a jury trial in defamation cases. The presumption of a jury trial raises both the cost and complexity of defamation cases. I hope that reform of that regulation means that presumption of a jury trial will no longer hold back individuals from seeking justice.
As I have already stated, I am disappointed that the Bill had vital elements of reform removed during its passage through the Assembly. This was an opportunity to make significant change to defamation law in Northern Ireland, yet certain parties — namely the DUP, Sinn Féin and the TUV — voted them down. As Committee evidence showed, on a number of occasions, defamation cases have been used by wealthy individuals to intimidate those with limited access to resource or finance. This was an opportunity to create fairer access to justice for all, yet the Bill, as it stands, does not contain the reform that could change the narrative in that area.
Alliance will, however, support the Bill in the hope that a small change is better than no change at all. I urge all other parties to support the Bill as we take much needed action to update our defamation laws.
The Defamation Bill that has reached its Final Stage is the product of scrutiny by the Finance Committee and, latterly, of cooperation between the Bill sponsor, Mike Nesbitt, and my officials, who were supported by the Office of the Legislative Counsel. While there have been disagreements on aspects of policy, the Bill is, nevertheless, legally coherent thanks to that work.
I made no secret of the fact that, when I learned that the Bill's sponsor sought to bring a private Member's Bill to the House, I felt that it would be preferable not to simply copy a law from 2013 in England and Wales. Practice and policy in that area of law has moved on from 2013. We live in an age where people can be defamed every second due to social media. Therefore, we need to adapt our laws to meet that challenge. The Bill does not deal with these issues, but I accept that there are parts of it that will be useful.
Some of the content that I had concerns about from the start, most significantly the serious harm test, have been addressed. I remain concerned, however, about the removal of jury trials. Mr O'Toole said that it is not a removal but a raising of the threshold. However, the actual experience in England and Wales since 2013 is that there has not been a single jury trial in relation to defamation since the legislation was passed, so, in effect, it has had the same outcome. In my view, ordinary people whose reputation is destroyed as a result of falsehoods would be better served if their case were judged by their peers.
However, I do not intend to oppose the Bill. My preference and current intention is to develop bespoke legislation, to be introduced in the next mandate. That will draw on up-to-date research, including the recently published review of defamation law in the South of Ireland.
Mr Nesbitt raised the issue of strategic lawsuits against public participation — SLAPPs, as they have come to be known. I know that he was keen to have something in the Bill to deal with them, and I am sure that that can be considered in the context of the departmental review that appears in clause 11 of the Bill. I accept that they have the potential to be a relevant development in law, and I note the recommendations of the Dublin Government. I understand that the issue may be looked at elsewhere in these islands.
I am sure that the Department will properly consider SLAPPs as it commences a review of the law over the forthcoming period. Indeed, my officials have already begun that process. They have held discussions with counterparts elsewhere and will take particular note of the call for evidence that has just launched in England and Wales, as well as continuing their liaison with the officials in Dublin responsible for the consideration of SLAPPs there.
Despite my concern about the shift away from jury trials, I do not intend to oppose the Bill. My continued preference is that this law should be an interim law for defamation and that my Department will review the law, in line with the requirement placed on it in this Bill, with a view to developing further legislation for consideration in the next mandate.
I thank all the Members who contributed to the debate, particularly the Minister.
I accept the sensitivities with regard to jury trials, which the Minister and Mr McHugh both referenced. However, it is fair to say that not that many defamation cases go to trial in this jurisdiction and, of those that do, even fewer have a jury trial. Indeed, there are occasions when the judge dismisses the jury because it has become such a complex legal argument; but we shall see.
Currently, we are the only jurisdiction in the United Kingdom that has jury trials for defamation cases. As we know, the Justice Minister of the Government of Ireland, Helen McEntee, recommends to the Cabinet in the Republic of Ireland that they bring forward legislation to remove jury trials.
I thank everyone who spoke, including the Chair.
Mr McHugh has concerns about jury trials, and I agree with him that defamation is now on the political agenda, and it will stay there in the next mandate because it is an ever-changing and fluid area of work that we need to be looking at.
Mr O'Toole has embarrassed me for, yet again, having failed to declare my membership of the all-party group on press freedom and media sustainability. I apologise to the House for the omission. He mentioned his regret with regard to serious harm, as did Mr Muir. I, too, would have preferred serious harm to stay in the Bill, but it was the will of the House that it be removed. The Lady Chief Justice's office is looking at pre-trial protocols with regard to defamation cases. There is also the opportunity to look at alternative dispute resolutions. Perhaps the loss of the serious harm test will not be as impactful as some Members may think. It is an open question.
I leave it there. I do not think that we should let the perfect be the enemy of the good, and this legislation represents an advance in balancing these competing rights: the right to freedom of expression and the right to protect your reputation against unwarranted and untrue attack.
If I may, Mr Deputy Speaker, this will probably be my last contribution to the House in this mandate. There is, obviously, no certainty that it will not be my last contribution to the House ever.
I am thinking of every MLA, past and present, from over the past 11 years. To them, I reach out in solidarity and friendship. To everybody who is standing on 5 May, I wish godspeed. I commend the Bill to the House.
Question put and agreed to. Resolved: