As we noted in March, the Defamation Act 2013 will not extend to Northern Ireland. This is slightly surprising. In contrast to Scotland – where the law of defamation has never been the same as in England – the law in Northern Ireland has always, been in all relevant respects, identical to that in England in Wales (see Olivia O’Kane’s post here). Why then has the Northern Ireland Executive not passed a “legislative consent motion” to extend the Defamation Act to the province?
In March 2013 the Newsletter reported the Northern Ireland Department of Finance and Personnel as saying
“The origins of the Defamation Bill are to be found in a coalition promise to review the law on defamation in England and Wales. “The extensive consultation was confined to that jurisdiction and the provisions in the Bill have obviously been developed against the backdrop of the civil justice system of England and Wales. The department considered the extension of clause 7 of the Bill (statutory privilege), which could have been applied in the Northern Ireland context. However, it was unable to secure an Executive decision within the required timescale and a legislative consent motion in respect of that clause was not, therefore, pursued.”
However, Adrian Rutherford, reporting in the Belfast Telegraph, suggested the decision was taken by Peter Robinson and Martin McGuinness’s department, the Office of the First Minister and the Deputy First Minister (“OFMDFM”).
The Muckraker collective decided to pursue the issue further and put in a Freedom of Information Act request to OFMDFM, asking for documents showing any correspondence from the First Minister, Peter Robinson, and the Deputy First Minister, Martin McGuinness to regarding or mentioning the Defamation Act. The request was declined the information on ‘public interest’ grounds. The department’s reply is here: Defamation Decision FOI.
“The Finance Minister took a unilateral decision to halt the extension of libel reform to Northern Ireland without consulting other parties on the issue“.
The article goes on to say that
“On May 22 last year Mr Wilson submitted a paper on the legislation to the Executive. Normally that would be passed to the Office of the First and Deputy First Ministers (OFMDFM) where DUP and Sinn Fein backroom teams would table it for discussion. In this case, however, Mr Wilson withdrew it before it was reached by the backroom teams. “It wasn’t in the system very long… and someone somewhere prompted Sammy to withdraw it without consideration,” an OFMDFM source said. It was withdrawn in mid-June 2012″.
The report goes on to say that a number of Assembly members are seeking to have the issue debated on the floor of the assembly.
There a number of possible theories to explain the failure of the Northern Ireland Executive to take steps to extend the Defamation Act to Northern Ireland:
- That Northern Ireland politicians prefer more “claimant friendly” libel laws to protect them from criticism.
- That the prospect of “libel tourists” going to Northern Ireland (as opposed to London) has attracted lawyers in Belfast who have, as a result exercised, political influence to ensure that the Act is not adopted in the province.
- That, having conducted a thorough analysis of the changes brought about by the Defamation Act, Northern Ireland politicians concluded that its negative impact on the Article 8 right to reputation outweighs its positive impact on the protection of the Article 10 right to freedom of expression.
- That some Northern Ireland politicians have an instinctive distrust of any proposal coming from the Westminster Parliament.
We will not comment on the relative plausibility of these theories – although, we suspect that anyone believing that libel tourists will flock to Belfast will be sorely disappointed (as has been pointed out before on this blog, such tourists are a rarity even in London).
Nevertheless, whatever the reason for the failure of the Northern Ireland Executive to act, it is difficult to see any rational justification for a divergence between the law of defamation in England and Wales and that in Northern Ireland. In the interests of predictability and consistency, if nothing else, the Northern Ireland Executive should now agree to extend the Defamation Act to cover claims in the Courts of Northern Ireland.