Very few know why the Defamation Bill does not apply to Northern Ireland, an outrageous decision that has created a gaping loophole in the government's attempts to reform the UK's libel laws. It took endless humiliation before parliament got the message and decided to reform the law of libel: the UN Human Rights Council said our libel law chilled free speech across the entire globe, American academics faced our courts for writing about the funding of Al Qaeda, Barack Obama signed into law an act to protect Americans from our libel law and decent scientists such as Simon Singh, Ben Goldacre and NHS cardiologist Pete Wilsmhurst faced ruin thanks to the law.
These humilations led the three major political parties to make a commitment to libel reform in their general election manifestos in 2010. They didn't qualify this bold commitment with "except in Northern Ireland". Why would they? The law in Northern Ireland has always been substantially the same as the law in England and Wales, that is until the government reformed it. At no point in the parliamentary debate did the government signal the Defamation Bill would not apply to the citizens of Northern Ireland. But that's what happened. In the name of devolution, a DUP Minister was able to block (single-handedly) the law from applying to the province.
The law was blocked in a less than democratic manner that is still clouded in secrecy. The former minister of finance and personnel, the combustible Sammy Wilson MLA, withdrew a paper on adoption of the new Defamation Bill without scrutiny by either the Assembly or the Executive. The finance department refuses to comment, even to a political committee in Stormont, on why consents for the Defamation Bill weren't sought in the required timescale. What is known is that just days after the DUP's Ian Paisley Jnr MP made no less than 10 interventions casting doubt on the Defamation Bill in its second reading debate in the House of Commons, Wilson withdrew the paper relating to adoption of the Defamation Act.
First minister and DUP leader Peter Robinson has said it is "absurd" to claim that the libel law "restricts in some way the media from doing their job". Yet, Northern Ireland's media seem under siege. As Sam McBride, the political correspondent of the News Letter tweeted:
"The volume of solicitors' letters from DUP to BBC over one Spotlight episode gives a pretty clear hint as to why DUP blocked libel reform".
Other journalists agree. Viscount Colville (himself a respected BBC journalist) relayed to the House of Lords testimony he had been given by the editor of the Belfast Telegraph, Mike Gilson:
"In a small country without official opposition the media's scrutinising role of government and institutions is even more crucial. I have edited newspapers in every country of the United Kingdom and the time and money now needed to fight off vexatious legal claims against us here is the highest I have ever experienced"."
The DUP have been very clear in stating their opposition to reform. Worse still, due to the cross-community provisions in the Good Friday Agreement, as the largest Unionist party the DUP can effectively block any Bill they don't like - even though they only control 38 of the Assembly's 108 seats. With a majority in the Assembly sympathetic towards the prospect of libel reform and a consultation showing 90% of people in Northern Ireland back reform of the law, this is hardly democratic.
A Private Member's Bill launched by Mike Nesbitt, the leader of the UUP, attracted support in the Assembly. But now it has been put on ice after the new DUP Finance Minister set the Northern Ireland Law Commission off to run a consultation on the law of libel. While the Law Commission is an esteemed institution, many politicians feel this is an attempt to kick the matter into the long grass. No date has been set for the Commission to launch their consultation, it may not happen for a year. Worse still, evidence submitted to the Law Commission will not be protected by privilege, leaving NGOs reporting on the libel threats dished out by politicians themselves open to libel actions.
Next week in parliament, an attempt will be made by peers to amend the Northern Ireland (Miscellaneous Provisions) Bill to extent the Defamation Act to Northern Ireland. Seeing the impact on freedom of expression and the opaque manner in which this issue has been handled, respected parliamentarians are backing the amendment. It is a direct challenge to the DUP who felt they alone could decide on libel reform. The question now is whether the Labour party and Liberal Democrats will back this amendment. Both parties, in particular Labour as the midwife of the Good Friday Agreement, feel fealty towards devolution. Yet, they did also tell the UK at the last election if elected they would reform the law of libel - with no exception. Parliament should send a clear message to the DUP - you alone cannot decide on whether free speech is good enough for the citizens of Northern Ireland.
Mike Harris is an advisor to English PEN and the Libel Reform Campaign