Mike Nesbitt
Strangford · Ulster Unionist Party · Northern Ireland
“Think public service, wisdom, generosity and courtesy. Think integrity, insight and curiosity, the lack of which is a key criticism of the two public inquiry reports of recent days.”
“I spoke during Members' statements earlier about the untimely passing of the Western Trust's chair, Dr Tom Frawley CBE. I repeat my condolences to his family, his friends and his many admirers.”
“I absolutely share the Member's ambition to see people living in the community. The trusts provide a range of evidence-informed programmes for individuals who are awaiting assessment. For children and young people, early intervention teams deliver proactive needs-led programmes that are neurodiversity-affirming and trauma-informed.”
“Thank you, Mr Speaker. The Western Trust has assured me that it has undertaken a comprehensive early engagement exercise with stakeholders, involving all political parties, local businesses, service users, community groups, the Patient and Client Council (PCC), local media, community planning partners and Departments, including mine and D…”
“The role played by social workers in delivering safeguarding and family support interventions is complex and challenging. The work frequently pivots on multidisciplinary collaboration, with parents and carers positioned as partners in the formulation and delivery of safeguarding and support plans.”
“I fully recognise the impact of the current delays on individuals and families. The situation has arisen due to a combination of factors, including funding that falls short of objectively assessed need and previously missed opportunities to reform health and social care delivery.”
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“<BR /> <BR />Finally, one of the reasons that the Bill should go forward for Committee scrutiny is the Member's reference to the consultation in his explanatory and financial memorandum (EFM). The consultation was conducted by SurveyMonkey. The weakness with SurveyMonkey is that you cannot be absolutely sure or verify who has issued their response to your consultation. That is a weakness, though not a fatal one, not least because clause 2(3) puts an obligation on the Department to consult the relevant people before it brings the scheme forward. <BR /> <BR />That is all that I have to say. We will support the Bill at this stage.”
“The electricity came in overhead, but I wanted it to come in underground, and I had to arrange for the tunnel to be dug out with a digger. However, the quote from Northern Ireland Electricity (NIE) for its part of the work was absolutely eye-watering. If a new electricity line is required, NIE Networks will request that the applicant negotiates the way leave for the new line as well as the associated costs. In other areas, the electricity supplier has right of way in that regard. <BR /> <BR />Self-generating electricity with integrated battery or car battery storage could, of course, reduce the generating load and, perhaps, reduce the cost of network upgrades. However, we really need to consider the impact on the network, and, as I said, Mr Aiken will touch on that in greater detail.”
“I thank the Member for the intervention. I was unaware that the scheme had been applied in Northern Ireland. When I was first aware of it, it did not apply here. He is right to point out the downside of the scheme. However, I still think that the principle has merit to discuss. Perhaps, it could be some sort of social enterprise initiative. <BR /> <BR />My party is happy that the Bill should go forward for scrutiny at Committee Stage. There is, perhaps, a potential Achilles heel with regard to the grid. My colleague Mr Aiken will focus on that. It is my understanding that, when a load change application is requested, the total cost of the new load is borne by the applicant. That was certainly my experience some years ago when buying an old house.”
“While that scheme had merit in principle, in operation it was weighted far too heavily in favour of the major organisations.”
“Again, I commend the thought process behind that. It would be a good idea if citizens were more engaged in thinking about where their electricity comes from, how it is generated and the extent to which they can take control of it. <BR /> <BR />Mr Allister made reference to a scheme; I think that it was in England and Wales some years ago, where large companies were installing solar panels, or photovoltaic equipment, on roofs. They were basically renting domestic roofs, and any electricity that the household generated, they were using at no cost. The rest went back into the grid and was to the profit of the large organisations.”
“I have asked the Member what his intent with that is. I believe the response was that it is about taking account of emerging technologies for electricity generation, so there may be something that we have not yet invented that we will consider to be highly desirable but that, at least in its initial phases, will be expensive. Therefore, the Department will have a facility to adjust the subsidy or price range to accommodate the development of that technology. <BR /> <BR />I note that in clause 4, "Suspension and revocation", the Member is making room for the Department to suspend or re-evaluate the scheme because of "unintended and harmful consequences". I commend the Member for that. He is clearly bearing in mind previous incentive schemes in energy generation. <BR /> <BR />In clause 6, he defines "community project" as:”
“Perhaps the current Minister will address that during the debate, although I accept that it is the Member's intention that the scheme will not come forward during this mandate but will be something of a legacy for the next Minister, whoever that may be. <BR /> <BR />We are content with the clause on the establishment of the scheme, with the exception of that specified percentage and date. Clause 2 refers to supplementary regulations, including the provision to have:”
“Rather, it would place an obligation on the Minister and the Department for the Economy to create a scheme, although it is prescriptive in one sense in that in clause 1(4) it aims for "5% as the specified percentage" and specifies 1 January 2025 as the date for reaching that target. The Committee would like to examine and hear witness testimony on the potential for achieving that goal, on whether there will be a cost and, indeed, on whether the Member is right to assert in the explanatory and financial memorandum that he:”
“First of all, I will make a declaration. I was an early adopter of a domestic wind turbine and, for some years, a recipient of Northern Ireland renewables obligation certificates (NIROCs), which is the government subsidy, although I believe that the machine has not been active for a couple of years now. <BR /> <BR />I am certainly in favour of tackling the climate crisis, aiming for net zero carbon and doing what we can in various ways to achieve those aims. On that basis, I am very open to the Member's Bill. The Ulster Unionist Party will certainly at this stage support the Bill going to Committee for its scrutiny phase, not least because the Bill does not propose a scheme.”
“The Minister publicly warned of a grave danger of losing that money if the DUP boycotts the North/South Ministerial Council. My question to the Minister is this: how much EU funding was lost in the three years following Martin McGuinness's resignation as deputy First Minister and the consequent collapse of the North/South Ministerial Council?”
“One of the main campaigners for the scheme was blown up on 4 March 1972. Can the Minister tell the House that she is certain that that victim will receive a payment before the fiftieth anniversary of their being confined to a wheelchair?”
“We often stand up in the House to talk about what is wrong with Northern Ireland, but if we think about people like Graeme McDowell and Rory McIlroy, we might realise that not just in sport but in music, the arts, business and all walks of life, we produce individuals of great character who give us a global reputation. Sometimes that is something that we should remember to celebrate. I thank Mr McDowell and Mr McIlroy for their contribution to promoting the little postage stamp on the world map that is Northern Ireland.”
“I commend him for his resilience during the tournament, because on day one, he went out twice to two heavy defeats — so heavy, in fact, that, for the first time in his long career as a Ryder Cup player, he was dropped for the Saturday morning foursomes. He went out again on Saturday afternoon for a third defeat, and, despite all that, yesterday not only did he win his singles match but he went out first, leading for the European team and posting a blue mark for the eventual losers of the tournament. <BR /> <BR />That resilience is highly admirable.”
“Following Mr McNulty, I am reminded of a saying from the late Cliff Morgan, a famous Welsh rugby international and one-time head of BBC Sport. He said that, compared to social isolation, poverty, loss and ill health, sport is simply a nonsense, but an important nonsense. <BR /> <BR />I acknowledge the important nonsense that is the Ryder Cup, which was played in Wisconsin over the last three days. I congratulate the United States on its crushing record-breaking victory, but I acknowledge the role of two of our own — two Northern Irishmen in the European team: Graeme McDowell from Portrush, who was one of the vice-captains; and Rory McIlroy from Holywood in County Down, who is still one of the world's greatest professional golfers.”
“Will the Minister commit to overcoming those obstacles so that he can introduce a scheme for 16- and 17-year-olds to run in January next year? If not, will he promise the House that he will spend the entirety of his Department's COVID mitigation moneys?”
“I understand that the programme was first endorsed by the Executive on 10 March 2011. That was over 10 years or, to put it another way, some 2,700 working days ago. What does that tell us about effective and efficient government?”
“We have enough in this Bill to begin. I commend it to the House at Second Stage.”
“What you have is a series of options, all of which have downsides. Your job is to make the judgement call about which one to go with and how best to manage that downside". <BR /> <BR />That is where we are with this private Member's Bill on defamation. There is no right answer; there is a series of options that have good aspects but also downsides. Ivan Turgenev, a Russian novelist, put it like this:”
“It is 14 September 2021, and the first record of me mentioning reform of defamation law was on 28 March not 2021, 2020, 2019, 2018, 2017, 2016, 2015, 2014, but 2013: eight and a half years ago. If that is a rush, good luck on the doorstep looking for a vote. Eight and a half years. Do we really want to let the perfect be the enemy of the good at this point? <BR /> <BR />I remember that when I was campaigning to get into this Assembly 10 years ago, I was listening to a news conference on the radio when a then Executive Minister was being grilled about why it was taking so long to make a decision about a certain issue. The Minister said, "Well, this is a very important issue, so we have to take the time to get it right". I remember thinking, "That is nonsense; there is no right decision.”
“It was only after I formally brought forward the private Member's Bill that there was a change of attitude. There had been a change of Finance Minister by then. As I said, it was Simon Hamilton who engaged with David Ford and the Northern Ireland Law Commission to commission Andrew Scott. If you were cynical, you could say that Simon was kicking the can down the road. You could also take the much more benign view that Simon was saying to the Law Commission, "Give me the evidence base to do something about this — to bring on a Bill to reform the laws on defamation". <BR /> <BR />My final thought is directed to the Minister, who has been saying, "Why rush?".”
“Later that year, on 3 June, I asked the late Martin McGuinness whether the Executive was going to consider the issue. He said:”
“He is hardly playing footsie with me on that issue. <BR /> <BR />I will wrap it up there. I apologise if I have not mentioned any particular Member. Sorry: I beg your pardon. Mr McHugh said that there were many flaws but specified only the issue of serious harm. I hope that he will agree to let it go to Committee, so that he can rehearse all the other serious flaws that he believes are in it. On a matter of factual accuracy, I got the impression from Mr McHugh's remarks that he felt that, back in 2013, as soon as the Bill was passed at Westminster, we collectively decided that we would do our own thing. That is not quite right. On 28 March 2013, in answer to my question for priority written answer, the Finance Minister of the day said:”
“That having been said, in his penultimate paragraph, he says:”
“That is my inference; it is not necessarily what he is proposing. That difference highlights the need for a single meaning rule, because he is taking one meaning out of it and I intended another. On that basis, he made the point that he invited me to meet him to discuss the Bill, and he was correct — the letter was dated 21 July — but, again, there was a misunderstanding there, because I was waiting for a call from his Department. He finished by making the offer of a meeting. When I offer a meeting, for example, to a constituent, I say, "If you would like to take me up on that, please call my office on 02891 82" etc, or "email Richard at the email address". That is not part of the letter from the Minister. I was waiting for a call from the Department. I regret that confusion, because I would rather work with than against the Minister.”
“I would add that we could also take account of any changes that might be made out of Westminster, because the Defamation Act is now eight years old. Many Members have made the point that it is imperfect. I would imagine that, at least behind the scenes, those who have taken a lifelong interest in the issue are thinking about it and whether it is timely to bring forward some sort of amendment or update in the legislature at Westminster. <BR /> <BR />On a couple of points of factual accuracy, I think that Mr Muir referred to the fact that I had shared a letter from the Finance Minister with the Committee. I did not actually share the letter; I referred to it. Just to be clear about references to Dublin: it was my inference that the Minister may be looking at an all-island solution.”
“To a certain extent, clause 1 is linked to clause 11. I hope that that assures Members. <BR /> <BR />Mr Buchanan listed specific areas. I did not make a note of them. I hope that that general assurance is enough, but, if there are specifics, I am more than happy to address them. Mr McGuigan also raised his concern about jury trials. I hope that that assures him. <BR /> <BR />By the way, I should have declared that I am the vice chairperson of the all-party group on press freedom and media sustainability. Mr O'Toole is the Chair. He made the point that we could, at a later stage, take account of any changes that are introduced in the Republic of Ireland, where they are in the process of reviewing their defamation laws. That is perfectly reasonable.”
“I am more than happy, if the Finance Committee wants to take that course of action after the debate, and the conclusion is that serious harm is not a good way in which to go forward, that we do not go forward with clause 1 and we go forward with something else. If we do not go with serious harm — I hope that this assures Mr Allister on another point, which is the concern that has been raised about non-jury trials — and we stick with the current test, which is, effectively, whether the statement that is made about you make an ordinary, decent, right-thinking person think less of you, the argument swings, in my mind, back towards having a jury trial. If it is serious harm, I can see why a judge could be put in that position, but, if it is the current test, we may wish to swing back to a jury trial.”
“Why would you not want to hear the opinion of, for example, Lady Chief Justice Keegan or Lord Justice Gillen, who carried out the review of civil justice, or experts in media law or Citizen's Advice on the number of times the ordinary person comes looking for advice on how to carry out a defamation action? I am not trying to set out the forward work programme of the Committee for Finance; I am just suggesting that that might be a better way to proceed than asking me what I mean. <BR /> <BR />Of course, the defamation law in England is from 2013. It is eight years old, so there is a body of case law. By the way, some of it is referred to on page 3 of the explanatory and financial memorandum.”
“During 13 years at UTV, if you had asked me if I knew how Ulster Television worked, I would have said, "Yes, pretty well", but I do not know about the 'Belfast Telegraph', 'The Irish News', the 'News Letter', the Sundays or the subregional weekly papers, so I am not an expert. Some people with a legal background are good on family law, commercial law or media law but not the law, period. <BR /> <BR />I suggest that, when it comes to something like serious harm, if you allow it to go to Committee, it is not my opinion that you will want to hear.”
“However, when you put it back together, it might be missing a storey or two, so there is no clause that I want to die in a ditch over. <BR /> <BR />I take the concerns that have been expressed about serious harm, but I do not think that it is for me to say that serious harm has this meaning or this threshold. Mr Weir made the point that we come from different backgrounds; he comes from a legal background, and I come from the media. I was reflecting on that over lunch. I am not an expert on the media. I am very interested in the media. If you had asked me, when I was working in the BBC in the 80s, if I knew the BBC, I would have said that I knew pretty well how the BBC worked.”
“We have made a financial consideration and we reckon that you can settle it for x thousand pounds, which is a much better prospect to us than risking going to court and the jury awarding ten times x thousand pounds if the claimant wins the case". <BR /> <BR />The other clear theme is that clause 1, which relates to serious harm, is in serious trouble. Some Members, including Mr Buchanan and Mr Weir, asked whether I can assuage concerns and give guarantees that there are no red lines and no immovable clauses as far as I am concerned. I hope that it will assure them that, if it goes to Committee, let us say that it is the equivalent of a tall building built of Lego. I would expect Committee members to take it apart brick by brick, examine every brick and then put it back together.”
“He asked me at Committee to come up with an example of a recent defamation case in court where there had been a bad result or where the quantum awarded by the jury was out of kilter. As he pointed out today, I was unable to do so. However, I would argue that that is not the best test. Like the swan, a lot of the activities go on below the waterline. They are unseen. There are a number of legal letters being issued, threatening potential publishers that if they make that communication, they will be sued. <BR /> <BR />As I said, in the three times that I have been involved, it was not even a question of the media organisations' lawyers weighing up the pros and cons of freedom of speech versus protection of reputation. It was the insurers saying, "If you go to court, we will not cover you.”
“Thank you, Mr Deputy Speaker. I thank every Member who has shown an interest in the Bill, particularly those who have spoken in the debate, and especially the Minister for turning up. He will not be surprised that I do not necessarily agree with everything that he had to say, and I will return to that in a moment. <BR /> <BR />Rather than just go through what each Member said turn by turn, I would like to address the themes that have emerged, and themes certainly have emerged during the debate. One is that just about every Member agrees that, in principle, our laws are fit for reform, upgrading and modernisation. <BR /> <BR />I make an exception for Mr Allister, who questioned whether it is broken.”
“I will not die in a ditch over every clause in the Bill; I simply believe that there should be and can be a better balance between the right to freedom of expression and the right to protect your reputation, not least because our current laws predate the internet, and I think that is an open-and-shut case for review.”
“It could lead to endless corrections undermining public confidence in the media. That is my view, and that is why I do not support it, but I hope that it will be up for the Committee for Finance to take a view on that position. <BR /> <BR />I emphasise that I am happy for the Committee to tease out the relative merits not just of retaining a single-meaning rule or adopting Dr Scott's proposal but of every clause in the Bill. I hope we get to the point soon where the Committee takes the Bill, deconstructs it, breaks it apart sentence by sentence and then builds it back up. Who knows what shape it will take?”
“The bar comes on if the publisher then corrects the meaning and says, "The complainant says he thinks I was implying that he is a bad person who avoids paying taxes. That is not what I meant; I meant that he is a good person who gives charitable donations, which get tax relief". If you do that prominently and promptly, there is a bar on you taking a case for defamation. Again, it is a judgement call: as with "serious harm", what does "promptly" mean? What does "prominently" mean? Dr Scott seems to suggest that, whatever the primary publication, be it press, print, radio or television, the correction should go on the internet. That is not prominent enough for me. If it is in the paper, the correction or apology needs to be in the paper. If it is on radio, it should be on radio. If it is on television, it should be on television.”
“That could eliminate the case, knock it out and resolve it right at the beginning, which addresses Mr Weir's point about how the ordinary person gets better access to justice. <BR /> <BR />Dr Scott recommends something different. He says that we should do two things: abandon the single meaning rule altogether, but, in conjunction with that, put a bar on bringing a defamation case where the complainant has explained to the publisher the interpretations that he puts on a statement that he considers defamatory.”
“If you hear that a businessman has avoided tax, you might have a very negative interpretation. On the one hand, you might think that that man is a scoundrel who is illegally evading his duty to pay his taxes. You might think very badly of him. On the other hand, you might take the view that what is meant by that is that he is very tax efficient. He understands that, if he gives charitable donations, it reduces his tax liability and makes his shareholders happy because they are doing good works for vulnerable people. <BR /> <BR />Under the current regime, one of the things that slows down the process is having a jury. The judge does not decide on the single meaning; that is for the jury to do. If there is no jury, there is no bar on the judge deciding, right up front, what the single meaning is.”
“I simply ask the House to note that implementation is not expected to increase significantly any public expenditure or make any significant change to the workload of any Department or Executive agency. <BR /> <BR />Dr Scott's big idea — if I may put it that way, and I do not wish that to sound disparaging; it is his theme — is what he calls the "bipartite suggestion", which is to do with the single meaning rule. If a claimant claims that he has been defamed by a communication, the court has to decide what the statement means, or what is the imputation. We all know that we can often say something, and we think that we know exactly what we mean, but the person to whom we are speaking takes a significantly different interpretation of what we have said. Dr Scott's report uses the example of a person avoiding tax.”
“<BR /> <BR />Clause 10 deals with an action against a person who is not the author, editor or publisher. You would take that action only if it were not reasonably practicable to bring the action against the author, editor or publisher. <BR /> <BR />Clause 11 relates to the idea that the trial would be by judge alone, without a jury. I understand that that is a sensitive matter, given our history of judge-only trials. However, in this case, it makes a lot of sense. One of the big issues that Dr Scott identified in his research and consultation was access to justice. This goes a considerable way to addressing that. <BR /> <BR />Several other clauses are more technical than anything else. I will not trouble the House with them at this stage.”
“It says that you cannot sue every time somebody repeats the original defamatory comment. Everything relates back to the first time a statement is published and to its author and/or editor. <BR /> <BR />Clause 9 refers to action against a person who is not domiciled in the United Kingdom. It addresses the idea of so-called libel tourism. There is no evidence that libel tourism exists in any significant manner, but the clause says that we take a common-sense approach. The example that I put in the explanatory and financial memorandum is that, if a statement is published 100,000 times in Australia and only 5,000 times in Northern Ireland, that is a basis for saying, "If you want to take a case for defamation, take it in Australia, because that is where the damage is most pronounced".”
“It is an interesting statistic in its own right, but it does not really tell us anything about the activity that is going on behind the scenes. The really interesting statistic, which is not available, is this: how often has a communication not been made because the potential author, publisher or editor received a legal letter threatening to sue if publication went ahead? That is the chill factor. There are not stats for how often such letters are issued, and it is not possible to gather up that information. We know that it is there, however, and we need to conclude that it is significant as well as serious. <BR /> <BR />Clause 7 applies to reports protected by privilege, and it just extends the areas that are covered by that privilege. <BR /> <BR />Clause 8 is important. It is a single publication rule.”
“Under the 2013 Act as it applies in England and Wales, if he were to write a scientific academic medical paper and then have it peer-reviewed, and the peer review concurs with his conclusion, he effectively has privilege and is clear to publish without fear of being sued for defamation. That is not the case in this jurisdiction. <BR /> <BR />The question that I cannot answer is this: how often have academics who are thinking of applying for a post at Ulster University or Queen's University Belfast been put off by the fact that they do not have the protection that they would have if they were to take a post at a university in England or Wales? It is the same when looking at the statistics for the number of cases of defamation that are brought to our courts.”
“Let us take an example that is based on a real-life example involving a former school friend of mine who is a specialist on the effects of epilepsy on pregnancy. It is his determined and researched view that a particular drug, whatever its merits, should not be taken by a pregnant woman. There is no other imputation about the effects of the drug, but he establishes in his mind that pregnant women should not take the drug if they suffer from epilepsy. <BR /> <BR />Given that the drug is being produced by a global pharma with huge resources, finances and access to legal teams, that is potentially a very dangerous statement to make. It could perhaps open him to the possibility of being sued.”
“In essence, I am proposing that there become a statutory duty on the operator of the website: if you complain to it that you believe that you have been defamed, the operator must identify to you the author of the post. For clarity, for the purposes of the clause, "identify" means that the operator gives the claimant sufficient information to bring proceedings against the author. The claimant therefore needs the name and a way of contacting the person. If the operator cannot, or will not, provide you with that information to identify the author, you can take your claim against the operator of the website. <BR /> <BR />Clause 6 looks at peer-reviewed statements in scientific or academic journals. That is one of the areas in which there is huge danger from being at variance with England and Wales.”
“Effectively, it would replace the common-law defence that was established in the case of Reynolds v Times Newspapers Ltd, which was a notorious case in which the late former Taoiseach Albert Reynolds tried to sue 'The Times'. I believe that he was awarded £1 because he was technically correct, but the judge felt that 'The Times' was to be supported, because what it had reported was a matter of public interest. <BR /> <BR />Clause 5 deals with operators of websites. I had to get the consent of the Secretary of State here, because, ordinarily, this is beyond the competence of the House. As I said previously, this is where reputations are trashed, second by second, somewhere in the world.”
“Is it moving the bar, changing the bar or putting the bar too high? That is a judgement call, but it is the sort of concept that will be firmed up through case law. The more often a case goes through the courts, the more likely it is that you will get to a definite definition of "serious harm". Of course, the idea is simply to remove trivial claims and speed up the process. <BR /> <BR />Clause 2 is one of the areas in which we are replacing common law with a statutory defence. In this case, the common law defence of "justification" becomes the statutory defence of "truth". Clause 3 relates to "honest opinion". The common law defence of "fair comment" becomes the new statutory defence of "honest opinion". <BR /> <BR />Clause 4 concerns publication on a matter of public interest.”
“With regard to the media, the scrutiny of this Executive and Assembly is different from that of neighbouring legislatures for two reasons. In Dublin and London, there are three bodies that scrutinise the work of government: an official Opposition; a second Chamber, be that the Seanad or the House of Lords; and the media. Here, there is no official Opposition or second Chamber; there is only the media. The role of the media in scrutinising the work of the politicians in this House is all the more important for the absence of those other two arms of scrutiny. <BR /> <BR />The first thing I want to talk about is the idea of replacing the current definition of defamation with the test of "serious harm". There are Members in the House who are very nervous about how to define "serious harm".”
“What I am saying is that it is up to the Finance Committee to take a view on whether there is enough in the legislation. For example, under the current regime, you have to persuade a judge that it is possible that you were defamed by the statement. He then hands that over to the jury, and you go into a jury trial. Under my regime, although jury trials are not ruled out, they would be the exception rather than the rule, and the judge could make a very quick decision as to whether or not the statement was defamatory. That is easier and cheaper than the current regime. <BR /> <BR />If I may, I would like to read into the record the policy objectives. I said:”
“That is an area I would like to expand on.”