Official Report: Minutes of Evidence

The Deputy Chairperson (Mr D Bradley): I welcome Ken Millar, the acting CEO of the Northern Ireland Law Commission; and Andrew Scott, an associate professor at the London School of Economics and Political Science (LSE) and the project lawyer for the defamation project. Gentlemen, I invite you to make an opening statement.

Mr Ken Millar (Northern Ireland Law Commission): Thank you, Chairman. I have provided a short briefing note. If you want me to go through it, I will, but if folks have read it, I will jump straight to taking questions.

I should have mentioned in the note that Dr Scott, who is seconded to us from the London School of Economics, has been working on a part-time basis — one day a week — for the past year.

The Deputy Chairperson (Mr D Bradley): Can you give us a brief outline?

Mr Millar: Sure. The law of defamation was changed in the UK by way of the Defamation Act 2013. The Department of Finance and Personnel, the responsible Department here, invited the Northern Ireland Law Commission to assess the Act and determine whether it or any corresponding provision should be introduced in Northern Ireland. The Law Commission normally works to programmes of work that have to be approved by the Minister of Justice and the Attorney General. Therefore, after the various approvals were achieved, work started on the project in March 2014. Dr Scott was then seconded to us from LSE and has been working with a legal researcher and working on the project for the past year.

The Committee asked the Law Commission to come here last June to give a briefing on the workings of the commission overall, and the Chairman had a particular interest in the planned timetable for the project.

At that stage, the plan was that the consultation paper would issue in October, that we would get responses by the end of December and that the commission would then issue its final report with recommendations by the end of June. The normal method of working would have been to have a full commission, including a chairman, a High Court judge and four commissioners. They would have taken the responses from the consultation paper and made recommendations to the Department. The Department always had the call on whether to accept those recommendations, whether to pursue them, and so on. However, the evidence that I gave to the Committee in June was then overtaken by events in September, when the Budget cuts were announced. The Minister of Justice informed his Executive colleagues on 24 September that he had reluctantly decided to close the commission from 1 April 2015 and that he would ask his officials in the Department of Justice to ensure an orderly rundown and a smooth transition of the work, to include the early completion or transfer of the programme of work. That would have included the project on defamation. The underscoring of that was DOJ's view that, although law reform was desirable, in the context of the other cuts in its front-line services, it could not afford a Law Commission any more.

The defamation project was then thrown into a bit of disarray. We were in the final stages of getting a consultation paper ready. DOJ and DFP needed to establish the Minister of Finance and Personnel's view on wanting to get the project finished and to whom the responses would come back. That was all happening against a background of some uncertainty about whether the commission even had enough in this year's budget to enable this year's projects to be completed. We had uncertainty for a few weeks, but that was resolved in early or mid-November, and the consultation paper on defamation law was then issued. At that point, DFP also offered to fund a bit of additional resource to go into the project. It was obvious even then that trying to get the consultation out, get it back in by February and then have a complete report by the end of March was always going to be a stretch. Sometimes, after reports come in, Law Commission work can take six or nine months to report, depending on the depth of the consultation.

As it turned out, around 35 responses came in by 20 February. Some are quite substantive. Some heavy hitters have expressed their opinion quite forcefully, and Andrew can go into that if you wish. We are now at the stage at which we will not be able to issue a final report with Law Commission recommendations before the end of March. The additional resource that was suggested was, in effect, going to turn into one extra day a week or something for Andrew, who has other commitments in life. The Minister of Finance and Personnel has been informed in the past few days that the Law Commission will not produce its final report. By the end of March, we will produce the commentary on the responses that we have had, but we will not be able to make recommendations, which is the normal outcome of Law Commission work, on the basis that, on 31 March, the Law Commission will no longer exist in its current form.

I think that I have covered everything that I wanted to cover. I am happy to take questions either on the process or on the content of the paper.

The Deputy Chairperson (Mr D Bradley): Thank you very much. In the briefing paper, you indicate that the consultation received 32 responses. What are the respondents' key issues?

Mr Millar: Do you mind if I let Andrew answer that? He has had a brief run through the responses.

Dr Andrew Scott (London School of Economics and Political Science): I should say in advance that we are at an early stage in reviewing the responses, some of which, as Ken mentioned, are very substantial. That said, it is clear that there is, if not quite a consensus, a strong weight of opinion that reform is desirable. The preference of many is for the adoption of a set of proposals equivalent to those in the 2013 Act. Indeed, some respondents said little more than that they want the Act or its equivalent. Others reflected on discussions in the consultation paper and offered views on the possible revisions that we had set out. Although there is a near consensus in favour of reform, the contrary view was also strongly expressed. Unsurprisingly, the most contentious issues probably relate to section 1 of the Act, which concerns the serious harm test, and, beyond that, the desirability or otherwise of retaining a jury in libel actions.

The Deputy Chairperson (Mr D Bradley): The consultation ended on 20 February, and time is running out for the commission. Will you have enough time to analyse the responses?

Dr Scott: There is analysis, and there is analysis. By the end of March, we will be able to offer a review of the sort of thing that has come in and probably be able to highlight the key issues. In the meantime, the 2013 Act has been in operation for an additional six months in England and Wales, thereby providing additional material to draw on, particularly on the operation of section 1. By the end of this month, we are not going to be in a position to deliver a copper-bottomed review of the consultation responses, but we will be able to give insights at least.

Mr Millar: I will add to that, Chairman. One of the advantages of having the commission look at any area of law reform was that it brought an independent view to matters. Running out of road causes us a bit of a problem, but we will do what we can before the end of March. What happens to the work after that is still under discussion between DOJ and DFP. It has to be taken forward in such a way as to retain that independence, which was one of the reasons for the Minister of Finance and Personnel referring it to the commission in the first place. This is going to need a bit of thought, and DOJ and DFP are putting their minds to the question of how to handle the final stages of the project.

Mr D Bradley: You have just answered my next question. I was going to ask you where the work goes after the commission's tenure ends. You are saying that there is uncertainty as to whether it will go to DOJ or DFP.

Mr Millar: Yes, although I cannot answer for either of them. I am fairly sure that DOJ will say that it does not have the locus any more because it does not have a law commission any more. The responsibility for deciding whether to change the law on defamation certainly belongs to DFP. We need to complete this work, analyse the responses, make sense of them and decide what is now going to be acceptable. All of that is in the gift of the Minister of Finance and Personnel, however, and I think that there are people talking about how to handle that.

Mr D Bradley: When you have completed your analysis of the responses, can you furnish the Committee with it?

Mr Millar: I do not see why that should be a problem.

Mr Weir: This is probably a bit premature, given that you have agreed to provide us with your analysis of the responses, so I will try and keep it reasonably broad. You mentioned that you got 32 responses —

Dr Scott: I think that the number is 35 or 36.

Mr Millar: A few more have come in.

Mr Weir: Sorry. The issue has been highlighted by various sides of the press, and there is a range of what one might call "vested interests" on either side. Does the range of responses largely reflect the views expressed very publicly by certain sections of the legal community and high-level figures in the media, such as editors? Does it go much beyond that? Judging it on that basis, outside those who have a very clear-cut view or a vested interest, the issue does not seem to have excited too many members of the public.

Dr Scott: First, the sorts of interests that you described have certainly replied, and with some force. Beyond that, though, there are individuals — some from Northern Ireland and some from outside Northern Ireland — whose background, commitment or interest we cannot assess. All that we have is their name and their response. I do not want to overgeneralise, but those people tend to be supporters of the libel reform campaign. Their response either replicates that of the libel reform campaign or commends it.

It is also interesting to note that there are two blocks of response. The Media Lawyers Association submitted a very lengthy response. It is a UK-wide representative body for in-house lawyers of media organisations. Various media organisations have referred to that response and commended it to us, in some cases adding slightly more of their own view. A second tranche of responses reflects the libel reform campaign's submission. In general terms, both are keen on reform along the lines of the 2013 Act. The Media Lawyers Association had very much more to say about what we presented in chapter 5 of the consultation paper as an additional reform option. The libel reform campaign emphasised the 2013 Act, while reflecting on the potential value of other reforms set out in the consultation paper. The two things are not entirely concurrent.

Mr Weir: I do not want to drill down too much, because, as I said, we are dealing just with generalities at this stage. Have you had any submissions from academic institutions in Northern Ireland, for instance? What level of submissions has there been from academia?

Dr Scott: In advance of publishing the consultation paper, we conducted a survey — not a scientifically rigorous survey, but a survey nonetheless — of opinions held by faculty members of the two main universities in most of the schools likely to be affected by libel issues. We received a measure of response. In addition, off the top of my head, we had two or three responses from academics and/or scientists to the consultation. They tend to be in favour of reform.

Mr Weir: This is not at the broadest level, but I think that one of the concerns raised was around academic freedom and whether particular things would be challenged. You have effectively gone out to consultation twice and got two or three responses from academics. It does not necessarily suggest a huge weight of concern.

Dr Scott: On one level, you can make that point, but, on another level, the people who have responded make their point very strenuously.

Mr Weir: People making a very strenuous point do not necessarily demonstrate a vast weight of concern.

Dr Scott: Again, this is a generalisation, but, among respondents generally, there is very little gainsaying of the need for reform to reflect the position of academics or scientists. I cannot think of anyone who said that reform was not desirable or who was not at least sanguine about reform.

Mr Weir: Presumably, the bulk of responses came from people who are effectively lobbying for one side or the other.

Dr Scott: That is probably accurate.

Mr Cree: A lot of good work has obviously been done. Would you care to hazard a guess on just how long it would take after the analysis of the consultation responses to do a final report? What sort of broad-brush —

Mr Millar: If the commission had been continuing in existence, perhaps a maximum of six months. I say that as an interim CEO and a non-lawyer who has not gone through the process. The commissioner who has been overseeing this would, I think, say that six months is as short a time as it could be done in.

It would be months, however, not years. As Mr Weir suggested, the responses were in blocks of what we might have been able to predict. If there is anything new coming out of it, we have not got to that stage yet. I would have thought turning that analysis into recommendations would take until September or something of that order.

Mr Cree: That is a bit of a shame. It is a pity that we just did not adopt the 2013 Act at the time.

Mr Millar: You could not expect me to comment on that.

Dr Scott: That suggestion begs the question of whether the 2013 Act is adequate. At least in some respects, there is a suggestion that parts of it are problematic. I think that I am right in saying that, to date, in England there have been three cases that have interpreted section 1. On the interpretation offered in the first of those cases, section 1 was not doing what it was supposed to be doing in line with the statements made by Ministers who introduced the legislation in the first place. The latter two of the three cases seem to have moved the interpretation of section 1 slightly in a more favourable direction, and so it may cause fewer problems than one thought it would have at the time that we published the consultation paper.

Mr Cree: I suppose that the benefit of coming to it a little bit late is that you see the difficulties in the outworking. However, we have always followed the measures that applied in England and Wales. Is that not true?

Mr Millar: Yes. I think that the issue with the timing has been important. Even as a layman looking at those cases, I can say that it is obvious that that part of the new GB Act is going to be problematic. In a sense, going from the frying pan into the fire would not necessarily be a good idea if something better can be done. It is a question of whether something better makes us different, but different in a different way —

Mr Cree: Yes. Proved different.

Mr Millar: — is a road that is worth pursuing.

In the short time that I have been involved with the project, I have found it to be a very interesting area. I hope that the debate will at least get to a conclusion, whatever way it goes after that. It would be nice to see the work completed.

Mr Cree: Indeed. I thank you for the good work that has been done.

Mr Millar: Thank you very much.

Mr McCallister: I have a couple of points to make. It seems clear from some of your presentation, Andrew, that there is a fairly live debate around whether reform is desirable. However, the bulk of the argument seems to be coming down on the side of some level of reform being desirable.

As Leslie said, we could have adopted the 2013 Act. We also had a private Member's Bill on that issue in train at one time, and the Committee took evidence on that and from the Bill's sponsor.

I am a bit concerned that we have got to a point at which it now seems to be entirely in the gift of the Minister whether we do anything. If we are to reform the law, legislation should go through the Assembly. That is where it should be decided what we do and how we do it, and I would prefer all the options to be looked at. I am as keen as anyone to get as workable and as practicable a law as possible. There may be issues with section 1 that are problematic in England, but, if we make changes, I suspect that our law will not be dramatically different from what the English have done.

Mr Millar: To be clear, had it finished its work, the Law Commission's reports are always recommendations to the main Department anyway. In effect, the Minister of Finance and Personnel would have had the call on whether those would be implemented.

On independence, the Minister has been quoted in the press as being completely open-minded on this. That comes back to the point that we made earlier about finding a way in which to enable the last piece of work to be completed in what seems be an independent way, as opposed to it being done by people who might be seen by others as having a vested interest in whatever path comes out of it. That is the problem that DOJ and DFP officials will face over the next few months. They must find a way in which to get the work completed that still carries that air of independence.

Dr Scott from LSE has no axe to grind, and that was one of the attractions of having him come to work with the Law Commission in the first place. Let us hope that the path is to keep the work independent, keep the debate open and have the work completed, wherever it gets completed.

Mr McCallister: Whereas at the minute, you will effectively be winding up at the end of the month.

Mr Millar: That is correct.

Mr McCallister: To complete the work, as you said in your response to Leslie, you would probably need more time.

Mr Millar: A few more months.

Mr McCallister: Until some time in the early autumn.

Dr Scott: What has been interesting about the responses is that there were not very many surprises. What we proposed in the consultation paper could really be broken down into three areas. There was always the option of simply picking up the 2013 Act and running with it. Leaving that to one side, we set out a number of possible tidying changes to the 2013 Act and suggested places in which the drafting of the legislation might have been improved somewhat. A second category of queries was raised, of which section 1 was one. What was asked was whether what is in the 2013 Act was desirable. In addition, we offered a further option, which was really designed to try to take a lot of the business of libel law out of the court, thereby reducing the cost and making it more accessible to claimants and defendants who do not necessarily have the greatest means. Much of the critical commentary was on that additional option. In the first three areas, we were looking only at what we were expecting to hear from the consultation, and that work can be done fairly quickly.

A fourth part is really a question of assessing the accuracy or, in a very general way, credibility of the criticism of the fourth option or the fourth strand of options. That criticism came through in the Media Lawyers Association's response, and it is question of whether the problems it raised are in fact problems and whether they are of such a scale that the legislation would need to set to the side.

The desirability of getting a scheme that allows for claimants and defendants either to defend properly what they have published or to vindicate their reputation quickly and easily is significant and great. If that could work, it would be fantastic. If it does not work, because of the sorts of things that the Media Lawyers Association has raised, we need to confirm that as well.

Mr Ó Muilleoir: Andrew and Ken, thank you. Ken, it is always good to see another Ó Muilleoir here.

This is not really a question about the consultation but about what has happened since the introduction of the 2013 law in Britain. Has there been any divergence? Has there been any libel tourism? Has anyone taken cases here rather than in London, Birmingham or wherever? Is there any sign that people have noticed that we have different legislation in place?

Dr Scott: As far as I am aware, there is not a great swathe of people running to Belfast. A very strong concern was expressed by the Media Lawyers Association and a number of media organisations that that is a prospective future if the divergent law between Northern Ireland and England and Wales continues. Whether that is a hypothetical concern or a very real one is open to empirical testing in the future.

Mr Ó Muilleoir: Is that a good thing or a bad thing?

Dr Scott: From the media's perspective, it would be a bad thing if they had to address two different types of law. It could also be a bad thing for Northern Ireland, in the sense that it might prompt some organisations to reconsider publishing in Northern Ireland. That is certainly what they say they might be pushed to do. Whether that is credible is again open to question.

The Deputy Chairperson (Mr D Bradley): Gentlemen, thank you very much. We would appreciate the paper on the analysis of the responses at your convenience. Thank you very much

Members, I seek agreement to write to DFP and DOJ to seek a response and advice on the next steps regarding the Defamation Bill. Are members agreed?