I welcome the Minister for Justice, Equality and Law Reform. Amendments Nos. 23 and 24 are related and amendment No. 25 is a technical alternative to amendment No. 24. Amendments Nos. 25 and 27 are consequential on amendment No. 26. Therefore, amendments Nos. 23 to 27, inclusive, are being discussed together.
Defamation Bill 2006: Committee Stage (Resumed).
I welcome the Minister, Deputy McDowell, back to the House. I reiterate that I have to declare an interest in this matter as a director of Independent Newspapers and a writer. I was also involved in the working party which prepared the proposals for the Press Council. I will not delay the Minister too long on this amendment. I would not die on the ditch for the particular wording proposed but I ask the Minister to consider a particular point. I agree with the essence of what he is trying to do, which is to ensure apologies are timely and proportionate. They should be timely in the sense that they should be published quickly, before people forget about the original matter, and proportionate in the sense that the same prominence should be given to the apology as was given to the original statement. It would not be right to print an apology among the small ads at the back if the original article which caused offence was printed on page 1. Justice will be done if we ensure apologies are timely and proportionate.
I am concerned that the Bill, as drafted, appears to contain an implication that judges should specify the date, time, space and place on which and in which apologies shall be published. With all respect, judges are not editors of newspapers. This provision disregards the process by which newspapers are produced. It also disregards the possibility that on the day a judge ordered that an apology be made the front page story might be that of a tsunami or another natural disaster having happening or another event of major public interest. I would prefer if the Minister would include a provision along the lines I suggest, namely, that the apology would be included in a timely and proportionate way and with due prominence and, if he wishes, with the proviso that the person concerned would have the opportunity to return to court if he or she is not satisfied with the apology given, when the court could then deal with the newspaper concerned for contempt for not having carried out the order of the court. It is right that the court should order a correction, give some idea of the prominence and the proportionality of it, but it would be helpful if the Minister would have regard for the difficulty of producing newspapers and the difficulty that would be created by a judge specifying in fine detail where and how the correction should made.
I support Senator Hayes's view. All too often apologies have been published in some obscure section of a newspaper which related initially to a front-page article that was the subject of the libel. It is important that an apology would be given the prominence given to the original article published. The timing of the apology, which the amendment proposes should be given in a timely fashion, is an important aspect. It should be made as soon as possible following publication of the article. An amendment, such as that proposed by Senator Hayes, should be incorporated in the Bill. It would be an important addition to it and it should be made. Any just person would consider that an apology should be made and should be given as much prominence as the original article.
It is honourable of Senator Maurice Hayes to declare his interest in this area. This is a good and appropriate amendment and it is in the interests of the ordinary Joe Soap whose case I have been trying to make here. This amendment is important. If one is libelled or defamed on the front page of a newspaper by the publication of an unpleasant article, an apology for that should be given equal prominence. However, there are certain circumstances where it would be no harm for the newspaper concerned to contact the aggrieved person.
In a recent case reference was made to a garda whose wife died in tragic circumstances and much play was made of the fact that the garda was involved in the Abbeylara case. That prompted an enormous storm of controversy and a considerable number of people said they would not buy the Sunday Independent subsequently. There was a commercial angle to this case. A week later the editor put an apology on the frontpage of that newspaper. I am not sure how appropriate that was. I cannot speculate on the motives of those concerned as to whether they were genuine; they may well have had as much to do with circulation figures as anything else. If a person was grieving and had his or her grief exacerbated by an unpleasant article, it is unlikely that pain would be salved by the matter being carried on the frontpage of the newspaper the next week again, even with an apology, because it would rub salt into the wound caused by the original offence — at least that is what I would feel if I was the person involved.
I recognise it is a difficult situation for an editor but there should be the possibility of some degree of contact. There was no question of damages in this case, as far as I know, because up to now we cannot be accused of libelling the dead, although I intend to table an amendment on that issue. I am keen to support the making of an apology for such an offence.
I was ambushed on "The Late Late Show" on Friday night by a little squirt who made me think of Alexander Pope's lines about Grub Street: "Yet let me flap that gilded bug ... that stinks and stings". He referred to the fact, completely out of context in my opinion, that I had taken legal advice about an article that appeared in the Evening Herald. That article stated that I was the kind of person who would buzz off to Iraq because I opposed the war and pin medals on Saddam Hussein’s two sons, Uday and Qusay, to reward them for torturing and murdering their own people. I have been to Iraq. No flights were available. We had to go through the desert and when I inquired, on getting back to Jordan, why it was necessary to travel at 120 miles an hour through the desert, which was rather uncomfortable and gave me vehicle sickness, I was told it was because they had not been able to get insurance because of the number of people who were shooting at our types of vehicles. I had a blazing row about human rights with the Foreign Minister, Tariq Aziz. I did not relish the fact, therefore, that my reputation was being taken away from me by being told that I was a supporter of Saddam Hussein. I was one of the people who opposed him on human rights grounds from day one when Rumsfeld and the rest of them were colluding with him.
I sought an apology but I was met with silence. I then got my lawyers to make the initial moves towards suing. We settled before the case came to court. I got an apology and a moderate sum of money, most of which was devoured by the lawyers, but what I wanted was the apology. I was told that I had a hissy fit — that was the expression used. I wonder if the fact that I was ambushed on "The Late Late Show" prompted the Irish Mail on Sunday, which I have never infected my eyeballs by reading, to repeat a scurrilous article from its trashy sister, Ireland on Sunday, of some years ago in the past few weeks. I also had an entire column devoted to me by Fintan O’Toole, who is a fine journalist, but never in my life have I read an article by him which referred to the Seanad. I wonder, because I am a naive person, if that could all be coincidence or could it have some relation to the type of comments I was making here in the House. Is that the reason so many of my colleagues are a little wary of taking on the newspapers? I am not at all bothered about that.
That particular journalist is a stranger to the truth, to put it diplomatically, because I said on that programme that he described the Dalai Lama in a certain way. It probably will not appear in the Official Report because it is vulgar but he said the Dalai Lama was a gobshite. I did not believe that was appropriate. He made many more vulgar remarks which I will not put——
That is unparliamentary language.
I thought so too. That is why I reprimanded him over it but the net effect of it was that he denied it and said he called him a goblin. I have the evidence of what he said. That is the type of behaviour of which I do not approve. When one seeks an apology and it is not given one then has to sue and that is a fairly dicey game. The individual who takes on a newspaper must have a great deal of courage, bipolar syndrome or a great deal of money behind him or her. It can be nerve-wracking but if one believes one's reputation is impugned and one goes after the person responsible, he or she will not give an apology until one has them by the throat, and then they will try to do one afterwards.
Does anybody remember when the same stable of newspapers libelled the late Niall Andrews and he sued? They laid in wait for him. It took about 18 months but by God they got him. That is what people are afraid of. That is why it is appropriate that an apology should be given and it should be given the same prominence as the original article but lets us not be foolish and naive in these matters because there are people who will punish one for telling the truth. There are people who do not know or care about the truth and who print stories in order to sell newspapers. We in this House are barking mad to attempt to create two tiers of people. If this Bill goes through, and I sincerely hope it does not, people like us in public life will be fair game. The media can lie as much as they like about us because they will have every kind of available defence and although they will be able to apologise, we will not be able to use the apology. Therefore, this is a good amendment and while I respect Senator Maurice Hayes for tabling it, I am deeply concerned about much of the rest of the contents of the Bill.
I accept libel is a terrifying experience, especially for the person being sued. I have been on both ends of this game, although I was not all that terrified in my case. I do not have long pockets but I am an up and down kind of person. I will table an amendment to say that the person who shall be liable for damages and costs shall be the proprietor of the newspaper and the editor because the buck should stop at the top desk. The individual journalist should not be penalised in this way. I am involved in a form of balancing act. I am passionately on the side of the small person who may be crucified by newspapers which, by and large, do not give a damn, and the more English papers enter the market, the less they give a damn. As a fellow journalist with many friends who are journalists, however, I also have a good deal of sympathy for people who are subject to libel actions because this could be disastrous for a person who is individually liable.
I welcome this amendment but there is a lot more work to be done. As the Tánaiste's colleague, the senior partner in the arrangement, might say, "Some done, a lot more to do". I hope we can either get rid of this Bill or else make it more amenable to the rights of ordinary people as well as politicians who are merely ordinary people who accept a further level of responsibility on behalf of the community. They should not be penalised simply because they take on this role.
Before Senator Norris had started speaking I indicated I wished to speak on these amendments but if I had heard him first I probably would not have indicated because it is not too easy to follow his contribution. I watched him on television the other night and I admired the passion with which he made his point. He left nobody in any doubt as to his views on aspects of this Bill. I applaud him because it is courageous for politicians to take a stand, especially where it is in opposition to a newspaper. The media contain a significant minority that do not fall into the category of responsible people. One can expose oneself to being excoriated by being critical of the media. The media, which rightly demand and maintain the prerogative to be critical of others, seem to operate to a different standard when it comes to themselves.
I am persuaded by Senator Maurice Hayes's amendment and I note the Government amendment No. 26 in this regard. The granting of judicial discretion is good but I do not understand how it is either necessary or desirable in this instance. On Second Stage I argued that if somebody is defamed, the very least that should happen is that the publication of an apology would be published on the same page as the original incorrect article. My desire would be that any such apology would be published on the front page and I see no reason this should not be so.
The defence of fair and reasonable publication as proposed in the Bill is to be welcomed. However, aspects of the Bill need to be rebalanced because it seems the average person will have no possibility of any entitlement to remedying his or her good name or reputation without risking all their finances gained in a lifetime. This is an invidious position for people. I hope the House will achieve a rebalancing of the Bill. I am not certain the Minister will go as far as I would like him to and require the apology to be put on the front page. If an apology is on the front page, some newspapers would have many apology notices appearing on the front page which it is to be hoped would damage their circulation and credibility and so act as a deterrent to the newspaper industry.
Arguments have been put forward for the establishment of a press council to improve and maintain adherence to a code of conduct for newspapers, and I am in agreement. However, I concede that Senator Maurice Hayes's amendment is probably more balanced than my line of argument. I ask the Minister to consider the Senator's proposal positively as it is not an area that would require judicial discretion.
I am a little mystified by the reaction to Senator Maurice Hayes's amendment. I am speaking to the Government amendment which is preferable. Even though it has been praised by Senator Norris, Senator Hayes's amendment No. 23 would have the effect of removing entirely subsection 28(2) from the Bill and therefore remove the capacity of the court to specify the time or date or the form or content. In those circumstances the Government amendment No. 26 is preferable. It states:
In page 22, subsection (2), lines 7 and 8, to delete paragraph (a) and substitute the following:
(i) the date and time upon which, or
(ii) the period not later than the expiration of which,the correction order shall be published, and".
Section 28(2)(b) states: “the form, content, extent and manner of publication of the correction”. This will stand in the Bill after the Government amendment is made but it would not stand if Senator Hayes’s amendment were made.
Senators Jim Walsh and Norris were being unduly generous in their praise for Senator Hayes because he was in fact proposing a——
A Trojan horse for the Indo.
——significant dilution of what they were talking about. In fairness to Senator Hayes he proposes that there should be an obligation in the order to give due prominence to the correction order to ensure it is communicated to all or substantially all the people involved. This formula is already in place as set out in the last paragraph of section 28(2). Senator Hayes is somewhat less prescriptive in his approach than the original Government text or the Government amendment. The change is that the Government amendment allows a choice of time to be given to the editor or the publisher when the correction order would be published.
Although I am attracted to a non-interventionist approach, I believe the court must be in a position to state what kind of correction order it should be and the prominence it should receive. To be honest, it is unfortunate that the newspaper industry has proven on many occasions that it is niggardly and almost insulting in the manner it chooses to apologise for the libels and slanders it carries out. It always seeks to minimise the effect and always seeks to excuse itself and get away with the least possible apology in the least prominent position. If it could be carried between miscellaneous and lost and found, that is what they would do. Everybody knows this and everybody who has ever been involved in defamation law knows that this is what is done. The miserable little items are headed "Apology" or "Explanation". If they can use the word "explanation" rather than "apology", they are delighted because they have not apologised. There is not a genuine sense of contrition. Going back to my catechism, neither is there a sense of firm purpose of amendment, which one always had to remember. As Senator Norris said, they wait in the long grass and come after one again. On many occasions one pays through the nose for whatever redress one has obtained.
Senator Norris says he was ambushed when appearing on television recently. If one sits in the front row of "The Late, Late Show" audience, one cannot expect to have a controversy-free outing on the programme.
I was delighted.
I know the Senator was.
I was thrilled with the article attacking me the next day and the photograph of me wearing a boater. It was fantastic, coming up to an election.
The Senator took issue with Fintan O'Toole's article some time ago on the proceedings of this House. I am in the extraordinary position that Fintan O'Toole, for once in his life, agrees with my position on these matters. This gives me an uneasy feeling, not least because I remember on one occasion in the same column he vituperated against me for deceiving, lying and all the rest because I had said he was hostile to the concept of property — he said this was a malicious invention on my part. I took this on board and thought he was slightly to the right of where I thought he was coming from until some time later he let his guard down on the Vincent Browne programme and admitted he had been a Marxist at an earlier stage in his life. This was the Fintan O'Toole I recalled. However, whereas he was allowed to define himself and his position, I was not.
One must have a thick skin in politics. Day in, day out, I am likened to a Nazi by the Irish media. If it is not in one newspaper, it is in another — that I speak in a German accent.
It is the goose-stepping that does it.
I goose-step around the place and do all of these things. All of this is written by people who have, apart from access to columns, little or no talent in life, apart from inhabiting houses of poor design quality and so on. I think it was in a controversy between Denis Franks and Ulick O'Connor that one of them likened the other to a sparrow picking at the droppings behind the dray horse of Irish literature. I often think that if some of the people who write these columns had to fend for themselves in the real world — if they had to manage a small section of a company or sell their opinions in competition with others, or if their slot came up for tender every so often or they did not have an inside line of access to the editors or proprietors of newspapers — they would not be touched by anybody. They are profoundly boring people in many respects.
Is the Minister painting them all with the same brush?
No, I am referring to some of them. When they write that I am a Nazi, a fascist or this, that or the other, it is puerile. I am a liberal and a republican politician. I have stood up for liberal values more coherently than most of them. They like to go back to some kind of student, undergraduate mental approach to politics, where they liken me to some kind of fascist person. They should show me anything I have done that is fascist.
I noted recently that Vincent Browne announced that the referendum on citizenship was a racist referendum. How foolish can anybody be? How utterly devoid of common sense could any commentary be that would describe as racist a referendum on the question that Ireland should bring its citizenship laws into line with those of other countries in the European Union? This is described as racism in Ireland. These are the people who fill our newspapers.
We should not be distracted by columnists who normally get things wrong. With regard to the referendum, I remember one contributor to The Irish Times announcing——
The Minister is talking to one or two ex-columnists.
One author in The Irish Times announced they had not yet met somebody who intended to vote in favour of the referendum and that it would be trounced by a margin of at least three to one. It makes one wonder in what society they move. If they have not met 80% of the population, it makes one wonder what effete little lives some of them must live.
I have said that much.
The Minister got it off his chest. Well done. Does he feel better?
I feel much better. I come back to the point we are discussing, namely, whether it should be open to the court in the context of a correction order to give a direction as to the form and extent of such an order. What Senator Maurice Hayes is proposing is that the law should be less directive than this and that, effectively, it should be up to the newspaper editor to choose the norm and effect. He proposes that the remedy would be for the person who was aggrieved by the non-prominence of the apology to return to court to seek redress by way of a contempt motion. I am not content to do this.
I appreciate Senator Hayes is trying to introduce flexibility but I am not content with the amendment. This does not require precision from the court; a court can be reasonable in the way it gives flexibility to the editor or otherwise. However, in the last analysis, it is a matter in which the court has the authority to make an order specifying the extent of a correction order. If I were to accept Senator Hayes's amendment, I would be depriving the court of this and handing back discretion to the editor. I am not keen to do this, given my experience. Senator Hayes has admitted that he, like myself, has written for newspapers and that he is a director of a newspaper company, which is fine. If he could point out to me one newspaper which has ever been generous with an apology, except with a gun to its head, I would be interested to hear of it. I have seen the exact opposite in perhaps 98% of cases, namely, a constant desire to minimise the apology and the reparation to the individual. From that point of view, I am not attracted to the amendment.
What I have done in the Government amendment is provide for a maximum period during which the correction order must appear in order that if there is a tsunami or a similar event, the editor can choose over a number of days the day to get the news out. For an old-fashioned newspaper, there is usually flexibility on the front page. However, having run a front page story in a tabloid newspaper, if one was required by a court to place an apology on the front page, there is little room for manoeuvre on the front page of a tabloid — there is either one story or two and that is it.
The point made by Senator Hayes that one cannot foresee events is fairly met by the Government amendment which gives a period within which the correction must be made. I am not willing to go as far as Senator Hayes and say it is a matter for the editor to choose the level of prominence and interpret the court order. It is fair to allow the court to state what it has in mind is, say, an apology of at least six inches high or four inches wide, not just a small little thing that appears in the corner of the front page, or wherever it may be.
It is not an adequate remedy to suggest to somebody who thinks he or she did not receive a fair apology that he or she should bring the newspaper back to court for contempt. To return to the point made by Senator Jim Walsh, the cost implications of such an application would be enormous. What would it cost to bring a substantial newspaper back to the High Court on an attachment or a contempt motion? If an apology was dubious and only half of what one expected in terms of size or prominence, what lawyer would say one was certain to win? The person concerned would be left in a situation where the advantage would always be ruled in favour of the newspaper proprietor. If such a proprietor was so egregiously mean and if the victim of libel could not be certain that he or she would win the contempt application, the latter would be advised by anyone wearing a wig and gown to avoid returning to court for a second battle because the case could go on forever. I prefer the Government amendment.
I hope Senator Maurice Hayes will rise to the challenge and provide an example of a generous apology. Unless I have completely misunderstood the position, the amendment is extremely specific. It states the order shall specify the date, time on which an apology shall be issued, the form it shall take, etc. What will happen if there is a tsunami or a particular publishing exigency arises and an apology cannot be printed on the requisite date? A newspaper would then be in trouble. Senator Hayes, in the light of his experience of what it is like to run a newspaper, is seeking a degree of flexibility. The newspaper business is highly pressurised and in the sole circumstances to which I refer, I would have a degree of sympathy with those involved in it.
I would separate the three newspaper articles to which I referred. Two of them were despicable and the clear products of Grub Street. However, even though it was unfavourable to me, Fintan O'Toole's article was intelligently argued, well written and easy to read. Mr. O'Toole is a person whom I respect. The Minister announced that he had declared himself to be a Marxist but I must inform him that is one step up from his colleague, the Taoiseach, Deputy Bertie Ahern, who is only a socialist. I am fond of old pinkos. I am definitely with the pinkos. Therefore, that does not worry me a jot.
I do not want people to get the notion that I would want to launch either a personal or professional attack on Fintan O'Toole. I do not always agree with him and life would be very boring if I did. Sometimes he enrages me. I will not go into the reasons for this, save to say he was terribly soft on China once he arrived there. I would have been a great deal harder on that country, particularly in the context of its treatment of Tibet. Mr. O'Toole is a fine journalist and I do not take exception to the content of what he wrote. He expressed a perfectly legitimate view and sustained it by argument. Unlike the two other articles to which I referred, his did not contain any personal abuse. I am quite happy to read what he has to say as a contribution to the debate. His words do not bother me in the slightest.
I may be wrong but I do not recall Fintan O'Toole referring to the Seanad previously. Journalists are somewhat like academics. The latter are terribly precious about their own little areas; they have corns that would do justice to Mother McCree and no matter what one does, one is guaranteed to walk on them. I reiterate that I do not recall Mr. O'Toole writing about the Seanad before. A writer from a newspaper which is a direct rival to that for which Mr. O'Toole writes has been giving tremendous disquisitions about the Seanad and how it should be reformed. I have never once seen the former's lean and hungry form in the press gallery. However, I will give him the benefit of the doubt. Perhaps he was watching proceedings on the monitor.
It was unusual and interesting that attention was suddenly focused on this subject. One of the few occasions on which one will gain the attention of and coverage from newspapers is by taking a whack at them in the Seanad. Unlike all the other newspapers, including that with which Senator Maurice Hayes is involved, The Irish Times continues to cover the deliberations of the Seanad. It is a great shame that no other newspaper reports on our business. I would prefer to be presented with intelligent questioning by somebody of the calibre of Fintan O’Toole rather than to be met with the awful dull silence accorded to Seanad Éireann by the other newspapers.
I agree with some of the sentiments expressed by Senator Norris. I have a high regard for Fintan O'Toole who wrote a splendid biography of Sheridan. That is not to say I do not strongly disagree with his views on occasion. When I was a columnist with The Irish Times, I recall entering its headquarters in the company of two other journalists early in my career and one of them welcomed me to the “real establishment”. When I stopped writing, one of them admitted to me that The Irish Times was a metropolitan newspaper. If one wants confirmation of this, one need only read the second editorial piece in today’s edition which states there are not half enough unannounced farm inspections. I am sure this was written by someone who rarely darkens a farm gate.
I support the Minister in this matter. As far as discretion for newspaper editors is concerned, these individuals have all the time in the world before cases come to court to make apologies or issue explanations. I accept that editors may be obliged to negotiate with the person or persons to whom such apologies or explanations relate regarding the form they should take. By definition, matters such as those to which I am referring have not been resolved because they have had to come to court. Hence, there is an in-built reluctance among editors to admit that they are wrong. If that stage has been reached, there is a clear case for the courts to be quite specific in order that people will not be obliged to return to them in respect of inadequate apologies. Like everyone else, journalists are loath to admit that they are wrong, unless it is in respect of some trivial matter such as an incorrect date.
I have some sympathy with Senator Jim Walsh's suggestion regarding the carrying of apologies on the front page of newspapers. A possible compromise would be that if an apology does not appear on the front page, its presence on the relevant page of the newspaper should at least be signalled there. This would automatically mean that people could not miss the apology, unless they wanted to do so.
I want to end the agony because we are undergoing a charade. I do not want to provoke the Minister into another love-in with the press.
I indicated that I was not wedded to a particular form of words. The flexibility provided by the Minister in amending the legislation to the effect that a correction order shall specify "the period not later than the expiration of which, the correction order shall be published" is extremely helpful. He suggested the court should not be unnecessarily specific. I am concerned that a court might indicate that a correction or apology should be in 20-point font and located three inches from the top of the page to the left hand side and down six columns. The courts should merely state it should be given due prominence, that it should be contained on the front page, that it should of a particular size and that it should appear within a particular time period. That would meet my requirements.
There is a great deal to be said for the approach suggested by Senator Mansergh. At the very least some signal should be provided on the front page of a newspaper that a full apology is to be found in a prominent position within.
Although I do not want to restart the Minister on his proto-Nazi point by referring to the former Unionist Parliament in Northern Ireland, over the years of the Stormont Parliament, the only Bill ever passed which was sponsored by the Nationalist minority was the Wild Birds Protection Act 1931. This amendment of mine is like the Wild Birds Protection Act 1931. It was the only amendment to which I was ever going to get anyone's attention, but the Minister has gone some distance towards accepting the spirit of it. I hope he might be able to enlarge a little on the question of how a court would treat a request to specify. Would that be in punctilious detail or is it a question of a general direction on the matter?
Senator Maurice Hayes forgot to give us an example of a grovelling and generous apology.
I wish to make two points. Undoubtedly, the Minister has put forward the argument and I must concede that the Government amendment is an improvement on the current text.
I was taken with the phrase in Senator Maurice Hayes's amendment "and to give due prominence to the correction order". I do not wish to be pedantic, but the requirement to give it due prominence may be inherent in subsection (2), where it states that a correction order shall "require the correction to be published in such manner as will ensure that it is communicated to all or substantially all of those persons to whom the defamatory statement was published".
Would the Minister consider providing in section 28(2)(b) that the correction order would specify the form, content, extent, manner and prominence? This would involve the Oireachtas flagging to the judge that it must be prominent. It may be inherent, but there would be nothing wrong with adding the word “prominence” and the Minister might consider that.
I thank Senator Mansergh for his support for the idea that an apology should be printed on the front page. The Minister might consider the following between now and Report Stage. I can see nothing in the Bill which addresses serial offenders. What will happen with all this is what has happened to date, namely, that certain newspapers will be much more prone to being involved in defamatory cases than others. Where it occurs and where a press council does not have significant powers of sanction, the sanctions should be in the legislation. It strikes me that in this section one sanction could be a requirement, following perhaps one or two offences, that the correction would have to be printed on the front page of the newspaper concerned. It would signal to the editor and the management of the newspaper that one cannot use the pen to defame people to promote circulation. Often creating certain controversies which in turn give them publicity might be reasons for people to do so. I ask the Minister to look at that aspect. Although I may be missing something in the Bill, I can see nothing in it that distinguishes between a newspaper which finds itself in such a position once every few years and one which finds itself in such a position once every month. There should be such a distinction. Our laws reflect that serial offenders are dealt with differently.
I have no problem with so-called pinkos or their views. If one had an allergy to pinkos, one would never read a newspaper in this country. However, I have a slight degree of contempt for that class of the community who have abstracted themselves to a moral plain higher than the one rest of us are on, who know a moral issue 1,000 miles away but who regard profits, employment and risk taking as profane matters which are below their moral radar and of concern to lesser people. There are many examples of that in the commentariat.
And one or two in the Houses of the Oireachtas.
Exactly. There are people who think that they can write about moral issues and social justice day in, day out and at the same time effect a complete disdain for and ignorance of what makes a company profitable, innovative and successful, what drives a company, etc. so that matters such as incentive, profit and motivation are all issues for lesser beings than they who live on a cloud where they can morally judge the rest of us. That is probably the most intellectually offensive aspect of so-called pinkoism——
That is a lovely word, is it not?
——in Ireland, that these people live on a level where if a company goes out of business, it shows how evil capitalism is and if a company is successful, it is another indication of how evil capitalism is. They live in a different world where the social order, underpinnings and economic substructure of society are a matter on which either they express naive, ideological views when they are in China, Cuba or wherever, or else simply state that they are above all of that, it does not matter whether companies are profitable, they do not care about those issues which do not concern them, they are more elevated and abstracted intellectually and morally and they live on a higher plain than most of their fellow men. I hope it is not Thomas Gradgrind reincarnated to state that such is an effete view of the world and that nobody who believes in liberal politics should eschew liberal economics.
What is wrong with effete?
There is nothing wrong with effete, but effete is what it is. If we are to label people as pinkos, etc., why can we not add in the little word "effete" while we are at it? If one believes in liberal economics and liberal politics, one should be willing to embrace both. What I regard as contemptible is this middle class self-hatred that success is something which we in Ireland do not deserve, that companies which are successful, individuals who are successful and prosperity itself are matters about which we should have considerable difficulty and over which we should agonise, and that poverty somehow brought out the best in us. This constant refrain is a counterpoint to modern Ireland put forward by a group of people, who, if left to fend for themselves, would make an awful job of it. I will not put it more strongly than that. They should know that there are people who get on with their lives, who day in, day out worry about issues such as whether they will bring in enough revenue to their companies this week to keep the employees paid next week, that such people are not lesser beings and that those are their concerns rather than wondering about injustices at the other end of the world.
There is also a partial commentariat of people who are deeply concerned, as I am, about what happens at one end of the island of Cuba in Guantanamo but who are not concerned and have never given prominence to what happens at the other end where people with HIV were herded into concentration camps by the regime to which they lick up in public. Senator Norris knows I am correct in this.
I raised that, but I also know they sent 29,000 doctors whereas the US established the College of the Americas teaching how to murder and torture people and force them to disappear. That is the contrast.
In my time I have had to give visas to persons to come from Cuba to get medical treatment in Ireland and, therefore, I would not get too excited about that. I am just making the point that if one is to be consistent about human rights, one must be consistent right across the world and one must be consistent about what is happening in China. Today the editor of an Internet site got six years for allowing critical remarks about the regime there.
And a university head was disciplined.
We must be consistent about this. What I find is the effete, pinko commentariat are very excited by one set of injustices and blind to another. I try to be equally opposed to infringements of civil liberties, whether coming from the right or left. That is my position in life and that does not make me something else.
I will consider further refinements to this section on Report Stage. I do not want to be overly prescriptive but no newspaper editor should be able to believe that the correction order can be of such dimension and prominence that he or she can effectively engage in a minimising way. There is unanimity in this House in refusing that. We would all agree that the best solution would be a less prescriptive formulation which still clearly provides that a correction order will not amount to compliance with the Act unless it is given adequate and full-blooded prominence.
I ask Senator Cummins to speak briefly because we have spent more than one hour on this amendment.
No, we have not.
It is a very important amendment.
I am nothing if not brief. I like to be brief on all occasions.
The Senator must be nothing because he is certainly not brief.
I wish to speak about the purpose of these amendments because we allowed ourselves to be carried away. I am glad the Minister has stated that he will reconsider the wording of the section before Report Stage with a view to reflecting the unanimity expressed by the House on the issue. He should take cognisance of the argument made by Senator Jim Walsh regarding front page apologies. Senator Mansergh made the valid suggestion that if an apology is not printed on the front page, it should be put on a page that would highlight its prominence. I accept the Minister's view on the matter.
I accept the substance of the Minister's argument but wish to make a brief comment on what could be called his ideological digression. I agree with much of what he said but would not go all the way. For the past 20 years, whenever a prominent Deputy on the Opposition benches in the other House has used the words "private profit", he has spit them out as if they have represented some sort of deep obscenity. If one is to criticise the 1960s generation, from which I come, it should be that we have tended to hold that attitude. I hope, however, we have educated ourselves out of it.
I sometimes aspire to what a 17th century writer called the character of a trimmer, which is defined as shifting the boat if it leans too much to one side. Equally, however, one does not want the boat to turn over on the opposite side. There are excesses on the capitalist side. We had, for example, a debate on the Order of Business about advisers to the Health Service Executive. In other contexts, bonuses, incentives, overtime and share options can at times reach obscene levels. I simply do not accept that all these are necessary for a tiny multimillionaire elite to do an honest day's work.
I concur with Senator Mansergh. The excesses of salaries and bonuses paid in some areas can leave one slightly shocked, especially in respect of publicly quoted companies. However, I think that is a fault of shareholder power rather than a weakness elsewhere. There is no doubt that excesses exist in the capitalist system but I make the different point that we should not idolise failure when making commentary on our society. The words "prosperity", "profit" and "multinationals" should not be used as terms of abuse because these concepts have transformed this country and brought substantive social justice much further than the theoretical social justice on offer for so many years. Theoretical and ideological social justice is of little use to people who cannot put bread on the table or provide their families with a decent way of life.
Senator Jim Walsh has stated on several occasions he is unhappy with the requirement to take up a lodgment for defamation and leave quietly. In my rebalancing of this Bill as it progresses through the Houses, I will consider the possibility that where a person takes up a lodgment, he or she will have a means of recording that the action was compromised on the basis of a concession and payment from the defamer. I find it slightly obnoxious that a newspaper could seriously defame a person, lodge a sum of money in court and leave the person with nothing without even covering the fact that it had spent enough money to deter the person from suing, or that a newspaper chain could be directed to ignore the fact that €250,000 was paid to frighten someone from suing it over a serious libel. That is a worrying prospect and Senator Jim Walsh is on to something.
I do not know exactly how to deal with the issue but in making an apology unreliable for the purposes of a case and also making a lodgment have this effect, we must remind ourselves that somebody who has been seriously defamed should be in a position to receive some sort of public vindication. If a payment is made without liability, it should at least be acknowledged if the recipient so chooses. It is not necessarily enough simply to lodge a payment and deny libel while leaving somebody with nothing besides a private accretion to his or her bank balance.
I welcome that the Minister is showing flexibility and am glad he is considering the issue of lodgments. It seems very unfair that a person is in trouble if he or she does not accept a lodgment where the award turns out to be less than the amount lodged. The Minister's argument was that the provision existed in other legislation but that does not make it any good. Rather than reject the arguments made on both sides of the House on lodgments, other Acts which provide for this noxious practice should also be examined because it turns litigation into a gambling matter and is simply unfair. I am against the provision and when the Minister says it exists in other legislation, I am against it in that case too. I see no logical inconsistency in that.
I am glad the Minister has also indicated a degree of flexibility on the question of apologies because I have made the point as vigorously as I could that it is like an uneven playing field if a newspaper is able to make an apology which can be taken as mitigation on its side but which the plaintiff cannot introduce. The opinion that such a possibility is unfair is shared by conservatives and so-called pinkos alike.
While I am on the subject of language, I compliment the Minister if, as I suspect, he is responsible for the term "commentariat."
I am not.
That is a real disappointment because I think it the most lovely coinage. I suspect the Minister wishes he had coined the term. The phrase "an effete lefty pinko commentariat" has such a magisterial ring to it that I wish the Minister had invented it.
I would like to rub salt in the wound of my dear friend, Senator Maurice Hayes, in the most Christian way possible. The Minister challenged him and, although he is a very gentlemanly and gallant knight, the Senator signally failed to rise to the challenge of producing one grovelling and generous apology. Perhaps he will oblige later but, until he does, the record of the House should show there was such a failure. Perhaps there is no such animal, at least certainly not one that springs automatically to the mind of someone so intimately connected with Grub Street.
I must spring to the defence of Cuba because the Minister raised this hare and I would like to pursue it. Cuba has sent 29,000 doctors all over the world. That should be compared with the number of murderous villains trained in the US in the infamous College of the Americas, which is the reason death squads have emerged throughout South America. That is a wonderful benefaction. I do not know about the visas the Minister granted to Cubans to travel to Ireland for medical treatment but I would not doubt his word because I have always found him an honourable, direct and honest person. However, I suspect that one of the reasons is the embargo placed on medical supplies to Cuba, which is most shameful and disgraceful. It is as bad as the embargo that has been placed on the legitimate government of Palestine.
I spit out the word "multinationals" as well and any decent, intelligent person would.
No, he or she would not.
Everybody can bask in the notion that the country is kept afloat by multinationals but, as I pointed out on the Order of Business recently, having taken the idea from Professor Anton Murphy of Trinity College, approximately half a dozen companies in our wonderful financial services centre — long may it continue to flourish — have only five employees but their turnover is twice the income of Luxembourg. This is money laundering. The State soaks them for 12.5% of their profit but those in charge should get out their wellies and souwesters because a storm will break and when another country offers a corporation tax rate of 12% or 11.5%, off they will go. We had better be prepared for that.
Multinationals, lamentably, have more power than national sovereign governments and they almost always behave despicably. That is why I spit the word out and I am definitely effete even though I shout I like an enraged bull. I am effete and proud of it. I am also a lefty pinko. I was told that by no less than our mutual friend, Kader Asmal, and coming from him, it was the greatest compliment I ever received in my life. Myself and Deputy Michael D. Higgins are two old lefty pinkos. I am an effete lefty pinko and I was part of the commentariat as well for a period.
The Senator's tirade against multinationals is terribly dated and it is obvious his economic and political education has not progressed since the 1970s. That is the thinking one would have expected at that time. Multinationals have been an important but not the sole ingredient in the building of the Celtic tiger and our social and economic progress. The issue is not simply about tax or wage rates. For example, I came across a mushroom producer in County Tipperary a few days ago.
Fianna Fáil is great for producing mushrooms.
He said the problem in Ireland is wages. He pays the minimum agricultural wage of €9.40 per hour while a good manager can be hired for €2 an hour in Poland. I asked him how he has remained in production and how he was able to expand. He replied it was because of productivity. He has bought a fine machine that composts the material, which previously took several people a week to do. The issue, therefore, is not down to tax or wage rates. Skills, productivity and management are also key factors. While that is an indigenous company, we are in a good position to survive. Much of the commentary over the past 20 years is that disaster is coming down the track but there is no reason that should happen if we manage to continue to box clever. We have been on a roll for the past 20 years achieving prosperity that we never experienced previously. That can be maintained but we must continue to be nimble, agile and clever. I do not buy into the doom and gloom of commentators who say the end of our economic world is nigh.
Did the Senator buy the mushrooms?
Multinationals are profit driven, which is a great motivator, but they have added immeasurably to the growth of our economy in recent decades. We have achieved full employment, which was an aspiration during most of my political life. It was a prime objective of all political parties. It is up to these Houses to provide the ethical and other frameworks so that they comply with appropriate standards. It is our job to ensure that framework is in place.
I welcome the Minister's commitment to examine the issue of prominence in the section. I also welcome his comments regarding the lodgement provision. As a fellow republican, it would be anathema to me to see that go through. Two scenarios, which conflict slightly, need to be addressed. The odd individual will sue a publication for soft money even where he or she has not been defamed. The other scenario concerns a person who has been seriously defamed and whose reputation is in tatters. They will be faced with having to make a lodgment without receiving an apology. We must err in the legislation on the side of such individuals. If these scenarios conflict, we must err on the side of the genuine person who takes a case so that he or she is not prohibited from having his or her reputation restored because he or she dose not have the finance to take the case. That would be totally anathema to republican philosophy. I hope the Minister will address this. I acknowledge the arguments for abolishing the lodgment completely but while a distinction is made in this regard for defamation and other civil cases, the lodgement should not stand without a commitment to an apology.
I move amendment No. 28:
In page 22, subsection (2), line 27, to delete "shall give directions" and substitute "may advise".
This relates to the control a judge will have over the question of damages. It is very bad principle to second-guess a jury. Section 29(2) states that in a defamation action brought in the High Court, the judge shall give directions to the jury on the matter of damages. That is not appropriate in all circumstances because it ties the judge's hands. It states the judge shall give directions to the jury. In other words, the Minister has such a low view of people's intelligence, he does not believe they are capable of coming to a reasonable conclusion about damages.
On Second Stage, or perhaps during an earlier discussion on Committee Stage, the Minister pointed to a case where a large amount was awarded. It was thrown out and went back to another jury which increased the amount, even though it had been told it was too much. There is no question of doubt that is what the people wanted. I do not like this type of authoritarianism. In the above case, a jury was empanelled but the result was not liked and it was fired off to another jury which not only took the same view but provocatively increased the amount.
It is like the Government's attitude to referenda on the European Union. If it does not like the result, it will keep asking the question until it gets the right answer. It is a variation of what, I believe, Mr. Bruton said in the Dáil, that is, "You didn't ask the right question". The attitude here is that we will keep asking the question until we get the right answer and since juries are such a pain in the backside, we will ignore them, tie their hands, not let them decide and will make the judge decide.
The Minister came up with a series of arguments. He is always interesting to listen to and that is why I am happy to spend an afternoon here. The Minister is not only delighting and entertaining me, he is also continuing my education. Senator Mansergh was perfectly right but the situation is disastrously worse than he supposes. My economic education did not commence in the 1970s; it has not yet commenced. It is a subject about which I know absolutely nothing. I am delighted to say I am totally unacquainted with the vulgarity of economics. In fact, I am an economic virgin which is one of the few degrees of virginity to which I can legitimately and honourably lay claim.
My amendment is one which the Minister should be tempted to accept. I am not saying the judge can never give directions but that he or she may advise. That is a more civilised way to deal with the matter rather than saying the judge shall say, in all circumstances, that the jury must give the person, say, €16,506. The judge can say a reasonable estimate is between €30,000 and €40,000 or between €10,000 and €15,000. The words "may advise" take away this straightjacket element. Since the Minister has indicated he will consider various issues, I hope he will consider this one while he is at it.
I think the lack of grounding in economics is showing in this amendment.
I have great respect for the jury system in determining whether people are innocent or guilty but in regard to the awarding of damages, jury judgments have, to say the least, been erratic. I come from the point of view that in a well-ordered society people have least possible recourse to the courts and that they not be encouraged by the system to have a punt on getting a large amount of damages from litigation.
A jury is normally empanelled for one case and will probably have had very little experience of other cases as opposed to a judge who sits through many cases and, therefore, more than likely has a better idea of the proportion involved. Damages are often inflated by the sheer per diem expense of my learned friends. Sometimes one gets an entirely misleading impression of how much a person gets because once one deducts from the award the fees of solicitors and barristers, the figure may be much more modest than it appears at first sight. The least possible recourse to the courts and encouragement of negotiation, settlement and reasonable behaviour by newspapers all point to the Minister’s position rather than that of Senator Norris.
This amendment may have arisen because of a case that went back twice to the Supreme Court. The Supreme Court believed the award was too high the first time the case was heard. The second time around the jury award in the High Court was actually higher. That highlights much inefficiency and it is very costly to people. There is a need to address that.
I agree with the Minister that in all such cases there must be an element of judicial discretion. Questions may arise as to where one draws the line in specific instances. However, we must also give discretion to the jury. In a defamation action, it would not be correct for the jury to hear the case and make a decision, having debated all the circumstances and whether defamation has occurred, and for the judge to then direct it as to the damages. However, I would have no objection to the judge setting parameters as to the damages. In the case to which I referred, it would seem obvious that when the case was heard again in the High Court, the jury would have been informed of what had happened in the previous case. At least it would have made a determination with the views of the Supreme Court in mind. Could there be a meeting of the ways between the words "may advise" or "set parameters" rather than being absolutely prescriptive in regard to the damages which would be a serious deviation of jury discretion?
In regard to what Senator Mansergh said, there may well be inconsistencies between juries but the same can be said of the Judiciary, of which we have recent evidence. Leaving it to the Judiciary does not mean that when it comes to the damages issue there will be greater consistency. There was a call for a debate on the consistency of sentencing on today's Order of Business, although I do not know the outcome of that.
I genuinely believe a system should be in place whereby judicial decisions can be assessed. I am not saying this should be done by outside people but perhaps by a judicial group. Where serious inconsistencies appear to have taken place, a judge should have to make a case to that judicial group made up of members of the Judiciary. If such a group thought the judge was wrong, at least other judges would learn from that and it would constitute a form of guidance within the judicial system.
As for allowing damages, I was in business for many years and when personal injuries claims arose, one's legal advisers would suggest that were the case held before a particular judge, he or she would be more balanced in his or her approach. On the other hand, were another judge to take the case, he or she would be completely biased towards the plaintiff.
Such a judge would take the view the small man was getting money from a business or corporation.
While this may have constituted a serious miscarriage of justice, this is how matters stood. Anyone who was involved in legal matters pertaining to personal injuries took such a route. I am unsure whether giving absolute discretion to judges is the correct route to take. The Minister should consider this matter to ascertain whether he can come up with something less prescriptive.
Judicial discretion has been much discussed, particularly in the past week. However, I do not wish to discuss any case in particular. Perhaps a quantum could be arrived at regarding the amount that could be given for libel. If this is possible, the provision of some guidelines to that effect to a jury could be the solution. However, I do not favour giving total discretion to judges in this instance. In general, juries have done a fine job in the vast majority of cases and any discretion to be given should go to juries. Perhaps judges could provide guidelines rather than directions to them. Perhaps common ground can be reached and Members can attain their goal by finding a form of words. However, in this instance I have grave difficulties regarding directions from judges.
One must remember that jurors are judges of fact. While it is true they take an oath and are obliged to act collectively, nonetheless they are judges of fact in a particular case. Irish law gives jurors a function in assessing damages in certain cases such as assault, fraud and other related matters to avoid the scenario in which although one person establishes the facts of a case and disbelieves one side, another person is given the compensatory function. The newspapers sought such a scenario. They wanted the jury to establish whether there was a libel and the judge to be given the function of assessing damages thereafter.
Of course they did.
In such circumstances, a judge might be quite sympathetic to a newspaper. Although he or she might have disagreed with the jury's decision, as it decided there was a defamation the judge would proceed to award damages. Such a judge might believe a matter to be comparatively trivial although the jury might have decided that in the circumstances, it was not trivial. In a defamation action, it is generally preferable that whoever is responsible for the verdict on whether a person is lying or telling the truth, should also carry out the function of compensating the person whose reputation is at issue.
Consequently, one of the policy considerations in respect of this legislation was to uphold the function of juries in awarding damages because strong pressure was exerted to take away that function from them. This was my starting point. On the other hand, juries should not be told they are on their own when it comes to damages but that they should be reasonable. That adds up to nothing. As one cannot imagine a judge asking a jury to be unreasonable, in the circumstances being reasonable means nothing and such guidance is of no use to a jury. However, in this instance Members may have misunderstood the term "directions". In a criminal trial, a judge gives directions to the jury and tells jurors how to proceed with their function. Directions given by a judge to a jury are not a usurpation of its function. They constitute a legal statement to the jury of the basis on which it is to proceed and this is what is meant by the term "directions" in this section.
For example, a judge's directions to a jury will include an explanation of proof beyond reasonable doubt and the presumption of innocence. Moreover, a judge is obliged to give directions to a jury regarding the manner in which accomplice evidence is to be treated. It does not mean stating that a jury must find that Senator Norris is untruthful. It means telling the jury that before relying on his evidence, it must be satisfied beyond reasonable doubt that his statements to it are true because he is the crucial witness in the case. This would be the position in a criminal case.
Consequently, a direction is not a usurpation of the jurors' function. It is a statement to them of the legal principles on which they are to proceed.
What about damages?
Therefore, in this context, direction in respect of damages means the legal basis on which jurors are to proceed. This is important because jurors must be told they cannot go mad and cannot simply choose any old figure, thereby bankrupting the newspaper and teaching it a lesson.
Jurors cannot be so informed because a jury's function is not to bankrupt a newspaper but to compensate the plaintiff. Jurors must have their function explained to them. When juries assessed damages in personal injuries matters, a doctrine applied, and in so far as I am aware still applies, namely, there are certain sums of money for general damages that should not be exceeded in respect of personal injuries. Therefore, if someone's back was broken in a car crash and he or she will spend the remainder of his or her life in a wheelchair, it is not open to a judge assessing damages in such cases to decide to award €20 million. The Supreme Court has ruled that in general terms in such cases, there is an upper limit to general damages and it is not open to an Irish jury to do what might be done by an American jury, namely, to award $50 million to a person in such circumstances. It is not open to an Irish jury to so do and juries are given directions in respect of such matters.
I have in mind the old rule whereby the judge simply said nothing of any substance to juries in defamation cases, except they were to be reasonable and not to go mad. This should not be the case in defamation cases or in assault cases involving gardaí and the like. The judge should provide a clear view as to how jurors are to approach the assessment of damages in a case in which they find for the plaintiff.
For example, Members should consider a case in which a jury decides that Senator Norris has been libelled. It should be open to the judge to acknowledge the Senator was libelled, it was grossly defamatory, he has obviously suffered substantially and the case is not trivial. However, it should also be open to the judge to tell the jurors who are considering damages to bear in mind that had the Senator been in a car crash and were the judge to assess damages for a leg amputated below the knee, he or she would give him no more than €200,000 and that the jurors might consider that point in terms of deciding on compensatory damages.
There is nothing wrong with making such statements to a jury. Otherwise it will decide to give €750,000, €1 million or whatever and will pluck figures from the air. It does not usurp a jury's function to state this is the kind of thing that will happen. A recent case went through the courts twice and it would be absurd for the judge in that case to tell the jury to fix damages and not warn members if they go mad again the Supreme Court will knock down the damages.
It is pointless to ask a jury to perform an important function but not give legal guidance, and it is a matter of significance. The Supreme Court is entitled to reverse an award on the basis damages were excessive and it makes sense that a jury is told something at the court of first instance. Otherwise members of the jury can state that if they were told they would not have made the mistake of awarding damages of that size. Such a case would end in the High Court and never have to be appealed.
If the Supreme Court is given the right to state as a matter of law that €1 million is excessive having regard to the nature of the allegations made, one might as well give a High Court judge the same function to tell a jury an award of €1 million in a case will be knocked and not to make such an award. If a High Court judge is correct on such general guidance it is of significance.
We are trying to bring a degree of rationality to this. It is strange that juries are given detailed guidance on many functions but as a matter of tradition with regard to damages in defamation cases they were told that apart from being reasonable and not punitive they were at large to decide on the amount. However, five people in the Supreme Court will state they were not at large to do so and they got it wrong and it will return to another jury to decide the case.
There is no advantage in having a system where people seeking justice find their cases are brought to the Supreme Court and either sent back to the High Court or decided de novo in the Supreme Court on the issue of damages. Nothing would be wrong with the judge telling the jury in the High Court that a case is significant but not major and providing instances of damages awarded.
Sometimes people sue for defamation because they were stopped in a shop by a store detective and embarrassed and publically humiliated. If the Supreme Court stated in a previous case that in such instances €20,000 is enough compensation why should a jury about to make an award not be told this?
Is this the type of guidance in question?
Yes, I am talking about general directions. The judge will be able to bring the jury's mind to matters which will help members make a judgment which will not be overturned on appeal. If an accusation that Senator Norris took a bribe appears in a newspaper——
I am receiving a terrible walloping here. I lost both legs and only got €100,000 for each, I was libelled and what is the Minister doing to me now?
If such an accusation that Senator Norris took a bribe is made seriously——
I did not.
Exactly. Such an accusation must be dealt with more seriously than an idiot store detective challenging one in the wrong as one leaves a supermarket. Different graduations of seriousness exist. One may experience ten minutes of embarrassment and one's neighbours may state, "Did you see Norris? He was stopped coming out of such-and-such a shop." That may be bad but it is completely different compared with an accusation on the front page of a newspaper stating one took a bribe.
Many defamation actions used to be brought with regard to bounced cheques. I do not know whether they still are. It would involve a comparatively small group of people and is not the same as having an accusation of corruption printed on the front of a newspaper. The list goes on and on. In these circumstances, it is perfectly reasonable for a judge to tell a jury in approaching damages not to put a relatively small incident where a Visa card was improperly rejected with a loud voice in a restaurant at the top end at the level of an allegation of corruption or sexually interfering with a child.
We must have some basis on which a court can tell a jury not to go mad when it comes to damages and provide examples of cases where the Supreme Court ruled awards were excessive. Regarding compensatory damages, it would be helpful to many juries to know what would be the amount of damages awarded by the High Court to someone who lost an eye in a road traffic accident. They could then place it in the same scale and consider whether ten minutes of embarrassment in a supermarket was of the same order or less or more.
We can bring rationality and predictability to the area by allowing a judge to give directions. Directions should be understood in this context and not in a context of being told, "I direct you to award X thousand euro". Directions to a jury set out the legal principles on which members should address these issues. It is a fair concept to introduce into our law. It does not devalue the function of a jury to provide it with instances and state they are the general parameters within which it should decide the case.
If I were a juror I would feel cheated if I had sat in a jury box for two weeks listening to a case, had brought in a verdict and then read in the newspapers the matter was subsequently appealed to the Supreme Court where it was stated the award was five or ten times what was appropriate. The High Court judge could have told me on the day he charged me at the end of the case that €400,000 was rejected on a number of occasions by the Supreme Court and the case was by no means towards the serious end of the spectrum. I do not see what is wrong with this or how it makes a nonsense of a jury or interferes with its prerogative to determine damages to provide it with contextual material by reference to which it can make a fair decision.
I was in a situation of going into a court with no idea of what the jury would decide. Having worked on a number of defamation cases, I can tell the House when the jury comes back it is a bit like watching a slot machine. One wonders whether it will award €50,000, €500,000, €300,000 or €10,000. No one mentioned a figure to the jury or made a submission to the court at any stage during the case on this issue. Suddenly, an amount is announced.
It is all very well for us to have crossed wires. We have extremely rich and successful newspapers. However, we still have a dwindling band of smaller newspapers and publications which cannot take a hit of a couple of hundred thousand euro. They cannot even take the expense of appealing such an award to the Supreme Court. They are entitled to a system which is reasonably predictable with regard to what will happen.
It may be the phrase, "directions to the jury in relation to the matter of damages" seems to be a prescriptive instruction to tell a jury the level of damages to award. This is not what is involved. Directions to juries are an elaboration of the legal principles by which they approach the matter of damages and not a statement such as, "I advise you to award €50,000 in this case". This would not be accepted by the Supreme Court or either side in the case. It would be a matter for an appeal in itself if a judge stated, "This is a €50,000 case no more and no less" because effectively the judge would have taken over the jury's function and this is not what the Bill envisages.
I thank the Minister for his explanation. I understood a literal meaning of the word "direction". I would not be happy with a situation whereby a judge could tell a jury to award €50,000. Are we satisfied under this wording a judge cannot do this and be very prescriptive and direct a jury to award €20,000. What happens if the jury ignores a direction from the judge in such a circumstance or other general circumstances?
I have a point relating to small newspapers or those with limited resources. There was an incident before the Ryder Cup last year when the wife of one of the golfers was seriously defamed by a small newspaper. They must run the risk in a very serious case such as that of being put out of business, if needs be. I would not have any sympathy for them going out of business.
As the Tánaiste was speaking a question struck me of whether experts in the field could be called by defendant, plaintiff or judge to give some advice in general to a jury. Perhaps a High Court judge is the correct person to do so. A brief could be given to the jury, as it is a terrible waste of court time to have cases appealed because the award is off the wall, either too low or too high. We should aim for consistency in damages that is proportionate to the seriousness of the defamation.
I am a little tempted to say I would not trust one of those old judges as far as I could spit them. If one looked sideways at one of them they would blow the head off a person, as we know since last week. I will restrain myself from such utterances.
The Tánaiste is very open and clear when he states that the newspapers were lobbying for this. I am not a bit surprised.
No, not this. They were lobbying for the total abolition of the jury damages.
The Tánaiste went a little bit of the way with them, or at least that is the way it looks to me.
I tried to be reasonable.
The Tánaiste is eminently reasonable, which is why we in this House love him so much.
I have been saying for a number of years that law should be written in accessible language. I may not be a lawyer and I may be economically illiterate but I have a nodding acquaintance with the English language. The term "give directions" means to give directions, and we cannot buck that. If I give somebody direction I direct them to do something. I believe the Tánaiste and those of us who take this view are remarkably close but I do not believe it would be any harm to alter the term to "may advise". That places no restriction on the judge in making the ruling.
I have no problem with awards being appealed to the Supreme Court as it is a very good idea. There is a significant difference and I may be economically illiterate and arithmetically challenged, but I can tell the difference between one and five. Even I can detect that. The difference in the Supreme Court is that you have five very experienced judges, not just one.
I would pose a question that is not entirely hypothetical, as I was involved in a case where a judge sued. What happens when one judge sues in a court and then his fellow judge, his little buddy, is awarding the damages? Do we not think there would be a little multiplier in that? The judge might say "Well, old Bloggs, I see him in the club every day, I will give him €800,000". That is perfectly possible and the issue should be obviated.
I thought there was a patronising element in what Senator "Mansewerage" said. There was an element of "we cannot trust the peasants." Who are they but eleven members of peasantry, and we cannot be trusting them with money. It might be all right for them cutting the bog but we are not going to let them loose on the purse. The Senator stated judges have more experience, but have they? They have more experience of what? What professional qualifications have they? Are they chartered assessors? They are not.
Judges are capable of being eccentric, and the Tánaiste will know there are plenty of examples of eccentric judges around this country. Some of them were written about by the commentariat in The Irish Times, no less, a red-hot roaring pinko who was not all that effete, strangely enough. That was Nell McCafferty, who used to write “In the Eyes of the Law.” Some of the comments made by judges were remarkable.
I would challenge the idea that giving directions is a general advising of the jury. That may be the case in law. Barristers are wily, as the Tánaiste knows. Supposing a barrister would stand up in court and say, "My lord, do you not think it is time you gave directions to the jury?" Do we not think members of the jury would think they had better do what they are told? The language is important.
Everything the Tánaiste has said is met by the phrase "may advise". If the judge, in his or her wisdom, decides to let the jury have free reign, I would have no problem with a jury doubling the damages, having been told they are too much. The jury is indicating the judge to be wrong. I do not at all like this idea of second guessing a judgment.
To come back to Senator Mansergh's comments about judges having more experience and letting them have free reign on the question of costs, that is a very elegant argument for abolishing jurors altogether. If judges have more experience why do we go the expense and nuisance of juries? It is a bloody nuisance being on a jury, and I would know because I have been on one. It is the most aggravating task on Earth. I had achieved my alpha male status in the jury and I was winding myself up to award enormous damages, but I was baulked at the very last minute because the blackguards settled outside the court. We had been incarcerated with tea and biscuits for a couple of days. It was a dreary and awful case.
Why do we have this suspicion of juries if they are good enough to find the facts? For example, in many cases it is much more morally onerous to decide on facts when there are contending scenarios. Imagine, for example, a jury in a murder case, where they must decide if somebody is guilty of the very serious and heinous crime of murder, which until recently carried the death penalty. If we are prepared to charge juries with that task, I do not see why we are not prepared to let them decide, under advice from a judge, appropriate damages.
As this is the section dealing with damages, it is appropriate for me to formally reiterate that I propose to put down an amendment on Report Stage which, if accepted, will leave the editor and proprietors of a newspaper liable for the damages, rather than the individual reporter. That would be fair.
I am astonished at this suspicion of juries, which is a bit dangerous. I do not see why they should not be trusted with the decision. The Tánaiste has stated juries are trusted in this way, and this giving directions just means parameters are set out or advice is given. What is wrong with the term "may advise"? Is this another example of a specialised legal language which does not mean what these same words used in an ordinary context by ordinary people mean?
I hope the Tánaiste survives as Minister for Justice, Equality and Law Reform after the next election and perhaps he could embark on a new task, as he has been cleaning up all the statute law, which is a very interesting, exciting and delightful job.
The jury is out on that as well.
Yes, fine. If the Tánaiste returns, why not clean up the language and give us proper law in accessible language so we do not have this problem.
As a Joycean scholar——
Senator Norris, without interruption.
——the Senator's insistence on accessible and understandable language astounds me.
Joyce is immediately accessible.
I would ask Senator Norris to stick with the amendments and leave aside Joyce.
The Acting Chairman can ask all he likes, but I will reply to the Tánaiste, who invoked Joyce, which one does not do in my——
Likewise, I asked the Tánaiste to restrain himself.
After this, we will restrain ourselves. I do a celebrated one-man show about the life and works of James Joyce, almost all of the second half of which is Finnegans Wake, but I never include it in the programme because people would go to the bar if they saw those words. However, they enjoy it thoroughly when they do not know what it is because it is immediately accessible when performed. The Tánaiste should not refer to the inaccessibility of James Joyce. I will send him a free ticket for the next show and he will see just how accessible Joyce is. I hope the Tánaiste will reconsider the matter at hand.
I hope Senator Norris does not mind me saying this, but the debate is like Ulysses in that it has gone on a long time. Is there a similar provision on directions in other legislation dealing with compensation?
As I understand it, it has always been the rule, except in defamation cases, that juries should be given directions as to all of their functions, including the assessment of damages. When personal injury cases were decided by juries, it was the case that they were given directions by the courts how they should approach the issue of awarding damages.
I am trying to achieve rationality in this provision. If it is possible for the Supreme Court to reverse a jury's verdict on the basis that it was excessive, it must be possible for a High Court judge to warn jurors in terms that will save them from having their award reversed.
They could do that with the wording "may advise".
The phrase "directions to the jury" is well understood and is not a term of arcane art. If one inquires what stage a case has reached and the judge gives directions to the jury, it is clear what he or she is doing, namely, setting out the principles on which jurors are to approach the case. The function of a judge in a jury trial is to instruct the jury as to the legal principles it must apply.
Could the directions be defined in respect of awarding damages?
It would be a usurpation of the jury's function to say a case is worth €45,000, not a penny more nor less, and to direct the jury to give that amount. On occasion, the Court of Criminal Appeal has reversed directions by trial judges not to acquit someone because that is a jury function. It is not the function of a judge to tell jurors to write "Guilty" in a box on the jury paper. We are dealing with a function I want to leave with juries, namely, to determine compensatory damages in defamation cases.
Senator Norris raised a point, albeit in terms with which I would not like to associate myself. He asked what would happen if a judge sues. Is it not far more appropriate that 12 ordinary Joe and Josephine Soaps decide what a judge gets than another judge?
I am not suggesting a judge should do that.
If public figures appear before courts suing for damages, it is far preferable as to their truthfulness and damages that 12 men and women should decide the issue than a single judge, who will immediately be accused of getting it wrong or will be attacked in a newspaper article by someone who does not agree with the outcome of the case. To impugn the verdict, people will look through the judge's antecedents and determine what party was in office when he or she was appointed, what school he or she attended, to whom he or she is married and of which golf clubs he or she is a member.
They do not act likewise in respect of a jury. For example, they do not say the jurors all came from Donnybrook or wherever. People accept juries' verdicts. When juries are under attack, we should always consider that no country with a jury system of trial, either civil or criminal, has ever succumbed to an internal tyranny whereas nearly every tyranny has emerged where no jury system exists.
I have considerable time for juries and their functions, but I do not like leaving them in the dark when, because their awards are criticised on an appellate basis as being excessive and perverse, people who disagree with the presence of juries in the system say they should be got rid of. In the United Kingdom, it has been suggested that juries should be excluded from lengthy fraud trials and criminal cases. Under the Constitution, we could not do likewise. Should someone be in jail because his or her case was too complicated for 12 people who took and oath and listened to it day after day to understand? I do not believe so.
I am a great jury man, if I may say so, but what I propose is a rational defence of the jury system and prevents juries awarding blindly and being told afterwards that they got it wrong, leading to the case being returned to the High Court, another jury making the same so-called error and the Supreme Court saying the jury got it wrong a second time.
Senator Norris asked whether the Supreme Court is getting it wrong. If the Supreme Court is vested as a matter of law with the jurisdiction to reverse a decision on the basis that the award of damages is excessive, we must accept its verdict. Whether it is right in our private judgments, it is the ultimate system of arbitration in our constitutional order and we must abide by its verdict. We cannot allow a situation to unfold in which two juries make a mistake in succession and the Supreme Court must say that it is not a mistake because they arrived at the same view. I accept that if a succession of cases went to the Supreme Court over a long period and the court found that its jurisprudence on a question of quantum of damages seemed to be at variance with the ordinary juror's views, the penny might drop and the Supreme Court would realise it was wrong.
This is a matter of legal culture. For example, it was well known that when personal injury actions were decided in Ireland and the rest of the United Kingdom before and after independence, Irish courts and juries were more generous than those on the other side of the Irish Sea. In England, when personal injury cases relating to the loss of an eye or so on were determined by judges, people might have got a fraction or a third of what they would have got from an Irish juror. There are cultural differences. For example, juries on this side of the Atlantic are radically different compared with American juries, which award $50 million to people whose cars go up in flames and so forth. We have a different approach. The provision strikes a reasonable balance anddoes not amount to a usurpation of the jury's function.
Senator Norris is not happy with the provision and I do not know whether he intends to call a vote.
I feel a vote coming on.
I want to clarify my position. Initially, I supported the amendment and took a literal interpretation of the word "directions". I believed the amendment had a great deal of merit, but the Tánaiste has clearly put on the record that the interpretation leaves the awarding of damages as the prerogative of the jury, giving it strength. Any interpretation of the legislation by judges would need to have regard to the record of the House and the intention of the Oireachtas.
The Tánaiste's explanation satisfies me that the awarding of damages will remain with juries and that judges can only give general guidance. Regarding the English language, I will look to Senator Norris as a greater expert in the field. He has concerns with the wording.
In response to what Senator Walsh has said, I do not believe for a minute that judges read transcripts of Oireachtas debates. They do not decide that certain things must be done because Members of the Oireachtas said they should be done. I am perfectly certain that judges never bother to check what we say. The measures which are passed into law are parsed and analysed by judges. They do that in terms of the precedent set in previous judgments, etc. They are interested in what the Minister referred to as the legal culture. They are not interested in the political culture, by and large. I cannot recall a single case in which a judge, having referred to what it says in section 3(6) of a Bill, for example, went on to emphasise what had been said during the Seanad debate on the matter. I challenge the Minister, who challenged Senator Maurice Hayes earlier, to cite a case in which a judge decided that it was perfectly obvious what was meant in legislation, on the basis of what had been said in the Oireachtas. I do not believe for a single second that there has been such an instance. Maybe I am wrong; it is possible.
I would like to mention one more thing. I am a little confused, which is an uncomfortable state in which I frequently find myself. The Minister seems to be suggesting that I am trying to tie the hands of juries.
I am not.
I see. That is what I thought the Minister was saying. I am certainly not trying to do that. Nothing in what I have proposed would prevent a judge from saying that a certain precedent was set in a previous case. There is nothing in my amendment to inhibit a judge from deciding that an appropriate award was given. I am sorry that the Minister has seduced away my colleague on the Government side, Senator Jim Walsh, who has an acute political instinct.
I wonder whether the Senator should withdraw that unparliamentary remark.
Which remark does the Chair consider to be unparliamentary?
I assume he is talking about the reference to seducing one's colleague.
That is not unparliamentary at all. I meant it in the nicest possible sense. As we all know, the experience of seduction is very nice, in all senses, and immensely pleasurable. I will try to stop my mind from going down that track. Senator Jim Walsh was very acute in his perception because I felt a vote gathering in my waters, so to speak. The Minister has been flexible up to now, but he seems to be quite inflexible in this instance. I take it that there is no going back. Is that the Minister's considered view? The record will show the Minister has nodded. I am afraid I can feel a vote solidifying.
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- Brady, Cyprian.
- Brennan, Michael.
- Callanan, Peter.
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- Daly, Brendan.
- Dardis, John.
- Dooley, Timmy.
- Feeney, Geraldine.
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- Hayes, Maurice.
- Kenneally, Brendan.
- Kett, Tony.
- Kitt, Michael P.
- Leyden, Terry.
- Lydon, Donal J.
- MacSharry, Marc.
- Mansergh, Martin.
- Minihan, John.
- Mooney, Paschal C.
- Morrissey, Tom.
- Moylan, Pat.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Rourke, Mary.
- O’Toole, Joe.
- Ormonde, Ann.
- Phelan, Kieran.
- Scanlon, Eamon.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
- Bannon, James.
- Bradford, Paul.
- Burke, Ulick.
- Coghlan, Paul.
- Cummins, Maurice.
- Feighan, Frank.
- Finucane, Michael.
- Hayes, Brian.
- Norris, David.
- Phelan, John.
- Quinn, Feargal.
- Ryan, Brendan.
- Tuffy, Joanna.