I am struck by the common sense in the approach taken by Senator Jim Walsh. His instinct is correct. I am astonished by the inclusion of this provision, which seems to be perverse and illogical. However, there is no doubt it is what the media wanted and the Minister has given it to them.
I believe Deputy Michael McDowell was the Minister for Justice, Equality and Law Reform in June 2005. Bloomsday is 16 June and is a date dear to my heart. On Bloomsday 2005, counsel in Europe defended a position on his behalf which he now proposes to undermine. I will put on the record of the House what the Minister thought in June 2005, which is in direct opposition to this section. It is surprising that such a distinguished lawyer would impugn the sanctity of the jury, a subject on which Ms Justice Finlay Geoghegan in the Supreme Court has waxed eloquent on more than one occasion.
The case, which was unreported but is available, was Independent News and Media plc and Independent Newspapers (Ireland) Limited v. Ireland and was related to the case of De Rossa v. Independent Newspapers. The newspaper group lost in Ireland so sued in Europe, where it was again put in its box. Arguments made by the Minister on Second Stage in defence of this section were dismissed out of hand by the European Court of Justice so why are we considering it now? We all know why. It is because a general election is imminent and every time there is an election every party gets involved in an auction to see how best it can kowtow to the press.
The Government's response to the prospect of allowing the Supreme Court to second-guess a jury was to say that it underlined the cherished nature of the principle that lay persons were considered the most effective arbiters when deciding not only what was defamatory but what was the appropriate level of compensation. That was the argument made by the Minister's representatives in 2005. It continues:
The applicants were effectively asking the Court to assume that jurors were unable to value reputation in accordance with certain factors outlined to them in order to arrive at a rational and proportionate decision without further guidance. Not only was that an inappropriate assumption, but the calculation made by a jury attracted an even wider margin of appreciation than that completed by, for example, a judge. In this latter respect, they explained why framing and applying defamation laws in a modern democracy was a complex exercise requiring a delicate calibration of a variety of interests. The domestic authorities were therefore clearly better placed to judge how the most appropriate balance could be struck in a given situation and, further, an authority comprising a group of informed, reasonable and conscientious citizens (a jury) would be best placed to reach that balance given their direct and continuous contact with the realities of life within their countries.
That was the Government's argument two years ago. What has happened since? Why this extraordinary volte-face?
The court also addressed the question of guidance at first instance and recalled a series of cases, stating the case was whether the domestic protections against disproportionate awards sufficed. It subsequently stated, and this is the situation before the enactment of this Bill, and I hope this section of it will not be enacted, that in Irish jurisprudence:
The jury assess damages following its finding of defamation. The Supreme Court can review and quash the award of a jury of the High Court. It does not substitute its own award but rather refers the matter back to the High Court for a further trial on damages before a different jury. The second jury will not be informed that an earlier award was quashed nor, consequently, of the decision or reasoning of the Supreme Court.
In its finding, the European Court found the domestic remedies were perfectly sufficient and found against Independent Newspapers Limited and for the position then adopted by this Government, this Minister and his representatives. It is interesting and astonishing that there should be such a remarkable about-turn on this issue by the Minister.
I would have instinctively made these arguments myself, and they have also been made by Senator Walsh to an extent, but I did not have to rely on my own inadequate fumblings. I was able to rely on the expression on behalf of the Minister by Irish lawyers at Strasbourg which was successful in defeating what the Minister is trying to introduce here at the behest of the press barons.
I tabled an amendment to this section but I want to oppose it in its entirety. The entire section should be removed.