Reforming libel law in Northern Ireland has been a painfully slow process over the years, but following an Assembly debate a few weeks ago, the possibility of modernisation is not quite as remote as it once appeared.
Reforming this particular area of law is a devolved matter for the NI Legislative Assembly, not the UK Parliament. Earlier this year, Mike Nesbitt MLA published his Private Members Bill which is designed to bring NI’s libel regime more in line with the rest of the UK.
Attempts to bring about any reform in the last decade or so have failed, due to historic opposition from some of the larger political parties in the Province. But when Mr. Nesbitt’s Bill was debated in the Assembly, members gave unanimous approval for it to proceed to the Committee stage.
This is good news for journalists and publishers operating in NI (as well as their lawyers!). Although NI’s law is similar to that in England (though not Scotland), there are significant differences, and it these differences which make life so difficult for journalists in this part of the UK.
But by the same token, it is these differences which make NI such an attractive place for Plaintiff to bring claims. There is a reason why Belfast is sometimes described as the libel capital of Europe; it is not an environment which encourages independent and investigative journalism.
I can give you a number of reasons why reforming the law would be good for freedom of expression, but for Mr. Nesbitt, a powerful driver for change is that:
“money was more important than the law in our current regime”
“just about every member agrees that in principle our laws are fit for reform, for upgrading and for modernisation”
Supporting the Bill, one member said a free press was “critical to our democracy” and that there was “clear anecdotal evidence that laws have a chilling effect on free speech“. And another said this issue was about “openness and transparency“.
However, before those in favour of reform get too excited, it is worth noting that although there was no opposition to the Bill proceeding to the Committee stage, the debate revealed that Assembly members are divided on the issue. Several prominent members made it clear that they are yet to be persuaded that there is any need for reform at all.
It seems likely that the Bill is going to be vigorously debated as it progresses through the legislative process. But it must be hoped that vigorous debate does not derail the reform process. We shall see.
Meanwhile, a different kind of reform of libel law is being considered by the Department of Justice in Belfast. Earlier this year, the DoJ issued a consultation paper on increasing the general civil jurisdiction of the County Courts across the board.
Buried deep within the paper was a suggestion that the County Courts should be entitled to deal with defamation cases with a value of up to £10,000. Is this an ill-thought through and wholly unworkable proposal? You might think that, I couldn’t possibly comment.
But last week, the Bar Council of NI (BCNI) did comment, by publishing its response to the consultation.
Although not entirely clear, it seems our learned friends are not in favour of the proposal. The BCNI said that it agrees that County Courts should not deal with defamation cases which have a value of over £10,000, if the general jurisdiction of the County Courts is increased to dealing with other claims with values of either £60,000 or £100,000.
But then it said that it does not accept that either of these latter two options is appropriate. So presumably, the BCNI actually opposes the Ministry’s suggestion regarding defamation claims.
No doubt all will be revealed when the MoJ proceeds to the next stage, but hopefully, the misguided attempt to have libel cases conducted in the NI County Courts will fall by the wayside.
And finally, back to Mike Nesbitt. In recognising the value of the work performed by journalists in the unique circumstances of Northern Ireland, he pointed out that as NI does not have an official opposition or a second chamber to scrutinise the work of the Assembly, the role of the media was “all the more important“.
This is a welcome recognition for the unique circumstances in which NI journalists operate. For my part, I had not quite appreciated that journalists are actually the official opposition in the Province – but now he’s pointed it out, it’s obvious.