During the course of what has been an intense, and often vitriolic, debate in the House of Lords on the decision not to implement the Defamation Act 2013 in Northern Ireland, the failure to even mention the similar stance taken by Scotland is somewhat bewildering.
Indeed, Scottish Justice Minister, Kenny MacAskill, has been robust in stating that “the Scottish Government has no plans for wholesale reform in this area”.
A number of peers, and of course the usual sections of the press, have chosen to ignore this very relevant fact in their attempts to portray Northern Ireland as the lone miscreant in failing to tow the line within the UK.
And to make matters worse, in their determination to ensure compliance, rather than leaving the Northern Irish Law Commission and Assembly to make an independent assessment and decision in relation to their own legislation, a number of peers attempted to force the legislation on the Province by the back door, by way of the Northern Ireland (Miscellaneous Provisions) Bill.
There appears to have been little or no mention, never mind debate, on whether a similar arbitrary stance should be adopted in relation to Scotland. Could it be that this would be much too sensitive an issue to raise during the current clamour for Scotland’s independence?
In any event, notwithstanding the extensive scaremongering in the print media inferring that “libel tourists” will be descending on Belfast like triffids, there has been no sign to date of this happening. Indeed, towards the end of last year I represented a major national newspaper in defending a claim brought by a personal litigant, which the Court in Belfast dismissed on the grounds, inter alia, that the Plaintiff had insufficient connections with the Province and that Northern Ireland was therefore not an appropriate jurisdiction to hear his claim. I would suggest therefore that this is a clear indication that “forum shopping” by individuals without an established reputation in Northern Ireland is already deterred and prevented by the existing defamation legislation.
Fortunately, some of the victims of character assassination in the press may still have the option of seeking vindication of their reputations across the border in the Republic of Ireland, where defamation legislation has also been recently introduced, but on a much fairer and equitable basis than the new UK Act, and backed up by a reasonably effective Press Ombudsman and Council.
The fact that the Irish Defamation Act remains broadly similar to the current Northern Irish legislation has also been conveniently ignored in what has been totally one-sided coverage in the press. Certainly there has been no mass exodus of newspapers from Ireland following the introduction of their new legislation four years ago, and international companies such as Facebook, Google and Twitter continue to establish their European headquarters in Dublin in what is regarded as a corporate friendly environment.
Apart from these commercial considerations, another question which has to be posed is whether England and Wales are out of step with Scotland, Northern Ireland and the Republic of Ireland in failing to offer any practical protection for the general public, while seeking to prevent the ordinary man on the street from sitting on a jury in judgment of the worst excesses of the media?