If Deputy Carthy is here to take the Defamation Bill, we will proceed.
Defamation (Amendment) Bill 2024: Committee Stage
Did I nearly get a break there?
You nearly did.
I have just got indigestion. I am blaming the Minister.
Sections 1 to 3, inclusive, agreed to.
Section 4 is opposed. Does Deputy Carthy wish to speak on it?
The Ceann Comhairle is far too efficient for my liking.
I will propose the deletion of the entire section. Section 4 relates to the role of the jury in High Court defamation actions. It would be important if the Minister could give us clarity on whether he is planning to proceed with this section in its entirety. I put on the record very strongly that Sinn Féin is opposed to the removal of juries from High Court defamation cases as a matter of principle and we will not be able to support the Bill if this remains the Minister's position. It is important to put on the record that our opinion is shared by many in the legal profession. It would leave Ireland as a complete outlier in common law jurisdictions globally.
I was not part of the pre-legislative scrutiny deliberations, but having read the transcripts of the Oireachtas committee and the final pre-legislative scrutiny report, the importance of members of the public determining in issues relating to damage to reputation and freedom of expression was very clearly highlighted by both the Bar Council and the Law Society. This holds weight and seems like eminent common sense. In adjudicating whether a person's reputation is damaged, who better to pass that judgment than a jury of one's peers?
Of course, nobody is suggesting the current system works perfectly. It is fair to say it does not always, particularly when it comes to the provision of damages. That seems to be the Government's argument, namely, that juries award damages inconsistently and sometimes excessively. Going back to the committee deliberations, everyone is open to having a discussion on how we deal with that issue without removing juries entirely. Perhaps juries could make determinations but we could restrict adjudication on the quantum of rewards to the Judiciary. There is space to address what Government says is the primary issue without throwing the baby out with the bath water or, as somebody said, taking a sledgehammer to a screw.
Unfortunately, I have noticed a tendency across a number of governments that, as opposed to fixing an issue, they ban it, get rid of it or overcorrect it. I have seen this time and again when Government Departments delay EU directives, for example, and then the simple solution is to just ban a practice when a number of member states might simply adjust.
Is the Minister open to reconsidering his approach to the outright gutting of the role of ordinary people serving on juries and making determinations as to whether defamation has occurred? Is he willing to have discussions on later Stages of the Bill? Like his predecessor, is he intent on going ahead with this, knowing that if we resolve this issue alone, we could easily come to a consensus and have a Bill that has the full support of this House? I urge the Minister to consider his approach carefully.
NEW SECTION
I move amendment No. 1:
In page 6, between lines 19 and 20, to insert the following:
“Role of jury in High Court defamation actions
4. (1) Subject to subsection (2) and notwithstanding section 94 of The Courts of Justice Act 1924, or any other provision made by or under any enactment or rule of law, where a
defamation action is tried by the High Court sitting with a jury—
(a) all questions of fact shall be tried by the jury, and
(b) damages (if any) shall be assessed and awarded by the trial judge.
(2) This section applies only to defamation actions that are instituted on or after the date of its coming into operation.”.
I speak as a former media spokesperson for the Labour Party. I listened for a long time to the concerns of newspaper editors about the crippling cost of insurance in the operational costs of newspapers. We all need to support our regional and national newspapers in this country. There was a campaign for an overhaul of the defamation laws, understandably, as newspaper editors saw at the time that the risks associated with defamation were having a disproportionate impact on their insurance premiums. However, we have serious concerns about key elements of this Bill. This Bill is based on the recommendations of the in-house review of the defamation Act 2009, published by the Department in March 2020. This took place two years before the Supreme Court judgment in March 2022 in the case of Higgins v. The Irish Aviation Authority where Mr. Justice John MacMenamin delivered the lead judgment. Our view in the Labour Party is the in-house review and the Bill are out of date. Some of us are familiar with conversations regarding personal injuries. Judicial guidelines had to be introduced to put some control on damages arising from personal injuries. The courts Act 1988 abolished juries for personal injuries. We were promised then that it would reduce excessive or disproportionate awards, significantly reduce delays and legal costs, reduce the length of hearings, provide greater clarity and certainty and would facilitate earlier settlement of cases. As we all know, it did nothing of the sort. Insurance premiums continued to soar for decades. Even with the introduction of the Personal Injuries Assessment Board, PIAB, we still did not see the necessary reforms. It was only when judicial guidelines were introduced that we began to see some changes in what was paid out.
That is why the Supreme Court judgment in the Higgins case is groundbreaking and so important. For the first time, the ruling in that case categorised general damage awards in defamation cases in four categories. The first and lowest applies to moderate defamation for awards of zero to €50,000. There is a second band for what could be termed medium damages, awarding €50,000 to €125,000, and a third category for serious defamatory material, from €125,000 to €199,000. At the top of the scale of awards in the case of the most egregious defamation are awards in excess of €200,000 made before the courts. The Supreme Court recognised that these awards must be seen as truly exceptional and there was very real damage to the individual's reputation, where the judgment was clearly tilted in favour of the vindication of a good name.
We argue that the judgment in the Higgins case should be given more time to bed down. It is only three years old. It needs to be applied and its application assessed. It is important to note that the law as set out in the Higgins case is still the law. Nothing in this Bill attempts to change that law. It does not matter whether future cases are heard by a jury or a judge sitting alone - either way, there will still be four bands of awards set out by the Supreme Court. Those bands will continue to be applied. I do not see how the abolition of a jury will affect the level of damages awarded in future cases since they will continue to be awarded in a way set down by the binding decision of the Supreme Court.
I wish to refer to another case in 2017, McDonagh v. Sunday Newspapers Ltd. Mr. Justice MacMenamin noted:
The right to a good name, freedom of expression and public opinion are closely connected concepts, in which the concept of 'the views of right thinking people' are inherently part of the test. Juries are intended to reflect the views of the public. They [reflect] the public mind and public opinion in balancing the constitutional values embodied in statutory form. This 'public dimension' is of great relevance in measuring whether a publication is actually defamatory at all; if it is, whether there is a defence to it; and if a publication is found to be defamatory, the measure of damages.
If defamation is about damage to the standing of a person in the community, who is better to decide? That is the question in front of us - is it a judge or a cross-section of the Irish people? We express some surprise that we have not seen an amendment from the Minister to this Bill. On Second Stage, he told the Dáil, "I share many of the concerns being expressed by other Deputies. The decision to abolish juries in the High Court would be short-sighted." He went on to say, "I am concerned that the reason to remove juries for the purpose of defamation actions has not been thought out." The obvious question is: has the Minister changed his mind? Why? Some may argue there is an element of departmental capture in what we have before us on Committee Stage.
If the main reason to abolish juries in defamation cases is to make litigation less expensive, we must consider that one reason for the cost of defamation cases is that the law does not permit these cases to be brought in the cheapest available court. Since 1924, our courts Act has excluded defamation from the jurisdiction of the District Court. That means the simplest defamation action starts out with a value of at least €15,000. We ask the Minister to consider moving minor defamation cases to the lower court where lower damages will be awarded. If that does not prove to be the case, we will table an amendment to that effect on Report Stage.
ISME and retailers have also raised concerns that defamation cases can be used to inflict costs on a defendant. Will the Minister address them in his comments? On Second Stage, my former party colleague, Brendan Howlin, the justice spokesperson for our party at the time, quoted a former president of the High Court, who said that in this country you have to be "a pauper or a millionaire" to pursue legal proceedings. The current Minister, who was then a backbench TD, disagreed with his contention, arguing ordinary citizens can and do get access because of a no foal, no fee that operates to fund litigation. As the Minister knows, no foal, no fee is between a litigant and his or her lawyers. If the plaintiff does not win the case, the lawyers will not be paid. If a no foal, no fee agreement does not protect a litigant against the claims of the other side's lawyers, an enormous liability arises.
That is why, as the Minister well knows, when a lay person goes into a solicitor's office and seeks advice about taking a defamation case or indeed many other types of cases, almost the first question that will be asked by a lawyer is "Do you own your own house?". A homeowner or a person who has assets of any type faces the very real prospect of an award of costs being followed up by adjudged mortgage or an order of sale. That is why the distinguished former president of the High Court pointed out that only millionaires and paupers can be found in our superior courts.
I want to make two final and related comments about defamation and its cost. First, it is my understanding that it is still the case as a general rule, and without considering the complexity of any particular case, that legal fees in defamation actions are higher than the rate applicable to any other civil action. We should be using this opportunity to abolish any informal practice or standard within the practise of law that permits legal costs adjudicators to treat defamation as special and therefore permitting higher fees. Second, the Civil Legal Aid Act of 1995 still lists designated matters in respect of which legal aid may not be granted by the Legal Aid Board. The refusal to cover defamation seems to be based on a notion that suing for defamation is not only, but out to remain, the preserve of the well-to-do. Obviously, that is clearly a very outdated notion at this point. This attitude is completely at variance with the constitutional obligation of the State to vindicate the good name of the citizen. Given the constitutional status of the right of people to their good name, this exclusion is simply unjustifiable and we believe this restriction needs to be deleted. There are more than enough safeguards in the law to ensure that the Legal Aid Board does not fund frivolous or spurious actions.
There is much to welcome in the legislation as proposed. While we support many of the anti-SLAPP measures that are included, like others, we in the Social Democrats recoil at the absence of juries within the courts system. Juries provide the judgment of a person's peers. Juries have a sense of public confidence and democratic principles built into them by their very nature. Juries reflect public values and real-world experience. They enhance trust in the justice system and represent a core element of democratic justice - the people's justice. We do not agree with removing juries and simply having the judgment of members of the Judiciary. While judges play an absolutely vital role, in many instances they are not reflective of society as a whole when it comes to their demographic profile. That is certainly some thing we would like to see changed and enhanced but it is not the case at the moment. Juries provide protection against judicial overreach and ensure fair and balanced decisions, especially in high-stakes cases. Consideration should be given to alternatives to abolishing juries. We could address court delays by hiring more judges. Ireland has the lowest number of judges per capita in Europe. We could also consider hybrid models such as those that exist in New Zealand and British Columbia, where jury trials can be requested and approved by a judge.
The Bill removes the long-standing right to a jury trial in defamation cases. This right dates back to the Magna Carta, which is more than 800 years old. It cuts ordinary citizens out of the judicial process and undermines democratic participation in legal decision-making. This is of major importance and should be protected when it comes to jury trials. Juries ensure fairness and reduce bias. The fact that a cross-section of society is making a determination on the standing of a person is important, especially in cases involving powerful entities. Juries offer a check on the erosion of civil rights and support citizens' involvement in justice, just like their involvement in politics when them to go out and vote.
Jury trials apply in other civil rights cases involving questions of liberty, free speech, reputation and property and singling out defamation creates inconsistency and unfairness within legal practice. Jury trials for defamation are still allowed in the US, UK, Canada, New Zealand and much of Australia. Abolishing them would make Ireland an outlier. One of the Government's justifications is the unpredictability of awards. On the surface, this might seem like a fair enough argument but it does not stand up to scrutiny. For example, very few jury awards have been overturned on appeal. We also have the Supreme Court case which has offered very clear guidelines in this area. Speeding up trials is another justification but there are no examples of this. In Britain, when similar legislation was introduced in 1998 in personal injuries cases, the opposite was true. There is no evidence that jury trials are more costly. Judge-only trials have also been lengthy and jury verdicts are harder to appeal, often resulting in faster resolutions.
Jury trials have long protected civil rights. The recent Supreme Court changes have addressed many of the Government's concerns. No compelling reasons to eliminate jury trials in defamation cases have been presented and backed up by evidence. It is better to let recent reforms take effect and monitor outcomes before removing that fundamental right. Preserving jury trials safeguards the democratic process. It is important in any democracy to build public trust in the judicial system.
I do not have the cluster of amendments in front of me but we are speaking about taking away the right to jury trials. I wished the Minister the very best in his new career but I cannot but go back and read out his speech. I do not know how he is going to get around that, other than by the fact that he now has power or, as has been alluded to already, has been captured by the Department. I do not wish to embarrass him. In fact, I respect him. I may have been in the Chair on the day on which he made the speech in question. He agreed with us in opposition and shared our concerns. I presume he still shares our concerns because nothing has changed except that the Government is now intent on ramming this through.
The Minister is in a difficult position and that is where moral courage and leadership comes in. In a world where we really need it, this is the time to shine, to show moral fibre and stand up. I say that with the greatest of respect. I would not like to be in the position the Minister is in now and having to eat my words. I do not think he should eat his words. He should be proud of them. Let us see what he said. It was very succinct and clear. He stated:
I wish to consider the abolition of juries. I share many of the concerns being expressed by other Deputies. The decision to abolish juries in the High Court would be short-sighted.
Presumably it is still short-sighted. He went on:
The reason for it is that there is a belief among media defendants, in particular, who are subject to defamation claims that if they get rid of juries, awards will go down and defamation cases will not go on for as long. My assessment is that is not correct.
Presumably, that is still his assessment. The Minister addressed Deputy Howlin and then went on to state:
If we abolished juries, I can guarantee the House that we will develop a whole body of jurisprudence that will result in cases being repeatedly appealed to the Court of Appeal and probably the Supreme Court. It is seldom the case that people appeal awards or decisions of juries because they know the appellate courts will be very respectful [and rightly so] of any decision reached by a jury. Obviously, if a jury gives an excessive award, as happened a long time ago, that will be dealt with by the appeal court, but, as has been indicated by others in this House, the Higgins case clearly set out guidelines ...
I do not wish to labour the point. It is there in black and white. I appeal to the Minister to show moral courage. What is happening here is nothing less than bowing to vested interests. I attended an event in the audiovisual room lately. It was packed. I say this at the risk of losing votes, but that is immaterial to me. The only time that I ever see the audiovisual room packed is when the media turn up. I have the greatest respect for the media up to a point. On two occasions that I have been in the audiovisual room recently, we have been hanging from the rafters waiting for our little line from the media. The media appealed to our good nature and argued that we must respect them. Obviously, the media is absolutely vital in a democracy. We need the media and we need it to do a good job. On both occasions that I was there they went on to talk about abolishing juries and on both occasions they produced nothing except rhetoric and repetition. Indeed, I took the opportunity to point out to those present that they were simply using rhetoric, repetition and God knows what words without substance to describe the benefits of abolishing juries.
Now the Minister finds himself in the position of supporting that empty rhetoric even though he was totally against it.
The Irish Council for Civil Liberties is telling us absolutely not to do this, as are other organisations. I am not inclined to pick out one over another, I am always impressed with the Irish Council for Civil Liberties and all the other groups, but I do wish to quote a former judge. The Minister might have used this line when he made the speech to which I refer, but I am not 100% sure. Mr. Justice Bernard Barton, now retired, went to a lot of trouble. He is former head of the civil juries division of the High Court. He, along with senior counsels - I think junior counsels were also present on the day - made a presentation in the audiovisual room and set out the facts for us. The Minister knows that Science Foundation Ireland – as it was – always told us about the importance of evidence and that our policies and decisions should be based on evidence. Remember that? There was a lecture from on high from Science Foundation Ireland to always have facts. Here we have the facts from a former judge who told us precisely the danger of what we are doing if we pass this legislation as drafted. He stated:
If enacted, the proposal would not only strip the citizen of the right to choose the mode of trial by which the facts of a case are to be decided – whether by judge and jury or by a judge alone – but would also [and this is equally important for me given the 25 years I have spent in local politics and the Dáil, where I have been watching the constant diminution of local democracy and the removal of powers, and now we are doing the same thing in the one area where people can participate in the courts] remove the public from participation in the administration of justice ...
He went on to state:
While the proposal is presented as a mere procedural change through the simple expedient of dispensing in the future with jury trial in High Court defamation proceedings, the means by which this objective is to be achieved is through the total abolition of an ancient legal right [as Deputy Gannon outlined, dating back to the Magna Carta]
I do not know many judges would take the time to come to the audiovisual room with their colleagues and write a detailed paper to ask us to please not do this because, at every level, it is dangerous. The simple thing is that it is not based on fact. Whatever problems were there with the questionable validity of the decisions of juries or the fact that they gave disproportionate awards were all dealt with in the Higgins case.
There was a cross-party committee. Was the Minister its chair or a member? He was neither. I am sure he is very familiar with the committee anyway. Nobody dissented from its report. The Minister has been left on his own tonight. I wish the members of that committee were here to give their opinions. The committee offered many recommendations. Backbenchers cry out for time to speak. We have had a major delay in getting on with the business of the Dáil because Members have said they do not have time. They should take a look at what is happening. There is no time limit on this debate and there is not a member of the former justice committee in the House that I can see. The committee made 18 recommendations, to which previous speakers have already alluded. I am not sure if they were made in order of priority, but recommendation 1 states, “The Committee recommends that the proposal under Head 3 to abolish juries in High Court defamation actions should be removed.” Recommendation 2 states, “The Committee recommends that juries should be maintained in High Court defamation actions in order to make findings of fact” and continues in relation to the quantum of damages. I really do not know what has changed since September 2023. I am not sure why none of the former members of the committee is here to stand over what they agreed to. I know we are all busy. I was taken by surprise that this debate began early. I am delighted that it did. I am not one to point the finger but it is certainly significant that there is nobody here from that committee to state that this was a cross-party view.
The Ceann Comhairle will be glad to know that I will finish in a minute or two. I appeal to the Minister on a broader level about the fact that at a time when the Government talks about misinformation and disinformation and restoring trust, the biggest problem I experience as a politician is the lack of trust and belief in what we say. I have no difficulty in people having a different view as long as they can trust me. That is what I stand for - not rigidly, but I stand for something. I am not talking about myself in particular but any TD. Here we have someone of the Minister’s calibre and people of the calibre of those who served on the committee saying that we should not to abolish juries. We are going to abolish juries, however. Something somewhere is wrong.
We need leadership today more than ever. Democracy is being diminished daily at every level. It has been diminished in the context of our planning laws - a process which started when we stopped people from appealing to An Bord Pleanála if they had not gone in at first at local authority level - the removal of powers to deal with waste management and the removal of powers from councillors. In addition, we go rid of town councils and so on. As a society, we have very few avenues by means of which we can participate. The Minister knows better than I, because he has been in the House longer, that the consensus mentality is dangerous. I read something recently that I will paraphrase: doubt is difficult; certainty is dangerous. The certainty with which the Government tells us that juries need to be abolished on the basis of non-facts and as a result of pressure exerted by particular groups is especially worrying. It tells us that we have learned nothing. Go back to the banking inquiry and the Nyberg report. The big thing that man highlighted was the consensus mentality and how nobody spoke out and everyone went with the flow. We are back at that stage with everything – with neutrality and with Gaza and Palestine, whereby if any of us speaks out, we are told we are anti-Israel or antisemitic.
The Minister might ask why I am bringing all this up. It is because it is the same theme of the consensus mentality at all costs. I am asking the Minister to break that, not only for the sake of breaking doing so but also because of the words he spoke very honestly and openly here when he shared his concerns and thought it was the wrong decision. It is time to make the right decision.
I thank colleagues for their contributions, to which I will respond to presently. This is the first opportunity I have had since I was appointed as Minister for Justice to speak on the Defamation (Amendment) Bill. I was not, as is apparent, Minister for Justice when the House debated Second Stage.
It is important that I, as Minister, acknowledge the difficult role the Oireachtas is trying to perform when it comes to enacting defamation legislation. We are trying to balance two competing constitutional rights. On one hand, there is the right to one’s good name, which is expressed in the Constitution and which must be given statutory effect. That is the purpose of the Defamation Acts that have existed since the foundation of the State. Separately, we must recognise and respect the right to freedom of expression which is also contained in the Constitution. That is similarly given effect not just in terms of the defamation legislation but also in other legislation. It is a difficult balancing act for any Oireachtas to try to achieve when there are two conflicting constitutional rights.
My assessment during my membership of Dáil Éireann since 2016 is that there is probably greater advocacy on behalf of the right to freedom of expression than the right to the protection of one’s good name. That is probably because the former is more organised than the protection of the latter. However, as I have emphasised previously, we need to recognise that sometimes when it comes to the protection of one’s good name, the only remedy that people have is through the defamation legislation. We in this House are all aware of situations that arose when a prominent member of An Garda Síochána had scurrilous and calumnious allegations made against him. The only remedy that person had was through the defamation laws. It is sometimes forgotten in the debate about defamation that the reason the laws are there is for the purpose, first, to ensure that a person has a statutory mechanism to vindicate the right to their good name. Second, however, there must also be similar respect for the right of journalism and the media or any publisher to publish information which is true or information which is protected not because it is true but because of the other many statutory defences that are set out in the Defamation Act.
Before I deal with the two issues that have been raised in these amendments, I will speak in general about the role of juries in civil actions. Section 4 of the Bill includes a reference to the Courts of Justice Act 1924. After independence, it was generally the case that most civil actions were to be determined by juries. As has been mentioned by Deputy Sherlock, there was recognition in 1988 that it was simply no longer plausible to have juries determining personal injury actions. It worked fine when there were three or four personal injury actions per day in the Round Hall of the Four Courts but it is no longer tenable. Many personal injury actions take place, not only in Dublin but around the country. To have juries hearing personal injury actions would require a considerable number of jurors to be available. It would also delay the determination of those cases. In practical terms, there is a difference between a civil action that has a jury and a civil action that does not. Time is spent swearing in the jury at the outset. That can take approximately two hours. Time is spent at the end of the case with closing speeches to the jury. Time is also spent on the deliberation of the jury before it reaches its verdict. All those factors convinced a former Oireachtas in 1988 that for personal injury claims, we should get rid of juries. I do not think many people would suggest that was a wrong decision.
Deputy Sherlock mentioned that the removal of juries had not resulted in a reduction in the cost of insurance premiums. However, we do not know what would have happened had juries remained in personal injury actions. I do not think it would have been feasible for juries to remain in personal injury actions for a lengthy period.
There are two issues to which I am being asked to respond. The first is the amendment in the name of Deputy Kelly, which was spoken to by Deputy Sherlock. It seeks to do something different than what is sought by other Deputies. The amendment seeks to state that juries would have a role in the determination of questions of fact that arise in the course of a defamation action but would have no role in respect of the assessment of damages. That is what is contained in the amendment tabled by the Labour Party. I will respond to that briefly. My assessment is that it would be inappropriate and would divide functions between a jury and a judge. There should be a link between who determines that a publication is defamatory and the entity that decides what should be the remedy for that through the award of damages. I oppose the amendment submitted in the name of Deputy Kelly.
Deputy Sherlock mentioned that the Higgins case provided direction for a court in respect of the assessment of damages. If a jury is not going to assess damages, which is the position of the Labour Party, the Higgins case would not be relevant to a jury. That does become an argument on the general question of the retention of juries because, although juries will be advised about the findings and dicta in the Higgins decision, they are not as bound as a High Court judge is by the determination of the case. I regret to say I will have to oppose the amendment submitted by the Labour Party.
There is a broader principle and objection put forward by the Social Democrats, the Labour Party, Sinn Féin and Deputy Connolly. The contention there is that the section itself should be opposed.
Deputies Sherlock and Connolly have effectively referred to what I said on Second Stage. I will tell the House what has changed since the Second Stage debate. In many respects, Deputy Connolly and I are in different positions. There are great advantages to being an Independent Member of Dáil Éireann. There are also disadvantages.
The Minister also has a choice.
Similarly, there are many great advantages to being a member of a political party but there are also disadvantages, as I am sure the other Deputies here will acknowledge. One of the consequences of membership of a political party is the need for compromise. There has been a general election since the Second Stage debate. Fianna Fáil put forward a manifesto, which I supported. It included a requirement that the defamation Bill that was going through the Houses of the Oireachtas be enacted. There was then a debate between different parties about the formation of Government. A programme for Government was agreed between the two parties. I am a Minister in that Government. I am bound, because of the principles of compromise and collective responsibility, to give effect to what was agreed in the programme for Government. It was agreed in the programme for Government that there was to be enactment of the defamation Bill as it went through Second Stage. Deputy Connolly can say that lacks moral courage, but that is the difference between being an Independent and being a member of a political party. Whether or not juries remain in High Court defamation actions is not a question of morality. It may, however, be a question of morality when we consider what I said in the Oireachtas previously. Others will, no doubt, present it as me changing my mind. I do not agree with that. What can be seen here is a recognition of the compromise that is required if one becomes a Minister in a Government and if one signs up to a programme for Government that contains a principle that conflicts with what one said earlier. Deputy Connolly and other Deputies are perfectly entitled to criticise me in light of what I have said previously. However, I must recognise, as Minister for Justice in a Government that has a programme for Government in place, that I am bound by the terms of the programme for Government.
I will advance the basis on which that has been put into the programme for Government and the basis on which it is provided that the Government wishes to remove juries from defamation actions. There are very few civil actions remaining where juries determine the cases. The only civil actions remaining in the High Court where a jury determines the outcome are defamation, false imprisonment and trespass to the person, sometimes known as assault. Those are the only cases in which one has an entitlement to get a jury in a civil case in the High Court. If one takes a defamation case to the Circuit Court, there is no issue because one is not entitled to a jury in a Circuit Court defamation action. I ask rhetorically that if people genuinely believe juries are so necessary for the purpose of vindicating one's good name, why then is there no amendment that states there should be a jury in a Circuit Court hearing of a defamation action.
The principal reason the programme for Government contains this provision, which requires that the defamation Bill be enacted as it stands, is the belief that the removal of juries will speed up trials. That is one of the reasons. It is probably hard to dispute that the removal of juries would speed up a trial. As I indicated at the outset, and as a judge who presides over civil jury actions in the High Court noted recently, it takes time to put in place a jury. Individuals are selected. They are told to come to court at 10.30 a.m. There is then a process to select a jury, which invariably goes on until 1 p.m. Jurors can be challenged. At that stage, you have lost half a day. The jury is then empanelled and sworn in. There follows an opening speech to the jury. Counsel for the plaintiff gives an opening speech. The case then goes on in the orthodox way with witnesses giving testimony. At the end of the evidence from both sides, there are closing speeches to the jury. There is then the judge's charge to the jury. There is then the deliberation and determination of the jury. Notwithstanding what anyone may think, it is empirically clear that the length of time it takes to determine a defamation action will be reduced if juries are removed. I do not think that can be disputed and it was not something I suggested on Second Stage. Time is expended in that way. Time in the civil courts means money and expense. It is inevitably true that the longer a case goes on, the more costly it will be.
Deputy Sherlock mentioned earlier that defamation actions are the most expensive. That is not my understanding. If she looked at the fee notes from a commercial case, she would notice they are considerably higher. Even taking her point, it reveals that the longer a case goes on, the more it will cost.
I would have thought that was the principal reason Government included this in the programme for Government.
Then there are issues of certainty as to what will be awarded. If somebody asks a senior counsel what the likely outcome is of succeeding in a case for personal injuries, for example, a broken leg, that senior counsel will be able to assess fairly accurately the likely award from the judge. It will be within a range of figures. We now have the personal injuries guidelines. They will be able to accurately advise a client as to the likely outcome. That is an advantage for a plaintiff. Similarly, it is important for a person being sued, who can be told what the likely award against him or her will be if it goes wrong.
One of the downsides of assessments of damages being determined by a jury is that it is extremely difficult to tell a client, whether a plaintiff or a defendant, what the likely outcome of a jury is. I have great respect for juries and they generally, in my assessment, get it right, but jurors' predictions and outcomes are very hard to advise on. That has an impact on people being sued and on insurance companies covering people being sued. They do not reliably know what range of figures could be involved. That is the reason, notwithstanding the eloquent contributions of all four Members here this evening, that I - and it is a roundabout way of going to it - cannot agree to the amendment tabled in the name of the Labour Party Deputy and I must insist that the section continue as it is. I hope that has not put the Leas-Cheann Comhairle to sleep or anything like that. That is the end of my contribution.
It is very interesting, Minister. I call Deputy Carthy.
I thank the Leas-Cheann Comhairle. I ask his indulgence because we were rushing at the start and skipped over sections. I want not to oppose section 3 but to ask the Minister for clarification on a point. One of the other recommendations in the report of the pre-legislative scrutiny from the justice committee of the previous Dáil was that the definition of "periodical" should be made clearer, specifically regarding whether publications from broadcasters - say, the RTÉ website - would come under the remit of the Press Council or Coimisiún na Meán. The Oireachtas Library and Research Service produced a comprehensive review of the Bill versus the pre-legislative scrutiny report. In the review, it pointed to it not having been possible to include such a provision due to a lack of stakeholder agreement at the time. Will the Minister speak to this? Is it something he has considered since his appointment as Minister? Would he be in favour of it? If time allowed, would he be willing to look at a definition on later Stages? Essentially, does he plan to return to it?
Is that the definition of "periodical"?
Yes, the definition of a "periodical". It is a small point but I omitted to talk about it when we were skipping through section 3 and I want to put it on the record in case we table an amendment at a later stage.
I do not know if the Minister intended them this way but I interpreted his words to mean he did not agree with this but was bound by collective government, the programme for Government and decisions previously made to pursue it. That is astonishing. Of course, a Minister can bring a recommendation to Government that, on balance, a recommendation made by a previous Minister is not only contrary to the current Minister's belief but also that being dogged in the pursuit of that particular provision prevents the Dáil collectively from moving forward with reformed defamation laws. That is very disappointing.
On a number of aspects, the Minister misses the point the Opposition made and I find that disappointing considering, as has already been said, the Minister himself made virtually the same points we are making now. He understands as well as anyone, you would imagine, what it is that we are saying.
Sometimes the public has the view that the media, including newspapers and broadcasters, cannot publish lies. That is not what the law says. Media can, and on occasion do, publish lies. The law sets a high bar for somebody to take a case that he or she was defamed. The definition of "defamation", though not a legal definition, is essentially that it is the publication of an untrue statement that reasonable members of the public would think damages one's reputation. That is very different from publishing lies.
I reflect on a very delicate time in the peace process when a number of lazy journalists figured out that a good way of writing headlines was to say senior members of my party were accused of being informers. Those were downright lies, and at a time when it put people's lives at risk. They could not actually take a case for defamation because, in the eyes of the law, there is no distinction between British agents in a time of conflict or legal authorities in this State or elsewhere. It is not considered to be demeaning to your character if you are accused of assisting state authorities. Lies were able to be published ad nauseam and Sunday newspapers were competing against one another to see who could accuse the highest profile Sinn Féin representative or republican of being an informer, and they could get away with it.
That is moving off point a little bit but it is not being flippant about it. It is to say that media have a big responsibility and they are not always held legally accountable. I have seen articles written that were untrue but to prove they were defamatory would be difficult. That gets to the crux of why this is different from other civil cases the Minister has spoken about. Nobody can make an adjudication as to whether in the eyes of reasonable people somebody has been defamed better than a jury of one's peers. Judges have a very important role and do a very important job but they are removed from lived realties. Due to the circumstances in which they operate and the incomes they have, they cannot be described as reflective of society as a whole. That is with no disrespect to our esteemed Judiciary. The principle of juries was established in the first place throughout the common law system. In that system today, the role of juries in many civil matters has been diminished or, in some cases, virtually abolished. However, if we are to move as the Government proposes in this area, we will be a complete outlier in respect of defamation cases and juries.
I am trying to break down the Minister's arguments against the amendment to delete this section. The first issue he mentioned was delays. Of course we want to reduce delays. Appointing and swearing in a jury takes time. There have to be opening statements and the jury then has to deliberate. However, it is disingenuous in the extreme, and I think the Minister knows it, to suggest juries are the reason for the delays in our Courts Service. I do not believe they are at all, to be quite frank. If we were to take it to the nth degree that every component of court cases that causes a delay should be taken apart, then let us just get rid of trials altogether and arbitrarily make decisions. Presenting a defence causes a delay in the Courts Service but nobody argues we should get rid of that provision in order to speed things up.
The Minister also said he had a problem with the concept of a jury making a deliberation as to whether defamation had occurred and then a judge separately making a determination in our courts, but that is precisely what happens in the criminal justice system.
Juries make a finding in relation to the guilt or innocence of an accused and then judges impose a sentence based on the sentencing guidelines. It is not something I am wedded to at this point regarding whether there would be a distinction. However, it would be a good compromise to suggest there are juries and then there is the issue of costs, given the difficulty people within the legal profession might have in terms of advising clients as to the likely outcome. This would address that difficulty.
I am not sure if there is another argument for abolishing juries other than delays and costs. I do not understand why the Government would be so determined to move in such a way. I am looking through the document that was produced by Oireachtas Library and Research Service, which I commend because it is a very good document that goes through all aspects of the pre-legislative scrutiny. I am not sure if there is a legal expert or practitioner in the legal services who supports this provision at all. Certainly, the Bar Council and the Law Library seem to have particularly strong views, and I have noted the comments of former members of the Judiciary who are very vocal. We know that during the pre-legislative scrutiny, as was said by a number of other Deputies, there was unanimous support for juries.
This Bill was a long time in the making. Clearly, it was not something on which there was immediate agreement from the Government because previous Governments had ignored it for so long. To come to a point where there was unanimity within the Oireachtas justice committee on an issue as profound as this, including from members of the Government and the Opposition, seems a fairly big statement. To revert to Minister’s original statement, he said he was bound by the programme for Government, collective government and the agreements of his predecessors. In that case, I am sure most people would have to ask what the point of this House and of having debates is. What is the point of having Committee Stage if not only is it the case that the Minister is not going to be convinced, but even if the Minister is convinced, he tells the House he will not do anything about it because his hands are tied behind his back?
I ask the Minister to reflect very strongly on this. I genuinely believe he thinks this is daft. I think it is daft. I also happen to think it is potentially dangerous to remove the voice of juries in significant defamation cases where it is, ultimately, a jury of peers who should be making the decision as to whether the very high threshold of defamation has actually been met. I want to make that case as formally as possible.
I thank the Minister for being forthright in his explanation of how his views have not so much evolved but probably remained the exact same. I took from his contribution that this is not something he believes in good conscience. He said he was bound by the principles of compromise. If I am to understand this, Fine Gael got 20.8% of the first preference vote in the last general election. I do not see the Lowry group here to defend the Minister or his Fine Gael colleagues. If we are to believe that this House is in any way the result of the will of the people, does it not worry us that one in five of the elected Members of this House are determining a very significant change in our court system to remove juries? We are removing the majority of a jury and justifying that by the principle of compromise. In and of itself, that is outlandish. Do we not have within this Chamber the principle of conscience, which should come before the principle of compromise? Otherwise, what are we doing here?
I also commend the Minister for his honesty and openness but that raises all the more questions. He is a member of a party and he has the views that he formed, based on his research and experience, that this was a bad decision, but he is now asked to leave that aside and go with what the party is telling him. That is extremely worrying, not just for this debate but for many other debates and issues, in particular regarding war, neutrality and Gaza.
Let me stick with the issue of costs because that is the one thing the Minister raised when he said the cost would be higher if we kept the juries, which are costly, lose time and so on. The Minister said: “If we abolished juries, I can guarantee the House that we will develop a whole body of jurisprudence that will result in cases being repeatedly appealed to the Court of Appeal and probably the Supreme Court.” Is that not extremely costly? Where are the costs being saved there?
I understand that every single expert who came before the justice committee said not to abolish the jurors. Different people might have made different arguments to let the juries decide on issues of fact and let the judge decide on the money, or to let the juries decide on issues of fact plus a recommendation that the judge would not have to follow that, and so on. How can we stand here as elected Members? We should look at that committee. I know Ministers will stand up and say they do not have to follow committees but it is significant that this is cross-party. There is no dissenting judgment. There is nobody saying that we should abolish the juries.
I will go back and pick up on several points. I have left the law, and defamation was not my area, so I do not speak in any legal capacity but as an elected representative who has the greatest respect for democracy. The more time I spend in the Dáil, the more respect I have for the Judiciary and the independent law profession. I was extremely critical in my time, I can tell you. There are many problems with people being excluded from the Courts Service and legal aid, on which we are awaiting a review. There are many problems with the courts and access to the courts. However, the longer I spend here, the more respect I have for the independent Bar and the solicitors, who do tremendous work, as do the judges.
That is particularly the case having spent this time and having read the reports of the Grace case, which we will get time to look at tomorrow. I see institution after institution defending itself over and over again in the many reports. We will be going into this with little time tomorrow but there have been reports such as the Dignam report and the Devine report. I mention this because at every stage, it was an acute example of the institution defending itself. That is why we need an independent Courts Service and we need the role of the juries. I see the Minister nodding and I know he agrees with this. If he is not nodding, I do not mind, but he certainly seems to be.
Let us look at what the retired judge said in this regard. This decision to change the defamation law was necessary but the decision to abolish the juries came from a report done by the Department of Justice. That Department of Justice report completely ignored the Higgins judgment, which came afterwards, but those in the Department did not go back to look at that judgment even though it came within a month of the report being published. They never had the sense to say that the problems they were looking at - the volatility of the juries and their unpredictability - had now been captured by the Supreme Court judgment, which laid down guidelines and principles. They did not go back to look at that.
The former judge also points out that the Department of Justice report looked at case law that had nothing to do with the 2009 Act but went back further to legislation from the 1960s.