Official Report: Minutes of Evidence
Committee for Finance, meeting on Wednesday, 8 September 2021
Members present for all or part of the proceedings:Dr Steve Aiken OBE (Chairperson)
Mr Keith Buchanan (Deputy Chairperson)
Mr Jim Allister KC
Mr Pat Catney
Miss Jemma Dolan
Mr Philip McGuigan
Mr Maolíosa McHugh
Mr Matthew O'Toole
Mr Jim Wells
Witnesses:Mr Mike Nesbitt, Northern Ireland Assembly
Defamation Bill: Mr Mike Nesbitt MLA
The Chairperson (Dr Steve Aiken): We will now receive an oral briefing on the Defamation Bill from Mike Nesbitt. Come on in, Mike. I invite you to make your opening statement.
Mr Mike Nesbitt (Northern Ireland Assembly): Chair, thank you very much. I thank you and the Committee for your engagement, both members and staff. I value the opportunity to share my thinking and to field your questions, comments and, possibly, even concerns.
For me, this is simply about rights: your rights, my rights and the rights of the people whom we are here to represent. As is often the case with rights, we are not talking about a single, absolute right. We are talking about a number of qualified rights that, to some extent, compete. In this case, there are two rights, one being the freedom of expression and the other being the right to protect your reputation, both of which are qualified. When it comes to freedom of expression, I have heard more than one Member during my time here say, "You cannot walk into a crowded theatre and shout 'Fire!' when there is no fire". The qualification of protecting your reputation is there only to protect it from untrue, unwarranted or unjustified attack. If your reputation deserves to be trashed, it will be trashed.
Think about how we communicate. It has not really changed since the beginning of recorded time. We have verbal and non-verbal; we draw, we write and we speak. However, the media or platforms that we use to disseminate our communications sometimes change radically. We had the printing press in the 15th century, and the internet arrived in the last century. As our laws of defamation predate the invention of the internet, there is a prima facie case for saying that we need a deep-dive review of our laws. Thanks to three Executive Ministers, we have had that. Simon Hamilton, when he was Finance Minister, spoke to his Executive colleague David Ford, who was the Justice Minister. David, in turn, spoke to the erstwhile Northern Ireland Law Commission, which undertook a very deep consultation, resulting in Dr Scott's report. That was published in June 2016 and was signed off for release by Máirtín Ó 'Muilleoir, who had replaced Simon as Finance Minister. I met the chief executive of the Law Commission, Judena Leslie, and Dr Scott before they began their work, and they asked me whether I would pause my private Member's Bill (PMB) on the basis that having two processes running in parallel was only likely to cause confusion and that we were both attempting the same outcome of understanding, so I did. As I say, it was published in the second half of 2016 and —.
Mr Nesbitt: Oh, just before he began work, which would probably have been late '13 or early '14.
Mr Nesbitt: If it is not a euphemism, late 2016 was not a good time for these institutions, as we were, if not hurtling towards, then certainly on a direction of travel that was leading to the collapse. My PMB remained paused throughout the three-year hiatus, and, while I resurrected it when we came back, we then hit the pandemic and the encouragement from people like Conor Murphy to focus our work on essential business only. While I think that defamation is very important, I cannot stretch it into that "essential" category, so it has only been in recent weeks and months that I have advanced the Bill. I have worked with the Bills team, which made a couple of very minor technical tweaks to the Bill. I also sought the Secretary of State's consent with regard to clause 5, which governs the operators of websites. That takes us into telecommunications, which is a reserved matter. I am glad to say that, on 14 May, the Secretary of State said that he was content to grant consent to the Assembly's considering the Bill. In fact, he said that he welcomed the proposed Bill, so that hurdle has been cleared. As you know, the Bill has had its First Stage, and I believe that its Second Stage is scheduled for Tuesday, at which point I hope that we will cross that bridge and the Bill will come to you for scrutiny.
On where I think the Assembly is, I mentioned the three Ministers — one DUP, one Alliance and one Sinn Féin — which gives some sense that there is, perhaps, cross-party consent to the idea that we need to look at this. At the invitation of Matthew O'Toole, I briefed the all-party group (APG) on press freedom and media sustainability. No objections were raised at that meeting, and the 10 signatories to that APG represent all five parties of the Executive plus the Greens and People Before Profit. I think that the only party that is not represented is the TUV, but I make no imputation as to why that is the case. I am also informed that Mr Allister can represent himself, if need be. I shall park that comment there.
So it seems that there is cross-party support for the idea of a review, which is not to say that there is an agreement on the direction of travel or, to use the phrase, "What success will look like". At the end of Dr Scott's report, there are two appendices. Appendix 1 is his version of a draft report and appendix 2 is my Bill pre the tweaking by the Bill Office. I would also point out that the majority of the respondents to the consultation favoured replicating the Defamation Act 2013 from England and Wales. There are many advantages to that, such as consistency in case law and not putting unnecessary obstacles in the way of publishers to the extent that they would have to publish separate versions in GB and here. When Lord Black — Guy Black — came here to launch my consultation paper, he was the executive editor of the Telegraph Media Group in London, and that was one of the warnings that he gave: if we were to go separately, we would be a very small market, and it might be that publishers in GB would simply choose not to publish in Northern Ireland rather than going to the time and expense of re-editing their work. It is a bit like the protocol; some companies may say that the market is too small and will not bother.
Of course, it is not just about the media, but that is where my interest began. In my time at UTV, I was involved in three cases. All, incidentally, involved politicians, and all were settled out of court with a financial settlement being made to the claimant. The interesting thing for me about the way that it worked was that, when the writ arrived, we went to the UTV boardroom, where there were the production team that was responsible for the broadcast, members of senior management and UTV's lawyers. Two other people were in the room who had flown in from London. They would sit quietly in the corner and listen to the arguments and the whys and wherefores and, on every occasion, they said, "Settle it out of court. We do not want you taking the risk of going into court, losing the case and a jury awarding a disproportionate sum of money to the claimant". Those two gentlemen were the insurers. They were the ones who called the shots. I draw your attention to item 1.05 in Dr Scott's report:
"‘'the key imbalance in this area is arguably not that in favour of reputation over free speech or vice versa... [but rather] that between litigants who can afford to defend ... or to vindicate their reputations, and those who cannot'."
The key imbalance is in who can afford to pay for these things.
I have 12 policy objectives in the explanatory and financial memorandum (EFM). I will not rehearse them all, but they include:
"Make it easier and less expensive to take legal action"
"Make it harder for the rich and influential to chill free speech".
"Protect the rights of journalists to conduct responsible and necessary investigations".
Think about this jurisdiction, as opposed to Dublin or London. Scrutiny of government in Dublin and London is carried out in three ways: an official Opposition; a second revising chamber — as this Senate once was — in the Seanad in Dublin and the House of Lords in London; and the media. In Northern Ireland, we currently have only one of those three prongs, and that is the media. I wonder how often the media have not published because they have received a threatening legal letter. We simply cannot compile those statistics, so how big a chill factor does the current regime have?
I also intend to protect the right of scientists and academics to engage in debate. A school friend of mine, who is now retired, established a global reputation for his knowledge of epilepsy during pregnancy. At one point, he became convinced that there was a certain drug that pregnant women should not take. That drug was manufactured by a global pharma company with huge resource, money and capacity to take him to court. Under these proposals, if what he wanted to say was peer-reviewed, it would effectively become privileged and he could publish it. That protection applies to academics in England and Wales. We do not know how many academics working in medicine and science do not apply to jobs at Queen's University or Ulster University because of that chill factor, but we know that there is an imbalance between here and England and Wales.
The Chairperson (Dr Steve Aiken): It is interesting when you talk about academics and peer review, because there is a definition of what qualifies as peer review. What is your perspective on that? One thing, particularly in England, is that it has to be with one of the particular journals or a particular idea. There is a lot of what I call "pseudo academic stuff" out there that would not meet the requirement of peer review but that would be seen, by some people, to represent academic freedom. How would we get over that point? Would we look to take the same sort of journals that are already mentioned in England and Wales to cover that?
Mr Nesbitt: You would start with the qualifications of the person who is conducting the peer review and the experience and expertise that they bring to the table. Clearly that is an area where you could go to court and challenge the validity of the peer review process and of those conducting the peer review. You would build up a kind of case law that would suggest the parameters for dealing with those things.
One other area, to finish off, is the internet. Clause 5 was beyond our competence until the Secretary of State gave us permission. Reputations are trashed not on a daily or even an hourly basis on the internet; minute by minute, somebody in the world is having their reputation trashed on the internet. My proposal in clause 5 is that, if you feel that you have been defamed and you are the potential claimant, the operator of the site must give you the identity of the author who posted to the site. By "identity", I mean their contact details, so that you can pursue them in court. If they cannot or will not do that, you then go for the operator of the site, so there is a clear path to rectify and protect your reputation in those cases.
Beyond that, the Bill effectively intends to update and modernise the laws of defamation. For example, we currently have common law and justification and fair comment. I suggest that we replace those with the statutory defences of truth and honest opinion. My final thought is that, over the period in which the 2013 English law has operated, its impact has not been as seismic as its opponents perhaps thought that it would be. I will leave it there, Chair. I ask the Committee to support the Bill's coming through Second Stage, as a matter of principle, and then I will be happy that the Committee go through it line by line and, perhaps, recommend amendments further on in the process.
The Chairperson (Dr Steve Aiken): Thanks very much, Mike, and thanks for presenting to the Committee. Just a quick one. We have heard a lot about the English process and the rest of it. Why can we not accept a legislative consent motion to update where we got to on the 2013 position? Why are we looking for separate legislation?
Mr Nesbitt: As I understand it, the Finance Minister in 2013 decided not to recommend a legislative consent motion.
The Chairperson (Dr Steve Aiken): Have you had any correspondence with Conor to indicate that he might take a slightly different view from that of the previous Finance Minister?
Mr Nesbitt: No. I had correspondence from the Finance Minister saying that he is not supportive of the Bill. He made reference in his letter to the fact that the Administration in Dublin are looking at their laws of defamation, with the clear inference that he was looking for an all-Ireland solution.
Mr Catney: Thanks, Michael, for your presentation. My question is simple, and it has been answered in a way. I am going back through a lot of the figures to 1998 and the incorporation of the European Convention on Human Rights, which was then written into the 2013 Act in England. I do not have anything specific on that, but the situation in England then was perceived to have a chilling effect on freedom of expression. You are trying to give more openness to freedom of expression but also protect the rights of whoever is stating that or putting it out there. That is one point. A lot could come out of what you are doing. I was thinking of small claims courts and car accident cases coming through, where it is nearly impossible to get past the insurers in order to defend your good name. The Bill would give stronger protection to those who state the fact, if there is a prosecution or a libel set out against them. Am I reading that right?
Mr Nesbitt: Yes, you are. I should have mentioned the change in the definition, which is this idea of having to prove that you have been subjected to or are likely to be subjected to "serious harm" because of the statement. At the moment, as you know, basically the test is, "Would a reasonable, right-thinking person think less of the complainant because of the statement?" Referring to the three cases that I was involved in, which involved politicians, there is no doubt that, if the test had been "serious harm", UTV would have contested and won those cases rather than having had to put a sum of money on the table to make it go away.
Mr Catney: On the back of that, I am looking forward to when the Bill gets through Second Stage and comes to us on the Committee. Thank you.
Mr Wells: In the past month, I have been called a dinosaur, a monster and a bigot. Perhaps worst of all, I was accused of wearing a wig. You can call me a bigot or a dinosaur, but anybody accusing me of wearing a wig will definitely hear from my solicitor. Being a wee bit more serious — certainly, no one could say that Matthew O'Toole is wearing a wig. You could not buy that hair.
Mr O'Toole: I am not going to issue a writ. [Laughter.]
Mr Wells: I have got privilege. I can say what I like about that red hair.
I will be more serious about it. Every day, I am subjected to online abuse, about which, if I were minded to, I could regularly go to court. I have only done it twice. One was a case when my wife was terribly ill in hospital with a stroke. Somebody put online that he hoped that my wife would die a long, painful and lingering death, which I took great exception to. That was on the site of a social media company that is based in California and has three billion users. I will not be any more specific than that. Three and a half years later, the case is still mired in the mud because that company is refusing to release the identity of the person who posted the comment. We know who it is, but it is refusing to confirm the name of the person. The vast bulk of libel from now on will involve social media. It will definitely become the dominant feature on those platforms. How on earth can your Bill compel one of the largest companies in the world to change a policy of non-disclosure?
Mr Nesbitt: I suppose the bottom line, Jim, is that it cannot. It can say, "It is your legal statutory duty to disclose the identity of the author of the post", but it is very hard to legislate for enforcement.
Mr Wells: If none of those companies is prepared to name the person who made the untrue allegation or the dreadfully offensive allegation, how will your Bill succeed? In the future, this will probably cover 90% of potential claims.
Mr Nesbitt: All I can say is this: is it better to have the current regime, which places no legal obligation on that company, or to have this Bill put into law, which does place an obligation upon them?
Mr Wells: If they are not based in the UK or, indeed, the EU, is there any provision and any form of legal sanction that can be used to force them to do this? Freedom of speech, by the way, was the defence that that major company used. It was in order for the gentleman to make that comment because it was his right to have that freedom of speech. Is there any way around that?
Mr Wells: That is disappointing, but I can understand it.
Mr K Buchanan: To follow on from Jim's point, just a bit of clarity. I will not drill into this too deeply, but the definition of operators of websites and your response from the Secretary of State — does that provide 100% cover for that large company in California and other large companies like it?
Mr K Buchanan: So the definition of website covers those big companies. Are they websites?
Mr K Buchanan: So the large companies such as Facebook, Twitter etc are websites. Is it your understanding that this covers those companies?
Mr Nesbitt: Yes. It is kind of the reverse of the point that Jim is making. There is this idea of what is called libel tourism. If some famous person in America is defamed, and they want to do it here in Belfast, but the post has been viewed 1,000 times in Northern Ireland but two million times in the state of New York, you do it in New York. You do not have the locus to come here.
Mr K Buchanan: The final point is the definition of serious harm. I do not want to get into Jim's case, but define "serious harm". If I get online abuse every night, and it annoys me and bugs me, is that serious harm? Is it grounds for a court case if somebody is "giving you bad manners", as people in Northern Ireland sometimes refer to it? I do not mind political debate online, but there can be bad manners. How do you define that that is not causing you serious harm?
Mr Nesbitt: For example, if that was happening and it was really getting to you, you might seek medical support, so you would have a statement to that effect.
Mr O'Toole: I want to go back to one of the points that I raised around not libel tourism but the chilling effect that this has. It is right to say — and this is something that you have explored; you have been involved in this now for the best part of a decade — that in Northern Ireland it is disproportionately — more than in other jurisdictions on these islands and more than in England and Wales, certainly — possible for someone to use the threat of proceedings because, to go back to your experience at UTV, there is an unreformed legal framework, a record of high costs being awarded and, therefore, a high prospect of a chilling factor? Have you heard or been told about that as you have proceeded with the Bill over the last few years?
Mr Nesbitt: Yes, but the problem is that I cannot quantify it.
Mr Nesbitt: I have no idea how many lawyers are issuing those sorts of threatening letters or how often they do it. There is an old journalistic phrase, used when you are learning the trade: "If in doubt, leave it out". This takes that to a very serious place. It may be responsible and necessary journalism to say, "I should be publishing this", but you do not currently have the defences that this Bill will offer.
Mr O'Toole: It is not that media law in Northern Ireland is a Wild West, but is it fair to say that, in relative terms, a lawyer who has a record of getting, from their perspective, good outcomes for their clients is more able to say to their clients, "We may not even need to issue a writ. We can issue a sternly worded letter and have a conversation, with a raised eyebrow, and that will be sufficient"?
Mr Nesbitt: Yes. That is a fair thing to say. The other issue, which is a chill factor, is the fact that it is a jury trial. As I understand it from my experience, all that the judge will do is make an initial judgement as to whether a statement is capable of being interpreted as defamatory. He will not say whether it is defamatory, out of respect for the jury's role. He will allow the trial to begin on the basis that it can be interpreted as defamatory. If the jury decides that it is, there is no guideline for the quantum that can be awarded in compensation, so you can understand why the insurers say, "We will not cover you, because we think that this is a 50 grand case, but a jury may say that it is a £500,000 case".
Mr O'Toole: Is there also a particular challenge around the media that are primarily based here? You mentioned the 'Belfast Telegraph' earlier. It is publishing primarily — in some cases, exclusively — for consumption inside Northern Ireland. That obviously changes with the online world, and online content can be consumed anywhere, but, primarily, the 'Belfast Telegraph', 'The Irish News' and 'The Newsletter' still publish for consumption here in this jurisdiction, which means that, proportionately, it is much less likely that someone will issue proceedings against them in London. Is there an added, disproportionate burden on them compared with a UK publisher, if you see what I mean? With a relatively unreformed defamation regime in Northern Ireland, you talked about the potential for it to be a less attractive place for content, with people just not sending their content to be published for consumption in Northern Ireland because there is greater risk, but actually the real issue is less about 'The Times' of London, 'The Daily Telegraph' or, for that matter, 'The Irish Times' publishing content here. It is about the 'Belfast Telegraph' or 'The Irish News' feeling that the burden on them is disproportionate and different from what it is for the 'Manchester Evening News'.
Mr Nesbitt: Let me put it this way, if I may. Say you were flying from Belfast to London.
Mr Nesbitt: At the City Airport, you might buy a 'Belfast Telegraph', which has no mention of a leading, respected scientist saying, "Pregnant women should not use this drug". When you land at Heathrow, you might find that 'The Daily Telegraph' has a front-page splash saying, "Pregnant women should not take this drug". In crude terms, that is the impact.
Mr O'Toole: You said that the Finance Minister had implied that he wanted to see an all-Ireland approach. I presume that the Government in the South have pledged to look again at defamation. The South is still a further step along the road to defamation reform than Northern Ireland because it legislated about 12 years ago. Am I right to say that there is nothing in this legislation to prevent a review happening down the line if the Republic were to change its law and there were issues? I am not aware of any potential issues for all-island or cross-border publications. I am interested in understanding that particular concern.
Mr Nesbitt: In an ideal world, the Bill would pass before the end of this mandate, potentially amended due to considerations and recommendations from the Committee. After that, two things could happen. There could be a review of the 2013 Act by Westminster, and it may come forward with some amendments, which we will migrate across by way of a legislative consent motion. Secondly, and they are not exclusive, the Government in Dublin might reform their laws on defamation. We might look at that and say, "Actually, we should incorporate some of that into our law", and we will amend ours.
Mr O'Toole: There is no suggestion that a differential in defamation provision between the North and the South has chilled the cross-border publication of material.
Mr Nesbitt: No. I am not an expert on the Republic's laws of defamation.
Mr O'Toole: I am intrigued to understand what the situation is.
Mr Allister: Mike, you mentioned that Lord Black, when he launched the consultation, spoke about the possible chill factor of companies choosing not to publish here because our libel laws are different. Has that actually happened?
Mr Nesbitt: I am not aware of any evidence to show that that has happened, which is why I said that the impact of the 2013 law has not been as significant as some feared.
Mr Allister: What is it about our present system that is broken?
Mr Nesbitt: I gave you three examples of being involved in defamation cases. In at least two cases, I believed that there were good grounds to fight against the complainant. It was not a legal judgement as to whether we fought it or not; it was a financial judgement.
Mr Allister: You are still going to have a financial judgement and insurance companies.
Mr Nesbitt: You are still going to have an insurance company, but it may be persuaded that the test of serious harm is more likely to yield a positive result for their client.
Mr Allister: Therefore, do you see the introduction of the threshold of serious harm as something that will help defendants and diminish the chances of plaintiffs?
Mr Nesbitt: Not necessarily. It will be a more honest and balanced approach than that identified by Dr Scott.
Mr Allister: The example that you gave of three politicians successfully suing UTV —.
Mr Nesbitt: I said that three politicians were involved.
Mr Allister: OK. However, given the three cases with successful outcomes — from the plaintiff's point of view — against UTV, in any repetition of such cases, would the purpose of this Bill be to result in a successful outcome for the defendants?
Mr Nesbitt: In two of the cases. You must ask the question, "Would the right-thinking, ordinary members of the public think less of the politician because of the statement?", and I believe that the answer is clearly not.
Mr Allister: However, that would have been the jury question in those cases.
Mr Nesbitt: It would have been, and the insurers were not prepared to let it go.
Mr Allister: Therefore, your answer, from the motivation of insurers putting pressure on defendants, is to raise the bar for plaintiffs so that they now have to show not just that their reputation has been harmed but that there has been serious harm.
Mr Nesbitt: I do not think it raises the bar. It changes the definition, changes the test.
Mr Allister: If "serious" means anything, it surely raises the bar.
Mr Nesbitt: I just believe that it is a different test.
Mr Nesbitt: Think about what Mr Buchanan said. If you were seeing on your smartphone, every night, abusive message after abusive message, and it was adversely impacting on your mental health and well-being, it would be very easy to prove that that was causing serious harm.
Mr Allister: The law at the moment is that if your reputation is harmed — in other words, if the man in the street would think less of you because of what was said about you — you have passed the threshold for libel or slander and, therefore, have demonstrated harm to your reputation. By inserting the subjective test of serious harm, you inevitably are weeding out a number of cases and, in consequence, pushing the bar that bit higher for a case to get off the ground.
Mr Nesbitt: I will respect your opinion. I am not sure that I am entirely in tune with you. Where we probably might be in agreement is, I think, that it does make it easier to weed out trivial claims.
Mr Allister: Does that mean, then, that a consequence of your Bill would be that you would take away from the County Court any jurisdiction on defamation?
Mr Allister: The Justice Minister is consulting on raising it to £10,000, but it is still £3,000. If, to bring any case, you have to show serious harm, it is hard to imagine why the County Court, with a limit of £3,000, would even be in the picture.
Mr Nesbitt: I am sorry; yes, it is £3,000. I would not object to its being raised to £30,000. One of the things to do is to make the whole process more user-friendly, which is why I have a proposal that, unless in exceptional circumstances, we do away with jury trials. I know that, in this jurisdiction, that is a particularly sensitive issue.
Mr Nesbitt: However, as you will know, when we come, for example, to the single meaning rule, a judge will not define what the single meaning rule is because he or she has a jury and feels that it is up to the jury to define the single meaning.
Dr Scott uses the example of a businessman paying tax. If you were to read that a particular businessman was very good at avoiding tax, you could take that as a very negative imputation that he is a bit of a scoundrel and involved in illegal tax evasion. Equally, you might say, "Well, actually, what that means is that he is very good at managing his tax bill. He donates to charity and gets tax relief on that, and this is very pleasing to the shareholders."
If you were to do away with the jury, there would be no bar on the judge defining the single meaning right up front, and that could really speed up a case.
Mr Allister: You are doing much more than that. You are handing to the judge the determination of whether the harm is serious or not.
Mr Allister: So, a judge — some people think that judges get a bit aloof from real life — will decide whether or not someone, who feels sufficiently exercised to have brought the case and takes the financial risk in bringing it because there is no legal aid in defamation, has suffered serious harm and is going to tell that person, "You didn't suffer serious harm. End of case".
You are taking away from the citizen the right to put before his peers or a court the question that his reputation has been diminished by sifting it through a judge's view of what is serious harm and what is not. That may not be very confidence-building for the individual who has been overwhelmed by what he thinks is quite a dastardly thing to have been said about him.
Mr Nesbitt: That judgement has to be made, whether it is by the judge or by the jury. It is my clear impression that, under the current regime, where it is done by a jury, it is a much longer and more expensive process, and, as you say, legal aid is not available.
Mr Allister: Yes, but I am not sure that I agree with the costs issue. I do not think that this proceeding will make it any cheaper to either defend or bring proceedings. The great chill factor for anyone bringing libel proceedings is the potential cost. That is not going to be changed by the Bill. The costs are still going to be astronomical if you lose.
Mr Nesbitt: Costs will still be high. It may change in a successful case, because, as I understand it, juries are not even particularly advised on the quantum.
Mr Allister: They are given a general, ballpark arrangement.
Mr Nesbitt: If the judges are the ones deciding on the quantum, you may see more consistency in the awards.
Mr Allister: On that point, if the system is broken, can you point us to any cases in recent years where there has been an outrageous decision in Northern Ireland under our current system?
Mr Nesbitt: I am not aware of one, but I have not been studying the applications.
Mr Allister: I was trying to think of that, and I cannot think of any in which you would say, "Wow, that is way off beam". If that is the case, it brings you back to one of my first questions: is the system broken?
Mr Nesbitt: To answer that, I feel that I would need to know more about the out-of-court settlements, such as how often and why they occur and the quantum of awards.
Mr Allister: Your Bill is not going to try to change that, is it?
Mr Nesbitt: I believe that it will, as it changes the test.
Mr Allister: That brings us back to the point that the test is now tilted more in favour of defendants and the media companies. That will give them the courage to fight when, otherwise, they would not have fought. For me, that raises the fundamental question, from the citizen's perception, about why we are in the business of drafting legislation that makes life easier for the media companies.
Mr Nesbitt: I contend that it also makes life easier for politicians.
Mr Nesbitt: I gave examples of three cases, which all involved politicians. In two cases, the politician was the claimant, and in both cases, the insurers were responsible for them being offered a financial settlement.
Mr Allister: I will make the point again that those insurers will still say to you that it is cheaper to settle than to fight and lose.
Mr Nesbitt: It changes the test. Those insurers said that if the judge said that it was capable of being interpreted as a defamation, he would initiate the trial and hand over control to a jury, over which we, corporeally, have no control, and if it finds in favour —.
Mr Nesbitt: The lawyers and the broadcasters. The jury is autonomous, and if it finds for the claimant, there is very little control over the quantum that it could award. It goes back to point 1.05 of Andrew Scott's report. If it is a judge without a jury, he says, right up front, not whether it is capable of being interpreted but whether it is or is not defamatory.
Mr Allister: He will say that it does or does not give rise to serious harm. Is that not what he will say?
Mr Nesbitt: It is only defamatory if it has caused, or is likely to cause, serious harm.
Mr Allister: — to filter out cases, which brings me back to the point that this legislation is about diminishing the opportunity of the citizen to bring a claim because he has to get past a judge, who may say, "OK, you suffered harm, but it was not serious harm. Go home and pull yourself together, man".
Mr Nesbitt: You are defining it as diminishing. I am defining it as offering something fairer.
Mr Nesbitt: For everybody.
Mr Allister: Not for the man who is told that the harm that he suffered was not serious.
Mr Nesbitt: What if the harm that he or she suffered was not serious?
Mr Allister: Is that not the point of libel damages? They relate to the degree of harm. If the harm is not serious, the plaintiff might get 1p, £10 or £100. Damages reflect the seriousness of the harm. If the harm is not serious, they are not going to get a big award, are they?
Mr Nesbitt: That may be the case.
Mr Allister: If the system is working, that should be the case.
Mr Nesbitt: I contend that the system is capable of improvement.
Mr Allister: There are no examples, in the last number of years, of where the system got it badly wrong.
Mr Nesbitt: In terms of the quantum?
Mr Allister: In terms of a quantum or even a finding of libel.
Mr Nesbitt: I have not studied every defamation case, and, as I have said, one of the reasons for that is what happens behind the scenes, namely, the out-of-court settlements, which we cannot trap through a statistical analysis but which, I suspect, is very significant.
Mr Allister: You can never control those. People have all sorts of reasons for settling cases. They do not want to be named or to have the bother, or they want to keep down their legal bill etc. This legislation is not necessarily going to change that.
Mr Nesbitt: It will, for example, if you are a scientist or a researcher in medicine, and you really want to make a statement that is critical of, for example, a multi-national pharma company. This Bill gives you protections that you do not currently have.
Mr Nesbitt: It gives you peer-review privilege.
Mr Allister: I have a reasonably open mind on this Bill, but I certainly have a lot more sympathy for the point that you are making about privilege than about serious harm. That is my big stumbling block with this Bill, but thank you.
Mr Nesbitt: You are the lawyer. To what degree do you think it is possible to codify "serious harm"?
Mr Allister: I do not think that it really is possible. Each case rests on its own facts. You cannot have an open and free legal process, whereby the citizen is entitled to come to court and have his rights judged, if you put into it a bar where a judge decides whether it is serious harm. That is a problem in open access.
Mr Allister: I assume, Mike, that you will amend clause 9, which still keeps us in the EU. [Laughter.]
Mr McGuigan: Thanks, Mike, for your presentation. I do not intend to interrogate you quite as vociferously as Jim just did. However, Jim's line of questioning reinforces my opinion. I am surprised that the Second Stage is next week, given that the Committee has not had an opportunity to talk to departmental officials or even the Minister about their position on the Bill. You have received correspondence from the Minister, and you have given your interpretation of it. It would have been useful to have been given the opportunity to question and, indeed, clarify some of the speculation that we are going over today.
A lot of this is speculation. You point to three examples, but none of us can be confident, one way or the other, that different legislation would have changed either the outcome or the decision to take those cases to court. It is all purely speculation on your part. I am not sure that the Committee's formulating and designing legislation based on speculation is the right way to go about this. Lots of people have asked questions about libel tourism. We had the opportunity to ask the same questions earlier, during the RaISe presentation. Libel tourism has been talked about, but the reality is that it has not increased since 2013, and anything over and above that is just speculation.
You made a point about the Minister and the review of legislation in the South. That is not just about an all-Ireland approach, which I think would be sensible. I do not know whether that is what the Minister meant in his response, but I still think that it would be sensible. Andrew Scott would not disagree with that. He did say that the North needed specific legislation to reform libel law. I think that it would be sensible for us to look at jurisdictions on this island and beyond to see what kind of specific legislation we need. You talked about publications from GB that also publish here, but the same argument can be made on a South/North basis. I agree with Andrew Scott about specific legislation, and we should look at that.
The question on libel tourism was not asked specifically to you. Can you confirm that it has not increased since 2013? The other issue that you touched on, and which Jim touched on previously, was that of jury trials. Obviously, removing jury trials here in the North could be seen as a backward step and a threat to the principles of the right to a fair trial and access to justice. Do you accept that jury trials play an important role in public confidence in our legal system?
Mr Nesbitt: On the latter point first, yes I do. I think that I acknowledged that jury trials have a particular resonance and significance in this jurisdiction for reasons that we do not need to rehearse.
On the timing, I got my First Stage in early June, and there was then a decision to be made on whether I pressed for Second Stage before summer recess. The advantage of doing that would have been that, once we get back next week, we are expecting a lot of legislation to come out of the Executive in the final months of the mandate, and there is a danger of losing the Bill even if it does get through its Second Stage next week, and I make no assumption on that. Because I have been living this for a while but you, as a collective of MLAs, have not, I decided that I would wait until after recess and that, after the First Stage, I would compose a one-page briefing. I put that in everybody's pigeon holes, and I believe that my office also emailed it to all the MLA accounts just to give that top-line indication not only that the Bill was coming but of what the policy objectives and the intent were. Maybe it is not ideal, but I am sitting here thinking, "Hallelujah! I am discussing defamation with a Committee for the first time since 2014".
All I am asking is that we have a debate on Tuesday and that you allow it to come back to Committee. What happens after then, who knows? I am not taking a die-in-the-ditch, take-it-or-leave-it approach. I am more than happy that we look at everything, including the idea that serious harm is not the best definition to put in the Bill. Let us talk it through.
Mr McGuigan: Obviously, you sit on Assembly Committees and have chaired Assembly Committees. For the Committee, for the debate next Tuesday and fulfilling our role as a Committee, it would have been better if we had heard all the arguments and allowed all the participants to come before us and give evidence.
Mr Nesbitt: Yes, but in June, as I said, I put in your pigeon hole a one-page document, in which I offered to meet any MLA, any group or any party to discuss the Bill. One party did take up the offer. We had about half a dozen people in the room, and we talked it through for a couple of hours.
Mr McGuigan: I am specifically talking about the Department having its opportunity to come before the Committee to give its view on the legislation.
Mr Nesbitt: I cannot answer for the Department. I was asked if I would come and speak to this Committee ahead of Second Stage, and I am very happy to have done so.