Keith Buchanan
Mid Ulster · Democratic Unionist Party · Northern Ireland
“Minister, we watched a gentleman having his head nearly removed on the street. That is a problem, whether you think so or not. I referred to it as being like something that I witnessed in the slaughterhouse in my previous job. We have to address it. I am not radical; I am just a normal MLA who talks to normal people in the street.”
“It is always a privilege to celebrate sporting success in mid-Ulster. Today, we congratulate Nigel Davidson, a proud Cookstown businessman, on his outstanding achievement at the Hyrox world championships in Stockholm. To see him compete and succeed on the world stage is an achievement that makes all of us in Cookstown incredibly proud.”
“Minister, I was contacted on Friday by a lady whose brother was in Muckamore — a lady who did not tell her story. Now the report has come out and sparked a degree of need for her to speak. I use the word "need", but that is maybe not the best word. What can that lady do now?”
“I thank the Minister for that answer. We are starting to see the impact of investment into local communities through funds from the Ulster-Scots Agency and the Arts Council. In the past, Sinn Féin has been critical about your priorities, complaining recently that consistent funding for Ulster Scots and bands was for "vanity projects".”
“Last Friday, I had the privilege of walking alongside the Veterans Commissioner for Northern Ireland, his dedicated team and veterans as they completed a six-day journey: the Somme 110 walk. The final day coincided with the 82nd anniversary of D-Day.”
“<BR /> <BR />The Battle of the Somme is not just a story from the past but one that lives on in families, regiments and the hearts of those who continue to serve. It stands as a stark reminder of the sacrifice, suffering and bravery of those who fell and fought. Those men faced unimaginable conditions so that others might know freedom.”
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“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:”
“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. <BR /> <BR />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.”
“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. <BR /> <BR />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. <BR /> <BR />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.”
“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. <BR /> <BR />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.”
“Following a division, the Committee agreed that clause 11 on jury trial presumption should not stand part of the Bill. <BR /> <BR />The Committee supported a number of other amendments that would correct typographical errors and alter the regulation-making powers from negative to affirmative resolution. <BR /> <BR />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.”
“<BR /> <BR />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. <BR /> <BR />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.”
“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. <BR /> <BR />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.”
“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. <BR /> <BR />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.”
“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. <BR /> <BR />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.”
“<BR /> <BR />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. <BR /> <BR />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.”
“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.”
“The Committee divided and agreed that the clause, as amended, should stand part of the Bill. <BR /> <BR />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. <BR /> <BR />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.”
“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. <BR /> <BR />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 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. <BR /> <BR />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.”
“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. <BR /> <BR />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.”
“<BR /> <BR />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. <BR /> <BR />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.”
“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.”
“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. <BR /> <BR />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 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.”
“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. <BR /> <BR />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.”
“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. <BR /> <BR />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 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. <BR /> <BR />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.”
“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. <BR /> <BR />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.”
“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. <BR /> <BR />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.”
“<BR /> <BR />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.”
“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. <BR /> <BR />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.”
“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 . <BR /> <BR />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.”
“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. <BR /> <BR />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.”
“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.”
“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. <BR /> <BR />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.”
“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. <BR /> <BR />Committee Stage had to be conducted within a short and less than optimal timescale.”
“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. <BR /> <BR />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. <BR /> <BR />The Committee Stage of the Defamation Bill began on 14 September 2021.”
“On the point about a lack of money from the British Government, to be fair, they gave over £3 billion to this country to help it through the pandemic. They made different contributions, whether through the Department of Finance or other Departments. Is that not to be welcomed?”
“I thank the Minister for setting out the purpose of and the background to the statutory rule (SR) before us. <BR /> <BR />The Committee considered the proposed rule on 5 January and again on 23 February 2022. Members noted that the rule sets the amount of the domestic and non-domestic regional rates for the year ending 31 March 2023. The Committee welcomed the fact that the Executive had elected to freeze regional rates for another year and that they will continue other COVID-19 support measures, including a rates holiday designed to help hard-pressed businesses as we emerge from the pandemic. <BR /> <BR />I advise the House that the Committee agreed to recommend that SR 2022/50, the Rates (Regional Rates) Order (Northern Ireland) 2022, be affirmed by the Assembly.”
“My colleague from Mid Ulster referred to the anomalies down a laneway, for example: four houses and one of them missed. Minister, you referred to the Pointer database that assisted your Department in producing the white list. How big an issue was that system, given that it was not correctly maintained to include all houses — there are five houses down a lane, but suddenly there are only four — and how can you be accountable if the LPS system was not correct and you did not know that a house existed?”
“I note the work that section engineer Neil Bratton does in Mid Ulster. His is a wise head on broad shoulders, and he takes a lot of the politics and the nonsense out of the whole Department, which is good. Are there contractors with the availability to deliver the current rural roads work between now and the end of the financial year affected?”
“Minister, you say in your statement that you have injected £136·6 million into the economy. Had the scheme not been delivered, what would our high street be like today?”
“Other Departments stepped up to support those in need, but some needed to be persuaded to help the businesses that are under their control. <BR /> <BR />The Budget Bill before us tidies up the 2021-22 year and gives us a degree of stability for the next financial year.”
“Those are only the tip of the iceberg and represent only a few of the calls that we get. Our health service needs meaningful investment; it does not need another sticking plaster. Importantly, it needs reform. <BR /> <BR />Public spending has been required to respond directly to the health crisis and its many consequences for our society, not least for our economy. Vast sums of finance have been administered to support businesses in Northern Ireland over the past two years. We thank the Minister for the Economy for all that he and his predecessor have done to kick-start our economic recovery in Northern Ireland. Land and Property Services (LPS) staff and its chief executive, Ian Snowden, played their roles in delivering for many sectors, and we appreciate that.”
“Yesterday, we heard that hundreds of millions — hundreds of millions — are spent on agency staff and locum doctors. How is that sustainable? If reform does not take place, it does not matter how much money you put into that hole: you will never solve the problem or change things. <BR /> <BR />Each week, my office deals with families who desperately need vital packages of care for their loved ones. That service is overstretched. Weekly, my staff speak to constituents who are desperately waiting for orthopaedic or other forms of elective surgery and people who have been waiting unacceptable amounts of time for urology and neurology appointments or appointments with nursing specialists or mental health services. Occupational health therapists and social workers are stretched to the limit.”
“Back in early 2017, this entire place was pulled down with no Budget or healthcare changes. There is no chat about that now; that has been forgotten. Some in this House can try to rewrite history, but the fact is that this place was collapsed in one last throw of the dice. That was then, and this is now. I welcome the fact that, as the previous contributor said, this place is still in place and that we still have the opportunity to discuss the Vote on Account, but we need to ensure that future Budgets are timely and that Departments have sufficient money to carry out their functions. <BR /> <BR />The proposed Budget for 2022-25 increased health spend, but what link was there to reform? Everyone in the Chamber today will agree that the health service needs extra funding, but it also needs reform; it must be reformed.”
“Back in September, my party leader referred to the damage that the Northern Ireland protocol was doing to this part of the United Kingdom. He was mocked by DJs on the radio and by the usual suspects. Time and time again, he urged parties in the House to listen to, and address, not only our concerns but those of businesses. Do some Members in this House really listen to those in their constituencies? Do they really go out and listen to businesses? We are in our current position because of the people who did not listen to our concerns. <BR /> <BR />I mentioned in the Chamber last week that some have taken: <BR /> <BR />"a case of amnesia".”
“During the height of the pandemic, there was a need to get the money out, and rightly so, but the timing and circumstances of that need to be taken into account now in the cold light of day. I am waiting to see all the fiscal experts who appear; Mr Hindsight will certainly be on everyone's shoulder. <BR /> <BR />Departmental budgets have been stretched to their limits during the COVID-19 pandemic, but billions came from Treasury to support our economy and population through that difficult time. The Bill will give effect to the spring Supplementary Estimates and authorise the use of resources for 2021-22 and the Vote on Account for 2022-23. <BR /> <BR />Yesterday, some in the Chamber referred to how two wrongs do not make a right. That is correct.”
“I rise as the Deputy Chair of the Finance Committee. Like the Chairman of the Committee, I thank all the officials who provided written and oral explanations and information on the Budget in general and the Budget Bill before us. We all appreciate that, because of the pandemic, the past few years have been very challenging for all Departments and for the population of Northern Ireland. Some Departments have delivered dozens of additional schemes, while others have not delivered so many. Most schemes were delivered with a high level of success. There were those who used words like, "Rip up the rule book to get the money out", but now they are being more cautious with their language. Public money is public money.”
“Minister, in your statement, you referred to zero carbon being achieved according to "regional strengths". What would you say our strengths are, and what are the strengths of the other regions of the United Kingdom?”
“Minister, your statement referred to the damage that COVID has done to the economy. How will Invest need to recalibrate its work in order to continue to attract people and investors here from across the world?”
“I thank the Minister for his statement. The Democratic Unionist Party has been mentioned four times in the Minister's statement, but, strangely, there is no mention of his party, which pulled down the entire Assembly in early 2017, when there was no Budget, no health support, no nothing. Surely that is a case of amnesia from the Members on the far side of the House, purely for political gain. Can he and other parties not see the damage that the Northern Ireland protocol is doing to this place? Are they blind to that?”
“Thank you for that intervention. At least the Bill sponsor knows that we have a few queries. Obviously, we can drill into that, if you will excuse the term, a bit deeper if the Bill reaches Committee Stage. <BR /> <BR />That is all I want to say at this point. I thank the Bill sponsor.”
“Perhaps that question is better answered by the Bill sponsor than by me, to be honest. When you drill to explore for water, it depends on what method you use to get it out. You can put in air or water at high pressure. So the definition —”
“What implications did that have, given that it was purely to provide water for livestock?”