Defamation Bill 2006: Committee Stage (Resumed).

On a procedural point, is it necessary to extend the sitting to compensate for the overrun on the Order of Business? Members imposed on the Leas-Chathaoirleach's patience and we had a discursive response. We lost approximately 20 minutes of the debate. It would be helpful——

The Leader can review the situation as the day progresses.

When it comes to 1.30 p.m.

Is that agreed? Agreed.


Debate resumed on Government amendment No. 4:
In page 12, subsection (2), between lines 15 and 16, to insert the following:
"(j) a fair and accurate report of proceedings to which a relevant enactment referred to in section 40 of the Civil Liability and Courts Act 2004 applies;”.
Amendment agreed to.

Government amendments Nos. 5 and 32 are related and may be taken together by agreement. Is that agreed?

Government amendment No. 5:
In page 12, subsection (2)(r), line 44, to delete “under the Constitution” and substitute “by law in the State”.

The purpose of these essentially technical amendments is to provide continuity with the correct reference to a court established by law in the State, as already corrected in section 15(2)(i)

Amendment agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."

I have some queries regarding subsection (2) in particular, which states:

[I]t shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was -

(a) made in either House of the Oireachtas by a member of either House of the Oireachtas,

(b) contained in a report of a statement, to which paragraph (a) applies, produced by or on the authority of either such House[.]

Is there any qualification to this? If, for example, any report is published by the House and turns out to be incorrect, or a doubt arises subsequently and the publishers are aware through other information or sources that it is defamatory, can any action be taken to correct this? I am mindful of the Abbeylara case and the extent to which it might have implications for this section. It was found in that case that committees of these Houses did not have the capacity to adjudicate on matters which would affect the character or reputation of people,

Paragraph (k) states that the defence shall be extended to action “made in proceedings before a committee of either House of the Oireachtas”. Will the Minister clarify this? In general, where outside bodies appear before committees of the Oireachtas, there would be a declaration by the Chairman that, while Members have privilege, people appearing before the Oireachtas do not. Are we extending the privilege of publication to people who do not have privilege in the first instance?

I will comment on paragraph (m) but it is a general point relating to tribunals. There has been much adverse comment in respect of people who appeared before tribunals at different stages, especially where the tribunal was hearing the case before the defendant had a right to respond to some of the allegations being made. Often it could take weeks for such people to put their side of the case. I have great misgivings about that. This may have more to do with the modus operandi of tribunals than it would have with the Defamation Bill. I must respect that, where we have a public tribunal, the press must be in a position to report on its proceedings.

My concerns are primarily about the paragraphs relating to the Oireachtas where somebody appearing before a committee does not have privilege and makes a statement defamatory to a third party that could be subsequently published. It seems there should be a way of correcting that.

I wish to point out that the Order Paper is misleading. It states Committee Stage of this Bill resumed at amendment No. 4, but it should be amendment No. 14. I left to make a quick telephone call because I did not realise we had reached this point.

The point I would like to make falls in between sections 14 and 15. Will the Minister consider the possibility of inserting between these sections a new subsection which would state: "Where the defendant relies upon truth as a defence, he or she should be obliged in the pleadings containing the defence to set out the facts upon——

I am sorry to interrupt the Deputy but I point out that amendment No. 14 has not yet been discussed. We will come to it.

The Senator is thinking of section 14.

I see. My point falls between the two sections and this is presumably the only time when I will have a chance to make it. I was indicating that a new subsection should state: "Where the defendant relies upon truth as a defence, he or she should be obliged in the pleadings containing the defence to set out the facts upon which they will rely in the defence."

I will make two points which should appeal to the Minister. This would enshrine in legislation what is a reasonably general practice in the courts. It also gives the verifying affidavits, about which the Minister spoke so eloquently on the previous occasion, considerably greater relevance regarding trial.

Will the Minister consider inserting between sections 14 and 15 a new subsection containing this stipulation, essentially that there should be a recital of the facts upon which the defence will rely? It is fair practice and it occurs regularly in the courts. It would also strengthen the case made by the Minister, which I queried, about the verifying affidavits.

Progress reported; Committee to sit again.