Apologies have been received from Deputy Pat Rabbitte. There are two motions to be considered by the committee. No. 1 is a motion re an initiative for a directive of the EU Parliament and of the Council on the rights to interpretation and translation in criminal proceedings. No. 2 is a motion re Defamation Act 2009 regarding formal recognition of the Press Council. I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials. Before commencing I advise members that we will receive a presentation to be followed by a question and answer session. The Minister may begin by addressing the first motion.
Criminal Proceedings Directive and Defamation Act 2009: Motions.
A proposal for a Council framework decision on the right to interpretation and translation in criminal proceedings was the first step in a series of measures designed to replace an earlier Commission proposal on procedural rights which was put forward in 2004 and abandoned due to lack of agreement between member states.
The framework decision was a much diluted version of the original proposal and in October 2009 the justice and home affairs council agreed a general approach on the text of the framework decision. Ireland supported the proposal at that time. However, as the proposal was not adopted by the Council prior to the entry into force of the Treaty of Lisbon on 1 December 2009, it fell as of that date.
The Council framework decision has been reintroduced as a member state initiative for a directive in accordance with the procedures now applicable under the Treaty of Lisbon. The substantive text of the directive is identical to that of the framework decision on which a general approach was agreed in October 2009. The application of Title 5 of the Treaty on the functioning of the European Union is subject to the terms of Protocol 21, which provides that Ireland has three months from the date a proposal or initiative is presented to the Council to notify the Presidency of the Council in writing of its wish to take part in the adoption and application of any such measure. The three-month period in respect of this proposal expires in mid April. Ireland can also accept the proposal at any time after it has been adopted.
Members will recall that Ireland has declared its firm intention to exercise its right, under Article 3 of Protocol 21, to take part in the adoption of measures in respect of the area of freedom, security and justice "to the maximum extent it deems possible". I firmly believe that it is desirable to opt in to the proposal at this stage to maximise Ireland's ability to influence the shape of the final outcome. I am also of the view that in the absence of any pressing reasons of a policy nature which would militate against an opt-in, wider considerations to do with Ireland's engagement within the EU suggest the desirability of active participation in any future negotiations on the proposal.
I will now outline the main provisions of the proposal. Article 1 sets out the scope of the directive and provides that the rights to interpretation and translation apply to a suspect or accused person from when he or she is suspected or accused of committing a crime until the conclusion of the proceedings. The provisions of the framework decision also apply to proceedings for the execution of a European arrest warrant.
Article 2 provides for a right to interpretation at all stages of criminal proceedings. The article provides for a right of review of a decision not to provide interpretation, and the review will be in accordance with national law. The provision also applies to persons with hearing impediments where appropriate. Article 3 deals with the right to translation of essential documents, and the decision as to which documents are essential will be a matter for the relevant competent authority but should, at the very minimum, include detention orders, charge sheets and court judgments. An oral translation can be provided instead of a written one where appropriate.
Article 4 provides that member states will cover the costs of provision of interpretation and translation irrespective of the outcome of the proceedings. Article 5 requires member states to ensure the quality of interpretation and translation provided will be of a quality which is adequate to enable a person to exercise his or her rights. Article 6 is a non-regression clause which provides that nothing in the directive should interfere with any rights arising from the European Convention on Human Rights, the Charter of Fundamental Rights, other international law or any higher standard under the law of any member state.
Articles 7, 8 and 9 are standard articles in legislative measures dealing with implementation, reporting procedures and entry into force of the directive. I have been advised that the present text of the directive does not give rise to any significant issues for Ireland. Ireland's existing provisions for interpretation and translation are considered to be above the minimum standard required by the directive.
Earlier this month the European Commission also presented an initiative for a directive in this area. The Commission said its proposal is not intended to replace the initiative put forward by the member states but to build on the work done by the Swedish Presidency by providing input to the debate with a view to accelerating the process under the new conditions of the Lisbon treaty, by which full compliance with the standards set by the European Convention on Human Rights can be achieved. I commend the motion to the committee.
I thank the Minister for his overview of the initiative for the directive for the European Parliament, the Council and the rights of interpretation and translation in criminal proceedings. It is important that we abide by the provisions of the proposed directive and examine its consequences and ramifications for Ireland. It is essential that we have common minimum standards for the right to interpretation and translation. I note the Attorney General stated that the present text does not give rise to any significant issues for this country and it is considered unlikely that any primary legislation will be required to give effect to the directive.
Ireland's existing provisions for interpretation appear to be up to a certain standard but I have questions I wish the Minister to address. In 2008 the Garda spent €3.5 million on interpretation and translation services during detention and questioning and the Courts Service spent €3.7 million on the provision of services during court proceedings, €750,000 of which was spent on the provision of services in the context of free legal aid. I am concerned about the standards applied and the lack of uniformity in the manner in which the services are supplied. It must be set against the background of the recent census figures which found that up to 10% of our population are not Irish nationals. It is estimated that up to 200 languages are spoken on a regular basis in our country. NGOs and other representative groups have cited and expressed concerns about the absence of quality control and the lack of independent monitoring. There are no measurable standards or basis for selecting interpreters to assist people with translation issues in Garda stations or courtrooms.
The annual report from the Courts Services states that more than 10,000 requests for interpreters were received in 2008 and it provided interpretations in 71 languages, with Polish, Romanian, Lithuanian, Russian, Mandarin Chinese, Latvian, Portuguese, French, Czech and Arabic comprising the bulk of the languages. It is important that we and the Minister, Deputy Ahern, who should take a lead role, review the quality and cost of interpretation services. We should do it to identify any problems, ensure there is value for money and enhance the service.
The Garda Representative Association has been critical of the quality of interpretive services and has called for an end to the current agency system. I would like the Minister to comment on best practice and whether he believes the current regime is delivering best practice to the State. At the GRA's annual conference in 2009 delegates called for a list of interpreters in their areas whose academic qualifications, language skills and criminal records have been verified. Are we doing that? What action has been taken in that regard?
I remind the Minister of the situation in the United Kingdom which has a good practice guide which stipulates certain measures which must be taken into account and set in place. We need to have a greater degree of standards and guidelines than we have here. As far back as 2003 the Irish Translators and Interpreters Association called for the industry to be regulated. It has pointed out that audiovisual recordings are not always made in Garda stations which means it is impossible to verify the quality of interpreting which is carried out. We know recordings are not made in courts either. It is practically impossible to prove whether poor interpreting may have affected a judgment or case.
The issue is of whether there are poor standards in interpreting is of vital importance to the criminal justice system. In a submission to the working group on the jurisdiction of the courts the Irish Translators and Interpreters Association said, "The court interpreter must be able to deal with complex legal language, ambiguous questioning, slang and reference to the media. Poor interpreting can obviously affect a court's perception of a defendant". Prior to the election in 2007, when I practised on occasion in the District Court, the situation was less than satisfactory. Interpreters are appointed because somebody offers to interpret. There is very little in terms of a consultation suite in the District Court. There are often time factors. It appears to be quite ad hoc.
I ask the Minister to use this debate as an opportunity to inquire into the system, with a view to officially establishing what is happening and what improvements might be forthcoming. An article was written several years ago by Senator Bacik for, I understand, the Judicial Studies Institute Journal or another academic periodical which does not cross my desk on a regular basis. She will have an opportunity to give her expertise but I found her comments quite useful and I ask that her recommendations be taken on board. She can call for that herself, in a way which will be superior to anything I might say.
There is anecdotal evidence but it is not sufficient. We need empirical evidence which can only be obtained after a suitable inquiry. A number of issues were raised in the report of the Irish Translators and Interpreters Association, which refers to anecdotal evidence. It states that its members have told it they have come across court interpreters who do not know the meaning of basis words such as "guilty" or "judge". It is quite incredible and totally unacceptable, if that is the case. In another case it was told of an interpreter who assumed a fine of €100 or one week in default meant the defendant had one week to pay the fine, but it meant something entirely different, namely, that the person faced a prison sentence if the fine was not paid. The report states that such observations are not surprising because most interpreters are recruited simply because they speak English and another language and not because they are professional interpreters.
I want to ask the Minister about training because there seems to be a lack of understanding in the courts of the difficulties in interpreting legal situations and the general assumption that anyone who speaks two languages can interpret, and if one can interpret on can deal with the issue. I have seen cases in District Courts where there seemed to be some confusion. I do not say this lightly but there can sometimes be a misplacement or crossover of the function of interpreting and advising. For example, I ask the Minister to find out from the Courts Service in how many cases in which interpretation was granted there was a plea of guilty. I contend, on the basis of anecdotal evidence, that on occasion interpreters are advising defendants rather than engaging in interpreting. In the District Court there is a higher than average number of pleas of "not guilty" among persons to whom interpretation facilities have been granted. I am concerned — I hope the Minister is too — that interpreters are advising rather than translating or interpreting. This brings us back to the question of standards and initiating a review to allow the Department, the Courts Service and the Garda to ensure best practice.
The Minister should examine the London Metropolitan Police Service's procedures for the use of interpreters and translators. They require them to be of a certain standard and meet additional selection and vetting criteria. Those on the list undergo an induction course. The information is available electronically, 24 hours a day, and includes the days and times when interpreters are available for work and engagement. I do not believe such a system is in place here.
It is positive that extensive translation services are now available. It is an essential element of a fair trial, as provided for under the Constitution. Is the Minister confident that an efficient system is in place for resourcing translators, with a uniform standard applicable? Are we getting good value for money?
What is the timeline for implementing the directive? Ireland must decide in three months whether to opt in or out of its requirements. The original transposing date — 11 March 2010 — has passed, a sign that we may need to improve our scrutiny of measures.
As the proposal was not adopted by the Council prior to the entry into force of the Lisbon treaty on 1 December 2009, it fell as of that date. However, it has been reintroduced as a member state initiative. The Commission is also bringing forward proposals in this area. We are more than happy to agree with the proposal because Irish standards in interpretation in court cases are above the minimum required under the directive. The quality of the service provided is good, although I cannot say it is uniformly so. As Deputy Flanagan said, a considerable amount of resources, between €6 million and €7 million last year, are expended on the service.
Allied with the directive, it was the majority view of member states that guidance on training, qualifications, accreditation and a national register should be included in a resolution such as a statement of best practice. This would provide guidelines for member states on the effective application of the rights contained in the framework decision. It would set the standards member states should aspire to, while recognising that not all provisions would be appropriate across all member states. It is believed the resolution will be adopted, together with the directive.
The Garda Representative Association commented on the directive, a result of which was that Garda management put in place three procedures to achieve consistency in and quality of interpretation and translation services vis-à-vis telephone interpretation, face-to-face interpretation and translation services. Garda management has awarded contracts in each of these areas. Garda vetting procedures are in place for persons employed by the various companies which gain the contracts.
The digital audio recording system is being introduced nationwide. It has been installed in 87 courts, providing transcripts which can enable the courts to have the interpretation service required. The roll-out of the system to the remaining courts, mainly District Courts, will be completed by the end of this year, although there is an issue with funding in this respect. It has been rolled out on a pilot basis in three District Courts in Dublin, Naas and Limerick. When resources allow, it will be rolled out across the rest of the State.
While providing such services is a relatively new phenomenon in the courts, the Garda has responded well to the issues which have arisen. While I cannot say it is uniformly a good service, over time I hope the roll-out of the digital audio recording system will make it so. The Garda has also responded to some of the criticisms made of it.
Is there a maximum standard envisaged by the directive? If there is only a minimum standard required to be met, how can existing Irish services be improved?
As Irish is an official working language of the European Union, can an Irish citizen involved in a court case in another member state seek an interpreter in the Irish language under the directive?
The issues of cost and quality have been raised. Is there a case for setting a standard for interpreters in legal cases? I heard of a case in which there were suspicions about the quality of the interpreter's work and another interpreter had to be employed to monitor the first. Do such incidents occur frequently? Are there standards to ensure the protection of an individual's rights at both Garda and courts level in judicial investigations?
Under the directive, a citizen is entitled to conduct his or her part in a judicial investigation in another member state through Irish. Whatever language is used, for example, Swahili, and in whatever member state is involved, there is an onus on the court to provide for interpretation. The Irish Translators and Interpreters Association has a procedure, whereby a professional member of the association can apply to become a certified translator. Inevitably, there is specialisation in legal and court work.
What proportion of translators and interpreters operating in the courts are certified?
The vast majority are certified by the association and that is a requirement.
Is it a legal requirement?
Therefore, we are not sure what proportion——
I am not sure. It is part of the tendering process that they must be of a particularly high standard.
That is not necessarily the standard required by the Irish association.
The people employed by the companies which tender inevitably are certified by the association. On the question of maximum and minimum standards, the directive only lays down a minimum standard.
I will declare my interest as someone who was involved in the early negotiations about ten years ago at a conference in Antwerp which dealt with this process which has led to the proposal for an EU directive. I have also been engaged in cases involving the use of interpreters to be instructed by clients. As Deputy Flanagan pointed out, I also wrote a paper on the issue for the Judicial Studies Institute Journal which I delivered at a training conference for judges.
Real concerns have been raised by Deputies Flanagan and O'Shea about the lack of independent standards for interpreters in the Irish criminal courts. My own experience is that one has to rely blindly on the quality of the interpreter provided. I have had the uneasy experience of feeling the interpreter was perhaps too close to the institutions rather than the person for whom he or she was supposed to be interpreting. There was a public report of one particular District Court judge who had threatened to charge a defendant for the use of an interpreter which is already a right under the European Convention on Human Rights. I am concerned to hear the Minister state he cannot say whether the system of interpretation is uniformly good. That is an honest acknowledgement, but it is also of great concern.
We know that one company is employed by the Courts Service to provide interpreters on the basis of a tender. We do not have a statutory framework for assessing the quality of interpreters. Unlike in Britain, we do not have a State recognised examination for interpreters. There is a very strong organisation based in DCU, namely, the Irish Translators' and Interpreters' Association, but there is still no statutory framework of examinations for persons who undergo the course on interpretation. There is no statutory requirement that interpreters must have passed a particular examination to be employed by the company which has won the tender. There was no such framework when I wrote the article referred to three years ago. Only last year the Garda Representative Association was very critical of the quality of interpretation and translation services. Concerns have also been expressed by the Irish Translators' and Interpreters' Association and the NCCRI when it was still in place.
Article 5 of the proposed directive refers to member states taking concrete measures to ensure interpretation and translation facilities provided are of adequate quality in order that the suspected or accused person will be fully able to exercise his or her rights. What concrete measures will Ireland be taking in order to be compliant with this article? Will we introduce a statutory framework providing for the training, testing and quality control of interpreters?
The Minister cannot say digital recording facilities will be in place in the criminal courts system by the end of the year. The bulk of criminal cases are processed in the District Court; therefore, that is where the majority of interpreters are being used. Will the Minister tell us when such facilities will be rolled out across the entire courts system? When is the contract with the company which currently provides this service for the Courts Service due to expire? Will Irish sign language be one of the recognised languages, as persons with hearing difficulties are recognised in the directive? The Centre of Deaf Studies at Trinity College was represented in the initial negotiations in Belgium and there has been a strong input by those engaged in sign language services. That is an important feature which is often overlooked when we speak about interpretation rights.
What is the Government's view on Article 9 of the original directive dating from 2004? I note that Ireland resisted the original proposal on the rather spurious basis that it considered procedural rights were already provided for suspects and that bringing such rights within the EU framework would carry the risk of clashes with the European Court of Human Rights. As part of the original proposal there was to be an article requiring an audio-visual recording to be made of proceedings conducted through an interpreter and a transcript to be provided in the event of a dispute. As Deputy Flanagan pointed out, the only way to ensure a quality interpretation service is provided is to have a record. What was the Irish approach in that regard? Are we in favour of a similar article being included in the final version of the directive?
I welcome the directive and the fact that it comes within the ambit of the European Union and the European Convention on Human Rights. We have a large number of interpretation requirements under a parallel but entirely separate system — the refugee applications process. I am not sure if it is the same company which is providing services for both, but there is a requirement to streamline and safeguarde standards in both areas. This is not just a matter for the criminal courts, even though that is our concern today. It is also a matter for the refugee applications process which places a very strong reliance on a quality interpretation service.
There is a huge cost to the State. The Minister stated €6 million to €7 million was spent last year on interpretation services. I think that is only on the criminal side; if such a large amount of money is going to just one company, we must scrutinise the process. Within the terms of the proposed directive, we must ensure we are receiving a quality service in return.
The contracts awarded to various companies and used by the Garda Síochána are yearly contracts. There are criteria laid down as to the standards required. Companies tender on a yearly basis and quality is a criterion. This ensures the issue is kept to the fore every year.
A total of 87 courts nationwide have digital audio recording systems. All of the major courts have such a system which is being rolled out to the District Court. This will take more time and a little more money. There is a pilot scheme in Dublin, Naas and Limerick, following a review of which, the scheme will be rolled out to all other District Courts. However, as there is an issue of resources, I cannot give any commitments.
A question was about Irish sign language services and the inclusion of the language in the directive. An organisation such as the Irish Deaf Society will be contacted to provide the necessary expertise as required.
This is not just a matter for the criminal area as it goes into several other areas, not just in regard to the courts but throughout the wider public service. It was felt, when this was considered, that we needed to develop a co-ordinated approach throughout the public sector in this respect. Several models have been considered, such as the UK model, but no decisions have been made on how to proceed. It is an issue that will now be considered by the Minister of State, Deputy Mary White, who has taken over the Reception and Integration Agency, RIA, from my Department. Obviously, she will consider this in conjunction with other Departments with regard to how to bring a co-ordinated approach across the wider public sector.
To return to Senator Bacik's question and the Minister's response, have we any indication of the overall cost of translation services across the board?
I will get that figure. For the Garda and the Courts Service, it is somewhere in the region of €6 million to €7 million. That would include——
Does the Garda aspect also include the INIS and asylum aspect or are we just talking about the mainstream Garda aspect?
No, that is additional.
I know this issue has been referred to the Minister of State. Is there money to be saved by having a co-ordinated service in place across all the agents of State? The HSE is another big user of translation services. If we could streamline this across a number of Departments, significant savings could be made. We are talking about a substantial sum when one considers all aspects. Is the Department or anyone else examining this issue?
The RIA is considering the matter and that will now transfer to the Minister of State, Deputy Mary White. Deputy Naughten is probably correct in that there would probably be savings if it was done on a co-ordinated basis. Equally, however, the bigger an issue like this gets, if contractors are to be used, the greater the possibility that one contractor will get everything, which may not be a good thing. It might be better, when there are such diverse services as courts and Departments spread throughout the country, to have a spread of companies and not put all one's eggs into one basket. For example, the Garda has different companies such as translation.ie, Lionbridge, Context, Unique Voice, Word Perfect Translations and other companies which it uses in different regions throughout the country.
I accept the Minister's point that it would not be sensible to have one operator given the logistics of the situation. However, even from a tendering and a streamlining point of view, if someone is divvying up the tenders, they will see whether savings can be made in a particular area. The HSE has its own focus in this regard, and there is also INIS and the asylum aspect as well as the Courts Service. Even from an administrative point of view, savings could be made there.
The CMOD group examines all of the Government contracts. When granting a contract for some service, it tries to co-ordinate or use and share services. However, I come back to the point that it is preferable that it is not a case of putting all eggs into one basket because that tends to dilute the service, particularly when dealing with a countrywide spread, not just in the courts area. It would be better to have a number of different companies. That is being examined and there is an effort at interdepartmental level to consider using an automated approach right across the system, whether it is in regard to health, justice or immigration.
Will the Minister come back to the committee to give an idea of the translation costs in the other aspects of the Department?
Is that for the integration area? Yes, we can do that.
As a follow-up question, the method of delivery is one issue but the real concern is consistency and quality across the different outlets or ways in which translation and interpretation is being provided. The Courts Service uses just one company, Lionbridge, whereas the Garda uses several companies, particularly for the translation of books of evidence and statements that it provides to defendants. The difficulty is how we can be sure there is consistency in the quality of the interpretation and translation offered across those different companies.
My recollection is that the way this was resolved in Britain was by having a state-run examination system that any interpreter or translator, be they from one company or different companies, would have had to pass to be considered for interpreting or translation. Therefore, a company that was tendering would have to ensure the people employed were qualified under the state system.
The Minister said he accepts the idea of a co-ordinated approach through the public sector but he said no decision has yet been made on how to proceed. We are years into a situation where there has been a pressing need for a long time. We see in the criminal courts, the immigration system and the HSE a great need for interpretation and translation services yet there does not seem to be any governmental response or any idea that there should be, for example, a State examination system or some statutory framework for testing and independent quality control of the interpretation being offered.
There are efforts at interdepartmental level through the RIA to consider all of this issue. We have looked at the UK model, which is not a paragon of virtue. The British are at this much longer than we are, and I understand it took at least ten years, if not longer, to put its current system in place. I am not sure one could say it is a uniform, high quality service throughout the UK and I understand it took very substantial funding to put in place.
We started from a fairly low base several years ago but, it is fair to say, throughout a number of Departments, whether in regard to education, health or justice, there has been a response. What we are trying to do now is co-ordinate that response with a view to getting a level of standard right across the agencies and, equally, as Deputy Naughten suggests, to try to ensure it is done in a cost-effective way. At present, it is being done in the justice area through contracts with reputable companies which are accredited, to the best of my knowledge, with the association. For the Garda, particularly given its remit, there is a vetting process in regard to anyone who is employed by the contracted companies.
Without some sort of objective standards, it is hard to see how people can be vetted. The Garda clearly could not tell whether the interpretation or translation skills of particular employees of a particular company——
The question on vetting concerned criminality and the point that interpreters should be proper people to be interpreting.
One would hope so but the issue is——
The point was raised by Deputy Flanagan or Deputy O'Shea with regard to whether there was a vetting procedure. It is not to vet whether they are good translators; it is a question of whether they are reasonably upstanding people.
Both are required. Certainly, one hopes they would be reputable people and that such vetting would be done. The concern uppermost when one reads through the proposed directive, particularly Article 5, is that their interpretation skills would be of an adequate quality and that there would be consistency across the skills. Nobody suggests any other system is perfect but it seems we are coming very late to developing some sort of co-ordinated approach. In particular, is there a plan to put in place an examinations structure for interpreters or translators or some sort of test?
The issue is being considered by the Reception and Integration Agency but there are no immediate plans. Contracts are issued on a yearly basis and if the people who use these companies were not satisfied with the quality of the services being provided, they would get rid of them fairly quickly.
I do not wish to be unfair to anybody but, although I have not seen the results of the review undertaken by the Courts Service, is this an objective body given that it is the defendant who seeks the interpretation? Nobody is asking defendants whether they are satisfied with the level of interpretation on offer. I make these points because I do not know of any document which can rebut my belief that the system is somewhat haphazard. I could offer many examples involving eastern European defendants, who appear before the District Court on a regular basis. There are thousands of such people. The first question asked is whether the defendants understand the charges brought against them and sometimes they reply in the affirmative when clearly they do not understand.
In the busy maelstrom of the District Court, interpretation is often granted without an examination of whether the person to whom the service is granted understands English. Sometimes the interpretation may augment his or her understanding of English but on other occasions the people concerned speak no English at all. It is sometimes the case that, for example, a Lithuanian interpreter who speaks Russian but does not understand Estonian, Belorussian or Romanian is called upon on a wing and a prayer. The result may be an injustice or simply low standards. I have never heard of a District Court judge questioning whether an interpreter has sufficient expertise to engage in the job assigned to him or her. I do not wish to be unfair to anyone but in the absence of objective standards or tests it is not unreasonable to make this point.
A review should be undertaken between the Department and the Courts Service but the Garda and a random sample of those who avail of these services should also be invited to participate. At the end of the day, the defendants suffer where there is a lack of quality or poor standards which do not comply with the letter of the directive.
I do not agree that we have delayed on the matter given that it is a relatively new phenomenon which only arose in the past ten years. We have built up a fairly significant expertise in the companies which are professionally involved in this area. My Department issued a competitive tender and obviously it had to examine the responding companies' ability to respond to our needs.
While I was Minister for Foreign Affairs I recall being told the number of countries from which people have migrated to Ireland. In effect, we have the United Nations in the country. I understand that 200 different languages are spoken and, if my memory serves me correctly, people from 167 countries reside in these 26 counties. There is a significant range of language requirements, therefore, and people have to do their best when someone who speaks an unusual language presents in court. The Garda, the Courts Service and the Judiciary rely on the expertise made available from the companies they contract.
Is it not quite shocking to hear reports that interpreters who were lawfully appointed as experts by the courts do not understand the words "not guilty", "charge" or "default"? This goes to the heart of the matter. There is something seriously wrong in the system.
I have received no report in that regard. The Deputy claims to have anecdotal evidence but he has not produced it. We must have empirical evidence of the matter because we cannot proceed on the basis of anecdotal evidence. We have neither the anecdotal nor empirical evidence required to back up the Deputy's claims.
He referred to a defendant who might not know the charge against him or her. Normally in the District Court, defendants are entitled to apply for free legal aid and, as the Deputy is aware, such applications are rarely refused. If they receive legal aid, the solicitors or barristers who represent them are entitled to ask for independent interpretation or employ their own interpreters. It is wrong to allege that people are receiving fines from the courts because they do not understand the charges against them. If that is the case, it is their own fault because they have rights within the courts to get the proper legal advice and interpretation services. This is why we say that we comply with more than the minimum standards laid down in this directive.
I am not sure we can say that because we do not know of any objective set of criteria by which the tendering companies are vetted. Deputy Charles Flanagan set out an anecdotal report. All we can do is share anecdotal reports because we do not have, for example, a study of whether lawyers representing individual clients have concerns. I have experience of an interpreter giving me what I felt was a prejudicial view of the person whom I was representing and for whom he was interpreting. How could I know whether that affected the quality of his interpretation given that I did not speak the language concerned? The difficulty is that unless we develop a set of objective criteria by which interpreters can be measured, we cannot be sure their skills are of sufficient quality.
Many years ago, prior to the introduction of competitive tendering, a Romanian priest used to offer his services as an interpreter simply because he was a representative of his community. Again, however, one did not know how objectively anyone in that position was able to interpret. We have been at this for quite some time and it is not acceptable that we have experienced a delay of ten years or more in reaching some sort of decision on a set of criteria against which companies tendering for these very substantial contracts could be measured to ensure the interpreters they employ are of sufficiently high quality to meet the minimum standards of the European directives.
I return to the point I made earlier that the matter is being considered by the Reception and Integration Agency because it is preferable to develop the standards on a cross-departmental and State agency basis. While we will have to await the outcome of these deliberations, we are more than happy with the quality of the people used by the companies. Even with objective standards and independent regulation, one could not completely rule out the possibility of what happened in a relatively small number of cases because that is human nature.
I am satisfied that the service complies with the standards laid down by this directive. I am not saying it is perfect across the country but we have responded well to our transformation in a relatively short space of time from a mono-national society into a multicultural one. We have responded in schools, hospitals and in many agencies where these people come into contact with us. Some of the phenomena mentioned involved Lithuanians and Latvians coming into the country but that has only happened since 2004, which is a relatively short space of time. To be fair to the people working in the courts at different levels, they have responded well. The State has responded well in providing significant resources for interpretation.
Perhaps we should invite the Minister of State, Deputy Mary White, to speak about the integration agency to follow this discussion?
We will move to the second motion.
I will deal with the motion for approval of the Defamation Act 2009 (Press Council) Order 2010. If the motion is approved by both Houses it will lead to the conferral of statutory recognition on the Press Council of Ireland as the "Press Council" for the purposes of the Defamation Act 2009.
My proposal on to the Press Council completes the final element outstanding from the passage of the Defamation Act which comprehensively reforms the law on defamation and replaces the previous legislation dating from 1961. The Act provides a modern legal framework and gives statutory expression to developments in the jurisprudence of our courts and elsewhere, including the European Court of Human Rights. The Act implemented the commitments contained in the agreed programme for Government to legislate in this area.
Throughout the lengthy debates on the provisions of the Defamation Bill, there was significant support from all sides of both Houses for the concept of a Press Council to set the standards for the print industry, establish rules of conduct for its members and provide the public with an effective no-cost alternative to the courts in settling disputes. The Defamation Act 2009 supports the concept of an independent rather than a Government-appointed Press Council.
An imaginative element of that approach, provided for under section 44 of the Act, is that a body, as now in the case of the Press Council of Ireland, can apply to be afforded statutory recognition by both Houses of the Oireachtas for the purposes of the Act. Such recognition, which affords certain benefits, is done on foot of approval of the motion from the Minister for Justice, Equality and Law Reform.
The Press Council of Ireland under the chair of Professor Tom Mitchell and the Office of Press Ombudsman were formally launched on 9 January 2008 and have been operational since. The council has 13 members, with seven members, including the chairman, chosen by the independent appointments committee to represent the public interest generally. The remaining six members are nominated by industry organisations, including journalists. The Office of the Press Ombudsman, with Professor John Morgan as ombudsman, is tasked with hearing complaints about newspapers and periodicals which are members of the Press Council with a view to providing a quick, fair and free method of resolving such disputes.
On 4 January 2010, the Press Council of Ireland formally applied to me for recognition under the Act. The necessary examination of the application and the supporting documentation has been carried out by my Department in consultation with the Attorney General. As the relevant Minister, I am required, as prescribed by section 44 of the Act, to be satisfied that the following minimum requirements have been met. These are that the Press Council must be a company limited by guarantee; it must be independent; there must be an entitlement to any periodical circulating in the State to be a member; and it must have 13 directors, with seven public interest directors, five owners and publishers and one journalist. There must be a system of selection and appointment of public interest directors and funding of the Press Council must be by members' subscriptions. The Press Council must have authority, through a press ombudsman or otherwise, to receive, hear and determine complaints; there must be procedures for investigating, hearing and determining a complaint; and the Press Council must adopt a code of standards.
I am pleased to inform the committee that I have determined that the application for recognition has met the requirements set out in Schedule 2 of the Defamation Act 2009. The granting of formal statutory recognition will confer certain benefits on the Press Council. A significant benefit is that qualified privilege will attach to its reports and decisions or those of the press ombudsman. Subscription to the Press Council and adherence to the code of practice for newspapers and periodicals will also strengthen the entitlement to avail of the new statutory defence in section 26 of the Act of fair and reasonable publication on a matter of public interest in any court action. The availability of that defence, as provided for in the Act, is subject to the condition of membership of the Press Council.
Non-members of the Press Council will be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of standards to avail of that defence. The Press Council is responsible for oversight and development of the professional principles embodied in the code of practice it has established for newspapers and periodicals. The code of practice, and adherence to it, is a critical element of the system of ensuring fair procedures and proper redress.
The Press Council has made it clear that the code will be organic and can evolve as circumstances require. I am sure members of the joint committee would agree when I urge any media organisations and publications which have not yet done so to become members of the Press Council for their own benefit as well as that of complainants.
I had the pleasure around this time last year of launching the first annual report of the Press Council and Office of the Press Ombudsman. That report afforded some insight into the workings of the press complaints system and the nature of complaints received during the first year of operation. It might be useful to mention some of the statistics involved in the operation of the Press Council, and these have been provided by the Press Council in advance of the imminent publication of the second annual report.
The total number of complaints received by the Press Council in 2008 was 335, with a small increase, to 351, in complaints received in 2009. This shows that complaints are running at a rate of approximately one a day over the whole year and appear to have remained more or less constant over the two full years of the Press Council's existence. I understand that a number of these complaints do not go beyond the initial stage because they are not pursued further by the complainant, and between a third and half of all complaints decided by the press ombudsman in each year were upheld or were cases in which he decided that the publication concerned had agreed to take sufficient remedial action. The Press Council itself hears a small number of cases that are referred to it directly by the press ombudsman or are appealed.
In 2009, it upheld one of the five complaints referred to it by the press ombudsman and in 2008, 25 decisions of the press ombudsman were appealed to the Press Council and two were upheld. In 2009, 11 appeals were made to the Press Council, none of which was upheld.
I am informed that the greatest number of complaints received relate to principle 1 of the code of practice for newspapers and periodicals relating to truth and accuracy. However, there were also a substantial number of complaints pertinent to principle 5, relating to privacy, and in particular about the part of principle 5 which requires publications to show sympathy and discretion at all times in seeking and publishing information in situations of personal grief, shock or bereavement.
In response to this issue, the Press Council organised a public seminar on privacy in Cork in January 2009. The latest edition of the Press Council newsletter includes a selection of decisions to illustrate some of the issues that arise in connection with privacy and how the code of practice has been applied in each case. Again, I am informed by the Press Council that a notable feature of 2009 compared to 2008 was that the number of complaints successfully conciliated in 2009 was 25% up on the number conciliated in 2008. This underlines that the Press Council and the press ombudsman's service to members of the public is a viable alternative in many cases to expensive and time-consuming legal action.
It is appropriate that strong emphasis is being placed by the Press Council and ombudsman on resolving complaints through conciliation or mediation. Moreover, the print industry is, in general, committed to the new press complaints initiative and has provided the necessary financial backing to support its operation. This co-operation is vital to the long-term success of the new Irish press complaints system.
The new complaints system is providing a useful, efficient and cost-free remedy for members of the public who are affected by breaches of the code of practice. Most important is the requirement that publications which are members of the Press Council have to publish in full decisions of either the press ombudsman or the Press Council which uphold complaints made under the code of practice for newspapers and periodicals. There will still be aggrieved persons who, as is their right, may opt to pursue the legal route to seek redress.
It is important that the public has a choice in how it wishes to deal with a complaint against the press. The press complaints system offers that choice and that is to be welcomed. The motion before us to grant statutory recognition to the Press Council does not compromise or interfere with the public's independence of action or decision making. There is no element of interference by Government but rather we are bringing to fruition the final element of a reform process that has been lengthy in its development. It is all the more welcome for that.
It is still early for the new independent system of press regulation but the signs are that it is working well in resolving complaints from citizens against the press. I expect that the second annual report of the Press Council, which is due for publication very soon, will confirm this trend. While much of its work is related to processing complaints, the council and the press ombudsman have taken a proactive stance and engaged with the public in issues of particular concern. This is an important development and one which appears to be paying dividends. I commend the motion to the committee.
I subscribe to and support the Minister's comments on making an order under section 44 of the 2009 Act. I support granting recognition to the Press Council of Ireland. I am pleased the Minister is satisfied the body has complied with the provisions in section 2. I welcome the setting up of the council as well and I acknowledge and agree with what the Minister has said. The procedures are now in place for investigating, hearing and determining a complaint and the council has adopted a code of standards which is working well.
This development appears to be the final triggering of the Act. It has been in force since 1 January 2010 and we are now granting official recognition to the council. This concludes the work of the Oireachtas as far as this legislation is concerned. The Minister will recall an act of a predecessor when the Bill was initially published sometime during the mid 2000s. It was accompanied by a Privacy Bill which is still in the Seanad and which has not been triggered by way of any debate. The then Minister, Mr. McDowell, was in favour of it and indicated it would be passed. The Minister's immediate predecessor, Deputy Brian Lenihan, was of the view that it was parked but that it could be moved on at his instigation at any time. I wish to hear from the Minister now, in the spring of 2010, of his intentions in respect of the Privacy Bill.
I call on the Chairman to invite Professors Horgan and Mitchell, the Press Ombudsman and the Chair of the Press Council of Ireland, to formally address this committee in the autumn. The Minister indicated that the second annual report is probably due in the coming weeks. While I acknowledge that the Minister has stated that it is early days yet and I accept that a good start has been made, I call on the committee to invite a submission from the Press Council of Ireland on its workings, in particular from Professors Tom Mitchell and John Horgan, after the publication of the report this summer or perhaps in September or early October. They might be in a position to brief us on the matter of their two annual reports.
We will accommodate the Deputy with that request, I am sure. I do not have a problem with that.
I have indicated on previous occasions that the issue of violation of privacy is of particular concern to me. I am also aware that members of the general public and those in public life are aware of a worrying trend in respect of media intrusion to get a good story. The violation of privacy is not an exclusive right or preserve of the media. Many of the complaints that my Department receives involve individual citizens complaining against each other and not against the media. There seems to be a view that any privacy law or statute is directed at the media but it is not.
There seems to be a growing disregard for the privacy of an individual as a basic human right. I have encountered examples from different areas of the Department in which I am endeavouring to ensure we work with our international partners vis-à-vis the type of information that should be transmitted to prevent terrorist bombings if people travel on aeroplanes and the possibility of infringing individual rights to privacy. That is one aspect. On the other hand, there is the issue of the invasion of privacy by individuals or media. Depending on what side of the argument one is discussing, during the past year I have been criticised for infringing people’s personal privacy in the context of issues such as data retention and details to be given in respect of airline travel, while at the same time, I am criticised for the perception that I wish to bring forward a Privacy Bill simply to protect people in public life, primarily politicians, which is not the case. This is somewhat ironic.
New technologies have played an increasing role in the way in which people's individual privacy has been targeted and, to a certain extent, the disregard for an individual's privacy as a basic human right. We have seen this with blog sites and various other recent technological advancements which can be used to circumvent completely the laws of defamation and the rights of individuals to privacy. I have stated previously, and I have made no bones about it, that I favour the creation of a tort of invasion of privacy.
The Government produced a Bill in 2006. My predecessor stated that on the basis of implementation of legislation associated with the Press Council and the Ombudsman we would wait two years. The Government decided to wait two years to determine how the arrangement worked once up and running and this is still the case. The Privacy Bill remains on the Order Paper of the Seanad and we will examine it in the context of jurisprudence, which is evolving on a daily basis throughout the world but primarily in the UK.
The Privacy Bill does not create any new law. It puts on a statutory framework the existing constitutional right to privacy and has regard to the rights provided for under the European Convention on Human Rights. The Bill incorporates the developing jurisprudence in regard to the protection of privacy in our courts the UK courts and the European Court of Human Rights in Strasbourg. The law in respect of defamation and privacy is dynamic and changing all the time as I have stated many times and we must keep those changes under review.
Some commentators would wish us to believe the Privacy Bill has a different focus. The focus of the Privacy Bill is not all about possible violations of privacy by the media and nothing else. This is not the case. The Bill deals with a range of situations where the privacy of a person might be violated. This could be done by a State organisation in the context of private information of an individual going farther than required in respect of data protection and retention and phone and Internet matters. We are progressing that legislation at the moment in respect of the information that might be required when boarding a flight.
The Privacy Bill inhabits the space between the Data Protection Acts and the necessary and appropriate provisions in regard to dealing with security and crime issues. There is no threat to investigative journalism which, we all agree, rightly seeks to hold Government, institutions of the State, businesses and other organisations up to scrutiny. I have no problem with that. Equally, it is fair to say I speak for most, if not all, public representatives who have had constituents who have had their right to privacy interfered with not only by the media, but by other individuals and by the State in some instances. To answer the Deputy's question in a nutshell, that Bill remains on the Order Paper and is still under review by this Government.
The Labour Party supports the motion.
I have some brief points. The Press Council must be a company limited by guarantee and qualified privilege applies to the council in regard to its reporting decisions and to those of the ombudsman. If a person is aggrieved in the context of abuse by the Press Council of that privilege, whom may he or she pursue? If the Press Council is limited by guarantee, how is it covered in terms of any actions taken against it in regard to privilege? Regarding the council's code of standards, is there any reference in that code to blasphemy? The Minister will recall that has been an issue at this committee.
Non-members of the Press Council are required to have in place an equivalent fairness regime and to operate an equivalent and publicised code of standards. Is there a time limit on other publications which are non-members of the council providing those requirements? If they do not provide them who will enforce the provision of such a code?
There is no code provided for those who are not part of the Press Council. In effect, we do not deal with them, they are not part of it and therefore will not get the benefit of some of the more innovative provisions of the Defamation Act.
The Minister stated they are required to have in place an equivalent fairness regime and to operate an equivalent and publicised code of standards to avail of the defence.
Under the legislation, if they make an argument using the legislation they would have to prove to the court they have in place a code of practice. Such a company would have to prove this to the court, not to the Press Council. If they want the benefit of the Act they have to prove they comply with minimum standards laid down in the Act in this respect.
There is no one body to determine whether these companies are of that standard. That can only be tested in court.
That is the case. Because of privilege the Press Council cannot be sued for defamation. It is hardly likely companies would be sued for bad procedure, lack of procedure, or whatever. Obviously, they could be sued but I hazard a guess it would be a difficult case to prove. If people are not satisfied with the Press Council, they can always go to court. That is their right and it has not been taken away from them in the legislation.
I have spoken about blasphemy many times at this committee. When we were passing this Act I was advised that the Oireachtas and I, as promoting Minister of the legislation, could not remain silent. The legislation could not remain silent in regard to blasphemy in that we were repealing section 13 of the 1961 Act covering the existing offence of blasphemy. We could not leave it vacant because there was a constitutional imperative in that the Article in question states that "blasphemy shall be punishable in accordance with the law". It is a very distinct mandatory requirement in the Constitution.
As I said many times, I probably had three choices even though my officials would say I had only two. First, I could forget about this Bill altogether. We did not do that because various people who were looking for this legislation would not be happy. Second, we could have a referendum. I made the point at the time, especially in the run-up to the Lisbon treaty referendum, that I was not prepared to go to Government and suggest we should have a referendum on the same day as the referendum on the treaty, nor did I believe the main two Opposition parties would have wished that to happen. I said then and subsequently that if we were to have a referendum we should have it at a time when we were having other referendums.
Therefore, I decided, in conjunction with the Attorney General and with the consent of Government, to change section 13 of the Defamation Act of 1961, taking away the possibility of imposition of a prison sentence, putting in a number of conditions and removing the possibility that a private individual could take a prosecution. In other words, such a prosecution would have to be made through the Director of Public Prosecutions. Although some people tried to demonise me and make me out as a right-winger who had some agenda——
The Minister brought it on himself, in fairness.
I did not. It was the Deputy, with a big tongue in his cheek. He knew it well when he proposed on Committee Stage we should delete the section entirely. He knew it well or else did not take proper advice. I am surprised that he, as somebody who was trained legally——
No, the Minister should not go down that road again. It is an old road.
——should understand fully——
The Minister drew the criticism on himself and continues to draw it because he is backtracking now.
A person does not even have to be legally trained. I did not bring anything down on myself. I was doing what I was told was my duty as Minister, what was the duty of any elected Member of this Oireachtas, namely, that we either have a referendum to change the Constitution or else we change the legislation. We could not remain silent, as the Deputy proposed, because it is stated, bluntly, in the Constitution that blasphemy shall be punishable in accordance with the law. Even the worst bar-stool solicitor would understand those words. I did not bring anything on myself. People like the Deputy acted the maggot, to be honest——
Please, Chairman.
——in trying to portray me as a right-wing person.
We are moving away from the subject.
It was the Deputy and his allies.
Can we stick to the motion, please?
When people are straight, answer straight questions and give it straight from the hip, as it were, some people do not like this. Despite all of that, the fact is we cannot get away from the choice——
Did the Minister brief the Cabinet on the referendum, as he suggested?
We are discussing a motion. We are not going back to rehash the entire blasphemy debate again. Please stick to the motion.
I was answering Deputy O'Shea's question.
Has the Cabinet been briefed? I ask the Minister to bring us up to date. The Minister is rambling and spoofing now.
I was answering Deputy O'Shea's question on blasphemy but Deputy Flanagan seems determined to interfere. Even Deputy O'Shea has not interrupted.
Has the Minister answered the question?
I reiterate——
The Minister addressed me, by implication.
The Government was faced with two, perhaps three choices. We decided to go the route of legislation for the time being. I have said I would be prepared, at the appropriate time, to recommend to Government having a referendum on blasphemy if we can do it in a way——
The Minister did not do it.
——that would not cost the taxpayer any further money because we could add it to an upcoming referendum. I hope it might be the referendum on children although there may very well be people who will say we should not have that particular proposal on blasphemy joined to the children's referendum in that it might complicate the issues.
Hope and possibility are a far cry from decisive action.
Deputy Flanagan is found out for the hypocrite he is. He comes into the Dáil every day and tries to suggest I should be investigating crime and all of that. He knows well how it is supposed to work.
Are we finished? Can I dispose of the motion? I thank the Minister and his officials for attending. The clerk has circulated draft reports on the two motions. Is it agreed that there be no further debate on the motions in Dáil Éireann and Seanad Éireann? Agreed. Is it agreed that the clerk will complete the reports by including starting and finishing times and the names of the contributors to the debates on the motions? Agreed.
I again thank the Minister and his officials for their attendance. We will go into private session to deal with a number of matters.