Official Report: Wednesday 02 March 2022


The Assembly met at 10:30 am (Mr Deputy Speaker [Mr Beggs] in the Chair).
Members observed two minutes' silence.

Assembly Business

1 March 2022

Mr Deputy Speaker (Mr Beggs): The first item of business in the Order Paper is the consideration of Executive business not concluded yesterday. Thankfully, however, all business was disposed of last night, so we can move on.

Private Members' Business

Mr Deputy Speaker (Mr Beggs): I call Mr Mike Nesbitt to move the Consideration Stage of the Defamation Bill.

Moved. — [Mr Nesbitt.]

Mr Deputy Speaker (Mr Beggs): Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in the provisional grouping of amendments selected list. There is a single group that contains 15 amendments and opposition to clauses 1, 5 and 11 stand part, and it deals with regulations, clarifications, review and commencement.

I remind Members who intend to speak during the debate on the single group of amendments that they should address all the amendments on which they wish to comment. Once the debate on the group is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Question on stand part will be taken at appropriate points in the Bill. If that is clear, we will proceed.

Clause 1 (Serious harm)

Mr Deputy Speaker (Mr Beggs): We now come to the single group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2 to 15 and the opposition to clauses 1, 5 and 11 stand part.

I call the Deputy Chairperson of the Committee for Finance, Keith Buchanan, to address his opposition to clause 1 on behalf of the Committee, the other oppositions to clause stand part and the amendments in the group.

Question proposed, That the clause stand part of the Bill.

The following amendments stood on the Marshalled List:

No 1: In clause 2, page 1, line 19, leave out "Defamation (Northern Ireland) Act" and insert "Defamation Act (Northern Ireland)". — [Mr Nesbitt.]

No 2: In clause 3, page 2, line 12, after "before" insert "or at the same time as". — [Mr Nesbitt.]

No 3: In clause 3, page 2, line 31, leave out "Defamation (Northern Ireland) Act" and insert "Defamation Act (Northern Ireland)". — [Mr Nesbitt.]

No 4: In clause 5, page 4, line 4, leave out subsections (8) to (10). — [Mr Nesbitt.]

No 5: In clause 8, page 7, line 21, leave out paragraph (b) and insert—

"(b) the reference in paragraph (1)(a) of that Article to the provisions of Article 6(2) is a reference to the provisions of Article 6(2) and the provisions of this section." — [Mr Nesbitt.]

No 6: Leave out clause 9 and insert—

"Action against a person not domiciled in the UK
9.—(1) This section applies to an action for defamation against a person who is not domiciled in the United Kingdom.

(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, Northern Ireland is clearly the most appropriate place in which to bring an action in respect of the statement.

(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.
(4) Sections 41 and 42 of the Civil Jurisdiction and Judgments Act 1982 apply for the purpose of determining whether an individual, corporation or association is regarded as ‘domiciled in the United Kingdom’ for the purposes of this section." — [Mr Nesbitt.]

No 7: After clause 14 insert—

"Review of Defamation Law
Review of Defamation Law
14A.—(1) The Department must keep under review all relevant developments pertaining to the law of defamation as it considers appropriate.

(2) The Department must prepare a report and recommendations on—

(a) the findings of the review under subsection (1), and

(b) the operation of this Act.
(3) The Department must lay the report and recommendations before the Assembly, and publish the report and recommendations, before the end of the period of 2 years beginning with the day on which this Act receives Royal Assent." — [Mr Nesbitt.]

No 8: In clause 15, page 9, line 22, at end insert—

"‘the Department’ means the Department of Finance;". — [Mr Nesbitt.]

No 9: In clause 15, page 9, line 24, at end insert—

"‘regulations’ means regulations made by the Department;". — [Mr Nesbitt.]

No 10: In clause 16, page 9, line 31, leave out "Defamation (Northern Ireland) Act" and insert "Defamation Act (Northern Ireland)". — [Mr Nesbitt.]

No 11: In clause 16, page 9, line 34, leave out "Defamation (Northern Ireland) Act" and insert "Defamation Act (Northern Ireland)". — [Mr Nesbitt.]

No 12: In clause 17, page 10, line 9, leave out subsections (1) and (2) and insert—

"(1) Regulations may not be made under this Act unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly." — [Mr Nesbitt.]

No 13: In clause 17, page 10, line 13, leave out "and orders made by the Department" and insert "made". — [Mr Nesbitt.]

No 14: In clause 17, page 10, line 16, leave out subsection (4). — [Mr Nesbitt.]

No 15: Leave out clause 18 and insert—

"Commencement
18.—(1) Section 5 comes into operation at the end of the period of 12 months beginning with the day on which this Act receives Royal Assent.
(2) The other provisions of this Act (including this section) come into operation on the day after the day on which this Act receives Royal Assent." — [Mr Nesbitt.]

Mr K Buchanan (The Deputy Chairperson of the Committee for Finance): I thank the Bill sponsor for the related oral briefings and written information that he provided to the Committee for Finance during Committee Stage. I also thank the Minister for the oral and written briefings and information that the Department provided to the Committee during its journey.

With your indulgence, Mr Deputy Speaker, I will make a few general short remarks on the Bill and its Committee Stage. The Bill is a little unusual in that it replicates almost exactly the provisions of the 2013 England and Wales legislation and covers important, evolving and complex matters, such as free speech, a free press, access to social media commentary and the protection of reputation.

The Committee Stage of the Defamation Bill began on 14 September 2021. Around 23 organisations and individuals responded to the Committee’s call for evidence. Nine oral evidence sessions were undertaken. It should be noted that there were a number of well-informed stakeholders, some of whom enthusiastically contributed to the Committee Stage, while others, for various reasons, would provide only limited written submissions. It was also notable that there was an absence of cooperation between the Department and the Bill sponsor. That became problematic at various points during Committee Stage, and it is hoped that that will not become the norm for private Members' Bills (PMBs) going forward.

Committee Stage had to be conducted within a short and less than optimal timescale. I understand that other Committees were in a similar position and that the Committee on Procedures may comment on that shortly. Consequently, I will say no more about the scheduling of PMBs and Statutory Committees' end-of-mandate work programmes.

I will not take the House through the detail of the Committee's report on the Bill; instead, I will pick out a few of the relevant key issues. The first of those is the serious harm test. The Bill seeks to replicate the provisions in England and Wales and would require a defamation action to show that serious harm was caused or was likely to be caused to the reputation of the claimant. A number of respondents to the call for evidence strongly argued that the provision was absolutely essential. They suggested that the requirement to demonstrate serious harm would dissuade people and organisations with considerable means at their disposal from beginning speculative defamation actions against public interest journalism. They contended that that was a largely unreported, though surprisingly common, practice in Northern Ireland. Examples were provided that appeared to illustrate that those with the wherewithal to access skilful lawyers could easily exploit existing legal provisions in Northern Ireland. It was claimed that that was done in order to intimidate local news outlets into either not publishing damaging material or withdrawing such publications and paying excessive and punitive damages. It was also argued that that had a significant chilling effect on normal public interest reporting in Northern Ireland and was linked to the practice of bringing so-called strategic lawsuits against public participation.

It was contended by other witnesses, however, that the so-called intimidation of media outlets by wealthy individuals and their lawyers was not at all common and that, in any case, such interactions were correctly controlled and subject to the proper governance of a published and agreed defamation protocol, which is being revised. It was contended that journalists could always take advantage of the common-law rule that truth was a defence against an action for defamation. It was argued that, if journalists simply worked to appropriate standards of accuracy and adopted a fair approach to the reporting of public interest matters, there could be no chilling effect for local media .

The Bill sponsor also contended that the serious harm test would require an early decision by the court on the merits of a defamation action. It was suggested that that would reduce or at least front-load the cost of defamation actions, thus providing access to the courts for ordinary people with limited means to allow them to seek protection for their reputation or to seek appropriate redress. Others argued that the serious harm test had not reduced costs in England and Wales and that the front-loading of costs was of no benefit to ordinary people undertaking defamation actions. They contended that the requirement to prove serious harm would actively dissuade ordinary people from protecting their reputation in court from what might be termed "lesser slanders", particularly if they were faced with media organisations and/or internet providers with considerable financial means.

The Committee supported an amendment that would require the Department to review the jurisdiction of the County Court. It was argued that, as solicitors rather than barristers can represent their clients in those courts, the cost would be lower and justice would be more accessible to ordinary people. However, that amendment was not put down for debate today, as related work is ongoing at the Department of Justice.

As with all the important clauses, the Committee felt that it had limited time to consider the ramifications of the provisions and explore the significant differences of opinion. Some members contended that the absence of consistency with the rest of the UK on defamation legislation and, in particular, the serious harm test was difficult to justify. They felt that Northern Ireland's legislative framework in respect of defamation was being exploited by those with means and that reform was urgently required to protect public interest journalism. Others argued that the consequences of the relevant legislation in other jurisdictions of the UK or elsewhere were not yet fully understood or were subject to considerable debate. Still others argued that the serious harm test may, in fact, be harmful and would limit, not enhance, access to justice for those with restricted means who find themselves defamed. The Committee divided and indicated its formal opposition to clause 1 standing part of the Bill.

I will move on to clause 3, "Honest opinion". Amendments were proposed to clarify the idea of reasonable belief. They were aimed at the needs of the mass of social media commentators, who, in making their own comments, might reasonably rely on statements of supposed fact made by professional journalists and broadcasters. Most members felt that the suggested amendments were straightforward and provided additional and necessary clarity in determining a reasonable belief that might underpin an honest opinion. Other members were less sure about the interpretation of the wording, which referred to facts that might reasonably be believed to exist at the time of publication. The Committee therefore divided on the amendment and agreed that it should be made to the Bill. However, some of what was proposed has not been put down for debate. Perhaps the Bill sponsor, in his response, can clarify that point.

I turn to clause 5, "Operators of websites". The clause creates a new defence for the operators of websites where a defamation action is brought against them in respect of a statement posted on the website. The defence applies if the operator can show that they did not post the statement, but there are related conditions. The Bill sponsor contended that the clause was designed to support locally managed websites, such as the online versions of some local newspapers. He argued that moderating all user-generated content would require resources and funding on a scale that would discourage opening those platforms to the public, thus curtailing free speech. He contended that the clause would ensure that anyone who was defamed by user-generated content in that way would have the opportunity to identify the source of the defamation so that legal action could be initiated.

A number of respondents expressed considerable opposition to clause 5. They argued that it would provide an exemption or a significant limitation of liability to internet intermediaries or operators of websites. It was contended that it was not at all clear how "operators of websites" was to be defined and that that defence would be used by social media networks, which not only host content but control it and permit mass publication. The exemption/limitation provided in the clause was described as being unjustifiable and far beyond the defences under European Union e-commerce regulations.

Other stakeholders referred to a significant increase in defamation actions against social media platforms in the last number of years. That was described as testament to the lack of regulation in the area. Those stakeholders called for more legislation to regulate media operations and said that it should apply to all forms of media, including social media, and not just mainstream outlets. The Department advised that it was awaiting the findings of a related review in the Republic of Ireland and believed that any amendments around social media regulation could be beyond the scope of the Bill and the competence of the Assembly.

The Committee expressed considerable reservations about the clause. Members referred to multiple examples of serious defamation on social media sites by anonymous individuals or so-called straw men, who often easily evade court action. Members indicated significant dissatisfaction at the inability or unwillingness of large social media operators to address that grave problem. The Committee recognised that extensive reform of those matters was required and that it would be better undertaken at national level through the new Westminster online safety legislation or even at pan-national level through international agreements. The Committee also felt that those matters might be usefully further explored by the Department in its ongoing consideration of defamation legislation.


10.45 am

The Committee recognised the sincerity of the Bill sponsor's wish to provide access to free speech for local news media outlets and agreed that action would be needed in order to protect local newspapers from unfair competition from other providers that do not face the same legal exposure in respect of defamation. However, the majority of Committee members did not feel that the Bill was the appropriate vehicle for such measures.

Further to the above, the Committee also noted the very real possibility of conflict between clause 5 and the anticipated Westminster online safety legislation. The Committee further noted the possibility of conflict between the regulation-making power in clause 5(5), which would require the identification of the posters of alleged defamatory material, and article 8 of the European Convention on Human Rights, which refers to the right to a private life. Given that clause 5 may have the unintended consequences of further reducing the liability of social media operators and the urgent need for a better and more robust vehicle for reform in this area, the Committee divided and agreed that the clause, as amended, should not stand part of the Bill. I understand that the Bill sponsor may well be of the same opinion at this stage.

Clause 8, "Single publication rule", introduces a single publication rule in order to prevent an action being brought in relation to the publication of the same material by the same publisher after a one-year limitation period from the date of the first publication. That replaces what is now understood to be a unique Northern Ireland principle, which is that each publication of defamatory material gives rise to a separate cause of action — the so-called multiple publication rule.

The Committee noted that the effect of the current arrangements in Northern Ireland is that claimants could make repeated claims for defamation for libels that are, for example, republished on the internet perhaps years after the original publication date. On the one hand, it appeared that such a provision, which seems to be unique in the UK, might be an inducement for libel tourism. It should be noted, however, that no evidence that Northern Ireland is a centre for libel tourism was provided during the Committee Stage. On the other hand, it seemed that the existing provision could motivate website operators to remove current and historical libellous material from their platforms more regularly and with greater diligence.

The Committee also noted that it might be argued that, in the absence of effective international agreements on removing historical material from the internet, the current local legislation could have an equivalent positive effect. The Committee felt that, as with clause 5, issues on the retention and republication of libels on the internet might usefully be further explored by the Department in its ongoing consideration of defamation legislation and related developments in the Republic of Ireland. The Committee divided but could not agree that the clause should stand part of the Bill.

Clause 9, "Action against a person not domiciled in the UK or a Member State etc", aims to address libel tourism and provides that a court does not have jurisdiction to hear and determine an action unless it is satisfied that, of all the places in which the statement complained of has been published, Northern Ireland is clearly the most appropriate place in which to bring an action. Mr Allister and the Department contended that that might present an additional hurdle for someone to take an action against a person who is not domiciled in the UK. The Bill sponsor said that, although he could provide no evidence of libel tourism, he felt that clause 9 was necessary in order to provide protections for individuals who are subject to slanders etc that were published about them in this jurisdiction but that originated elsewhere.

The Bill sponsor brought forward an amendment relating to a typographical error in the Bill that wrongly identified the UK as another member state of the EU. The amendment also limited the application of the provision to the UK rather than to the member states of the European Union and to states that are a contracting party to the Lugano convention. The Committee divided and agreed that the clause, as amended, should stand part of the Bill.

Clause 10 is described as limiting the circumstances in which an action for defamation can be brought against someone who is not the primary publisher of an alleged defamatory statement. The Bill sponsor presented amendments to the Committee that would provide a clear definition of the author, editor and publisher. However, those amendments have not been tabled for debate today.

The Committee noted evidence that suggested that, under current legislation and certain circumstances, it is possible, for example, for bookshops that sell defamatory material in Northern Ireland to be prosecuted for defamation even though that is not the case in the other jurisdictions of the UK. Members expressed differing views on clause 10. Some felt that the existing provisions of the Defamation Act 1996, which requires defendants who are not the author etc to take reasonable care, provide sufficient protection for and place a reasonable onus on defendants. Those members argued that the clause and an amendment were therefore not required. Other members contended that the clause and the amendment would clarify the legislation, bring it into line with legislation in the rest of the UK and serve to support publication on public interest matters. The Committee divided on the amendment before supporting its being made to the clause. The Committee then divided on the amended clause but could not agree on it standing part of the Bill.

Clause 11, "Trial to be without a jury unless the court orders otherwise", removes the presumption in favour of jury trial in defamation cases. The result of that would be defamation cases being tried without a jury unless a court ordered otherwise. It is understood that the judge would retain the discretion to order a jury trial if they considered that to be appropriate.

The Bill sponsor argued that no other UK jurisdiction has the presumption in favour of trial by jury for defamation cases. He contended that the clause does not put any bar on there being trial by jury; rather, it simply removes the presumption of one. He argued that a judge-only trial would allow for an early definition of a single meaning to the words that are under dispute and, consequently, an opportunity for earlier resolution. He indicated that that provision was central to the intent of the Bill, which was to reduce the costs and the level of jeopardy associated with defamation actions. He argued that that was key to eliminating the chilling effect on free speech and public interest journalism in this jurisdiction.

Some members felt strongly that clause 11 tended to undermine the important principle that jury trials are the reliable foundation of the UK justice system. They felt that if public interest journalists adhered to good standards and, crucially, ensured accuracy in their reporting, there would be limited danger of speculative defamation actions. They contended that the reported chilling effect was in respect of poor-quality journalism and that some basic precautions would nullify any such effect. Other members argued that the clause would bring this jurisdiction into line with the rest of the UK and, thus, would certainly not undermine the general principle of jury trials. They contended that the clause was an important element in the range of measures in the Bill to protect free speech and public interest journalism from speculative defamation actions.

The Committee also noted that the 2017 Gillen review of civil justice considered matters relating to defamation and suggested that judges could be given discretionary powers to compel parties to undertake alternative dispute resolutions — ADRs — or face possible financial penalties in the event of formal proceedings going against them. Witnesses who gave evidence at Committee Stage also argued that a presumption in favour of the use of ADRs, with the associated penalties, would limit costs and jeopardy and, thus, have a similar positive effect to judge-only trials in respect of public interest journalism.

The Committee could not help but notice that if the intention of the Bill was to reduce the length of legal proceedings, and thereby costs and jeopardy, much of that might be achieved by including a requirement for pretrial hearings at which the meaning of the words disputed may be determined; enhancing the jurisdiction of the County Court in respect of defamation; and enhancing judicial discretion in respect of a requirement for parties to use ADRs or face financial penalties, if the judgement goes against them.

The Committee noted with regret that the shadow Civil Justice Council was unable to comment in detail on the provisions of the Bill because it was in the process of developing a revised definition protocol. Subsequently, it was also noted that the Department of Justice is in the middle of working up some related measures. Consequently, the Committee felt that it could not comment authoritatively on those alternative suggestions. The Committee agreed that the Department of Finance should take forward the issues that I have mentioned in its consideration of related matters.

The Committee also agreed to support the Bill sponsor’s amendment on judicial discretion on the use of ADRs. However, I suspect for the reasons that I just set out, that amendment not tabled for debate. Following a division, the Committee agreed that clause 11 on jury trial presumption should not stand part of the Bill.

The Committee supported a number of other amendments that would correct typographical errors and alter the regulation-making powers from negative to affirmative resolution.

Finally, the Committee also considered clause 18, "Commencement". As drafted, that clause indicated that most of the provisions of the Bill would be commenced at the discretion of the Department. The Committee felt that that might lead to the Department not commencing for a considerable period those provisions that it felt were unacceptable. Members noted that that is unwelcome practice and not uncommon in respect of private Member's Bills (PMB) and Executive legislation. The Committee therefore agreed to accept an amendment that would require the Department to commence all provisions within a reasonable time frame. Amendment No 18 would increase the commencement time frame for most of the provisions from six months to a year. I suspect that the Committee would likely support such a change.

The Committee agreed to support an amendment that would require the Department to undertake a review of the operation of the legislation and related matters within two years of Royal Assent. Members felt that this is an evolving area and that developments in other jurisdictions might usefully inform further legislation. The Committee therefore felt that the Department should undertake a review of defamation. The review should cover the matters that I have set out, including serious harm, County Court jurisdiction and the use of ADRs. However, that was agreed prior to further correspondence from the Minister of Justice about her Department's ongoing work on those matters.

The Bill refers to important and complex matters. The Committee could have done much more with it had we had more time and had stakeholders been properly informed of the relevant provisions.

I will add some brief remarks on my party's position. Defamation law must balance individual rights to reputation, freedom of expression and effective access to justice. We must draw on and learn from the operational experience of previous reforms enacted in other jurisdictions, not least England and Wales. It is interesting that the academic report commissioned by the Executive in 2016 found that the case for replicating the serious harm defence in Northern Ireland was "less compelling" than other provisions. We cannot ignore the fact that the overriding concern with current libel law among members of the public is not whether it restricts free speech in the press but whether they can get affordable access to the legal system.

The defence proposed for website operators does not send the right message at a time when other jurisdictions and legislatures are focused on tackling online harms in our society. The single publication rule risks discouraging social media platforms from removing defamatory content in the longer term. One comment that we received from a journalist on 1 December — not 1 April — in written, not verbal evidence — it was not a slip of the tongue — was:

"I hold no brief for liars, but if lies are not causing serious harm, should we not prioritise free speech?"

That said a lot to me. During a subsequent oral evidence session, the journalist answered a question on that by saying, "Perhaps not".

To sum up: we will not support clauses 1, 5 or 8, or amendment Nos 4 and 5, as they relate to those clauses.

With your indulgence, Mr Deputy Speaker, I may have to leave the Chamber during the proceedings. However, I will monitor exchanges carefully remotely, and return to make a winding-up speech on behalf of the Committee.

Mr McHugh: I thank the Bill sponsor for tabling the amendments. Defamation law exists to protect people's rights. What we often see in defamation cases, however, is a conflict between different rights: the right to protect one's reputation from false statements and the right to freedom of expression. In legislating on defamation, the challenge is to strike the right balance between those competing rights. We want laws that give adequate protection to people when they have been defamed, but we also want laws that do not chill free speech.

From the outset, we have said that we are in favour of updating our defamation laws. The last substantial update was back in the 1990s. So much has changed since then, especially with the rise of social media and online platforms. We have some concerns, however, about the Bill in its current form. The Bill sponsor takes the view that our current libel laws are too strong. He wants to shift the balance away from protecting one's reputation towards enabling free speech. Although some of the clauses are worthy of support, I do not see the need for the fundamental move towards free speech that he is trying to achieve.

The Bill sponsor has tabled 15 amendments, and we will support all 15. They are largely technical and tidy up the wording in some areas.

In particular, we welcome amendment No 7 to insert new clause 14A into the Bill. The new clause would place a statutory duty on the Department of Finance to carry out a review of defamation law within two years of the legislation's being granted Royal Assent. We will, however, be voting against several clauses, and I will set out which clauses and give our reasons.


11.00 am

We do not support clause 1, which introduces a serious harm test. That clause would make it harder for an individual to sue for defamation. Under the current rules, much of the risk already lies with the claimant. No legal aid is available in defamation cases, and the costs of bringing a case are already beyond the reach of many in our society. Clause 1 effectively states that it is OK to make a defamatory statement about someone as long as it does not cause the person serious harm. It is interesting to note that the main supporters of clause 1 seem to be media and journalistic organisations. That is not surprising, as clause 1 would protect their members if they were to publish lies about members of the public, as long as the lie has not caused serious harm. What is serious harm? That is not exactly clear. What may be serious to me may not be very serious at all to others. Under the Bill, it would be for a judge to decide what constitutes serious harm.

We are also opposed to clause 5, which attempts to deal with online platforms. As we know, the vast majority of defamation now occurs online, so any defamation legislation needs to find a way of dealing with that issue. Today, many of the cases of online defamation involve anonymous accounts, and finding out the identity of the culprit can be challenging. The introduction in England of provisions very similar to those in clause 5 has had virtually no impact. Clause 5 also provides a defence for social media companies if they respond to a complaint from the defamed party in accordance with regulations. I was very impressed with Paul Tweed's evidence to the Committee on that issue. He described the clause as being totally unworkable. Online platforms are not the neutral facilitators of user-generated content that they claim to be.

Mr O'Toole: I appreciate the Member's giving way. He and I spent a long time on this in Committee. I gently ask the Member whether he considers Paul Tweed to be a neutral adjudicator on our current defamation and libel laws.

Mr McHugh: Paul Tweed gave evidence to the Committee, and I was very impressed by his evidence. In fact, if anything, he reinforced the point, unlike a journalist who gave evidence to the Committee and who seemed to think that, if you were telling only a wee lie, that was acceptable. You can make up your own mind about how you judge Paul Tweed against the journalist who gave evidence at that time.

There are other partisan players that have the ability to influence discourse. They have a responsibility to the people who use their platforms and a role to play in the dissemination of false or defamatory material. I agree that a solution is needed, but I am not sure whether we can find a solution that will be part of this Bill. I welcome the fact that the Bill sponsor has indicated that he is no longer in favour of clause 5.

We are also against clause 8, which introduces a single publication rule. The clause would prevent an action being brought following the publication of the same material by the same publisher after a one-year limitation period from the date of the first publication of that material. Defamatory statements, particularly if they have been made online, may not come to prominence or to the attention of the injured party for a year or more after their initial publication. The clause would therefore block any case from being brought in those circumstances.

Clause 10 is very similar to clause 5, in that it states that anyone who is:

"not the author, editor or publisher of"

defamatory material cannot be held liable. That includes online platforms.

We are also opposed to clause 11, which is on the move to non-jury trials for defamation cases. The main arguments for removing juries are that they are expensive and drive up the cost of defamation cases and that judges, alone, are better suited to making judgements in those cases. I do not accept those arguments. Juries in defamation cases have, effectively, been abolished in England since 2013, yet that has not lowered the cost; we are still a less expensive jurisdiction, despite the fact that we have retained juries. Juries are far better suited to judge whether the reputation of an individual has been damaged in the eyes of their peers, which is the essence of being defamed.

We are happy to support the rest of the clauses.

Mr O'Toole: I am very pleased to speak on the Consideration Stage of the Defamation Bill. I am pleased that it has reached this stage. I very much hope that it completes its passage and that it does so as close to intact as it can be, notwithstanding the Bill sponsor's amendments today, all of which we support.

I declare that, although it has not met in the past couple of months, I am the chair of the all-party group on press freedom and media sustainability. That is one of the key things that I have brought to the consideration of the Bill. It is critical that we have legal protections from defamatory speech for all individuals and groups in our society. The question, fundamentally, that we have had to ask ourselves when considering the Bill is whether our current law is fit for purpose. It is very difficult to find an interested party that says that it is.

In a sense, the defamation law in Northern Ireland is the most unreformed in the jurisdictions with which we compare ourselves because we share a common basis and a common law. Indeed, there is an overlap in the media that we consume with the rest of the UK and the rest of Ireland. It is very difficult to find, other than the odd participant, an individual who thinks that our current defamation law is working just fine. I wanted to set out those broad principles before I come to the detail of the amendments that are before us today.

I also mention the precariousness of the position in which some of our local media companies and publishers find themselves. We issued a call for evidence last year on the state of the local media. Almost every editor and publisher stated that the local defamation law had a chilling effect on their reporting and an anxiety-inducing effect on their finances. It is not only a general perception; people who know about these things hold our defamation law to be the most litigant-friendly in these islands. That places a particular potential financial burden on publishers here. That is important not just because they are businesses and we want them to make profits and employ people, but because a free press and media, which are viable and can fund themselves, and which are free to hold people such as us to account, is completely critical to the functioning of a democracy.

We are all currently preoccupied with what is happening in eastern Europe, where what was a fairly new and nascent democracy over the past quarter of a century is being invaded, and people are being killed, because the big bully next door does not like the fact that it wants to be a democracy. When we debate these things, we have to put them in a broader context. A free, plural, healthy and, sometimes, controversial press — we can all name media outlets in this region that annoy us from time to time, or all of the time — is critical to the functioning of democracy.

Democracy is not just the technical act of people going to a ballot box and putting in a vote; it is the existence of a healthy discourse and the check and scrutiny on all of us and on people in business, people in council chambers and people in courtrooms. I think that it is really important to make that statement as we start this debate, because that is a core and fundamental part of what a healthy and free press is about. As I said, every publisher and every media company in this region has told us that our current defamation law is one of the things that inhibits their reporting and also creates a level of financial anxiety because they have to have significant levels of insurance to protect them from it.

I come to the amendments. As I said, we are going to support all of the amendments that the Bill sponsor has tabled, and I thank him for keeping the Committee abreast of his amendments and his intentions. The Deputy Chair has set out the Committee's position comprehensively, and I thank him for that. Although he and my party differ on a couple of the clauses, he has set out accurately the breadth of evidence that we took, some of the drawbacks that we had in gathering evidence and some of the discussions and debates that we had.

One of those debates and discussions was on clause 1 of the Bill, on which we will probably have the first Division today: the serious harm test, which is at the core of the Defamation Act 2013 that was passed in England and Wales and which forms the core of the law that I hope will be passed here. One of a number of criticisms that has been made is that the serious harm test will somehow take from the average Joe or the average Jane the capacity to defend their good name, as it were, through the courts. That is a reasonable question that we had to examine and undertake.

Sometimes these are complex and subtle judgements. In the Committee for Finance, where we are normally debating Estimates, Budget Bills and monitoring rounds, we are having to debate case law and perceptions of litigant behaviour. Sometimes we are doing that from a base of not completely rich evidence. It would have been better if we had had a richer data set of court judgements and outcomes of defamation proceedings over the past decade or two, but we did have pretty rich evidence from a number of parties, including from academia and, indeed, campaigners for a free press, the media themselves and a number of other groups who pointed to what is a fairly broad consensus that the balance of risk, as it were, in our defamation law here is considerably weighted towards litigants.

You might say, "What is wrong with that? The law should favour the average person when it comes to defending their good name, as it were". However, I come back to the point that I made at the beginning that there is a balance in all of these things. We have heard consistently from every media organisation that the balance at the minute is too heavily weighted in favour of the litigant, which has a chilling effect on the media's reporting. Indeed, it can sometimes have a financially catastrophic effect on those companies, sometimes in a fairly big way, and those two intersect. The Bill sponsor, from his previous life as a journalist, has alluded to some of those examples and given some of his own examples of sitting in meetings where reporting simply did not happen because an insurer and then a financial controller at a media company would say, "This is not worth the risk".

While I have been scrutinising this Bill on the Finance Committee, by the way, I heard of another local example. This is nothing to do with me scrutinising this Bill, but a journalist on a local title told me that their reporting on a very important story was inhibited because of the potential for defamatory action. I will not talk about that particular case, although it is fair to say that I am not naming the potential litigant and I am not talking about the case in any detail, so I do not have to be that careful. Even based on our current situation, they should not have had a particularly strong case, but the truth is that, because of the way that the law is at the minute and the way that it operates, it has been very favourable towards litigants.

We support clause 1. The balance of evidence that we got was strongly in favour of clause 1 as it stands. We were in the minority on the Committee when its verdict was to oppose the Question that the clause stand part, but we still support it and think that it is core to the Bill and to improving our defamation law.


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The Bill sponsor has tabled a number of technical amendments, which we support.

The Committee gave notice of its opposition to clause 5. Clause 5 has been challenging for all of us, because the Bill sponsor's intention was welcome and understandable, and my party's instinct was to support it. In the end, we abstained at Committee Stage on whether it should stand part, as we were waiting to hear more information.

I will go back to what the challenge is. We all know — I think that we would unanimously agree — that the online space has become a Wild West of speech that is not just horrible and hateful but defamatory, which sometimes affects local politicians in profound ways. The question was whether this clause and this Bill were the right means of addressing that. I understand that the Bill sponsor will not now move the clause. I understand that; we would have had a hard time passing it, given all the other unknowns surrounding how clause 5 would operate.

The Bill sponsor had a particular concern, which I share. That is about potential defamatory content put up by, for the sake of argument, 'Belfast Live', the 'News Letter', the 'Belfast Telegraph' or whomever, without having the capacity to moderate that, and then being subject to a defamation action, giving it a reasonable defence and, possibly, giving the litigant the ability to identify the person. On the balance of evidence that we got, there are many unknown questions. An online safety Bill is proceeding through Westminster. It is flawed, but, hopefully, it will make some progress.

There is definitely a need for much more international action — it would not be a speech from me if I did not throw in a little line about Brexit — but, of course, it would be much preferable if we were able to do that at an EU level. Indeed, the digital single market, which is one of the big developments of the European Union in the past decade, is one of the reasons why we have all been able to enjoy — hopefully, we will continue to do so; there are no guarantees post Brexit — no roaming charges in the European Union. The digital single market has also allowed the European Union to develop its work on regulating online behaviour. The EU would be an obvious place for us to do that work, but we cannot now, unless we decide to do it at bilateral level.

We supported the Bill sponsor's intention in clause 5, but we understand and are sympathetic to his action in not, I understand — he may say more about it — moving it.

Amendment No 5 is a technical amendment. Amendment No 6 has been explained to us by the Bill sponsor. It clarifies the jurisdictions in which actions can be taken, and it is sensible.

Clause 11 was the subject of some debate and controversy. That clause ends the relatively automatic right to jury trial in defamation cases. In our consideration of the Bill, we talked a lot about the Scott review. A key thing that came out of the review, which was commissioned by the previous Finance Minister, Mr Ó Muilleoir, who understands the publishing world because he is a publisher, was Dr Scott's finding — it was emphasised by others — about what happened when cases automatically proceeded to jury trials. Assumptions, frankly, were made by lawyers who advised media companies that, whatever the merit of the case, juries were much more likely to be litigant-friendly and to award high costs. Let us be blunt about that. People might say, "Why not? Someone has been defamed", but, in many cases, it is not necessarily the actual finding of defamation but the volume of costs that might be awarded that has the chilling effect on the media company. A lot of what has happened — we heard this repeatedly in evidence — is that Northern Ireland defamation law has promoted not only settlements out of court but settlements long before a writ is ever issued.

Mr Paul Tweed has been mentioned. He is an eminent, successful and authoritative libel lawyer. He might say that that is a perfectly proper way for these things to proceed, and, in some instances, that may well be the case. I do not think that we want a situation in which every engagement between a libel lawyer and a plaintiff media company proceeded to trial.

To me, however, the evidence is fairly clear. At the minute, we are far too balanced on the side of litigants who want to settle quickly and perhaps, even, directly or indirectly, have a chilling effect on the behaviour of a particular journalist or publisher. In evidence, we heard that clearly from at least one journalist. I have heard from journalists in this region that that happens on numerous occasions. It often happens at the behest — let us be blunt about it — of politicians in this place. We heard stark evidence about politicians from particular parties being canny and enthusiastic about using our defamation law not only to get cash occasionally but to get an outcome that they want in the reporting on them.

Mr K Buchanan: Will the Member give way?

Mr O'Toole: I am happy to give way.

Mr K Buchanan: The Member is a politician, as am I. If someone printed lies, little lies or something that was incorrect, would he sit on his hands, or would he go to his solicitor?

Mr O'Toole: If someone printed a lie about me, it would depend on what the lie was. In certain circumstances, yes, I would go to my solicitor. I am not saying that we do not need a defamation law. By definition, we do. It is important that legal recourse exists and that it is strong and clear. However, the clear evidence that I have taken from our consideration of the Bill is that, at the minute, it is often skewed towards litigants in particular circumstances.

If I were defamed, I would be annoyed about it. I have made this point multiple times in the Chamber: I am legislating for the whole of society, and part of the whole of society is a free press. We need a defamation law regime that works sensibly.

By the way, if the outcome that the Member talked about — the serious harm test and the provisions around jury trial for defamation — had prompted the end of the world, I presume that we would have seen it in England and Wales. However, we have not seen it yet. The average person is not a huge user of defamation law. This is about getting defamation law right.

I will go back to clause 11 on jury trials. Dr Scott was clear that this could shift the balance. It is only if we think that judges are unable to make careful decisions based on what we will hopefully set out in the new defamation law and in case law that we should reject that. If we think that judges are unable to try those cases, we are saying that they cannot make lots of other judgements. In many other areas of law, judges are trusted to make subtle judgements on what is in statute and in case law. This law would not preclude jury trial in any circumstances, but it would make it less automatic, which is sensible.

Once or twice, people made the link between our history in this jurisdiction of not having jury trials for criminal purposes. For very good reasons and because of the history of this place, there are understandable and substantial concerns and sensitivities around jury trials for criminal proceedings. However, it is important not to conflate that with civil proceedings. In many areas, it is routine for civil proceedings to happen without juries. In fact, this area of law is possibly slightly more exceptional in that jury trials are more routine. From our perspective, this is a sensible measure that would mean a sensible reform of defamation law. It does not abolish trials with jury; it simply slightly raises the threshold for trial with jury in this particular area of civil law. On the balance of evidence that we received, that is sensible.

The other amendments from the Bill sponsor are mostly technical. I have gone through most of them. The final amendment is around commencement. I know that he had to do some work on that, and the amendment seems sensible to us.

I have set out our intentions. I very much hope that the Bill survives intact, particularly with clause 1 and clause 11.

Mr Muir: I will speak as finance spokesperson for the Alliance Party. I note that many of the amendments that have been tabled are largely technical. I will therefore speak to three of the clauses.

First, I will speak to clause 1, "Serious harm". The Bill is largely a copy of the Defamation Act 2013, with some slight adjustments to reflect the fact that we are no longer a member of the European Union. When that Bill was debated in the House of Commons, it was noted that the consultation on the draft Bill had originally sought views on the test of "substantial harm". However, after drawing on the views of the Joint Committee on the draft Bill and the balance of opinions received to the consultation on the Bill, that bar was raised to "serious harm", meaning that a statement must have caused or have been likely to cause serious harm to the reputation of the claimant. The serious harm requirement aims to discourage insubstantial claims from being made, plus ensuring that claimants can take effective action to protect their reputation when it has been seriously harmed.

Clause 1 does not seek to limit the number of genuine defamation cases that are brought forward; it merely seeks to reform the law so that unfounded actions for defamation do not succeed. This clause is one of a range of measures that aim to strengthen the environment for open and robust scientific debate and professional journalism in Northern Ireland.

Although there is no Alliance Party member of the Finance Committee, we have been following the Bill closely. In evidence, the National Union of Journalists detailed how, in Northern Ireland, a number of very wealthy people have been able to bring defamation claims against people whose stories were not deemed to have caused serious harm. Those wealthy people knew, however, that a specific journalist's publisher could not afford to defend them. That chilling effect is widely known across Northern Ireland, and clause 1 presents an opportunity to try to put an end to it. We owe that to local news outlets and journalists with limited financial resources who are faced with daunting legal action by those with the finance to access skilful lawyers. Other news outlets and journalists across the UK do not face that extent of coercion, as they benefit from the serious harm protection. The Committee even heard evidence that suggested that a satellite television broadcast was discouraged from being shown in the whole of the UK because of the current defamation laws in Northern Ireland.

I am very conscious of developments in the Republic of Ireland and of the fact that it is in the process of reviewing its defamation laws. In Ireland, it has been recommended that an anti-SLAPP — strategic lawsuits against public participation — mechanism be put in place to tackle the issue of groundless and exaggerated lawsuits being filed by wealthy individuals against a weaker party to silence and intimidate with legal defence costs. It is vital that we take action now to tackle that problem in any way that we can.

An early decision by the courts in respect of the merits of a defamation action, as determined by clause 1, would limit court time and costs, allowing for better access to courts for ordinary people who have limited means to seek protection or appropriate redress. As my colleague Mr O'Toole, who is no longer in the Chamber, asked at Second Stage, where is the evidence that this change in England and Wales:

"has led to a huge increase in defamatory material going unchecked"? — [Official Report (Hansard), Bound Volume 142, p19, col 1].

This clause seeks to achieve a fairer balance between both parties in defamation cases and to move towards an objective, fact-sensitive approach that will be firmed up through case law. Alliance supports clause 1 and will vote to ensure that it remains part of the Bill.

Clause 5, "Operators of websites", creates a new defence where a defamation action has been brought against a website operator.

The term "Operators of websites" has not been defined, and the clause also provides an exemption from liability for operators of websites. That means that that specific defence could be used by social networks that host content alongside providing a platform that allows for mass publication. The exemption that is provided by the clause has been defined as being far beyond the defences that exist under European Union e-commerce rules.


11.30 am

Another concern that I have about the Bill and the clause is the possibility of a website operator being required to disclose the identity of a whistle-blower when they are the source of a post on a website. From watching Finance Committee evidence sessions again, it is clear to me that departmental officials have serious reservations about the clause and the ramifications that it may have. Much of the discussion about online safety is outside the scope of the Bill, so it does not fit into the Department of Finance's remit. The onus to create regulations for the framework is on the Department of Finance; however, there is uncertainty about whether the Department has the finance or resource to undertake that huge piece of work.

Committee evidence also highlighted that, in England and Wales, regulations on the issue have not been effective and that some companies are not even adhering to them. The lack of clarity on website operators means that not only would the big names of Facebook and Twitter, for example, be impacted by the clause but local newspapers with online comment sections would be subject to the legislation and could face huge moderation costs. Comments in newspapers and online platforms allow for discussion and debate while being platforms for free speech. Whilst I understand the sincere intention behind the clause, its ramifications could cause more problems than are solved.

It has been noted that there is a real possibility of conflict between the clause and anticipated online safety legislation at Westminster. I am more than aware of the need for action on online safety and on holding people to account for statements that are posted online, particularly on social media. I do not, however, think that the clause is the correct way to address that. The Bill has allowed online safety, bullying, defamation and harassment to come to the forefront of our legislative process, and I welcome that. An online harms Bill that can strike a better balance between the right to free speech and preventing vile attacks on others on social media platforms should be a priority for all legislators. Far too many people in this place know all too well the horrific experience of being attacked online with vile and hate-filled comments that are often posted by strangers and anonymous trolls. Alliance believes that it is only right that a platform is provided for discourse, but consideration must be given to how it does not become a platform for fake news and abusive content. Whilst the Bill is not the correct vehicle for doing that, organisations need to step up their game on that. There is a real risk that the clause could have the unintended consequence of reducing the liability of social media operators even further than the urgent need for improved reform in legislation on online safety and standards. To that end, the Alliance Party is minded to support the Committee's intention to oppose clause 5.

Lastly, clause 11, which is on trial without a jury, removes libel and slander from the list of proceedings where the right to a jury prevails. It does not remove the question of a jury trial entirely, as a court can order that a jury trial take place. It is also my understanding that a judge would retain discretion to order a jury trial if it is considered appropriate. In 2014, the Law Commission of Northern Ireland warned that the presumption of jury trials in defamation cases in Northern Ireland was exaggerating the costs of defamation cases in this jurisdiction, with that acting as a deterrent for defendants and enticing them to settle out of court. The Law Commission also noted that few cases reach full trial and that, in recent years, an increasing proportion of those cases have been tried by the judge alone. In fact, from 2014 to 2020, there were 140 defamation claims in Northern Ireland, but only 17 of them resulted in a judgement. The 2016 Scott report detailed that, because of the lack of change with regard to jury trials in defamation cases, the presumption of a jury trial continues to have a profound impact on the development of law here.

Mr Allister: Will the Member give way?

Mr Muir: Yes, no problem.

Mr Allister: Is the Member aware that, under our present arrangements, either party can apply to the judge to have the trial by judge alone? That facility already exists, so, whereas the presumption is that you will have a jury, either party can, in fact, apply for the trial to be by judge alone.

Mr Muir: I thank the Member for his intervention. I welcome that, but the legislation is about improving the position in relation to jury trials for the reasons that I am setting out.

We know that the presumption of a jury trial in a defamation case raises the cost and complexity of that case. It also disproportionately discriminates against defendants. Dr Mark Hanna, a lecturer at Queen's University's School of Law who has undertaken research on defamation law reform in Northern Ireland, gave written evidence to the Finance Committee and touched on that issue. He wrote:

"One must recognise that these virtues of jury trials simply do not translate over to the complexities of defamation law. Even though provision is made for juries in defamation claims, they are rarely employed in the end, and yet their looming prospect causes defamation cases to settle early, and allows the system to be gamed by plaintiffs to postpone any application of a threshold test".

Open justice is, of course, extremely important to our society. In this instance, however, it must be recognised that the virtues of jury trials do not translate to complex defamation cases.

It is also noted from the evidence that they provided to the Committee that lawyers remain fairly neutral on the clause. They did not highlight any major concerns.

The clause brings Northern Ireland in line with the rest of the UK on the presumption of a jury trial in defamation cases. The Republic of Ireland's reform of defamation laws will also see juries abolished for High Court cases. If the clause does not stand part of the Bill and the Bill proceeds — I hope that it does — we will be the only place in these islands that has not updated that aspect of our legislation.

Alliance supports the technical amendments that have been tabled to the Bill. We support clauses 1 and 11 and are minded not to support clause 5. Defamation law is another area where Northern Ireland is falling behind in relation to reform, and I welcome the Bill sponsor bringing forward the private Member's Bill. It is important that we act now to ensure freedom of speech and bring to an end far-fetched and amplified defamation claims.

Mr Allister: I trust that, when we come to the next debate, the last words of Mr Muir and the exhortations of Mr O'Toole in support of freedom of speech will be at the forefront of their minds and that they will not vote to suppress freedom of expression.

I want to focus on clause 1 of the Bill because it is the nub of the issue. For decades and for generations, our defamation law, which is a very important protection for all citizens, be they from whatever level in society, has been based on the simple but effective premise that, if something is written or said about you that causes damage to your reputation in the eyes of your peers, you have been defamed and, if you have been defamed, you are entitled to recompense. The recompense is in direct proportion to the quantum of the defaming — in other words, if the harm done is small, the damages will be small; if the harm done is great, the damages will be great. What the Bill would do by importing into clause 1 a fresh threshold is take away the present situation and substitute it with a situation where the plaintiff — the person who says that they have been defamed — has to do more than show that they have been merely defamed in the sense of harm caused to their reputation: they have to show that serious harm has been caused to their reputation. The House should remember that the onus to do that is on the citizen — the plaintiff. What that means in practice is that clause 1 gives an amnesty in instances of non-serious harm. If you tell a small lie rather than a big lie, that is OK; you get away with it. The real offence of clause 1 is that the House is being invited to legislate to the effect that you can tell lies — falsehoods — about other people and, provided it does not cross the threshold of serious harm, that is OK.

Mr Buckley: I thank the Member for giving way. Will the Member agree that even more concerning is the fact that the Bill would apply in the social media age that we live in? Many people target and defame people online. If the clause were passed in the way in which the Member has suggested, that defamation and that damaging character assassination would go unchallenged.

Mr Allister: The Member is right. In the debate, I have heard talk that we need to get the balance right: I am sorry, but there is no balance in favour of lies, none whatever. Clause 1 would introduce an amnesty for saying things about people that are false and defame them but do not sufficiently defame them. That is unconscionable, I suggest to the House. If something causes only minor damage —some libels and slanders cause only minor damage — that is reflected in the quantum of the damages, and that is the way that it should be.

In the Committee, we discussed the fact that a small case can, with little expense, be properly taken and disposed of in the County Court, where the jurisdiction is presently far too low. A defamation case worth more than £3,000 cannot be brought in the County Court; it should probably be 10 times that. If it were, the point about the costs in defamation cases would be dealt with, because all those cases would be at a manageable cost for most people. They would be scaled costs, as they are in the County Court.
The fundamental and basic question for the House is this: will we endorse the principle that it is all right to reduce someone's reputation by the lies that you tell about them, provided that you do not go too far? That is the fundamental question, and I cannot sustain a positive answer to it. Therefore, I must and will oppose clause 1. Really, without clause 1, the Bill is not of great weight. Yes, the Bill, in clauses 2 and 3, modernises the terminology of the current defences of justification and fair comment, which is fair enough, and deals with some other matters, but the real burden of the Bill turns on clause 1. For the reasons that I have given, clause 1 should be rejected.

Mr C Murphy (The Minister of Finance): I have expressed my preference for bespoke legislation on defamation rather than simply replicating the law of England and Wales from 2013. The Irish Government have just published a review of defamation. I have asked my Department to examine that report, as well as the experience in England and elsewhere, so that we can take forward modern legislation in the next mandate. That said, we have a Bill for consideration before us. There are aspects of the Bill that I have no difficulty with. The statutory codification of the defences, for example, is a measured and appropriate step in the development of our law.


11.45 am

I will now turn to the specifics of the Bill. Clause 1 seeks to introduce the serious harm test. The clause has provoked much debate, including this morning. My concern is that people who do not have a public profile would find it more difficult to prove serious harm. The clause would make it more difficult for ordinary people to protect their reputation. My concern is clearly shared by the Committee. Having discussed the Defamation Bill over many weeks, and having heard evidence from a range of witnesses, including lawyers, academics, media representatives and officials from my Department, the Committee decided that the clause should not stand part of the Bill.

Two arguments have been made in support of clause 1. The first is that it will remove what has been called the "chilling effect" of our current defamation law, and we have heard about that this morning as well. The chilling effect occurs when a news story, for example, is withheld because the author, publisher or editor is threatened with legal action. No journalist should be afraid to print a story if it is true. We have a defence in our law for that already, and it is given certainty and clarification in this Bill. Furthermore, there is no evidence that that defence causes more of a problem in this jurisdiction than in England and Wales, where the serious harm test has been in place since 2013.

The second argument is that, if we do not bring our defamation law into line with that in England and Wales, we will see a rise in libel tourism. It is claimed that people will come here to take advantage of our supposedly more lax defamation law. If that were the case, we would have seen a rise in libel actions after England and Wales changed their law in 2013, and we have not seen that. I therefore have reservations about clause 1 and agree with the Committee that it should not stand part of the Bill.

I am content to support amendment No 2 to clause 3 and the clause, as amended. The amendment, tabled by Mike Nesbitt, the Bill sponsor, flows from a recommendation from Professor Andrew Scott in his 2016 report on defamation law reform in this jurisdiction. Professor Scott thought that the original wording in the Defamation Act 2013 was too limiting, as it allowed a defendant to rely on a fact published before the allegedly defamatory statement but not at the same time as it. The Committee concluded that the amendment should stand part of the Bill, and I agree.

I will now turn to clause 5. One of the reasons that I favour a bespoke Bill and not simply a replication of the 2013 Act is because of the advances in social media since then. Addressing the challenges for defamation law in a world where social media is thriving is perhaps the most pressing challenge when it comes to defamation law. I note the decision of the Committee that the clause should not stand part of the Bill. In Committee, six members voted in favour of that position, with only one member against and two abstentions. That conclusion was based on many weeks of review, during which evidence was heard from a range of witnesses, including lawyers, academics, media representatives and officials from my Department. I agree with the Committee's decision and note in particular the Committee's opinion that the clause might have the unintended consequence of further reducing the liability of social media operators. I welcome the fact that the Bill sponsor has also decided to oppose clause 5. It is an area on which we need to take time to reflect on how best to proceed and develop a bespoke solution appropriate to modern circumstances.

Clause 11 would end the presumption in favour of trial by jury. In practice, it would mean the de facto abolition of trial by jury in defamation cases. That has been its effect in England and Wales, where there has not been a single defamation case involving a jury trial since the advent of the 2013 Act. In this Bill, akin to the position in which England and Wales found themselves, the removal of the presumption of the relevant part of the Judicature Act 1978 would have the effect that section 62(4) of that Act then applied. That provision means that having a jury in a defamation case can take place only in very restrictive circumstances, mainly where the court is of the opinion that there has been an:

"allegation of actual fraud or actual undue influence".

It appears that the "or for some other reason" aspect of that provision has not been utilised, and the net effect seems to be that clause 11 would effectively end jury trials for defamation cases.

An argument presented by some to the Committee was that the prospect of a jury trial creates a degree of uncertainty over the outcome of a defamation case. Members of the media argued that a jury trial can mean lengthy and costly legal processes. Juries can make high awards to claimants and awards that are sometimes seen as disproportionate, although the current law permits an avenue for such awards to be considered on appeal. Others pointed to the fact that Professor Scott suggested in his report that dispensing with the jury in defamation cases might make for a shorter process, with greater scope for an early resolution. At the same time, he noted the historical importance of the jury in our local context and that a jury decision might have more legitimacy than one taken by a judge alone.

The defamation subgroup, which was part of the review of civil justice, did not want to see the jury trial abolished. It was, in fact, unanimous on that point. It commented that juries were well placed to determine what a particular statement meant in the local context and whether it might be considered defamatory in that context. Therefore, to accept this clause is to accept the end of jury trials in defamation cases. That may mean that, in the future, there is an earlier resolution in defamation cases but, perhaps, at the risk of a loss of legitimacy. Judges discharge an important and valuable role in our justice system, but is a judge always best placed to determine meaning in certain defamation cases?

The subcommittee that considered the issue in 2017 for the civil justice review seemed to argue against the idea of removing juries in defamation cases. The review in the South recommended similar changes, but I expect that recommendation to be challenged. As Finance Minister, I am in agreement with the Committee and believe that this clause should not stand part of the Bill.

I want to comment on two other amendments tabled by the Bill's sponsor, Mr Nesbitt. Amendment No 7 introduces a new clause that will require my Department to review and report on the law in this area over the coming two years. It is good practice to review legislation, and I agree in principle with the new clause. It will provide an opportunity to take account of new thinking on online defamation in particular. My Department will continue its work with the time to properly examine recent developments, including the review south of the border.

Amendment No 15 seeks to change when the Bill will come into effect. Part of that will depend on whether we agree to keep clause 5 in place. Notwithstanding that, the desire is for the Bill to come into force around the time of Royal Assent. While I am content to see provisions come into effect without undue delay, there are others in the justice system who will have an interest when the new law comes into force. The Department of Justice and the Courts and Tribunals Service will be interested if jury trials are no longer required. That will need to be taken into account in their plans. My view is that commencement when all things are ready is preferable, but I will not take issue with the amendment.

I have no comment to make on most of the other amendments tabled by the Bill sponsor. My officials met him recently and ironed out some of the technical issues with the Bill and provided assistance, along with the Bill Office, on those. I am keen to ensure that the Bill is legally coherent, even where we clearly differ on policy. My officials will continue that process once Consideration Stage is over and we have a clearer picture of the shape and nature of the Bill.

There are aspects of the Bill that I can support and others that, unfortunately, I cannot. My Department will use the review period to consider the Bill in whatever shape it ends up, along with other developments related to this area. I hope that the end product will be beneficial for those who seek to protect their reputation as well as considering those who wish to articulate their freedom of expression. There may be more work to be undertaken before we reach that destination.

Mr Nesbitt: I should probably begin with a declaration as a deputy chair of the all-party group on press freedom and media sustainability. It probably does not need saying, but I declare that, for a large part of my adult life, I earned a living as a journalist, working for many of the print and broadcast media outlets that operate in this jurisdiction. That might explain my interest in the laws of defamation, but it does not explain my motivation. As Mr McHugh put it, I am interested in making sure that we have the best possible balance between what are often competing rights: the right of freedom of expression and the right to protect one's reputation.

I will heed the Speaker's recent written advice not to waste the time of the Assembly rehearsing points, positions and arguments that have already been made and rest in the Official Report of the House. Having started this process eight and a half years ago, I find myself about to be much more brief in my comments than I anticipated all that time ago.

To address a point that some Members made, that perhaps this is being rushed, I want to emphasise that I started my consultation 101 months ago, in September 2013. I remember putting in everybody's pigeonhole the consultation document and the offer of a briefing. More recently, as I revived the Bill after the three-year hiatus, I offered to meet any Member, party or grouping who wanted to meet me for a briefing about the Bill. Only one party took up that invitation, so perhaps there were missed opportunities on both sides.

The lack of cooperation between myself and the Department was down to a misunderstanding. The first time that the Department wrote to me, it talked about getting together to have a discussion. What it did not do was finish that letter with, "If you are interested, please contact X on Y phone number or Z email", so I was waiting for contact from the Department. However, we cleared that up and, the second time that we agreed to meet, we did meet. It was a very useful meeting, and I thank the departmental officials, the Office of the Legislative Counsel and the Bill Office for their assistance with that.

On the matter of thanks, I thank every Member who has contributed to the debate. I also thank the Committee members and staff for the considerable attention that they gave to the Bill at Committee Stage. I also need to thank the Speaker's Office for ensuring that the Bill was competent and the Secretary of State for allowing me to legislate in a reserved area, namely telecommunications. I thank the Bill Office, the Office of the Legislative Counsel and departmental officials. There were also external helpers whom I will mention at a later date.

I also thank the Minister, not just for coming here on a Wednesday morning, when, I am sure, he has many other duties to perform, but because I know that his Department's very strong first preference was that there should be no legislative movement in this area during this mandate. It is important to explain why I went ahead. There were two main reasons. The first was that I do not think that there is ever a perfect time to legislate on defamation. It is a moving feast. I quote, for example, the fact that the Government of Ireland are now being asked to review their laws of defamation, and Scotland very recently brought in the Defamation and Malicious Publication (Scotland) Act 2021. Therefore, there is constant updating in the jurisdictions around us. The second reason was the question of whether, post 5 May, there will be an Assembly and Executive functioning in a manner that will allow us to bring forward legislation in this area. I hope that there will be, but there is clearly a question mark against that. That is an important reason why the Department should continue to review what is happening here and in other relevant jurisdictions.

As Members have pointed out, my original intent was simply to replicate the Defamation Act 2013 in England and Wales. I accept that that is not going to happen, but I also point out that Dr Scott, now Professor Scott, the man whom the Department of Finance commissioned to conduct the in-depth consultation and produce the report, has said that replicating the Act actually has some serious advantages. At paragraph 18 of the written evidence that he gave to the Committee on 29 October, he suggested that consistency with English law is now arguably more pressing than when he reported in 2016. He stated that it will:

"become increasingly inappropriate for Northern Irish judges to rely on English law as a guide to the operation of the common law defences retained in this jurisdiction."

We can address that through some of the clauses that I have inserted in the Bill.

I turn to serious harm, which so many Members have difficulty with. I understand that the Committee did not support clause 1, and I understand that Members and the Minister do not support it. In paragraph 17 of his written evidence to the Committee, Dr Scott made it clear that the outcome in England and Wales was not what was expected and that, in fact, some judges there were reverting to the old test that we have here, which, frankly, is whether the ordinary man or woman in the street would think less of you when they became aware of the defamatory statement.

It was also my intention — it is clearly in the Bill — that someone would not simply have to prove that serious harm had been done against them but that it was likely to happen.

However, as I understand it, the case law in England and Wales suggests that you do have to prove that serious harm has actually occurred.


12.00 noon

Mr McHugh said that it was effectively a licence to print lies, which was a sentiment repeated, by and large, by Mr Allister. I disagree. I was a journalist for many years, and I never deliberately printed a lie, big or small. I did sometimes print or speak factually inaccurate comments. I made errors, some small and some large. If I may, I will take exception to Mr Allister, who implied that anybody seeking to take a defamation case was seeking recompense — seeking money. Not necessarily, Mr Allister.

Mr Allister: Will the Member give way?

Mr Nesbitt: I will give way in a second.

Some people want redress. Some people simply want an apology. They want, for example, me, as the journalist, to say, "I am sorry. I got that wrong. I really regret that". In his comments, Mr Allister made it clear that everybody — well, that was his inference — wants money by way of redress.

Mr Allister: Recompense can, of course, embrace money. It can embrace apology and withdrawal, but, under the Member's Bill, unless you get to the threshold of serious harm, you get no apology and no redress. You get away scot-free with telling a lie if it does not cause serious harm.

Mr Nesbitt: I thank the Member for his intervention, but he did not make that point during his contribution earlier. It was all about the money. I will come to the point about the County Court, if I may, in a second.

I will not die in a ditch over serious harm. I understand that the clause is gone, but I would like to make a couple of further comments. The Committee was very keen that I look at pre-action protocols and the potential benefits of alternative dispute resolutions. At one point, I had an amendment to that effect, which would have allowed a judge to order plaintiffs and defendants to engage in ADRs before the commencement of a trial. I thank the Minister of Justice, who wrote to me on 16 February about that issue to point out that Lady Chief Justice Keegan's office is:

"undertaking a targeted consultation on a draft Pre-Action Protocol for Defamation, Media and Communication Claims which will apply to defamation claims listed in the High Court, and which aims to promote early settlement of disputes without the need for proceedings, avoid unnecessary expense and control costs of resolving disputes."

On that basis, I did not bring forward that amendment.

I will go out of sequence and cover another issue raised by the Justice Minister. It is the one that Mr Allister referred to regarding civil actions in the County Court. Mr Allister's argument is, I believe, that it is a deterrent for a potential plaintiff to go to a County Court if their redress is basically built around their desire for financial recompense, because the upper limit in the County Court is currently £3,000. Mr Allister talked about maybe raising that as high as £30,000. I did have an amendment that would have put a duty on the Department of Justice to consult and bring forward proposals in that area. The Minister said that work is already ongoing by her officials to increase the general civil jurisdiction of the County Court and that that would include financial limits in defamation cases. She goes on to say that she has not come to a definitive view in that area. However, she makes the point that it would be duplication on my part to put the amendment in the Bill, and that is why it did not come forward today.

Clauses 2, 3 and 4 have been debated. They basically tidy, codify and transfer common law into statute. I do not think that anybody has a particular difficulty with that. The Deputy Chair of the Committee for Finance advised the House that I had dropped the second half of my amendment to clause 3, which was a defence for any fact that the defendant reasonably believed to be true at the time that the statement was published. I dropped that after consultation with departmental officials and the Office of the Legislative Counsel because they believed that it did not achieve what I was setting out to achieve. On their advice, that part of the amendment has not been tabled.

The Secretary of State gave his consent for me to legislate in clause 5 on a reserved matter: telecommunications. I have to accept that I have not succeeded in making my argument. At Second Stage, I said that I would not die in a ditch, that I had no red lines and that I was open to persuasion on every clause in the Bill, and I have listened to the Committee and to Members in the House today. I do not necessarily agree, but I accept that I have not made my case, so I will vote with the Committee against clause 5.

I would, however, like to say something else. During this mandate, two Members of the House were defamed on social media, both of whom are females, by the way; gender is an issue in this whole piece. One was clearly able to identify the author who posted the defamatory remarks on social media and, quite rightly, went to the High Court and was successful in suing for defamation and receiving compensation. The other has no idea who posted quite outrageous and, frankly, sickening comments about her and her husband and family. She cannot identify the person who posted. That is what I was trying to achieve in clause 5. What I was saying was that, if you see a post and you cannot identify the author, you go to the website operator and say, "Identify that person". By "identify", I mean identify in a way that I can get them into the High Court and sue them. If you do not, because you do not want to or you cannot, I am coming after you as the operator of the website".

I want to give you another example. A couple of weeks ago, I posted a tweet about some victims. I will not name one of the respondents because I will not give them the oxygen of publicity, but they may be a man, because their photograph is of a man. This is the response that I got from the individual:

"A 'victims advocate' of the [named individual] (gunrunner) school."

He compared me with a loyalist gunrunner and then went on to say of me:

"No fenians need apply for empathy or support."

I would suggest to the House that that is defamatory.

Just out of interest, I sent that tweet to a media lawyer. Client confidentiality restricts me from telling you who it was, but you may wonder whether the individual media lawyer has already been named in this debate. The key point of his written response was this: if you can identify him, it may be worth considering — if you can identify him. Yet Mr McHugh quoted Paul Tweed as saying that clause 5 was totally unworkable. The intent was to identify the person who was responsible for the tweet. My lawyer said that, if I could identify him, it may be worth considering.

I accept, however, that clause 5 is gone. I also accept Mr Muir's comment that online safety is a much broader issue than online defamation. It is complex. The bottom line is that we legislate, we do not enforce, and the problem is more on the enforcement side than on the legislative side of the House. I will leave it there on clause 5. I will join the Committee and the House in voting against the clause.

Clause 6 is on peer reviews, clause 7 makes technical changes to reporting, and clause 8 tidies up the law regarding repetition of a defamatory statement. I understand that some Members do not accept that.

Clause 9 deals with libel tourism, and the amendment simply tidies up an error that left us in the European Union, which is clearly not the case. I accept that there is currently no —

Mr McHugh: Will the Member give way?

Mr McHugh: The Member commented on Mr Tweed. Does the Member accept that, as I commented, the fact that many of the people who use the internet, including social media, are unknown is what makes clause 5 unworkable? Does Mr Tweed's advice to the Member not confirm exactly what I was saying? It is unworkable because many of them are unknown.

Mr Nesbitt: I thank the Member for his intervention, but I do not accept his premise. The fact that the person is unknown is the issue. I am saying that we are not the courts: we do not enforce the law; we make the law. I propose that we make a new law that would make it a criminal offence for the operator of a website not to identify the individual. I propose that we put a legal onus on the operator, be that Twitter, Facebook or whatever. We say to the operator, "If you receive a complaint from me" — say, about the tweet that I just mentioned — "you must identify that individual to me so that I can brief my lawyer, and we can proceed with defamation in the High Court. If, for whatever reason, you do not, I will come after you". The difficulty is the legal enforcement. That is not a matter for us. We legislate; we do not enforce.

I will return to libel tourism. I accept that there is no evidence that libel tourism has occurred or is occurring in Northern Ireland. However, I want to plant the thought that, if we do not go with clause 11 on jury trials, and we, potentially, become the only jurisdiction on the two islands that retains the presumption of a jury trial, that might make a difference to what happens in regard to libel tourism.

I note those who are opposed to clause 10, which deals with the definitions of "author", "editor" and "publisher". Clause 10 is intended to offer protection to those who are involved in the dissemination of information but who do not meet any of those definitions. Say, for example, I run a printing firm, and I am struggling. Print newspapers are struggling because of the internet, and people are reading more books online, on Kindles and on other devices than they are buying hard copies from shops. I am a printer, and I am struggling to get business. I am struggling to get people to ask me to print their publication. However, somebody comes to me from a university and says, "I'm a scientist. Here's a 1,000-page book. Would you please print it?". Do I have to get a scientific expert to read every word of those 1,000 pages so that he can say, "On page 732, paragraph five, there's something that's potentially defamatory"? What is the additional cost of that to my printing house? All that I am saying in clause 10 is that the person deliberately disseminating that defamatory statement would be an author, an editor or a publisher.

Mr K Buchanan: Will the Member give way?


12.15 pm

Mr K Buchanan: Does the Member agree with the flip side of the argument, which is that, if someone posted something on, for example, Facebook, about anybody in the House and someone else shared it, clause 10 would let them off the hook?

Mr Nesbitt: They would be a publisher, would they not? They would have chosen to reprint and to republish the defamatory comment. That is my interpretation of clause 10.

Mr Allister: Will the Member give way?

Mr Allister: Is there any read-across from that answer to clause 8, which is on the single publication rule?

Mr Nesbitt: There is, potentially, Mr Allister, if you run out of the one-year time limit. Yes, there is.

I will move on to the last substantial comment that I have to make, which is on clause 11. Jury trials in civil law are rare, as I understand it. They certainly are not available in England, Scotland and Wales, and there is every possibility that they will soon not be available in the jurisdiction of the Government of Ireland if Minister Helen McEntee's recommendations are accepted.

I will return to the evidence of Professor Scott. I remind Members that he was commissioned by the Department of Finance, back in the day, to look after the consultation and write the report. In his written evidence to the Committee on 29 October 2021, the first thing that he tackled was the move to judge-only trials. His headline was "Highly beneficial consequences", and he said that the move allowed:

"questions of fact … to be considered at a preliminary stage …. Preliminary hearings now habitually address the determination of meaning and the matter of whether an impugned statement should be understood as fact or opinion.

Yet the current law in Northern Ireland would often see the determination of these matters left — inefficiently — to the end-point of litigation. This increases costs and expands the opportunity for gameplaying by relatively powerful litigants."

To be clear, if one of us goes to the High Court with a defamation claim, because there is a jury, the judge will decide only whether the statement is capable of being interpreted as defamatory. If the statement is perverse, he or she can throw the case out, but if it is capable of being interpreted as defamatory, the trial will go ahead and the jury will decide. I am sure that we have all said things, possibly even in the House, and have felt that we have known exactly what we meant, only to discover that someone else had a different interpretation. That is key to the whole issue of defamation. At the end, you have to have a single meaning. Currently, it is the jury that says, at the end of the trial, "Those words mean x, not y". It decides whether the plaintiff or the defendant is right. Professor Scott is saying that, if you go for a judge-only trial, the evidence is that, because the judge does not have to give the jury its place, he or she can simply say, right up front, "I think that those words mean x", and the statement, therefore, is either defamatory or not. That is a much more efficient way of dispatching a defamatory action, particularly if we are thinking about new pretrial protocols and alternative dispute resolutions.

Before I give way to Mr Allister, let me finish with Professor Scott's conclusion:

"The importance of this change — the move to judge-only trials — cannot be overstated. It was perhaps under-appreciated and hence understated in the 2016 report."

Mr Allister: If defamation is whether someone's reputation has been lowered in the eyes of the public or their peers, is there not a natural correlation in letting the public, as represented in the jury, decide what the alleged libel actually means? Is that not the correct correlation?

Mr Nesbitt: As the Member is aware, because the point has been made in the debate, very few defamation cases are going to jury trial at the moment. Mr Allister himself made the point that both plaintiff and defendant can say, "I would rather have the trial conducted by a judge only". I think that the provision in clause 11 is a much cleaner, efficient and potentially cost-effective way of dealing with the issues. It seems almost perverse to say, "We won't decide on the meaning of the words until the end of the trial". Let us get it done upfront and move on.

I will not delay the House for much longer than another minute. The rest of the clauses are basically technical, but my amendment No 7 places a new duty on the Department of Finance to:

"keep under review all relevant developments"

and report to the Assembly within two years of the legislation receiving Royal Assent. That is sensible, as it acknowledges the ever-changing nature of the defamation environment. It is also sensible given what may or may not happen after 5 May. I have changed the time limits, as the Deputy Chair pointed out. That was done after negotiations on the commencement provisions. The Deputy Chair pointed out that amendment No 15 changes the time limits for the commencement. Those timescales were negotiated recently with departmental officials and, while they are not without challenge, they are realistic and there was no particular objection from departmental officials to amendment No 15.

I shall leave it at that. Once again, I thank all Members and the Minister for their attention.

Mr K Buchanan: I thank all the contributors to the debate on the Defamation Bill. You will be glad to hear that I will not go through each contribution, because, to be fair to him, the Bill sponsor covered that and there is no point in me going over old ground.

I also thank the Bill sponsor and the Minister for the oral and written briefings that they provided to the Committee. Regardless of the outcome today, it is always to a Member's credit when a private Member's Bill is brought to the Assembly, because the process is lengthy and demanding and can prove to be quite testing for the Member involved.

The issues in the Bill are important and include free speech, free press, excessive social media commentary and the protection of reputation. Thus, it is hardly surprising that some of our exchanges today displayed somewhat differing views. That is, obviously, the reason why we are here. Notwithstanding that, the debate has been useful and illuminating, and it will help to inform the Assembly as we consider the amendments on the Marshalled List.

Clause 1 disagreed to.

Clause 2 (Truth)

Amendment No 1 made:

In page 1, line 19, leave out "Defamation (Northern Ireland) Act" and insert "Defamation Act (Northern Ireland)". — [Mr Nesbitt.]

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3 (Honest opinion)

Amendment No 2 made:

In page 2, line 12, after "before" insert "or at the same time as". — [Mr Nesbitt.]

Amendment No 3 made:

In page 2, line 31, leave out "Defamation (Northern Ireland) Act" and insert "Defamation Act (Northern Ireland)". — [Mr Nesbitt.]

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.

Clause 5 (Operators of websites)

Amendment No 4 made:

In page 4, line 4, leave out subsections (8) to (10). — [Mr Nesbitt.]

Clause 5, as amended, disagreed to.

Clauses 6 and 7 ordered to stand part of the Bill.

Clause 8 (Single publication rule)

Amendment No 5 made:

In page 7, line 21, leave out paragraph (b) and insert—

"(b) the reference in paragraph (1)(a) of that Article to the provisions of Article 6(2) is a reference to the provisions of Article 6(2) and the provisions of this section." — [Mr Nesbitt.]

Question proposed, That the clause, as amended, stand part of the Bill.

Some Members: Aye.

Some Members: No.

Mr Deputy Speaker (Mr Beggs): I am hearing Ayes from many Benches, but Noes to my right from the DUP. I think that the Ayes have it.

Some Members: No.

Mr Deputy Speaker (Mr Beggs): The Question will be put again in three minutes.

I remind Members that, if they have proxy voting arrangements in place, they do not have to come to the Chamber. I remind Members to maintain social distancing during the entire process. Keep a 2-metre distance where possible, especially in the Lobbies.

Question put a second time.

The Assembly divided:

Question accordingly negatived.

Clause 8, as amended, disagreed to.

Clause 9 (Action against a person not domiciled in the UK or a Member State etc)

Amendment No 6 made:

Leave out clause 9 and insert—

"Action against a person not domiciled in the UK
9.—(1) This section applies to an action for defamation against a person who is not domiciled in the United Kingdom.

(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, Northern Ireland is clearly the most appropriate place in which to bring an action in respect of the statement.

(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.
(4) Sections 41 and 42 of the Civil Jurisdiction and Judgments Act 1982 apply for the purpose of determining whether an individual, corporation or association is regarded as ‘domiciled in the United Kingdom’ for the purposes of this section." — [Mr Nesbitt.]

Clause 9, as amended, ordered to stand part of the Bill.

Clause 10 (Action against a person who was not the author, editor etc)

Question put, That the clause stand part of the Bill.

Mr Deputy Speaker (Mr Beggs): I have been advised by the party Whips that according to Standing Orders 113(5)(b) that there is agreement that we can dispense with the three minutes and move straight to the Division. I remind everyone to maintain social distancing as they take part in the voting arrangements.

The Assembly divided:

Question accordingly negatived.

Clause 10 disagreed to.

Clause 11 (Trial to be without a jury unless the court orders otherwise)

Question put, That the clause stand part of the Bill.

Mr Deputy Speaker (Mr Beggs): As per Standing Order 113(5)(b), there is agreement that we can dispense with the normal three-minute wait and move straight to a Division. I remind Members to maintain social distancing during the voting, especially in the Chamber, the Rotunda and the Lobbies.

The Assembly divided:

Question accordingly agreed to.

Clause 11 ordered to stand part of the Bill.

Clauses 12 to 14 ordered to stand part of the Bill.

New Clause

Amendment No 7 made:

After clause 14 insert—

"Review of Defamation Law
Review of Defamation Law
14A.—(1) The Department must keep under review all relevant developments pertaining to the law of defamation as it considers appropriate.

(2) The Department must prepare a report and recommendations on—

(a) the findings of the review under subsection (1), and

(b) the operation of this Act.
(3) The Department must lay the report and recommendations before the Assembly, and publish the report and recommendations, before the end of the period of 2 years beginning with the day on which this Act receives Royal Assent." — [Mr Nesbitt.]

New clause ordered to stand part of the Bill.

Clause 15 (Meaning of "publish" and "statement")

Amendment No 8 made:

In page 9, line 22, at end insert—

"‘the Department’ means the Department of Finance;". — [Mr Nesbitt.]

Amendment No 9 made:

In page 9, line 24, at end insert—

"‘regulations’ means regulations made by the Department;". — [Mr Nesbitt.]

Clause 15, as amended, ordered to stand part of the Bill.

Clause 16 (Consequential amendments and savings etc)

Amendment No 10 made:

In page 9, line 31, leave out "Defamation (Northern Ireland) Act" and insert "Defamation Act (Northern Ireland)". — [Mr Nesbitt.]

Amendment No 11 made:

In page 9, line 34, leave out "Defamation (Northern Ireland) Act" and insert "Defamation Act (Northern Ireland)". — [Mr Nesbitt.]

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17 (Regulations and orders)

Amendment No 12 made:

In page 10, line 9, leave out subsections (1) and (2) and insert—

"(1) Regulations may not be made under this Act unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly." — [Mr Nesbitt.]

Amendment No 13 made:

In page 10, line 13, leave out "and orders made by the Department" and insert "made". — [Mr Nesbitt.]

Amendment No 14 made:

In page 10, line 16, leave out subsection (4). — [Mr Nesbitt.]

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18 (Commencement)

Amendment No 15 made:

Leave out clause 18 and insert—

"Commencement
18.—(1) Section 5 comes into operation at the end of the period of 12 months beginning with the day on which this Act receives Royal Assent.
(2) The other provisions of this Act (including this section) come into operation on the day after the day on which this Act receives Royal Assent." — [Mr Nesbitt.]

Mr Allister: On a point of order. Just before we vote, could you clarify a matter? Amendment No 15 anticipates clause 5 still being part of the Bill. Clause 5 was voted down, so in what shape is clause 18? Will it include a commencement for a clause that is not in the Bill?

Mr Deputy Speaker (Mr Beggs): Members, take your ease for a few moments.

A point of order has been made by Mr Allister. Having discussed and thought about the matter, I am content that it is in order in that, if there are any issues such as that indicated, those can be remedied at Further Consideration Stage.

Clause 18, as amended, ordered to stand part of the Bill.

Clause 19 ordered to stand part of the Bill.

Long title agreed to.

Mr Deputy Speaker (Mr Beggs): That concludes the Consideration Stage of the Defamation Bill. The Bill stands referred to the Speaker.

I propose, by leave of the Assembly, that we suspend the sitting for a lunch break until 2.00 pm. The next item of business when we resume the sitting will be the Consideration Stage of the Abortion Services (Safe Access Zones) Bill.

The sitting was suspended at 1.13 pm and resumed at 2.00 pm.

(Mr Deputy Speaker [Mr McGlone] in the Chair)

Mr Deputy Speaker (Mr McGlone): I call Ms Clare Bailey to move the Consideration Stage of the Abortion Services (Safe Access Zones) Bill.

Moved. — [Ms Bailey.]

Mr Deputy Speaker (Mr McGlone): Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in the provisional grouping of amendments selected list. There is a single group that contains 12 amendments and opposition to clauses 1 to 13 stand part. The amendments deal with protected premises, the establishment of zones, offences, notices and definitions. Amendment No 2 is mutually exclusive to amendment No 1 and amendment No 9 is mutually exclusive to amendment No 7.

I remind Members intending to speak that, during the debate on the single group of amendments, they should address all the amendments on which they wish to comment. Once the debate is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If that is clear, we will proceed.

Clause 1 (Overview)

Mr Deputy Speaker (Mr McGlone): We now come to the single group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2 to 12 and the opposition to clauses 1 to 13 stand part. I call Mr Jim Allister to address his opposition to clause 1, his opposition to the other clauses and the amendments in the group.

Question proposed, That the clause stand part of the Bill.

The following amendments stood on the Marshalled List:

No 1: In clause 2, page 1, line 8, leave out from second "are" to end of line 10 and insert—

"satisfy conditions 2 and 3.

(2) Condition 1 is that they are premises where provision is made, or proposed to be made, for treatment for the lawful termination of pregnancy in accordance with the Abortion (Northern Ireland) (No.2) Regulations 2020.
(3) Condition 2 is that the operator of the premises has given notice to the Department that the operator wishes the premises to be protected premises." — [Ms Bailey.]

No 2: In clause 2, page 1, line 9, leave out from "treatment" to "pregnancy" on line 10 and insert "abortion services". — [Mr Gildernew (The Chairperson of the Committee for Health).]

No 3: In clause 3, page 2, line 3, leave out subsections (4) and (5) and insert—

"(4) Condition 3 is that the operator of the premises has given notice to the Department that the operator wishes the premises to be protected premises." — [Ms Bailey.]

No 4: After clause 5 insert—

"Establishment of safe access zone
5A.—(1) A safe access zone is established for protected premises in accordance with this section.

(2) Except as provided by subsection (3), the safe access zone for protected premises consists of—

(a) the protected premises; and

(b) the public area outside the protected premises which lies within 100 metres from each entrance to, or exit from, those premises.

(3) If the operator of any protected premises is of the opinion that the public area mentioned in subsection (2)(b) is not adequate to afford safe access to the premises for protected persons, the operator may give notice to the Department that it wishes the public area so mentioned to be extended by a specified distance not exceeding 150 metres.

(4) On receipt of a notice under section 2(3) relating to any premises, the Department must include an entry relating to those premises in the list maintained by it under section 8A; and a safe access zone is established in relation to those premises on publication of that entry under section 8A.

(5) On receipt of a notice under subsection (3) relating to any premises, the Department must amend any entry in the list published by it under section 8A which relates to the premises; and the extended safe access zone is established in relation to those premises on publication of the amended entry under section 8A.
(6) In this section ‘public area’ means a place to which the public has access, without payment, as of right." — [Ms Bailey.]

No 5: In clause 6, page 3, line 4, leave out subsection (4). — [Ms Bailey.]

No 6: In clause 8, page 3, line 26, leave out "must" and insert "may subject to Clause 9(c)". — [Mr Allister.]

No 7: In clause 8, page 3, line 40, leave out subsection (6) and insert—

"(6) The Department must by means of notices (including permanent or temporary signage in the vicinity of the protected premises) and other such methods as it considers necessary, draw the attention of the public to the existence and extent of safe access zones." — [Ms Bradshaw.]

No 8: After clause 8 insert—

"Publication of list of protected premises and safe access zones
8A. The Department must maintain and publish, in such manner as it thinks appropriate, a list of all premises which are for the time being protected premises for the purposes of this Act together with, in the case of each premises, an indication of the extent of the safe access zones established for the premises under section 5A." — [Ms Bailey.]

No 9: After clause 8 insert—

"Safe access zones – notices
8B. The Department must by means of notices (including permanent or temporary signage in the vicinity of the protected premises) and other such methods as it considers necessary, draw the attention of the public to the existence and extent of safe access zones." — [Ms Bradshaw.]

No 10: In clause 11, page 4, leave out line 17. — [Ms Bailey.]

No 11: In clause 11, page 4, line 21, at end insert—

"‘record’ means—

(a) To make a recording of sounds; or

(b) To make a recording of moving images; or

(c) To make a recording of moving images accompanied by a recording of sounds; or
(d) To take a photograph, regardless of the medium on which the recording is made or the method by which the sounds or images are reproduced or produced." — [Ms Bailey.]

No 12: In clause 11, page 4, line 21, at end insert—

"(1) In this Act a reference to ‘premises’ is to be read—

(a) as including a reference to the land on which the premises are situated; and

(b) in the case of premises which form part only of a building, as a reference to the whole building.
(2) For the purposes of this Act a person is attending protected premises if the person is accessing or leaving, or attempting to access or leave, those premises." — [Ms Bailey.]

Mr Allister: I tabled my opposition to every clause, because this is a Bill that carries and contains no merit. When weighed against the current position of our law, it is unnecessary, it is overwhelmingly vindictive in its approach, and it quite consciously and deliberately expunges and oppresses any legitimate protest whatsoever. It is ironic that no choice to protest is permitted in the Bill. It creates these censorship zones, where even the attempt to influence is criminalised.

If I go to clause 6(2) of the Bill, we can see exactly how pervasive it is. Within a zone, it makes it an offence to:

"with the intent of, or reckless as to whether it has the effect of—

(a) influencing a protected person, whether directly or indirectly".

The very issue of seeking to influence someone is therefore now to be criminalised. That influencing might be an entirely silent presence. It could be an entirely silent protest. It could be someone simply holding up the words of the sixth commandment — "Thou shalt not kill" — in the context that abortion is killing. Someone who chose to stand quietly with those words, without saying a word or handing out anything, would be criminalised by this legislation. That is how draconian and outrageous it is in its reach.

Based on past performances, my words will, no doubt, fall on deaf ears, but I ask the House to stop and think about what it is doing. You might be wholly persuaded of the merits and desires of promoting abortion; that is not the issue. The issue here is this: are you wholly persuaded that it is right, in 2022, to create a criminal offence out of silent protest seeking to influence someone? There is no point in glossing over that by saying, "Oh, but this is really to deal with harassment", which is not even defined in the Bill, or to deal with abuse or violence, all of which are covered in the current law. If it were really to do with that, clause 6(2)(a) would not be in the Bill, but clause 6(2)(a) makes it a criminal offence to seek to influence and creates these censorship zones at the behest of the operators. It is most incredible that any Bill would so lose sight of fundamentals that it would put that draconian measure upon us.

During the previous debate, we heard about freedom of expression from some of the very people who, I suspect, will vote for this Bill. They were lauding freedom of expression, but freedom of expression provides equally for saying the unpalatable as it does for saying the palatable. There is no sifting in freedom of expression that you must only say that which is palatable. Freedom of expression also entails saying the unpalatable, but, under clause 6, freedom of expression is totally expunged, and therein is something that is quite unpalatable in itself.

Even silent prayer is now a criminal offence. Someone could go to one of the facilities, stand within the zone and silently pray, indicating their position on these matters, and they could be capable of being criminalised. That is how dastardly the extent of the Bill is. Of course, this does not exist anywhere else. Within the United Kingdom, the Home Office decided against it and Scotland decided against it, but here, we want to put those measures upon individuals and society in general.

I said that there is no definition of harassment, and I made this point at the Second Stage. I thought that the Bill sponsor might have at least taken that under her notice, because harassment is already defined in law. It is defined as causing alarm etc. Of course, alarm or distress is the legal definition of harassment, but this Bill, in its tautology, says "causing harassment, alarm or distress". What is the harassment here? It is obviously not alarm or distress. It is obviously not harassment as defined in the law, so one would have expected to see, in the Bill, a definition of whatever harassment it is that the Bill refers to. That is just a side issue.

Where the Bill really oversteps the mark is in its audacious move to create self-certification of zones, at least under the existing clauses. Clauses 3(4) and 3(5) state:

"following a request from the operator of the premises, the Department makes a determination that the premises are to be treated as protected premises",

and:

"The Department may only make that determination if satisfied that it is reasonable to do so."

Then, along come amendment Nos 3 and 4. Amendment No 3 removes that role and obligation for the Department to ensure that it is reasonable to do so. It simply leaves a situation where a zone arises when it is self-certified by the operator. So they get to write their own laws — their own rules — and they do not have to go through any filter of any Department. The Department's sole role is to hold a register of these places. Under amendment Nos 3 and 4, we have this absurd position whereby a zone is established on self-certification. That is the import of amendment No 4:

"If the operator of any protected premises is of the opinion that the public area mentioned in subsection(2)(b) is not adequate to afford safe access"

etc, they can even extend it up to 150 metres. So it is made in the first place, and then they can extend it on their own whim and self-certify it with no consent from or need for the Department. The only duty of the Department, in the proposed new clause 5A(4), is:

"the Department must include an entry relating to those premises in the list maintained by it under section 8A".

It really is unbelievably audacious that this Bill would bestow upon the operators the self-certification rights to create and to extend these zones, within which to silently protest is a crime and within which to silently stand, as I have said, with a copy of the sixth commandment, "Thou shalt not kill", is a crime.

Ms Bradshaw: Will the Member give way?

Ms Bradshaw: I am not sure how many of the evidence sessions you listened in on, but when we heard from the chief executives of the trusts, we heard about a woman who had come to Northern Ireland from Eritrea to seek refuge here. She was sexually assaulted en route, and when she arrived here to have her healthcare needs met, she was harassed at the entrance to the facility. While I understand and support the right to protest, I also believe that the needs of women in her circumstances and similar ones should have primacy. Do you agree with that?

Mr Allister: The Member says that she supports the right to protest, yet I guarantee that, today, she will vote to expunge all right to protest. There is not much point in her coming to the House and saying that she supports the right to protest when she is going to vote to take out clause 9.

Ms Bradshaw: Will the Member give way?

Ms Bradshaw: People can protest, but outside the safe access zones. That is what I will be supporting today.

Mr Allister: So you are going to create zones that are only allowed to contain one world view, which is the pro-abortion view, and within that, even though it is a public place, it is outside the public right to express a view that is contrary to the pro-abortion view within that zone. That is how audacious this is. If the Member is saying that this is about harassment, you do not need "influencing". You do not need to criminalise influence, because that is already covered in clause 6(2)(c).

The point here is that you have to look at the breadth of a law. The breadth of this law is that it can criminalise mere silent protest if it is thought capable of influencing someone. I gave an example of that in the Second Stage debate. Take the 14-year-old girl who gets pregnant and is determined to have an abortion. Her mother does not wish her to; she wants her to deal with this in other ways. She tries to give motherly advice but the young girl says, "No, I am going to do it". She heads down to the abortion clinic and the mother goes with her, pleading with her not to do it. Once the mother steps within this zone, she is the criminal, because she is trying to influence the minor not to proceed. She becomes the criminal: that is how absurd this is.

Ms Bailey: I thank the Member for giving way. In clause 4(b), the person who is

"accompanying a person described in paragraph (a), at the invitation of that person"

is also a protected person: in this case, the mother whom you are speaking of.

Mr Allister: It says:

"at the invitation of that person".

If the child says, "I don't want you. I don't want you to come with me. I'm going to do this on my own. I'm getting an abortion. I don't care what you say", and the mother says, "I'm your mother. I love you. I care for you. I want to persuade you not to do this", and attempts to do so by trying to accompany her daughter, that mother becomes a criminal once she steps over the line into the zone, according to this law. That is how absurd the legislation would be. We are going to criminalise mothers who are showing motherly concern for their daughters, because they are not allowed within that zone to seek to influence the child. Is that what the House wants to do? That is beyond comprehension.


2.15 pm

I return now to the tyranny of self-certification. There is no oversight, appeal or proportionality; it is on the whim of the operator: "We want to extend it to 150 metres". New clause 5A would make it a case of, "That's all right then, you do it". There is no oversight or asking the Department; there is nothing whatsoever.

On the notification of zoning, clause 8(2), as the Bill stands, states:

"Within eight weeks of receiving this notification, the Department must designate an area as a safe access zone."

That is gone under these amendments. Amendment No 8 makes the Department the depository for a registry. It would keep a register of where these organisations, which, in some cases, are profit-making, self-certify and decree. It is beyond comprehension that any House would want to hand that control over the public streets to such profit-making organisations, because that is what is happening. This is public property, and they are going to self-certify who can and cannot go. In taking out clause 8, of course, you take out clause 8(3), the power to consult by the Department; clause 8(4), the power to vary the determination; and clause 8(5), the power to revoke. All that is to go under this.

There is also an amendment to take out clause 9. If there was any saving grace in the Bill, it was the indication that, in the exercise of its functions, the Department must have regard to three things:

"the safety and dignity of protected persons, the right to respect for private and family life set out in Article 8 ... the right to manifest religious belief, and the rights to freedom of assembly and expression, set out in Articles 9, 10 and 11".

What does the sponsor do? She comes along with an amendment to expunge clause 9. The very essence of any regard to freedom of expression that was in the Bill is now, by the sponsor, designed to be removed. What you are left with are no-go zones for the Department. They are zones of censorship, self-certified by the organisers, where it is a criminal offence to dare to breathe anything that might be interpreted as being influence, and you abandon the zones to the control of the abortion clinics. That is what the legislation is coming to, through the amendments. Any semblance —

Ms Bradshaw: I thank the Member for letting me in. The Member keeps using the word "influence". Does he not think that, by the time the woman or girl has arrived for her healthcare services, she will have already gone through an agonising process? By that stage, she will have made up her mind, so I do not think that it should be on anybody else to try to influence her at that point.

Mr Allister: The Member might be so in favour of the destruction of the unborn that she thinks that no one should have the right to try to influence someone not to destroy the unborn, but I disagree. To destroy the unborn is one of the most fateful steps that any mother or anyone else can take. Surely we live in a society where legitimate influence should still be recognised and honoured instead of being expunged and criminalised, as the Bill will do. We are heading down a road that is quite shocking.

All of this has no regard to the existing law. Article 9 of the Public Order (Northern Ireland) Order 1987 makes it an offence to use:

"written material which is threatening, abusive or insulting".

What is wrong with that? Patently, it is not enough. Harassment is provided for in the Protection from Harassment (Northern Ireland) Order 1997. You even get a restraining order under that Order. Disorderly behaviour is provided for in the 1987 Order; article 4 allows conditions on public assemblies, so, if you have a situation where there is a routine of regular protest, it can be regulated by that article. Instead, along comes this Bill with a Bill sponsor who says, "I want to amend my Bill to the point where anyone who sets foot within 150 metres of one of those abortion clinics will be criminalised if they dare to try to influence anyone". Some of those places may be public buildings that have other purposes, but the zone applies to the whole building. It is such unbelievable presumption on their part.

The Member referred to taking evidence. I had a look at the report. I was struck by how diffident the Committee was in hearing anything but one side of the story. Of 6,459 written submissions, only 13 supported the Bill. There was a slate of witnesses but a refusal to hear from those who were opposed. The Committee did not cover itself in glory in dealing with the matter; it covered itself in bias, by virtue of the fact that there were people from whom it would not hear. No doubt, that same bias will be here today.

Mr McGrath: Will the Member give way?

Mr McGrath: On that issue, it is important to note, in the Committee's defence, that the decision was taken that the people who were offering their view were offering it on abortion and not on access to the clinics. The decision was taken to listen to the people who had a view on that issue. To have taken all the issues on board, we would have been reopening debates that the Bill did not cover. That approach is quite diligent; it is not biased, as you put it.

Mr Allister: Was there not a group of laymen and ministers who asked to be heard and were politely — if it was politely — told, "Go away. We do not want to hear from you"?

Mr Gildernew: Will the Member give way?

Mr Gildernew: Those views were taken into account as part of the written submissions.

Mr Allister: You tell us that the views expressed in written submissions were taken into account and that all but 13 of the 6,459 were against the Bill, yet here we are, still with a Bill that the Chairman and others are about to make worse by supporting the amendments. Who does the Chairman think that he is kidding when he says that those views were taken into account? There were over 6,000 objections to the Bill. There is no evidence in the report that they were taken into account other than by being counted. They did not count when it came to the argument. The Committee was consciously and deliberately deaf to views other than those that fitted the Bill. That is exactly how we got here.

In my respectful submission, the Bill is unworthy of any support in the House. It drives a coach and horses through basic, elementary, lawful expectations as to freedom of expression. It outlaws that, elevates to an unbelievable point the rights of abortion clinics to self-certify the zones and removes the very Department from any oversight of that. It is quite appalling and unnecessary legislation, because, as I said to the House, there are multiple limbs of legislation that cover unruly, inappropriate behaviour outside or in any public place. That is not enough for the Bill sponsor and her Bill. The Bill's supporters want exclusivity, to have only their view capable of expression and to expunge the right to even silent protest. I will not and cannot endorse that. I will therefore oppose the Bill today.

Mr Gildernew (The Chairperson of the Committee for Health): In contributing to the debate on the amendments, I will give a brief overview of the Committee's scrutiny of the Bill and make some further comments on the Committee's view on the Bill sponsor's proposed amendments. The Committee has not considered the amendments in the name of Mr Allister and Ms Bradshaw. Therefore, there is no Committee view on those amendments.

The Bill seeks to allow for the establishment of safe access zones outside premises that provide lawful abortions or related information, advice or counselling. The Bill also creates offences that apply to safe access zones and allows the police to enforce those offences.

On 7 October 2021, the Bill sponsor, Ms Bailey, briefed the Committee on the principles of the Bill. On 12 October, the Bill passed Second Stage and was referred to the Committee for Health for scrutiny at Committee Stage. The Committee issued a call for evidence, and there was a substantial response to that call, with the Committee receiving a total of 6,459 written submissions. A total of 47 written submissions were received from organisations, with the rest coming from individuals.
At the Committee meeting on 2 December 2021, members agreed to take oral evidence from a number of statutory organisations. Evidence sessions were held with the Department of Health, all five health and social care trusts, the PSNI and the Human Rights Commission. The Committee also took evidence from the Bill sponsor on three occasions.
On 19 January, the Committee received correspondence from Abolish Abortion asking that the Committee reopen its evidence gathering to allow ministers and pastors to give evidence. The Committee considered that request and said that there had been a significant response from organisations, including statutory bodies, staff representative bodies, professional bodies and pro-life and pro-choice organisations. The Committee felt that the views of organisations and individuals were clear from their written submissions and that members had used those written submissions to inform their views on the Bill. Therefore, the Committee did not reopen oral evidence sessions.

The Committee received a wide range of views, with the vast majority of individual responses being not in favour of the Bill. I am certain that Mr Allister will understand that Committees generally do not take evidence from individuals. Maybe Mr Allister could advise us whether he suggests that we should have taken evidence from all 6,000 respondents or just from those respondents whose views he supports.

Mr Allister: Will the Member give way?

Mr Allister: We just finished debating the Defamation Bill. I sat on that Committee, and we heard from several individuals. It is not alien to hear from individuals, but you had 6,000 people expressing a view, and you did not want to hear from one of them.

Mr Gildernew: Their views were clear and were presented to us. I am certain that you are not suggesting that we should have heard from them all. Therefore, how would we pick?

Mr Allister: Did you hear from even one of them?

Mr Gildernew: Which one should we have heard from?

Mr Deputy Speaker (Mr McGlone): Excuse me, gentlemen. This should not be a dialogue. I ask you to confine your remarks to the Bill and to make them through the Chair.

Mr Gildernew: Of the responses from organisations, approximately 27 outlined their general support for the Bill, and 18 outlined their opposition. I thank all those individuals and organisations —


2.30 pm

Mr Allister: Will the Member give way?

Mr Allister: Of those 18, how many did you hear from?

Mr Gildernew: I will outline in my remarks whom we heard from.

I thank all those individuals and organisations for taking the time to submit written evidence and all those who attended Committee meetings and gave oral evidence.

Mrs Erskine: I thank the Member for giving way. The Member will know that Pam Cameron and I asked in the Health Committee that the evidence be reopened. Some members were allowed to give their views on the Severe Fetal Impairment Abortion (Amendment) Bill. Will the Chair clarify how many people were able to give their views during that Bill's Committee Stage?

Mr Gildernew: That happened as a result of a request from the sponsor of that Bill to facilitate a particular individual who has taken a court case. We felt that that was the appropriate and compassionate thing to do. It does not mean that you can then create the precedent that you will hear from 6,000 individuals whose evidence made very clear what their view is. You are still left with how you would fairly address the individual responses of 6,000 people.

Mr Humphrey: I am grateful to the Member for giving way. I accept entirely that you cannot ask all 6,000 people to come to the Committee. However, the clergy and laypeople represent thousands of people in Northern Ireland, so why did the Committee think that it was not a good idea to hear from them?

Mr Gildernew: The Committee discussed that, and we agreed our approach. Those discussions are in the Hansard reports, which are available. I advise any of you who wish to revisit that issue to look at those reports. I will move on.

I thank all the individuals and organisations who took the time to submit written evidence, and I thank all those who attended Committee meetings and gave oral evidence. The Committee was briefed by the Bill sponsor again yesterday on the amendments that she has tabled. Clare outlined that she worked with the Office of the Legislative Counsel and the Department of Health to draft those amendments. While acknowledging that they were brought late, the Committee welcomes that joined-up approach and cooperative working by the sponsor and the Department. It is a good example of a Department working with the sponsor of a private Member's Bill in order to ensure that the Bill is as robust as it can be. The Committee's clause-by-clause consideration of the Bill was based on previously tabled amendments by the Bill sponsor and, therefore, does not take into account some of the amendments that we have before us today. The Deputy Chair, Pam Cameron, and Deborah Erskine did not take part in the formal clause-by-clause consideration.

The Committee heard evidence about why safe access zones are required. The Belfast Trust advised that, since the beginning of 2021, despite lockdown and COVID-19 restrictions, there have been weekly protests from various anti-abortion groups outside its clinics, including its College Street premises. The Belfast Trust advised the Committee that protests cause considerable distress and anxiety to patients and staff. The Northern Trust advised that it had to move the location of its clinic on two occasions, as there were concerns about the ongoing impact of personal and abusive protests on service users and for patient and staff confidentiality. The PSNI advised in correspondence that, in the 12-month period from January 2021 to January 2022, police were requested to attend 55 incidents related to the issue.

Many of the organisations described the detrimental impact of the actions and behaviour of protesters on those accessing services, and they highlighted the impact on particularly vulnerable groups, such as minors and those attending services as a result of sexual assault. Some of the organisations pointed out that the actions and behaviours of protesters can cause distress to those who have suffered pregnancy loss and those who live with fertility issues. Many of the organisations that oppose the Bill also condemned situations in which women and staff are harassed or subjected to behaviours that would cause stress. They also stated that the behaviours that are described are not the norm and that protests that take place are often peaceful. However, all members of the Committee agreed that there is no place in our society for the harassment, abuse or intimidation of women and girls who are accessing health services and that patients, staff and visitors should be able to access health premises free from harassment, abuse and intimidation. I sincerely hope that everyone in the Chamber agrees with that.

The Committee sought the views of the Human Rights Commission on the balancing of competing human rights, particularly the right to privacy with the rights to expression, association and religion.

The Human Rights Commission advised the Committee that the Bill engages articles 8, 9, 10 and 11 of the European Convention on Human Rights (ECHR) and that those require consideration. The commission advised that none of those rights are absolute and that they can be interfered with and limited in certain circumstances. The commission advised us that the European Court of Human Rights, in considering restrictions or limitations, has held that the restriction must be prescribed by law, must have a legitimate aim under the relevant article and must be necessary in a democratic society. To demonstrate that a restriction is necessary in a democratic society, it must also be proportionate. In light of that, the commission advises that, in the case of safe access zones, there are legitimate aims, such as the protection of health.

Mr Allister: Will the Member give way?

Mr Gildernew: Go ahead.

Mr Allister: Did the Human Rights Commission also tell you about the cases that say that blanket bans are extremely dubious legally? That is exactly what the Committee is endorsing here.

Mr Gildernew: The Committee's advice is contained in the report and in the remarks that I am making, as the Member will know.

The commission advises that, in the case of safe access zones, there are legitimate aims, such as the protection of health. Where protests are preventing access to necessary healthcare, causing distress or possibly leading to the harassment of patients and staff, protecting their right to physical and psychological integrity under article 8 of the ECHR is a very important factor.

The Committee is content to support amendment No 1 in the name of the Bill sponsor. The amendment will ensure consistency with the language used in the Abortion (NI) (No. 2) Regulations 2020 and would ensure that the provisions remain workable in practice. Therefore, the Committee will support amendment No 1 on the understanding that the Committee's amendment to clause 2 will, as you outlined, Mr Deputy Speaker, not be moved.

The Committee is content to support amendment No 3 in the name of the Bill sponsor, which provides greater clarity on how the Department will make a determination.

The Committee also supports amendment No 4, which clarifies the process for when a safe access zone is required to be greater than 100 metres and ensures that it maintains compliance with human rights.

The Committee supports amendment No 5, which would remove subsection (4) of clause 6. That subsection states that it is a defence if a person can show that they

"did not know, and had no reasonable way of knowing, that the protected person was in a safe access zone."

The Committee supports amendment No 8, which seeks to provide clarity on the role of the Department in publishing information on safe access zones.

The Committee supports amendment No 10, which is needed as a consequence of the Bill sponsor's intention to oppose the Question that clause 9 stand part. The amendment removes reference to "the Convention" in clause 11.

The Committee supports amendment No 11, as it provides clarity on the specific offence of recording a protected person in a safe zone, as provided for in clause 6(3).

The Committee supports amendment No 12, which provides clarity on the meaning of "premises" and what attending premises means in the Bill. The vast majority of premises will be trust premises, and so the operators, in many cases, will be trusts.

I thank the Bill sponsor for her engagement with the Committee on the Bill, and I thank Committee members for their work on the Bill over a sustained period. I also thank the Committee team and the Bill Clerk for supporting members through their scrutiny of the Bill. I thank the Department for working with the Bill sponsor and the Office of the Legislative Counsel for providing technical support.

I will now make a few brief remarks as a Sinn Féin MLA and as the party's spokesperson on health. Sinn Féin supports the Abortion Services (Safe Access Zones) Bill, and we thank the sponsor for bringing it to the Chamber.

Blocking access to a healthcare clinic inhibits a woman's ability to access the healthcare that she might need and to which she is entitled. Displaying graphic images, handing out leaflets and behaving aggressively towards women who are seeking treatment is unacceptable and should be unacceptable in any society. It is a violation of rights, and, indeed, it is indecent and disrespectful. Women who are accessing the services they need and the workers who provide those services have complained of campaigns of harassment and intimidation that have left them distressed at an already anxious and stressful time. It is unthinkable that a woman who is already in distressful and painful circumstances would face such a violation of her humanity.

The Bill will create buffer zones wherein the rights of all will be respected: the right of women and girls and of workers to privacy; the right to access healthcare; and the right of protesters to protest and air their views, whatever they may be. That protest, however, should be respectful and free from the abuse that has repeatedly been reported to the Committee. The rights of one should not impair the rights of another.

Mr Allister: Will the Member give way?

Mr Gildernew: I will not give way again.

In moving protest away from the immediate vicinity of healthcare services, everyone's rights are protected. The protesters have their right to protest but not to humiliate or verbally assault their targets protected, and the women accessing treatment have their right to privacy and safe, accessible healthcare protected. It is time for the Department of Health to roll out the provision of safe and accessible services that women need, that they are entitled to and that they should be able to avail themselves of.

Mrs Cameron: I welcome the opportunity to speak in the debate. With the exception of amendment No 6, in the name of the Member for North Antrim, I do not support the amendments. I do not support the Bill, and my party does not support it. I voted against the Bill at Second Stage, and I clearly outlined our concerns with it at Committee Stage. We ensured that those concerns were recorded in the Health Committee's report. That is not because I believe that patients, staff and visitors should be subjected to malicious or abusive behaviour. All patients have the right to access healthcare free from abuse and intimidation. All patients should have access to an environment where they feel safe. Activities against anyone entering or exiting health premises that are clearly harassing and criminal need to be dealt with. However, I am deeply concerned that the Bill, including the amendments, will not have the desired impact.

The criminalisation of direct or indirect influence in clause 6 is broad, sweeping and vague. Under the framework proposed, there would be no requirement for influence to be undue or unreasonable. Established legal principles have been set aside out of convenience. That is reckless. It is in breach of articles 9, 10 and 11 of the European Convention on Human Rights, which establish the right to protest and freedom of religion. The implications would set a dangerous precedent for restricting other forms of expression in the public sphere. The provisions of the Bill would almost certainly be subject to protracted legal challenge. That would have serious implications for the taxpayer and do little to improve outcomes for those with legitimate grievances.

We want all those seeking health services to feel safe and to be free from abuse and intimidation. However, the Bill does not distinguish harassing, abusive or criminal behaviour from influencing behaviour. The question that we need to ask ourselves is this: how can the Assembly pass legislation that properly balances competing rights and that is workable, lawful, avoids falsely raising the expectations of women and staff and will not be subject to immediate legal challenge?

I am disappointed that neither the Committee nor the Minister of Health has pushed back against the rushed and dysfunctional drafting of the Bill. The PSNI said that enforcement would require continuous physical police presence. Where is the Minister of Justice's concern for the potential implications for police resources? The consultation was limited and is over five years old. The legitimate concerns of patients and staff should be addressed, but that should be done primarily through a comprehensive review of the law on harassment. Sadly, there has been no willingness among the other parties to even consider that as a viable alternative.

With those overriding concerns on the record, I will address the amendments —

Ms Bradshaw: Will the Member give way?

Ms Bradshaw: I take your point. An amendment that I tabled would support people who want to protest by giving them clarity.

You talked about reform of the harassment laws, but I see no amendments tabled by your party to address the issues that you are raising today. Why not?

Mrs Cameron: I will continue after that intervention.

With those overriding concerns on the record, I will address the amendments tabled by the Bill sponsor and representatives of the Alliance Party.

Amendment Nos 1 and 3 amend clauses 2 and 3 and would grant to premises where abortions take place and to those that provide information, advice or counselling an unqualified right to become protected premises. The only requirement appears to be that they notify the Department. The original stipulation in clause 3 that the Department must be satisfied that it is reasonable to make premises protected premises is removed entirely.

We cannot support those changes. Automatic entitlement, seemingly with no recourse for the Department to challenge a notification, does not seem responsible or proportionate. In addition, it fails to provide any ability for consideration on a case-by-case basis of whether the creation of a zone is rights-compliant under articles 9, 10 and 11 of the convention.


2.45 pm

Amendment Nos 4 and 12, standing in the Bill's sponsor name, are more significant and deal with the extent of protected premises. Clause 5 would be replaced by a stipulation that the safe access zone consist of the protected premises themselves and the public areas within 100 metres of the entrance to or exit from those premises. That could then be extended by a further 150 metres on the request of the operator of the premises. Under the framework, there seems to be no authority for the Department to ensure that the extent of a zone is commensurate with its location or circumstances. It would impose a blanket approach, regardless of whether the building or facility is situated in a congested high street or city centre or on the Health and Social Care (HSC) estate. The Department's role would be simply to maintain a register of zones: a gatekeeper, if you will. That in itself is deeply problematic. I am open to correction, but I believe that the Bill's sponsor previously opposed a prescriptive approach to the extent of safe access zones, and I am not sure what has changed. The reality is that amendment Nos 4 and 12 are littered with contradictions and confusion.

Proposed new clause 5A under amendment No 4 defines a public area as:

"a place to which the public has access, without payment, as of right."

Does that mean that hospital car parks that charge for entry would be discounted from the calculation of a 100-metre buffer zone? If protesters were to congregate in that area, would they face prosecution? To go one step further, amendment No 12 frames "premises" to mean:

"the land on which the premises are situated".

That leads us to ask whether a safe access zone starts at the entry to the hospital grounds or at the front door of the hospital. How can we expect the public to abide by those provisions when the Bill is unclear and poorly drafted?

Amendment No 5 would remove the defence in clause 6(4) for protesters to show that they:

"did not know, and had no reasonable way of knowing, that the protected person was in a safe access zone."

Although I absolutely understand the intention of amendment Nos 7 and 9, standing in the name of Paula Bradshaw, which require there to be signage marking out safe access zones, I am concerned that that would result not in a safe environment for patients or staff but in a conspicuous signposting to the entrance of such services, essentially placing a spotlight on any individual who enters the zone. I am concerned that such a proposal would single out patients and staff rather than the perpetrators of abuse or harassment. That could have the effect of increasing conflict and unproductive interactions. Have patients, staff or local businesses been consulted on whether they feel signage would be appropriate or helpful?

My party and I cannot support those amendments. We feel that it would be wrong to dilute the already limited protections contained in the Bill for protesters while the indiscriminate criminalisation of influence remains at the heart of clause 6.

I support amendment No 6, standing in the name of Jim Allister. It would ensure that, in the context of the Bill's original provisions, within eight weeks of notification, the Department would designate an area as a safe access zone, only after it had given due regard to:

"the right to manifest religious belief, and the rights to freedom of assembly and expression, set out in Articles 9, 10 and 11 of the Convention, and in particular the right to protest."

That obligation to account for such freedoms is glaringly absent from the proposed amendments.

Amendment No 11 would tighten up the parameters of unlawful recording for the purposes of the offence created in clause 6. The reality is, however, that it misses the elephant in the room, namely the ambiguous and open-ended approach to the offence of direct or indirect influence in the same clause.

On balance, I feel that the amendments would exacerbate concerns over the disproportionate impact of the Bill on freedom of expression and the right to protest. There is a real risk that the effect of the provisions, particularly if amended, would be simply to displace the bulk of protest activity rather than deal specifically with a minority of individuals engaged in malicious and abusive behaviour. As expressed in our submission to the Committee report, that would only serve to present false hope to women who hold legitimate concerns about behaviour directed towards them. I urge Members to reflect on the wide range of concerns expressed about the rushed and careless drafting of the Bill and to consider revisiting these matters in a new mandate.

Mr McGrath: This is not a debate about abortion. Nowhere are we being asked to debate the legislative position on abortion, and nowhere are we being asked to compromise any of the deeply held views and principles that people may have on abortion. Anyone who tries to paint a picture of this being a debate about abortion is playing politics with the emotional and psychological well-being of women who access these services.

We are debating a series of amendments that have been tabled as a result of the progression of the Bill through the Health Committee. The amendments are mostly technical in nature. They tidy up some of the clauses, and I am grateful to the Bill sponsor for working on them to clarify matters. For instance, amendment No 4 seeks to establish a set of parameters for a safe access zone. It creates a 100-metre area that would be protected. That is helpful, as it allows a very defined area of protection for those accessing such services. There is also flexibility to increase that distance to 150 metres, if needed.

Amendment No 7, tabled by Ms Bradshaw, details the need for signage to identify that people are in a protected area. There was much conversation about that amendment, as it relates to a specific area about which we needed to be mindful and sensitive. We are happy to support that amendment. That concern was detailed to us by the PSNI in particular, as it is concerned about its ability to enforce the zones if there are no clearly identifiable signs to indicate that they are zones.

Amendment No 8 necessitates the publication of a list of protected premises and safe access zones, thereby ensuring transparency for the public in relation to the protections that are afforded on those premises.

I draw particular attention to amendment No 11 and say to the Bill sponsor that it is important. Regardless of one's view on abortion, it is not acceptable to record sounds or images of a woman who is trying to access those services and then to share those sounds or images on social media. It is not acceptable to record members of staff who work on the premises, and it is not acceptable to record anybody else who goes into the premises. I am nearly sure that the services that people have concerns about are not the only services that are available in those buildings. People could be going to those buildings for other reasons, but they are subjected to all the behaviour that people raised concerns about. The police, especially, raised concerns, saying that they had been called on a number of occasions, and that there was always the possibility that that could have in relation to people who were going into the building for entirely different reasons.

In conclusion, the Bill does not impede anyone objecting to abortion services. The SDLP can therefore support the Bill and the amendments tabled by the Bill sponsor and Ms Bradshaw and will oppose amendment No 6 from Mr Allister.

Mr Chambers: As a member of the Health Committee, I certainly refute any suggestion of a biased approach being taken by me during this process. Scrutinising the Bill was a lengthy, difficult and, at times, upsetting task. My party will support the sponsor's amendments, which, I understand, she has worked through with the Department. We will not support amendment Nos 7 and 9, which put a responsibility on the Department in relation to signage; we have concerns around those particular amendments.

Some months ago, when I made my first contribution on this Bill in the House, I made it clear that it was not to be viewed through the lens of a pro-life or pro-choice debate. That fact remains. The subject of abortion is a matter of conscience for the Ulster Unionist Party Assembly team, but this Bill falls outside the scope of where an individual stands on the subject of abortion. It is misleading, at best, for some people to try to make the debate on the Bill into another debate on the emotive subject of abortion. The way my party votes on the Bill should not, in any shape or form, be viewed as representing my or any of my colleagues' position, either pro-life or pro-choice, on the subject of abortion. It still remains a matter of conscience. That will not change.

The Bill's purpose is to provide a degree of protection for any vulnerable woman who seeks advice or guidance at an abortion clinic. They may be at the lowest point of their life, unable to share their fears or concerns with even their most trusted friend or family member. All the correspondence that I have received on this Bill has been from people on the pro-life side who are opposed to it. That fact tells me that, in the eyes of many people, the topic has been reduced to a pro-life/pro-choice argument, which it clearly is not. Many who have contacted me — I fully respect their motivation — have spoken about those who are following the words of scripture in taking part in a protest that will lead to their being criminalised. Unfortunately, during our evidence hearings in the Health Committee, we heard that some protesters — maybe only a small number — target not only women who are heading into a clinic, but the people who actually work in those clinics and, worse still, other members of the public who enter such a building in pursuit of other business, which may include children. The protesters take photographs and shout loudly. I welcome amendment No 11, which addresses the aspect of protesters taking photographs or videos. I am sure that we all acknowledge that that sort of behaviour is unacceptable.

The Bill allows for a police officer to direct a protester or suspected protester to leave the safe access zone. They then have the power to remove the person from the zone if they do not leave. At that point, no one has been arrested or attracted a potential criminal record. We have heard from Members that there are harassment laws from so many years ago that could deal with that situation. That is fine, but if you breach those harassment laws, you will attract a criminal record. Therefore, it is not the harassment law or the new law that will make you a criminal: it is your actions that will attract a criminal record.

The other issue that has arisen in correspondence is the human right to protest and the right to freedom of speech. Those rights also come with a responsibility to respect the human rights of others. Those who seek to attend a clinic also have human rights with regard to seeking medical advice, and their rights are equally worthy of protection. The Bill has sought to find a balance between all those competing rights. The right to protest directly outside a clinic will simply be displaced to a point that is 100 yards away from the clinic. That will not stop you from protesting. An individual's right to enter a clinic for whatever reason will also be protected by the Bill. It will prevent any individual from being intimidated or subjected to behaviour that could cause them to feel either threatened or fearful. The Bill, as amended, will respect everyone's rights, be that to protest peacefully or to enter a building without fear.

Ms Bradshaw: I can confirm that I will not move amendment Nos 7 and 9, as the Health Minister has written to Committee members and the Bill sponsor and, at our special Health Committee meeting yesterday, outlined what those amendments would mean in practice. I welcome the Minister's assurance in his letter that he will develop a policy statement that sets out how these zones will be implemented. I will support all the amendments that have been tabled by the Bill sponsor. I will support her in her clauses not standing part intentions, and I will oppose all other amendments.


3.00 pm

Amendment Nos 7 and 9 are essentially the same amendment. It is worth emphasising that we still need to add clarity to the original Bill on that area, as my colleague Colin McGrath has just outlined, which follows on from evidence given to the Committee, particularly around the relative ineffectiveness of the law as it stands.

It bears repeating and emphasising that safe access zones exist elsewhere. In the words of the Queensland Law Reform Commission, they are:

"to protect the safety and well-being, and to respect the privacy and dignity".

I felt that, in an unamended Bill, the description of the zones was clear and was similar to the law already adopted in the Isle of Man in 2019. Usefully, other amendments have further strengthened that description, including reference to the abortion regulations of 2020. What concerned me in our Committee deliberations was that the ability to enforce the law, when distress was being caused that was clearly intentional, may have been limited by the Bill as it initially stood. To be clear here, we are talking not about reasonable protest, which is legitimate, but about behaviour that is likely to traumatise or further traumatise. When people are accessing healthcare —

Mr Allister: Will the Member give way?

Ms Bradshaw: Yes, I will.

Mr Allister: Where in clause 6 does it say that the criminality is limited to circumstances where the behaviour is likely to traumatise? It says no such thing. It is all-embracing of anything likely to have an effect of influencing, no matter how innocuous that might be.

Ms Bradshaw: I spoke to people who have been traumatised when accessing services, and we heard from the chief executives of the trusts, who talked about how their staff felt traumatised having to run the gauntlet through the protesters. When people access healthcare, they should not have to run that gauntlet of hate and harm. My intention was and is to ensure that the legislation is clear about where that gauntlet is.

We need to be in no doubt about the right to protest. However, as with any other right, it is not absolute. It comes with a responsibility, and, essentially, that responsibility is to behave reasonably. No one can argue that it is reasonable behaviour to target women in a way designed to make them feel angry, uncomfortable, traumatised, scared, intimidated, upset, inadequate or unsettled by subjecting them to a torrent of public abuse as they exercise their right to access healthcare.

The Bill empowers the police to enforce safe access zones, and my concern was that the legislation initially did not make it sufficiently clear where those applied. During 2021, the police attended over 50 incidents at premises that would be protected by the legislation going forward. Before that, in the best-known case, police were deployed at the Marie Stopes clinic daily and reported 85 crime occurrences that resulted in just one successful prosecution. Even then, the conviction was overturned precisely because the judge could not be clear that the unpleasant behaviour constituted criminal harassment. That is exactly why the legislation is necessary, but it is also why it is essential to be as clear as possible about what precisely that entails. I repeat that I welcome the Minister's commitment to look further at that through a policy framework.

Evidence was brought to the Committee emphasising that there would be a potential defence under the legislation that those engaging in abuse did not know that they had approached a protected person. That was raised under the definition of "protected person", but it also emphasises the need to be clear about where the offence applies. The reason for that is not just about legal defence in the event that someone is charged with an offence; it has to do with knowing when the police should be called and providing clarity to prevent offences occurring in the first place. In other words, I want to ensure that there is no uncertainty and that, where there is space for reasonable protest, that is defined as well. That is to reduce the potential impact on police resources and, most of all, to reduce the likelihood of offences occurring. The distinction between reasonable protest and forcing people to run the gauntlet of hate to access healthcare will need to be carefully defined going forward and established not just in law but on the ground.

I hope that the Bill, strengthened by the amendments, can proceed with the uncertainty reduced. I support the Bill sponsor's amendments and thank her and the Committee staff for their work before Consideration Stage.

Ms Sheerin: I support the premise of the Bill, as I stated at Second Stage. I confirm that Sinn Féin will support most of the clauses and the amendments tabled by the Bill sponsor and will vote against amendment No 6, tabled by Jim Allister.

The Bill is about righting a wrong. It tackles violence against women and complements a lot of the good work that has been done or is being progressed in this Assembly mandate. In this mandate, we have a high proportion of female Ministers, and you can see the impact of that through much of the work to tackle misogyny. When my constituency colleague Michelle O'Neill was Executive Office Minister, she led on the strategy to tackle violence against women and girls. We want that strategy to progress. There have been Bills from a number of Ministers, including the Justice Minister, about tackling stalking, revenge porn, upskirting, downblousing, coercive control, sex trafficking and issues that have, for decades and centuries, affected women and have been let continue. The Bill works alongside those Bills to tackle and address misogyny and the root causes of what is, effectively, violence against women.

The so-called protests are acts of aggression targeted at women whose circumstances the aggressors neither know nor understand. Children, people living with disability and staff members are caught in the crossfire and exposed to graphic and harmful imagery without any regard for their personal circumstances, and that is evidence of the intent of the protest organisers. Ireland, as a country, has a shameful, tragic history of how it has treated pregnant women and girls. We have had Magdalene laundries, mother-and-baby homes, unmarked mass graves, secrecy and shame, commentary and judgement. I do not understand why other people's pregnancies are so interesting. I do not understand why another woman's womb is a cause for concern to a random stranger who does not know anything about her life.

Even beyond criminalisation, we have kept a lot of the gender norms and social stigmas that have pressured and shamed women down through the centuries. As young people, we are aware of what is expected of us. We have heard the remarks and the commentary: "No babies until you are married. Once you are married, babies right away. If not, why not? Is something wrong? Are you prioritising your career or some other aspect of your life?". That all carries shame along with it. We do not have funding in this place for the three cycles of IVF that we were promised as part of New Decade, New Approach (NDNA) over two years ago. That is a let-down for those struggling with infertility. The absence of safe access zones outside clinics is a similar dereliction of duty towards the women and couples who struggle with infertility.

Ms Bradshaw: Will the Member give way?

Ms Sheerin: I will.

Ms Bradshaw: Does the Member agree that it is not just about the women who are accessing healthcare at that point but can re-traumatise women who have experienced miscarriage and see graphic images at the protests?

Ms Sheerin: I thank the Member for her intervention. I agree with that point. I was coming to the fact that women who are undergoing fertility treatment, have suffered an ectopic pregnancy, miscarriage, the loss of a child or a stillbirth will be traumatised when they are exposed to that imagery. For anyone to defend that is cruel and insensitive. It is equally heartless to impose such pressure on children who may be accessing speech therapy, women who are accessing routine contraception, staff members who are trying to do a day's work and, most importantly, the women who are accessing the abortion services to which they are entitled in this state under the law.

As many across the House have said, the Bill is not about people's views on abortion. We live in a state that is supposed to deliver healthcare free at the point of delivery without discrimination, fear or favour. People should be entitled to access healthcare without being traumatised, pressured or catcalled on their way into that place.

Mrs Erskine: I have thought a lot about the Bill and, indeed, its consequences. I welcome the opportunity to outline my views. The Bill will be of interest to many in the public domain. From the outset, I make it clear, that, in common with my colleague Pam Cameron MLA, with the exception of amendment No 6, in the name of the Member for North Antrim, I will not support any of the amendments. Like the Member for North Antrim, I oppose the Bill, and I will outline my reasons.

My voting on the issue has been consistent and clear. Unfortunately, throughout the course of the Bill, as it passed Committee Stage and at different stages in the House, some in the public domain have spread false and inaccurate information about my voting record. That has been deeply upsetting. It was designed to wreck my character and misrepresent my deeply held views. I hope that those listening to my speech today will realise the consequences of spreading inaccurate information.

I move to the Bill in question. There has been inadequate time to consider the Bill properly. My DUP colleague Pam Cameron MLA and I made that view clear in the Committee. The fact that the Bill sponsor attended a Committee meeting yesterday to discuss her amendments and we are debating the Bill in the Chamber today speaks to that. We have not, for example, properly considered the consequences that implementing a safe access zone might have on surrounding businesses; nor, indeed, have we looked at best practice elsewhere.

Ms Bailey: I thank the Member for giving way. On her point that there has not been enough time, work on the Bill began in this institution in 2016. We had three years with no Assembly, and it was finally introduced in September last year. I note that the Member's party colleague introduced a Bill on 5 July, just before recess: this Bill was introduced just after recess. Although her colleague's Bill has gone through to Further Consideration Stage, the Member says that there was not enough time for this Bill. The reason why I attended the Committee yesterday was not timing; it was due to the availability of the OLC and the departmental officials.

Mrs Erskine: I thank the Member for her intervention, but a lot has changed since 2016. I would like to see an updated consultation and updated information so that now, in 2022, we could properly look at the Bill in the round.

We have heard important evidence that cannot be diminished. It was particularly distressing to hear some of the stories told to the Health Committee. In particular, I recall evidence from a cancer patient who was attending a clinic not for an abortion but, due to the nature of their cancer, for advice and had abuse hurled at them. I question the care and compassion shown in such cases. However, not all cases of protest create distressing situations such as that, and we have to strike a balance with freedom of speech, which is enshrined in law. Articles 9, 10 and 11 of the European Convention on Human Rights establish the freedoms that underpin the right to protest.

I point out that it is incorrect to suggest that wrongdoing is mainstream in the pro-life community or, indeed, in protest activity by pro-life advocates. I categorically condemn the actions of a small minority of individuals in the vicinity of these settings. Such actions are malicious and may reasonably be regarded as criminal in nature. As a result of threats made to staff, two members of staff who gave evidence to the Committee could not be identified. My thoughts are with those working in healthcare premises who are fearful and intimidated when simply going to do their job.

My concerns about the implementation of the Bill and its enforcement have not been addressed. The police said that it would be difficult to enforce the legislation as doing so would require a continuous police presence.

When you look at that issue and at the fact that policing cuts and cuts to policing numbers may be on the cards, given the budget to the Justice Department, we must ask this question: how will the legislation be enforced without proper resources on the ground? I said in Health Committee meetings that surely the Justice Minister must have some role to play in the legislation.


3.15 pm

Mr Humphrey: I am grateful to the Member for giving way. She makes an important point. Not only has the Chief Constable recently talked about budget pressures and the effects that those will have on his resources but we have not had the number of police that were promised to be delivered under NDNA. When you talk to the police, as I do as a Belfast representative, they will tell you that they are already hugely overstretched in policing the city centre, where there are huge problems with drugs and solvent abuse and so on.

Mrs Erskine: The Member is absolutely correct. The problems that exist in policing have been raised numerous times in the House over the last number of weeks. They will be concentrated mostly in Belfast as well, so I thank the Member for his intervention.

It is likely that the provisions, if ratified, would be subject to legal challenge, with implications for the taxpayer. I know that I have been an MLA for only a short time, but I am not naive, and I believe that private Members' Bills should not be a tool to gain votes at the ballot box or for simply a line in election literature. Legislation must be for the purpose that it is intended for. It must do exactly what it says on the tin. I do not believe that the Bill delivers that. It raises expectations for staff in such facilities, the service users and the visitors who have legitimate concerns over their treatment outside the doors of premises. Persisting with unbalanced and unworkable legislation is a failure of us as lawmakers.

My colleague Pam Cameron set out the stall on each of the clauses. However, I will again draw your attention to some of the points, particularly to amendment Nos 4 and 12. Amendment No 4 is significant and points to a U-turn by the Bill sponsor. At the beginning, Ms Bailey was against the idea of including any prescribed distance on a safe access zone. Now we see distances included, and there is no provision for the Department to consider whether a distance is appropriate to the circumstances.

Let us take, for instance, Belfast city centre. What would businesses have to say about the fact that they may be within a safe access zone? Would they be aware of that? Does influence come into it? Would it turn customers away from an area, as protesters may be displaced?

Amendment Nos 7 and 9 will now not be moved, as Ms Bradshaw indicated, but I want to give my views on them. Does signage further add to the lack of desire for someone to go into a zone, thereby affecting surrounding businesses? Whilst I understand the intention and motivation behind the amendments, as they remove the defence of lack of knowledge about where a zone is situated, they may also draw attention to anyone who is entering that zone. Therefore, they have a counterproductive effect. Has the sponsor consulted the PSNI in order to gauge the extent to which signage would make enforcement easier? Perhaps she could deal with that specific question.

I thank the Member for North Antrim for tabling amendment No 6. That provision would ensure that competing freedoms are balanced in the implementation of the Bill whilst taking a proactive approach to reducing legal liability for the Department and potential cost to the public purse.

Ms Bradshaw: Will the Member give way?

Ms Bradshaw: I fully agree that none of us in the Chamber wants to see police time, or court time, for that matter, tied up with the offences, but, as political leaders, should we not be encouraging people not to protest and to have their silent prayers elsewhere where they would not come into conflict with the police and those who are trying to access healthcare? Do you not think that the responsible position would be to encourage people not to protest where it could cause those difficulties for the police?

Mrs Erskine: I will ask the Member this: do we not have freedom of speech in this country? Do we not have the right to protest?

Mr Humphrey: Will the Member give way?

Mr Humphrey: It is interesting that the Member for South Belfast raised that point, because it is a salient issue that is being discussed in Belfast City Council. Street preachers and evangelists in the city centre, particularly in Cornmarket, are being harassed by people who are opposed to their religious views. Indeed, an old gentleman who had been giving out literature in St George's Market for years was refused the right to do that. I took up his case, and that decision was reversed. Those are the sorts of religious freedoms that this country should want to see in its capital city. That was an appalling remark from the Member for South Belfast.

Ms Bradshaw: Will the Member give way?

Ms Bradshaw: I thank the Member for giving way. My remarks were in reference to the police having to intervene, which takes up valuable time that could be used to deal with other crimes. That was the point of my intervention.

Mrs Erskine: Again, I point out that freedom of speech is very important. The right to protest is very important. All of us in the Chamber should uphold the right to protest and the right to freedom of speech.

Some Members: Will the Member give way? [Laughter.]

Mrs Erskine: I would like to move on.

Overall, I am not convinced that the Bill deals with the matter at hand. It is not about abortion, as some Members have pointed out. It is about some of the malicious practices that sometimes, unfortunately, operate in those areas. [Interruption.]

However —

Mr Deputy Speaker (Mr McGlone): Excuse me, sorry. Members who wish to have a chat should maybe go outside. Thank you.

Some Members: Hear, hear.

Mrs Erskine: Freedom of speech.

By the same token, the Bill does not mitigate for those who wish to peacefully protest or, indeed, speak to a loved one before they enter a premises to use an abortion service because they want them to rethink their decision. That is because influence is an offence in the Bill. The term "influence" is open to interpretation, and its inclusion in the Bill is dangerous and will have ramifications for a number of groups and people.

The Bill will displace the problem and move it elsewhere. The issues can be rectified by looking at harassment laws and strengthening them rather than through a rushed-through piece of legislation. Therefore, I strongly encourage Members to consider carefully legislation that may need to be revisited in future mandates.

Ms Kimmins: Other Members will know that this matter is very relevant in my constituency. Ironically, as we speak, there are protestors at my local hospital, Daisy Hill Hospital, who have been there since early this morning. That has been a weekly ritual for the better part of two years that, as in other areas, has caused huge distress and anxiety to many women as they attempt to access abortion services or, indeed, other healthcare services.

Over the last number of months in particular, the Assembly has stood united in its commitment to tackling violence and abuse against women and girls. Yet, some Members stand opposed to the Bill, which will protect women from what is undoubtedly targeted abuse of them. We cannot pick and choose what types of abuse we think women should be protected from. You either support the protection of women and girls or you do not.

I also disagree with the view that the Bill's provisions are a form of censorship. I fully appreciate the right to freedom of speech and the right to protest. However, when those activities are having such a significant impact on so many people, we need to put appropriate protections in place, because it is about balancing everyone's rights.

I read the Health Committee's report and the evidence that was given to it by many stakeholders that corroborates the fact that the protests have had real impacts on patients, staff and members of the public. We have been saying that for months. Sadly, those who are so vehemently opposed to the Bill failed to address that in some of their comments.

Those who wish to protest can still do so. No one is taking that right away from them. What is being proposed is not, as some have alluded to, the creation of a one-world view, nor should it place further pressures on the PSNI, which the previous Member to speak suggested. As the Member for South Belfast Ms Bradshaw said, when people know what the legislation is, they are more likely to say, "Right, well I can't do that". When there is a double yellow line on a road, we know that we cannot park there; we do not need the police to come out every time we think about parking in those places. Putting things in that context supports what she was saying.

Safe access zones are about creating safe and neutral spaces to enable incredibly vulnerable women to access healthcare services free from intimidation, harassment and abuse. Regardless of the intention of those who are protesting, the language, imagery and behaviour that has been used at protests — it is well-documented — has, and will continue to have, a very damaging and distressing effect on women, if protections are not put in place.

Women deserve better: women who have been raped; women who have had the devastating news about a fatal fetal condition of their unborn child; women who, for their own personal reasons, cannot continue with their pregnancy; women who are accessing healthcare or who work on the healthcare sites and who may have suffered pregnancy loss or be experiencing fertility issues. They all deserve better. We have a duty to support and protect women who are going through a very difficult and often life-changing experience. Nobody should be faced with that type of behaviour when accessing healthcare.

In particular, I welcome amendment No 4, which further clarifies the distance allowed for establishing a safe zone. That concern was brought to my attention, particularly in relation to Daisy Hill, as it was not clear initially whether the safe access zones would be relevant to the front doors of the building or, indeed, at the entrance and exit to the site as a whole, as that is currently where protests take place. Without that clarification, the Bill may, consequently, have had no impact on situations like the one at Daisy Hill.

I can say wholeheartedly that, of all the issues that I have dealt with in my time as an elected representative, this is without doubt one of the most important to many people in my constituency. As others have said, regardless of their views on abortion, people have expressed their dismay at the protests at our healthcare sites, particularly at Daisy Hill, which is held in the highest regard by us all. It has been widely recognised that the behaviour of many of those protesters towards women and staff is unacceptable.

I am pleased that the Bill has reached this stage. As someone who is incredibly frustrated by the lack of clear responsibility for dealing with the range of issues emanating from the protests, I hope that Members will support the Bill moving to the next stage and support it to its conclusion. That will finally provide the Department of Health with the ability to protect its service users and staff from this trauma.

Mr Deputy Speaker (Mr McGlone): I now call the Bill sponsor, Ms Clare Bailey.

Ms Bailey: Thank you to everyone who has spoken so far. As expected, some Members have taken the opportunity to use this debate to rehash views on abortion rather than to discuss what is happening on our streets outside clinics and charities. What is happening is a deliberate campaign of harassment and intimidation against women who are seeking to access services. That would not be tolerated in access to any other health service, but, because of views on abortion and reproductive healthcare, we turn a blind eye to it.

The Bill seeks to allow safe access to sexual and reproductive services. On that point, I will refer to CEDAW, as I think I have done in the past. CEDAW carried out a full state inquiry on the UK, which it very seldom does. In its 2018 UK state inquiry, CEDAW found that the UK's failure to protect women from harassment while accessing sexual and reproductive health services and information amounted to a breach of article 10 and article 12 rights under CEDAW. Therefore, women are discriminated against in accessing specific educational information, including information and advice on family planning, to help ensure the health and well-being of families. That is the context for the Bill.

Today, we were to debate the amendments to the Bill, not to discuss opposition to abortion. I find it confusing to hear that the DUP will not support the Bill, given that DUP councillors in Belfast City Council supported a motion brought by Green Party councillor Áine Groogan back in June 2021. The DUP councillor Gareth Spratt stated:

"Our support for this motion does not affect our individual pro-life positions on this matter of conscience."

While he acknowledged liberty of speech and the right to protest, he stated:

"we must ensure protection of already vulnerable women and the prevention of trauma."

DUP councillors on Newry, Mourne and Down District Council also supported a motion calling for exclusion zones like those proposed here.


3.30 pm

Mrs Erskine: I thank the Member for giving way. My problem is with how the legislation has been drafted. I outlined my concerns about how enforceable it will be on the ground and how it will work in practice. That is what I stated in the Chamber today. My concerns are centred around how the Bill is drafted and its outworkings on the ground.

Ms Bailey: I thank the Member for providing clarity on that.

The DUP is opposing the Bill at Consideration Stage today, saying that it cannot understand the rationale behind some of the amendments. It is fair to say, however, that no amendments to the Bill would be acceptable to the DUP, because it does not want the Bill to pass, just like Mr Allister, who is upfront about that.

Concerns have been raised about the automatic setting of zones and the publication of such zones. It is unfortunate that the Minister is unable to attend today, but I want to make Members aware that I and the Committee have been given every assurance from him that he will address that. If it is OK, I will let you know that the Minister has stated:

"if the Bill is passed, my Department will develop a policy statement setting out how it intends to implement the requirements around Safe Access Zones, including guidance to operators of HSC premises on the display of clear and appropriate signage at protected sites."

Again, I hope that that will go some way towards reassuring those who shared any of those concerns.

The Health Committee's call for evidence on the Bill closed on 12 November 2021. The call for evidence led to 45 written responses from organisations and 6,412 submissions from individuals. I note the high number of responses to the call for evidence and am pleased with the level of engagement, particularly from the sectoral bodies impacted on. That will undoubtedly help me and us, if possible, improve the quality and robustness of the legislation.

While I note the volume of responses from those opposed to the Bill, they tended to focus solely on the rights of those engaging in activities outside sexual and reproductive healthcare clinics, such as freedom of assembly, freedom of speech etc. Those are not absolute rights, however, and it is not sufficient to say that, because it will restrict those rights in certain circumstances, the Bill is not compliant with human rights. The reality is much more nuanced than a simple, binary understanding, whether that be deliberate or not. A balancing of rights is required. Indeed, as the Northern Ireland Human Rights Commission highlighted in its evidence session, the court in the Ealing case found that, had the local authority not taken action to ensure access to the clinic, it would have been breaching the human rights of those patients.

Mr Deputy Speaker (Mr McGlone): Excuse me, Members. There is a conversation going on that is audible up here. If Members wish to have a conversation, they should please do so outside. Please continue, Ms Bailey.

Ms Bailey: Thank you, Mr Deputy Speaker.

Mr McGrath: Will the Member give way?

Ms Bailey: Certainly.

Mr McGrath: I have listened with interest on a number of occasions to references to, I think, articles 9, 10 and 11. To expand on them, however, I will say that each one of those articles clearly states that if, in the exercise of those freedoms, an individual is breaching public order, impacting on other rights or impacting on public safety, consideration can be given to providing a way of restricting those rights. It is clear that, if people breach those rights, they can be held to account. Do you agree that that means that what is in the Bill is compliant with those articles?

Ms Bailey: I thank the Member for that. He is absolutely right. There are caveats with those rights, but those caveats need to be prescribed by law. They are not, currently, but that is what the Bill would do. Rather than wiping out protest, as some think that it would do, the Bill prescribes in law and under human rights articles the balance of those competing rights.

I return to the Ealing case, in which it was found that, had the local authority not provided safe zones, it would have been in breach of the human rights of patients who needed access to abortion services and information. Given the findings of the CEDAW UK state report that I have referenced, the overwhelming evidence provided by the trusts to the Committee and the testimony of service users and staff included with many of the responses to the call for evidence, it is clear that there is an urgent need for intervention, such as that proposed in the Bill, in Northern Ireland to ensure that safe access to legally available services and information is permitted.

I listened intently to the Health Committee's evidence sessions over the past few months, when it heard oral evidence from the Northern Ireland Human Right Commission, the health and social care trusts, the Department of Health and the Police Service of Northern Ireland. I have been happy to engage with the Committee, the Department, the PSNI, the Human Rights Commission, the Attorney General and the Office of the Legislative Counsel in order to help inform my decisions around what amendments are needed to give effect to my intention with the legislation and ensure that it is workable and effective.

The Northern Ireland Human Rights Commission, the trusts and the Department of Health made it clear in their oral evidence sessions that there was no alternative legislation or regulation already in place that could deal with the problem. Harassment laws require a course of conduct to occur before action can be taken. There are two issues with that in the context of what happens outside sexual and reproductive healthcare centres. First, a patient who is attending a sexual and reproductive healthcare centre for the purpose of accessing abortion services will, in all likelihood, attend that centre only once. That was debated at Second Stage, but I feel the need to repeat it, since it has been brought up again. The offending behaviour is unlikely to ever be considered to be a course of conduct, as it will happen on only one occasion.

Mr Allister: Will the Member give way?

Ms Bailey: Certainly.

Mr Allister: Harassment, of course, is only one issue. There is the Public Order (Northern Ireland) Order 1987, which makes it an offence to use:

"written material which is threatening, abusive or insulting".

Under the same Order, disorderly behaviour is a criminal offence, and there are other provisions regarding conditions on public gatherings. It is not just about harassment; there are multiple opportunities to deal with untoward and unsuitable behaviour.

Ms Bailey: I thank the Member for that. They are all deemed to be insufficient and inoperable in these circumstances, which is exactly why the behaviours and the distress happen. The health and social care trusts told the Committee that that is why they have had to, I think, put strengthened windows in some of their premises and move services to other places. Their staff have had to change their journeys to and from work, and women presenting with miscarriages nearly did not come to the centre to seek access to services, even when, if they did not, their life was at risk. The current legislative framework does not work in these circumstances.

Harm must have occurred for enforcement and action to be taken. At Second Stage, we heard Claire Sugden, I think, say that the Bill seeks to be a preventative Bill rather than a Bill that seeks to address harm when harm has been done. That is critical in the circumstances that we are talking about. We must ensure that the rights of someone who is accessing services are protected. As the Human Rights Commission stated in its evidence, it is too late to seek redress once access to healthcare has been impeded. Again, that backs up what was brought up at Second Stage. Therefore, it is important that legislation is capable of preventing harm from occurring in the first instance.

Before I discuss the amendments individually, I reiterate my condemnation of the threats that have been levelled at the officials in the Department for merely doing their job and working on this private Member's Bill. It is completely out of order. I want those officials to know that they have my full support.

I hope that that unfortunate incident will concentrate minds in the Chamber about how serious the issue at hand is.

Mr Deputy Speaker (Mr McGlone): Excuse me, Ms Bailey. Members, if you wish to conduct conversations, I re-emphasise that the place to do so is outside, please.

Mr Clarke: I was responding to somebody.

Mr Deputy Speaker (Mr McGlone): I beg your pardon, Mr Clarke?

Mr Clarke: I was responding to somebody beside me.

Mr Deputy Speaker (Mr McGlone): Sorry, but you were not. You were standing having a conversation. Ms Bailey, please continue.

Ms Bailey: Thank you, Mr Deputy Speaker.

Those engaging in the behaviour that we are trying to regulate are causing real harm and traumatising women, pregnant people, staff and the wider public. The behaviour is not low-level. Those people are not there to help or support. They are there to bully, harass and intimidate someone away from accessing healthcare safely and in confidence. The fact that someone felt so threatened by this legislation that they deemed it acceptable to make a threat against officials goes a long way to highlight the mindset of some of the people involved.

I will now address the clauses specifically. On the advice of the OLC, I propose that clause 1 no longer stand part of the Bill. The clause provided an overview of the Bill's intention, but it added no substantive legislative content and could be confusing when read with the provisions elsewhere in the Bill. It was deemed unnecessary, and I was happy to take that advice on board.

I propose amendment No 1 to tidy up clause 2. It amends the clause to make it refer directly to the Abortion (Northern Ireland) (No. 2) Regulations 2020. This is important to ensure consistency with the language used in other legislation so that the Bill's provisions will relate directly to the commissioning of abortion services. This amendment also ensures that the Bill's remit will be contained to only those premises where it is required, as a premises will become a protected premises only when notice is given to the Department of Health by an operator that it wishes to become one, rather than implying a blanket zone for all premises capable of becoming protected premises.

Although the will of the Department, the Committee and a number of key stakeholders was that the safe access zone should apply automatically rather than through some sort of process with the Department of Health, amendment No 1 allows a zone to be established by way of the legislation without such a process being necessary but in a way that is workable in practice.

Members will note that, on the Marshalled List, amendment No 1 states:

"satisfy conditions 2 and 3"

but then goes on to outline conditions 1 and 2. That is a processing error. Apologies. I have spoken to the Bill Office about it, and it will be corrected in the printing of the Bill following this stage, should the amendment pass.

Amendment No 3, which refers to clause 3, sets out how certain premises that provide information, advice or counselling about abortion can also become protected premises. The amendment takes out the requirement for the Department of Health to make a determination that such a premises can be treated as a protected premises and replaces it with a provision that such premises can become protected premises by virtue of fulfilling the three conditions set out in the clause. The advice that I have received from the OLC is that that is preferable, as the conditions set out in the Bill are sufficient without the need for additional steps where the Department needs to make a determination and any additional issues created by that process. That is also commonplace in Bills where safe access zones are operable in other jurisdictions.

(Mr Speaker in the Chair)

I turn to clause 5 and amendment No 4. A considerable number of submissions expressed a preference that the Bill should detail a minimum distance for the extent of the zone. The Department of Health, in particular, raised concerns with me about the difficulty that the Bill's original provisions would present for it. I recognise that including a minimum distance would somewhat simplify the process of designating a zone. I am also mindful, however, of the evidence provided by the Human Rights Commission, which was that previous jurisprudence on the issue is clear that a court would determine not the general principles but the specifics of a zone. For that reason, I propose that clause 5 not stand part of the Bill. Instead, I propose new clause 5A in amendment No 4.


3.45 pm

In order to ensure that any zone that is established under the legislation is effective but only as big as is necessary to meet the aim of the Bill, amendment No 4 sets a distance of 100 metres from each entrance and exit point of a protected premises. However, there is the option to extend that to a maximum of 250 metres at the request of an operator, should it be required due to the specific geographical setting of a particular premises in order to meet the objective of the Bill, which is to ensure safe access for protected persons, as laid out in clause 4.

Again, I will try to address an issue that was raised about private operators. I think that Mr Allister raised that. I do not see anywhere in the Abortion (Northern Ireland) Regulations 2020 that private operators will be part of the Bill. I hope that that lays those concerns to rest. The premises are stipulated under the Abortion (Northern Ireland) Regulations 2020, and those premises will apply in the context of the Bill as well.

I turn to clause 6. There is an important balance to be struck in clause 6(2) so that the identification of what constitutes an offence is flexible and inclusive enough to encompass the full range of behaviours that have the capability of causing harm to a protected person inside a safe access zone, while giving enough certainty and clarity to those trying to enforce the law. As representatives from the Northern Ireland Human Rights Commission said at their evidence session, I do not think that it is helpful to be too prescriptive in the legislation, as that could lead to a situation where we see attempts to go by the technical letter of the law and not to comply with the spirit of the Bill's provisions.

As I have seen personally and the Health Committee heard at its evidence sessions on the Bill, the type of conduct that can have the effect of impeding access to a sexual and reproductive healthcare centre is incredibly varied and, when taken out of context, may not always seem too problematic. However, when it is targeted at an individual who is trying to access services, it absolutely can cause harm and distress and, ultimately, impact on their right to access healthcare safely and in confidence.

The health trusts were clear about the cynical tactics that were employed by those who engage in that type of activity outside the clinics, where one person would harass a woman on her way into a clinic, and another would harass her on the way out, in order to evade any potential consequences under the existing harassment laws, which have been mentioned. As such, I am content that the wording of clause 6(2), as it stands, is sufficient to cover the full range of offending conduct, as it focuses on the intention and the potential effect of the behaviour rather than detailing specific types of behaviour that could be worked around by those who are intent on intimidating women.

Some concern was raised in the written submissions that the fines for an offence may not be severe enough to act as a sufficient deterrent. The primary aim of the Bill is not to criminalise individuals but to ensure safe access to services. In my view, the creation of an offence, as well as the powers given to the police under clause 7 that require an individual to leave the zone and an associated offence for non-compliance, will be sufficient to ensure the effectiveness of the zone. As such, I believe that clause 6 is appropriate as a whole, and I am firm in my support that it should stand part of the Bill but with a slight amendment.

Amendment No 5 removes clause 6(4). That takes account of concerns that were raised by the PSNI about the difficulty that it would pose for it in trying to enforce the legislation. I understand that, in practice, removing that would have little effect on protections for anyone charged under legislation, as they would still be free to rely on any defence that they wish, should they face any court proceedings, without the explicit reference to that in the Bill.

I propose that clause 8 as originally drafted does not stand part of the Bill. Instead, amendment No 8 will create a new clause 8A. Most of what was detailed in clause 8 is no longer required, given the more limited role of the Department of Health in establishing the zones in clause 5A. New clause 8A sets out more clearly the role of the Department of Health in publishing protected premises and safe access zones. The issue of publication and making sure that people are made properly aware of a safe access zone came up repeatedly during the Committee's evidence sessions and in the debate today. I hope that new clause 8A will go some way to addressing the issues that were raised. It puts a clear obligation on the Department, but, importantly, it is not too prescriptive in the legislation. It gives the Department the flexibility to publish the zones in the manner that it deems appropriate. I am cognisant of the fact that not every zone will be the same, and, as such, how they are publicised may not also need to be the same. The proposed amendment gives the Department the space to come forward with its own policy on how best to meet the obligations in new clause 8A. I believe that that is its preferred option, as I have stated.

A number of written submissions expressed concern about clause 9. They felt that some of the listed rights were in direct conflict with the rights of those accessing the services. Although that may be the case, any safe access zone that is established must be a proportionate and reasonable restriction on human rights. Therefore, it is sensible that all engaged rights are considered when a zone is being established to ensure that that balance is struck. I am concerned that the Department of Health has stated that it would not be appropriate for it to carry out that assessment and that it would not have the competency to do so. As the Human Rights Commission pointed out in its written evidence, section 6 of the Human Rights Act 1998 requires public authorities not to act in a way that is incompatible with the ECHR. As such, the requirement to ensure that the actions of the Department are compliant with human rights should be well established under current practice at all levels. It should not be a particularly onerous requirement. Although it is not the ultimate arbitrator on human rights issues, that does not preclude it from ensuring or, indeed, lessen its responsibility to ensure that its actions are compatible with human rights under the 1998 Act and as something that would be required, whether or not it is expressly stated in the Bill. Indeed, the Northern Ireland Human Rights Commission, in its response, expressly recommended that the Department should carry out a human rights impact assessment on a case-by-case basis when designating a zone. That said, I propose to remove that clause from the Bill, as the amendments that have been tabled today mean that the role of the Department in establishing a zone has been greatly reduced, and, as such, the clause is no longer required, given that the Department does not have as many functions to exercise as was originally envisaged.

The clear will of the Department, the Committee and a number of stakeholders and key organisations that responded to the call for evidence was that the Bill establishes a zone. This is one of the amendments that is required to tidy up the Bill, given the changes that have been proposed, and to take that into account.

Apologies, Mr Speaker; I had a tooth removed yesterday, I am not feeling myself and I am stuttering a bit. I am nearly done.

On amendment No 10, as a result of the proposal that clause 9 does not stand part of the Bill, a change is required in clause 11 to remove mention of the convention, as it is no longer required. On amendment No 11, there was some confusion in the written responses about the meaning of clause 6(3) and the extent to which the provision covers the recording of a protected person who is in a safe zone. The intention of the provision is that any recording, whether it be video, audio or photographic, that is taken of a protected person while that protected person is in a safe access zone, irrespective of the location of the person doing the recording, will be classified as an offence under the legislation. It came through quite clearly during Committee Stage that the Committee wanted to make sure that the clause was capable of covering the full range of behaviours related to the recording of protected persons. I propose to provide a definition of "recording" in the interpretation clause — clause 11 — to ensure that that is the case.

Finally, following the advice of the OLC, amendment No 12 seeks to define what the Bill means by "premises". That is necessitated by the fact that it is envisaged that the type of premises that could require protection under the Bill are quite varied, and it is important to ensure that the safe access zone is effective, regardless of whether the premises is a large hospital site or a floor of a shared building. So, it is helpful to provide a clear direction in the Bill on what is meant by the term "premises". This amendment also clarifies what is meant by attending a premises, for the avoidance of any confusion in the determination of a protected person.

All that the Bill seeks to do is to provide for safe access to abortion services in Northern Ireland, which women currently do not have. Moving people who are seeking to impede access 100 metres away from the entrances to and exits from premises does nothing to shut down any anti-abortion debate or activism. I hope that all Members can understand the difference and that they can stand by women and staff, rather than, as Ms Erskine implied earlier, eyeing up votes. This is not about votes; this is about protection and safety measures that do not currently exist to ensure access to free, safe, legal services in Northern Ireland.

Mr Allister: In briefly winding up the debate, I want to begin by refuting absolutely the undercurrent of suggestion that to oppose the Bill is to embrace or to endorse abuse or attacks. One Member even used the phrase "violence against women". To oppose the Bill is to say very clearly to the House that existing law is such that violence against women and the abuse of women is provided for in already stipulated legislation and that this Bill is a huge assault upon fundamental rights, namely the right of expression, to the very point that the sponsor of the Bill is removing the least reference to protection of human rights, which was in the original clause 9. In opposing the Bill, I am absolutely not standing here to endorse — I do not tolerate that suggestion for one moment — any of the things that have been described or that have been ascribed to its opponents.

It was notable to me that the very significant step of introducing self-certification of exclusion zones and removing the role of oversight and scrutiny of that from the Department would create a situation where the operators could self-certify these zones and their extension. The sponsor of the Bill attempted to write that off as tidying up. It is nothing like tidying up; it is a fundamental departure to say in legislation that areas within 150 metres of which members of the public can be excluded can be decided on the whim of the operator, rather than, as it was in the original drafting of the Bill, by the Department. That is a mammoth step that has been taken in these amendments, and it is anything but a tidying up.

I also noted that, in the contributions of those who are avid supporters of the Bill, no one tackled the issue of why it is necessary to include in clause 6 the wide ambit of criminalising influence. It is easy to talk about criminalising harassment, abuse and violence, of course. They already are criminalised, but the Bill, in clause 6, criminalises an influencer. Anyone who stands in silent protest, saying absolutely nothing, is nonetheless criminalised as if they are an influencer.

Nobody who supports the Bill has risen to their feet to justify that. That is because it is unjustifiable. It is a step far too far in any legislation to say that, if you try to influence someone in the public sphere, you are a criminal.


4.00 pm

Mrs Erskine: Will the Member give way?

Mrs Erskine: The Member makes a very important point. There is an undercurrent that those who are in a pro-life organisation or who hold that view are all antagonistic and are all shouting and hurling abuse outside certain premises. We know that that is not always the case. He makes a very important point on that important aspect of the Bill.

Mr Allister: If people are shouting abuse, being violent and doing all the things that have been suggested, arrest them. Arrest them for disorderly behaviour. Arrest them under the Public Order Order. Arrest them for various offences that already exist, but do not paint as criminals everyone who, out of conscience, has a protest to make and does that legitimately and respectably. That is what the Bill does. That is the primary offence of the Bill to those who take a view about abortion that is contrary to that of its promoters. It is scandalous that the Bill would criminalise someone who legitimately holds a point of view so that they can never express it within a sanitised area, when all that they seek to do is to influence — not to be violent or abusive, just to influence — and to stand for what they stand for. The Bill will criminalise that. That is appalling.

Ms Bailey: I thank the Member for giving way. I have direct experience of what happens outside the doors of the centres. I talked about that when I addressed clause 6 and said that being too prescriptive does not allow what happens on the streets to be taken into account. During my time working with the Marie Stopes clinic, what happened at the doors was not protest, Mr Allister. It was a deliberate campaign of harassment and intimidation to stop me doing my job and to stop women seeking access to that building, regardless of whether they were going to the eighth, ninth or fourth floor.

I have been spat on. I have been physically assaulted. I have been splashed with holy water. I have reported it to the police; I have caught it all on GoPros; and I have caught it on CCTV cameras. The police cannot deal with it under existing legislation because, they say, it is insufficient, or they cannot gather enough evidence to secure a prosecution. Existing legislation is simply not enough. The word "influencing" has been deliberately put in to capture the raft of behaviours and how they twist and turn in order to allow that deliberate campaign of harassment to continue. That is what the Bill would do.

Mr Allister: If the Member was spat on, that was an assault. If the Member was abused, that was a breach of article 9 of the Public Order Order. If she was threatened, likewise. If she was subjected to threatening, insulting and abusive behaviour, those are offences. The people who were doing that would also be guilty of the offence of disorderly behaviour. If it was a course of conduct, it would have been harassment.

There is a multiplicity of things in the criminal calendar that deal with that situation, but the Member wants to push the limits so that the person who does none of those things and who simply stands there, maybe with, as I said, a quotation from the sixth commandment — "Thou shalt not kill" — becomes a criminal because they are an influencer. They have not spat on anyone. They have not shouted at anyone. They have not opened their mouth. They have not been abusive. They have stood there. Under the Bill, that person becomes a criminal, and that is where the Bill goes far too far.

As if that were not bad enough, the Bill makes the offences absolute. One of the amendments would take out clause 6(4), which provided the defence that, if you did not know or had no reasonable way of knowing that the protected person was in a safe zone, you had not committed an offence.

Ms Bailey: Will the Member give way?

Mr Allister: When I have finished the point. The Member says to the House that she wants to create an absolute offence. Absolute offences are few and far between, and they are there for public policy reasons. For example, it is an absolute offence to drive your car without insurance. Why? To compel people to have their car insured. It does not matter if you say, "I forgot", "My wife forgot" or whatever, because there is no defence. You will put into the category of absolute offence the business of criminalising somebody who is an influencer. If that is not a step beyond what is rational and reasonable, I have no idea what is.

Ms Bailey: The Member is much better versed in the legal and courtroom procedures than I am. However, a reasonable defence can be employed by anybody in any context, for any charges, in any courtroom and at any time: is that right? It does not need to be stipulated in primary legislation that you can use reasonable defence as a defence.

Mr Allister: I do not recognise the phraseology of "reasonable defence". Unless something is specified in the relevant legislation, either the offence was committed or it was not. Some legislation — this may be what the Member is thinking of — mentions "someone without reasonable excuse". Your legislation does not say that. It does not say that someone commits an offence "if without reasonable excuse". If it did, it would be a different matter. However, the Member has created an offence that is an absolute offence. There is no reasonable excuse for being an influencer: you are a criminal, absolute. The Member need not rise to say, "You can always rely on reasonable excuse": you cannot. Unless it is in the legislation, there is no legal defence of reasonable excuse. The Member should know that, and, certainly, if she had considered the issue, she would have known that. We are in a situation where an absolute offence has been created for somebody who is a mere influencer. The question to the House is this: how can that be conscionable?

Ms Kimmins: I thank the Member for giving way. I go back to the point about someone standing somewhere holding, as you say, a placard with scripture on it. I go back to my original points. I get that it may not be covered under current legislation — that is why we are here; we would not be having the debate if it was — but how can it be deemed acceptable that a person can hold a placard outside a facility that claims that a woman going into that facility is a murderer or that a member of staff going into that facility is killing babies? The issue is the impact of that on all those people. That is why we are here today. We are not taking that right away; we are asking people to move somewhere else. Such activity is harmful, plain and simple, to the people it impacts on.

Mr Allister: The Member says that it is offensive, abusive and harmful to quote Holy Scripture, particularly one of the Ten Commandments, and to simply say, "Thou shalt not kill". It is an appalling position to say that you cannot bear witness to the fact that it is wrong to kill. If you cannot say, "Thou shalt not kill", the corollary of that is that you should not offend anyone by telling them that they should not kill and, indeed, carry on killing. If the placard said, "Thou shalt kill", would that have been offensive? However, once it says, "Thou shalt not kill", suddenly, as an influencer, you are a criminal. That is where the legislation takes us, and that cannot be right.

Ms Kimmins: Will the Member give way?

Ms Kimmins: I did not mention scripture as being the offensive part; I said that the offensive part is when people are blatantly called "murderers". That is the language that is used: "Babies are killed in here". I fully respect people's right to freedom of speech when it comes to their religious views, but the reality is that not everybody using those facilities shares those religious views. That is a debate for another day, but it is important that we cannot use the view of one religious sect to influence others. That is the point that I make: we are talking about the impact on people.

Mr Allister: The Member is now making a different point. When she first intervened, she talked about holding up something that says something offensive. The Member is talking about abuse being hurled and someone being called "a murderer". If it is threatening, abusive or insulting, that is already a criminal offence. I am talking about an individual who does none of that but stands outside to demonstrate their opposition to abortion. I ask why you are criminalising that influencer. Why do you think it is necessary to go beyond those who are abusing, threatening and insulting to incorporate those who are influencers? That is what the Bill does. No one in the debate has addressed that point. I was making the point that that is compounded by the fact that it is now an absolute offence.

It is the most draconian of legislation, and, although the House will approve it, I say that it should not.

Question put and negatived.

Clause 1 disagreed to.

Clause 2 (Premises where abortion treatments are carried out)

Amendment No 1 proposed:

In page 1, line 8, leave out from second "are" to end of line 10 and insert—

"satisfy conditions 2 and 3.

(2) Condition 1 is that they are premises where provision is made, or proposed to be made, for treatment for the lawful termination of pregnancy in accordance with the Abortion (Northern Ireland) (No.2) Regulations 2020.
(3) Condition 2 is that the operator of the premises has given notice to the Department that the operator wishes the premises to be protected premises." — [Ms Bailey.]

Question put, That the amendment be made.

Mr Speaker: I remind all Members of the requirement for social distancing while the Division takes place.

The Assembly divided:

Question accordingly agreed to.

Mr Speaker: I will not call amendment No 2 as it is mutually exclusive to amendment No1, which has been made.

Question put, That the clause, as amended, stand part of the Bill.

The Assembly divided:

Question accordingly agreed to.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3 (Premises where information, advice or counselling about abortion treatments are provided)

Amendment No 3 proposed:

In page 2, line 3, leave out subsections (4) and (5) and insert—

"(4) Condition 3 is that the operator of the premises has given notice to the Department that the operator wishes the premises to be protected premises." — [Ms Bailey.]

Question put, That the amendment be made.

The Assembly divided:

Question accordingly agreed to.

Question put, That the clause, as amended, stand part of the Bill.

The Assembly divided:

Question accordingly agreed to.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 (Protected persons)

Question put, That the clause stand part of the Bill.

Some Members: Aye

Some Members: No.

Mr O'Dowd: On a point of order, Mr Speaker. I wonder whether those colleagues who are opposing the clauses and amendments would be interested in registering their opposition rather than going through the Lobbies.

Mr Speaker: We have had indications from two parties that they are prepared to do that in respect of a number of notified amendments.

The Assembly divided.

Question accordingly agreed to.

Clause 4 ordered to stand part of the Bill.

Clause 5 (Safe access zone)

Question put, That the clause stand part of the Bill.

Some Members: Aye.

Some Members: No.

Mr Speaker: Order, Members. We think that there may be a misunderstanding of what the previous vote was. I say that because the Members who spoke earlier talked about their position. I would prefer to take the vote again, if Members are content.

Question put a second time.

A Member: Aye.

Some Members: No.

Mr Speaker: Do the Ayes have it?

Some Members: No.

Mr Speaker: Sorry — the Noes. [Laughter.]

Right, what time is it? [Laughter.]

The Noes have it. The Noes have it, just to be sure to be sure.

Clause 5 disagreed to.

New Clause

Amendment No 4 proposed:

After clause 5 insert—

"Establishment of safe access zone
5A.—(1) A safe access zone is established for protected premises in accordance with this section.

(2) Except as provided by subsection (3), the safe access zone for protected premises consists of—

(a) the protected premises; and

(b) the public area outside the protected premises which lies within 100 metres from each entrance to, or exit from, those premises.

(3) If the operator of any protected premises is of the opinion that the public area mentioned in subsection (2)(b) is not adequate to afford safe access to the premises for protected persons, the operator may give notice to the Department that it wishes the public area so mentioned to be extended by a specified distance not exceeding 150 metres.

(4) On receipt of a notice under section 2(3) relating to any premises, the Department must include an entry relating to those premises in the list maintained by it under section 8A; and a safe access zone is established in relation to those premises on publication of that entry under section 8A.

(5) On receipt of a notice under subsection (3) relating to any premises, the Department must amend any entry in the list published by it under section 8A which relates to the premises; and the extended safe access zone is established in relation to those premises on publication of the amended entry under section 8A.
(6) In this section ‘public area’ means a place to which the public has access, without payment, as of right." — [Ms Bailey.]

Question put, That the amendment be made.

The Assembly divided:

Question accordingly agreed to.

New clause ordered to stand part of the Bill.

Clause 6 (Offences in respect of a safe access zone)

Amendment No 5 proposed:

In page 3, line 4, leave out subsection (4). — [Ms Bailey.]

Question put, That the amendment be made.

The Assembly divided:

Question accordingly agreed to.

Question put, That the clause, as amended, stand part of the Bill.

The Assembly divided:

Question accordingly agreed to.

Clause 6, as amended, ordered to stand part of the Bill.

Clause 7 (Enforcement of safe access zone by a constable)

Question put, That the clause stand part of the Bill.

The Assembly divided:

Question accordingly agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8 (Procedure for designating a safe access zone)

Amendment No 6 proposed:

In page 3, line 26, leave out "must" and insert "may subject to Clause 9(c)". — [Mr Allister.]

Question put, That amendment No 6 be made.

The Assembly divided:

Question accordingly negatived.

Amendment No 7 not moved.

Clause 8 disagreed to.

New Clause

Amendment No 8 proposed:

After clause 8 insert—

"Publication of list of protected premises and safe access zones
8A. The Department must maintain and publish, in such manner as it thinks appropriate, a list of all premises which are for the time being protected premises for the purposes of this Act together with, in the case of each premises, an indication of the extent of the safe access zones established for the premises under section 5A." — [Ms Bailey.]

Question put, That the amendment be made.

The Assembly divided:

Question accordingly agreed to.

New clause ordered to stand part of the Bill.

Amendment No 9 not moved.

Clause 9 disagreed to.

Clause 10 (Monitoring of effectiveness of safe access zones)

Question put, That the clause stand part of the Bill.

Some Members: Aye.

Some Members: No

Mr Speaker: I note that the TUV and the DUP have opposed the Question. Those parties' opposition is on the record. However, the Ayes have it.

Clause 10 ordered to stand part of the Bill.

Clause 11 (Interpretation)

Amendment No 10 proposed:

In page 4, leave out line 17. — [Ms Bailey.]

Question put, That the amendment be made.

Some Members: Aye.

Some Members: No.

Mr Speaker: I note that the TUV and the DUP have opposed the Question. Those parties' opposition is now on the record. However, I think that the Ayes have it.

Amendment No 10 agreed to.

Amendment No 11 proposed:

In page 4, line 21, at end insert—

"‘record’ means—

(a) To make a recording of sounds; or

(b) To make a recording of moving images; or

(c) To make a recording of moving images accompanied by a recording of sounds; or
(d) To take a photograph, regardless of the medium on which the recording is made or the method by which the sounds or images are reproduced or produced." — [Ms Bailey.]

Question put, That the amendment be made.

Some Members: Aye.

Some Members: No.

Mr Speaker: I note that the TUV and the DUP have opposed the Question. Those parties' opposition is now on the record. However, I think that the Ayes have it.

Amendment No 11 agreed to.

Amendment No 12 proposed:

In page 4, line 21, at end insert—

"(1) In this Act a reference to ‘premises’ is to be read—

(a) as including a reference to the land on which the premises are situated; and

(b) in the case of premises which form part only of a building, as a reference to the whole building.
(2) For the purposes of this Act a person is attending protected premises if the person is accessing or leaving, or attempting to access or leave, those premises." — [Ms Bailey.]

Question put, That the amendment be made.

Some Members: Aye.

Some Members: No.

Mr Speaker: I note that the TUV and the DUP have opposed the Question. Those parties' opposition is now on the record. However, I think that the Ayes have it.

Amendment No 12 agreed to.

Question put, That the clause, as amended, stand part of the Bill.

Some Members: Aye.

Some Members: No.

Mr Speaker: I note that the TUV and the DUP have opposed the Question. Those parties' opposition is now on the record. However, I think that the Ayes have it.

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12 (Commencement)

Question put, That the clause stand part of the Bill.

Some Members: Aye

Some Members: No.

Mr Speaker: I note that the TUV and the DUP have opposed the Question. Those parties' opposition is now on the record. However, I think that the Ayes have it.

Clause 12 ordered to stand part of the Bill.

Clause 13 (Short title)

Question put, That the clause stand part of the Bill.

Some Members: Aye.

Some Members: No.

Mr Speaker: I note that the TUV and the DUP have opposed the Question. Those parties' opposition is now on the record. However, I think that the Ayes have it.

Clause 13 ordered to stand part of the Bill.

Long title agreed to.

Mr Speaker: That concludes the Consideration Stage of the Abortion Services (Safe Access Zones) Bill. The Bill stands referred to the Speaker. I thank all Members for their contributions and cooperation. I ask Members to take their ease for a moment.

(Mr Deputy Speaker [Mr Beggs] in the Chair)


6.15 pm

Mr Lyttle: I beg to move

That the Second Stage of the Fair Employment (School Teachers) Bill [NIA 51/17-22] be agreed.

Mr Deputy Speaker (Mr Beggs): In accordance with convention, the Business Committee has not allocated any time limit for the overall debate, but it has agreed a limit on individual contributions. The sponsor of the Bill will have 20 minutes to move the Bill and 10 minutes to make a winding-up speech. The Committee Chair will have 15 minutes, and all other Members who are called to speak will have up to 10 minutes. I call Mr Lyttle to open the debate on the Bill.

Mr Lyttle: Thank you, Mr Deputy Speaker. I welcome the opportunity to move the Second Stage of the Fair Employment (School Teachers) Bill. At the outset, I thank my research officer, Connie Egan, the Speaker's Office, Assembly staff and all those at the Northern Ireland Assembly who support the progress of private Members' legislation.

The Fair Employment (Northern Ireland) Act outlawed employment discrimination on the grounds of religious belief in Northern Ireland in 1976, yet the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) continues to permit discrimination on the grounds of religious belief in the recruitment of teachers to this day. Almost all workers in Northern Ireland can rely on legislation to protect them from discrimination on the grounds of their faith except teachers.

Under the Fair Employment and Treatment (Northern Ireland) Order, employers in Northern Ireland with 11 or more employees must register with the Equality Commission and monitor the composition of their workforce, but that does not apply to the teaching workforce. Recent research carried out by the UNESCO Centre at Ulster University suggests that only 2% of teachers in Catholic primary schools are from a Protestant background and that, in primary schools with mainly Protestant pupils, only 7% of teachers are from a Catholic background. That cannot be an acceptable status quo for teachers in Northern Ireland.

The Equality Commission for Northern Ireland recommended the removal of the exception of teachers from the Fair Employment and Treatment Order for secondary-level teachers in 2004 and early consideration of removing it at primary level, on the grounds that it was no longer acceptable to exclude the entire teaching workforce from fair employment legislation that covered all other occupations. It has also recommended that teachers be included in the monitoring and review requirements. There is an increasingly clear consensus that teachers must be included in the Fair Employment and Treatment (Northern Ireland) Order and be afforded the same legal protection from discrimination when seeking employment as anyone else in our society.

The Fair Employment (School Teachers) Bill will give effect to those long-standing recommendations. It presents the Assembly with the opportunity to remove the exception of teachers from the Fair Employment and Treatment Order. I seek the support and partnership of all parties in the Assembly to grasp the opportunity to give teachers fair employment protection in law.

I acknowledge that time is now prohibitively short, for reasons beyond my control, but I respectfully suggest that we should do all that we can to pass this short Bill to repeal the anachronistic exclusion of teachers from fair employment protection before the dissolution of this Assembly.

It is my understanding that it may be technically possible, for example, for the Executive Office Committee to meet to agree the Committee report on the Bill, complete Committee Stage and provide the Business Committee with the opportunity to schedule Consideration Stage, Further Consideration Stage and Final Stage, and that the Bill could pass before the end of the mandate, particularly if there were no or only minor amendments to it. I believe that that is an approach worth considering. I would be glad to speak about that proposal with Executive Office Committee members after the debate. Indeed, I thank them for the conversations that we have already had.

I thank the Executive Office Committee for the proactive approach that it has taken, which might just make passage of the Bill possible. I thank the Executive Office Committee Chairperson, Sinead McLaughlin MLA; the Deputy Chairperson, John Stewart MLA; and all the Committee members and staff for the written and oral evidence that they have already taken on the Fair Employment (School Teachers) Bill, which has further demonstrated the extent of the support for its provisions.

In recent weeks, key stakeholders, such as the Catholic Schools’ Trustee Service and the Council for Catholic Maintained Schools, have confirmed, in oral evidence to the Executive Office Committee, their support for the removal of the exception of teachers from the Fair Employment and Treatment (Northern Ireland) Order 1998, stating clearly that the exception is no longer appropriate or required. The Transferor Representatives' Council, which represents the Church of Ireland, the Presbyterian Church in Ireland and the Methodist Church in Ireland in all matters of education, has confirmed, in written evidence to the Executive Office Committee, that it supports equality of opportunity for teachers in recruitment and is opposed to unfair discrimination on the groups of religious belief. That evidence is consistent with the response to my public consultation on the Bill, which was completed between April and June 2021. It found 94% of respondents to be in favour of removing the exception of teachers from the Fair Employment and Treatment (Northern Ireland) Order.

On stakeholder engagement, I have met a number of teaching unions, all of which support the proposal. That includes the NASUWT and the NAHT, which have done so publicly. I met the Council for Catholic Maintained Schools, which sought assurance that a Catholic ethos could be respected and maintained in any repeal of the exception of teachers from the Fair Employment and Treatment Order. I understand that that could be the case. I met the Transferor Representatives' Council, which reiterated its support for equality of opportunity in teacher recruitment and its opposition to unfair discrimination on the grounds of religion or belief, and gave a commitment to engage with the Bill at further stages.

Importantly, through a motion debated in May 2021, the Assembly has already adopted a position of undivided support for the urgent inclusion of teachers in the Fair Employment and Treatment Order. I warn that the last time that the Assembly attempted to pass this legislative reform was over five years ago. I am convinced that there is broad public and political support for the provisions of the Fair Employment (School Teachers) Bill, and that the Assembly should do all that we can to take the opportunity to pass this important legislation before the end of the Assembly mandate.

Mr Stewart (The Deputy Chairperson of the Committee for The Executive Office): The Committee welcomes the opportunity to engage with the Bill. We acknowledge that it has been a long time in coming and that time is short. To that end, the Committee agreed to hear from the Bill sponsor at the earliest opportunity and further agreed to begin taking evidence in advance of the formal Committee Stage. The Committee issued a call for evidence on 31 January and has been hearing from key stakeholders, through written and oral evidence, to ensure that members would be as informed as they could be by the time that the formal Committee Stage came. We have already heard evidence from the Council for Catholic Maintained Schools, the Catholic Schools' Trustee Service, the Integrated Education Fund, Ulster University, the Transferor Representatives' Council and the Equality Commission.

Our online consultation closes next week, and we have had over 330 responses to date. A significant proportion of the submissions are from individual teachers. They will be analysed, and the Committee will consider the findings. We continue to receive written submissions, and the Committee thanks the Committee for Education for sharing evidence that it has received on the matter.

The issues that the Bill aims to address are not new. The teacher exemption from fair employment provisions was debated in the Chamber in May 2021, but the matter has been discussed for many years, and the issues are well known. I will not go into the detail of the Bill at this stage. The Committee intends to consider objectively and conscientiously the evidence put before it. As I indicated, much evidence has already been heard.

I thank the Bill sponsor and all those who have contributed to it so far. It may be a short Bill, but the implications can be more complex than that suggests, and they will be given more consideration. We are close to the end of our deliberations, and, thanks to the work already undertaken, we intend formal Committee Stage to be relatively short. I will leave it there. The Committee is committed to giving the Bill its due airing, and we look forward to formally considering its provisions at Committee Stage.

That concludes my remarks as Deputy Chair of the Committee. I will now make a few remarks as an MLA for the Ulster Unionist Party. I thank the Bill sponsor, the Member for East Belfast, for bringing it forward. It is a mercifully short piece of private Member's legislation, but it is a vital one, ending an anomaly, for want of a better term, in fair employment law that allows discrimination on the grounds of religious belief when appointing teachers.

Change is long overdue, and the Bill sponsor and I have discussed the matter at length a number of times. He and I and other Members, in this mandate and previously, have put question after question to the Executive Office and the First Minister and deputy First Minister to ask why it has taken so long. That is my only frustration about this: that something so short that could have such a meaningful impact, not just on how teachers are appointed but in what that actually means to Northern Ireland and the changes that we will see as a result, has taken so long and could not be implemented in this mandate, given how easy it could have been to do that.

I do not want to wax lyrical on the process and the history, but, when we look back to 2013, we see that the Ulster Unionist Party brought forward a motion calling for fair employment law to allow discrimination to be ended. There was an oral vote, and it was passed without any vocal opposition. Just a month later, Eugene O'Neill of CCMS said:

"Our council finds the notion of discrimination on the grounds of one's religion abhorrent. It is on record as saying that. We do not believe, in 2013, there is a place for that exemption".

That was nine years ago. Three years after that, in February 2016, Sandra Overend and Danny Kennedy tabled amendments on behalf of our party to clause 26 of and schedule 3 to the Employment Bill that did exactly what the Member is trying to do with the legislation today. They would have passed had it not been blocked by the use of the petition of concern. I find that regrettable. The change would have come into effect at the start of the mandate in 2017.

We are where we are, however, and it is just frustrating, particularly when we hear about the overwhelming support for the change, that it could not have happened in this mandate. There has been little, if any, opposition to it. Some potential concern has been raised about the impact that it might have on ethos etc, but there has been no vocal opposition. In the hundreds of responses to consultations, the feedback from every sector has been overwhelmingly in support of it.

I will pick up on the Bill sponsor's point about whether we could provide accelerated passage for the Bill through Committee Stage and the subsequent stages. It is not something that I or others would ordinarily want to do, given the impact that it can have on legislation, but, given the tight scope and focus of the legislation and the impact that it could have, I believe that this is one example of where it could be done. I am pleased that the Executive Office Committee agreed today to write to the Business Office and the Speaker's Office to ask for accelerated passage. It would be a shame if we could not get it through in this mandate, given just how tight time is.

I thank the Member for bringing forward the Bill. I have nothing more to add, and I look forward to other Members' contributions.


6.30 pm

Mr Sheehan: I welcome the opportunity to speak on this important Bill. As both Members who have spoken have said, there is overwhelming support for the legislation. We have discovered, not just in the debate that took place in May last year but in the Bill sponsor's consultation and in our communications in the Committee with stakeholders around the issue, that there is absolutely no opposition to it.

I think it was Mr Stewart who said that there was some concern in CCMS that the move might, in some way, affect the ethos of Catholic schools. I do not agree with that; in fact, CCMS and Bishop Donal McKeown, who is chair of the Catholic trustees, made the point that the Catholic schools had never used the exemption when employing teachers. He forcefully made the point that they employ teachers from other faiths and from none in their schools.

The most important part of the legislation is that, when the exemption is repealed, it will give the same protection to teachers under fair employment legislation as it does to every other worker in society. That is all I have to say on this. There is overwhelming support for the Bill in the House and outside it. The public at large will support the measure as well. As the Deputy Chair of the Committee said, we discussed it at Committee, and we would like to see the legislation go its full way before the end of the mandate. Whether that is possible will be down to the Speaker and the Business Committee. Given that it is such a short Bill, the Committee believes that the process should be expedited and we should get this done and dusted before the end of the mandate.

Mrs Dodds: Like others in the Chamber, I support the principles of the Bill at its Second Reading. It has been a long-held manifesto commitment of the DUP, and we are pleased to support it.

The policy objective of the Bill is to remove the exception of teachers from the Fair Employment and Treatment (Northern Ireland) Order 1998 to ensure that schools are not permitted to use religious belief as a ground on which to discriminate between candidates for teaching posts. In practice, we have a situation in Northern Ireland where employers of teachers do not have obligations to monitor the community composition of persons applying for, appointed to or promoted to jobs, and teachers are not able to bring complaints of religious discrimination relating to their recruitment. That long-held exemption is outdated in our society, and equal opportunity should be respected in all areas of life.

While it is a short Bill and there is significant support both in the House and in society for its objective, some of the issues are rarely as straightforward as they appear. The Bill is silent on the issue of the Catholic certificate in religious education. That seems to me to be a significant omission, and it means that, while discrimination is removed in one part, another anomaly remains.

Ahead of Second Stage, the Executive Office Committee has already been taking evidence on the Bill, as has been said. It has received responses from stakeholders across Northern Ireland, and I will put some of them on record in the House tonight.

The first response that I want to refer to is from the Northern Ireland Council for Integrated Education (NICIE). What it says about the certificate is significant and important. It states:

"In this instance the FETO exemption and the need to have the Certificate in Religious Education (CRE) to teach in a Catholic Maintained Primary school (and to teach religion in a Catholic Post Primary school) are linked."

The Equality Commission has also already set that out in its arguments around the Bill. In response to the Committee — I want to be clear with the House tonight — Bishop McKeown and those from CCMS accepted that that is an outdated part of fair employment legislation that should be scrapped. In relation to the certificate, however, CCMS said:

"the teachers' Certificate in Religious Education is not simply a qualification that enables a teacher to prepare children for the sacraments. Rather, it is regarded as a genuine and necessary professional occupational requirement for those who aspire to be teachers in Catholic schools".

That issue is worthy of some scrutiny by the Committee as we take the Bill forward. Like the Deputy Chair, I would like to see the Bill progress in this mandate, but I think that it would be a disservice for us not to address the issues that have been presented to us about the Bill.

Significant numbers of stakeholders indicated their support for the removal of the exemption, but also their concern over the ethos of a faith-based education and about the protections that may be needed to ensure that open conversations can be held about the ethos of a particular school. That is worthy of scrutiny and of our attention.

It should be noted that the ethos of a school is not just a quirk of faith-based schools or the controlled sector. The integrated sector is also concerned about ethos, and the Integrated Education Bill seeks to legislate for the ethos of that sector's schools, including the composition of boards of governors etc. Equality screening needs to apply everywhere. Often with legislation that seems relatively simple — a straightforward change in the law — there can be unintended consequences.

I am happy to support the Bill. This issue is massively important to fairness in our society. The Bill therefore has my support, but I would like us to give due diligence to the concerns expressed to the Committee, rather than to rush to the finish line without those concerns being addressed. We owe that to the schools and to the system in Northern Ireland, as well as to the children who are educated there and to the parents who make choices about their children's education.

Mr McCrossan: I am delighted to speak on this very important private Member's Bill, introduced by my colleague Chris Lyttle. The matter before us is clear. The issue of the Fair Employment and Treatment Order — FETO, as it is known — was once contentious in the Chamber, with a multitude of opposing views brought forward by parties and individuals. I can see that things have changed since then. We are in a very different place, and it is apparent that the key stakeholders are in broad agreement about the way forward.

In recent times, all sides have taken a measured, responsible and mature approach to what was once a very sensitive matter. It is equally important, in the context of today's considerations, to recognise the dedication and hard work of all our teachers and school staff. Their commitment to seeking the best for our children in all circumstances is beyond dispute, particularly given what we have come through — and continue to go through — over the last number of years.

The SDLP supports the Bill from the outset, as it believes that the legislative measure in question has long outlasted its necessity. The Fair Employment and Treatment Order was brought into being in 1998. It includes an exemption under article 71, which is based on the 1976 legislation, to address what was then perceived as a need to allow schools to use religious background or belief in deciding which teachers to employ. Since 1976, however, the social, political, cultural and religious landscape across Northern Ireland has changed substantially.

I do not believe that an exemption that affords a legal right to discriminate against a teacher for employment on religious grounds is needed in 2022. Indeed, it is undesirable that any teacher could be selected for a job based simply on their religion rather than on employing the best candidate for the job. The exemption needs to be stripped out of legislation to bring our laws up to date and to rectify the issue.

It is important in the debate to refer to the recent and very welcome statements by Bishop McKeown, representing the Catholic Schools' Trustee Service, and Mr Gerry Campbell, the chief executive of CCMS, on the matter. Both have declared their contentment with the move to remove that exemption. I note that the Transferor Representatives' Council has raised no objection and that teachers' unions have also expressed support for the Bill.

I welcome the fact that the certificate in religious education has, since 2019, been the subject of ongoing collaboration between St Mary's University College and Stranmillis University College to ensure that student teachers have access to the certificate as part of the bachelor's degree. That is a further indication of the emergence of a new and shared era in education across this place that we share and call home.

The SDLP is happy to support the Bill in the context that the entire landscape has changed since the introduction of the teaching exemption to equality legislation. We believe that removing the FETO measure will be conducive to a properly shared future for everyone in the North of Ireland.

I commend Christopher Lyttle for bringing forward the Bill. It is important. I hope that he is given the space to ensure that it gets through the legislative process. It is important draft legislation, and it has the SDLP's support. I commend him and others for their work on the private Member's Bill. The same can be said for Pat Catney and his Period Products (Free Provision) Bill and many other Members. It is good draft legislation, and it has our support.

Ms Armstrong: Like others, I will not speak for too long. The planets appear to have aligned on the Bill. I congratulate Christopher Lyttle MLA for bringing forward the Fair Employment (School Teachers) Bill. It is certainly a short Bill, with only four clauses. It has been extremely well drafted. As the Bill sponsor confirmed, it will ensure that teachers are included in the Fair Employment and Treatment Order, giving all teachers the same protection as all other employees. As we heard from Mr Sheehan, it updates the practices that relate to teachers in line with what is happening in schools today. I do not believe that any sectors have been using discriminatory practices when employing teachers, so why should we still have something in legislation that is not being used? It is right and proper that it is not.

Today is 2 March. We have heard that there may well be an opportunity for the Executive to bring forward their report quickly. There is little time left in the mandate. It will be up to the Business Committee and the Speaker to decide whether there is room on the agenda for the Bill to pass by the end of March. I sincerely hope that it does. On behalf of my family members and friends who are teachers, I say that the Bill gives them the protection that I had as an employee, that my employees have and that many employees have, including, for instance, people who work in the Assembly. Why should teachers not have that protection, too? I absolutely welcome Chris's work on that. I welcome the change of heart that has taken place with some of the organisations that have an interest. It is right and proper that we have that change at this time.

Mr Deputy Speaker (Mr Beggs): I call Chris Lyttle. You have 10 minutes to conclude and make a winding-up speech on the debate.


6.45 pm

Mr Lyttle: I thank all Members who contributed to the concise debate. This evening, there has been a united response to the proposals in the Fair Employment (School Teachers) Bill.

I thank members of the Executive Office Committee for, as I said earlier, such a proactive response to the legislation. I thank the Deputy Chairperson, John Stewart MLA, for setting out the comprehensive approach that has been taken to the consultation and call for evidence. Around 330 responses have been gathered already, and they appear to demonstrate further support for the Bill, including, I note, from the key stakeholders — individual teachers.

I recognise the work that was undertaken by the Ulster Unionist Party on this issue in previous mandates, particularly in 2016, when MLAs Sandra Overend MLA and Danny Kennedy MLA attempted to pass a legislative amendment. That is a salutary warning to the Assembly as to how much time can pass between attempts to reform legislation. It is a warning to us to do all that we can to get the legislation over the line on this occasion.

I agree with John Stewart MLA that, ordinarily, we would not choose to move at such a pace along the legislative pathway. I thank him for acknowledging that the tight scope and focus of the Bill should allow us to do all that we can to pass it.

I thank Pat Sheehan MLA for his support for the Bill, his acknowledgement of the overwhelming support that exists and for the commitment that he has given to work together to see the legislation pass before the end of the mandate.

I thank Diane Dodds MLA. We are in agreement, as is often the case in the Assembly when it comes to important matters relating to fairness and equality in education. I welcome the DUP support for the principles of the Bill and the acknowledgement that it is a DUP manifesto commitment.

I note some of the concerns that Diane Dodds raised. I genuinely believe that the certificate in religious education can be considered in a different context from the Bill. I note Daniel McCrossan's acknowledgement of the work that has been undertaken between St Mary's and Stranmillis to improve collaboration and the accessibility of that certificate.

Some respondents to the consultation wished to see further reform to the certificate in religious education, but I have been clear from the outset that the Bill would not be a vehicle to advance any further work in that regard.

I also note the concerns raised by Diane Dodds around ethos. A lot of reassurance has been given in that regard, and the recent support for the Bill's provisions that has been clearly articulated by CCMS, for example, suggests that such reassurance has been well received.

I thank Daniel McCrossan MLA for his support for the Bill and for stating clearly that the exemption of teachers from fair employment should be removed. I note his welcome for the recent evidence of CCMS in support of the Bill and, as I mentioned previously, the positive collaboration between teacher training colleges on the certificate in religious education. I also thank him for recognising the work of a number of MLAs in progressing legislation in the House.

As has been a flavour of the debate, it is frustrating and quite hard to understand that a Department did not act earlier to introduce what is simple legislation. However, that did not happen, and it required us, as private Members, to seek to move the legislation and to build consensus, which appears quite clearly to exist, for the law to be passed in this manner.

I thank my Alliance Party colleague Kellie Armstrong MLA for her contribution tonight and for the support and advice that she has given throughout the private Member's Bill process. She has worked extensively and courageously to show leadership on the Integrated Education Bill, which is the private Member's Bill that she is progressing through the Assembly. I thank her for the support that she has given over the progress of this significantly shorter piece of legislation and for setting out her sincere hope that the legal protection for teachers that is proposed by the Bill can pass in this Assembly mandate.

As I said in my opening remarks, the debate has further demonstrated the broad public and political support for the Fair Employment (School Teachers) Bill. I look forward to working with the Executive Office Committee and with all MLAs so that we can do our utmost to achieve the aim of the Bill and take the opportunity to pass this important legislation before the end of the Assembly mandate.

Question put and agreed to.

Resolved:

That the Second Stage of the Fair Employment (School Teachers) Bill [NIA 51/17-22] be agreed.

Adjourned at 6.51 pm.

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