Seanad Éireann debate -
Wednesday, 5 Dec 2007

Vol. 187 No. 25

Defamation Bill 2006: Committee Stage (Resumed).

SECTION 12.

Question again proposed: "That section 12 stand part of the Bill."

Senator Jim Walsh

As I said yesterday, I appreciate the Minister's comments on lodgments. However, we should examine this further. If an appeal is based on the substantive issue of defamation, the costs will accord with the decision of the Supreme Court in this regard. Nobody can argue with that. However, an appeal based only on the award of damages exposes the plaintiff, who has succeeded in vindicating his or her good name, to a financial loss.

Will the Minister consider before Report Stage whether provision can be made whereby costs would not be borne by the plaintiff where the appeal relates only to the award of damages? If necessary, this could be ameliorated such that the costs would fall individually to the parties concerned and could not be claimed by one against the other. I understand this would be an unusual legislative provision. However, I am seriously concerned that a person who vindicates his or her good name in court should incur significant costs where the defendant, who has been found guilty, appeals the award granted. That is unfair.

Senator David Norris

On the issue of the Supreme Court second-guessing a jury, I refer to the words of the then Chief Justice, Mr. Finlay, in Barrett v. Independent Newspapers Limited that the assessment by a jury of damages for defamation has an “unusual and emphatic sanctity”. This is an interesting point to bear in mind.

While I will not rehearse everything I said on this matter on a previous occasion, I draw the Minister's attention to a case that was then unreported, Independent News and Media plc and Independent Newspapers (Ireland) Limited v. Ireland, which was related to the case of De Rossa v. Independent Newspapers, in which the defendants lost their case in Ireland and so sued in the European Court of Justice. This was the argument made in Strasbourg in 2005 by the legal representatives of the State:

The applicants were effectively asking the court to assume that jurors were unable to value reputation in accordance with certain factors outlined to them in order to arrive at a rational and proportional decision without further guidance. Not only was that an inappropriate assumption but the calculation made by a jury attracted an even wider margin of appreciation than that completed by, for example, a judge. In this latter respect, they explained why framing and applying defamation laws in a modern democracy was a complex exercise requiring a delicate calibration of a variety of interests. The domestic authorities were therefore clearly better placed to judge how the most appropriate balance could be struck in a given situation and, further, an authority comprising a group of informed, reasonable and conscientious citizens (a jury) would be best placed to reach that balance given their direct and continuous contact with the realities of life within their countries.

I recount this to put on record the great significance attached by august legal authorities to what has been described as the sanctity of juries. There was some suggestion yesterday that jurists are mere Joe Soaps who could not be expected to know much. We must bear in mind that legal authorities do not take that view. This Government, in its last incarnation, announced here the doctrine of the continuity of the two Houses of the Oireachtas. One assumes the Minister will agree there is an unbroken seam between the last Government and its representation in Europe and this Government.

I am sure I will be allowed a flashback because I am steaming with a cold. This flashback relates to the question of feelings, as they are assessed in damages. We have been told that feelings are not of any consequence in this regard. I draw Members' attention to the judgment of Henchy J. in Barrett v. Independent Newspapers Limited. He stated:

It is the duty of the judge to direct the jury that the damages must be confined to such money as would fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right thinking people as a result of the words complained of.

The learned judge, Mr. Justice Henchy, placed feelings first. The question of feelings is relevant, therefore, despite what was said here yesterday by learned and august barrack room lawyers such as Senator O'Toole and others whose blushes I will spare, although I am sure they will not spare mine as they seek to correct me. Although they can be glossed any way one likes, these are the learned words of Mr. Justice Henchy to whom, for his reasonable, decent and humane dissenting judgment in my own case, I shall be forever grateful.

Senator Denis O’Donovan

I was lost in the wonderful outlinings of my colleague, Senator Norris. He has distracted me from my train of thought and diverted me in another direction. Will the Minister clarify the issue of costs? Senator Walsh gave the example of a successful plaintiff who subsequently incurs the costs of an appeal by the defendant on the basis of the award granted. In the event of the Supreme Court granting €80,000 rather than €100.000, for instance, the person who has been defamed would be penalised on costs.

The National Union of Journalists, RTE and other elements of the media have made the point ad nauseam that the costs incurred in libel and slander cases are so severe that they far outweigh any award granted. Even where a relatively minor reduction of the figure awarded is ordered on appeal, the cost of that appeal is levied entirely against the unfortunate litigant who has already proved that he or she has been defamed. This is a cause for concern. A case heard in the Supreme Court for seven or ten days, with senior and junior counsel, could involve legal costs of €500,000. A plaintiff whose award has been reduced from €100,000 to €50,000 thus would incur a netloss.

On the question of libel and defamation, have our parallels in Europe been considered with the thrust of this Bill? My knowledge of libel and slander is that mainland Europe has a far more liberal approach, even in the European courts at Strasbourg. There was an interesting case involving a politician in Austria, I believe, who was very fond and proud of his reputation. He was taken to task by a particular newspaper on a few instances and he sued the publication. I am not entirely sure if this happened in Austria or Germany. The politician lost the case and appealed it to the European courts.

There appears to be a number of precedents in European courts where the court has taken a liberal view, particularly when a politician is involved. The courts appear to deem that if a person is in the public eye running for office, or succeeds in becoming a Minister, that person is fair game.

When I chaired the Joint Committee on the Constitution, we reviewed the area of libel and slander under the Constitution. Of all European countries we would be seen as one of the more conservative nations, with our awards in general being much higher than others in Europe. At the higher echelons of our European courts, the area of libel and defamation, which this Bill tends to marry, is treated far more liberally and is less kind to the person instigating the action. This is particularly relevant to politicians because, irrespective of whether we like it, politicians have had a stand-off with journalists, especially over the past 20 years, in terms of there being a shift this way or that.

If we were to be honest, we would like the current system retained. On the other side there is a hue and cry by the print media and journalists in general that our awards and old defamation and libel laws have been far too generous to the plaintiff.

Senator David Norris

I support Senators Walsh and Donovan on a point, to be fair, which was raised by the Minister. It appears wrong that if a person gets an award and appeals it, he or she may be seriously penalised despite having won in the first case. The example from the figures given by my two colleagues was very persuasive.

The notion of lodging money into court introduces a slightly indecent element of gambling. The courts are hoping to get it right but they may wrong-foot the plaintiff by so doing. A very astute adviser on one side may indicate a certain award will be received, but if it is dropped slightly the other side may be punished by attacking their matter of cost.

Senator Alex White

The plaintiffs have astute advisers also.

Senator David Norris

Yes, but they do not always have the best. There is no question that the newspapers can always afford the best. There is a disproportion there.

Senator Alex White

Absolutely not in defamation.

Senator David Norris

I am surprised a member of the Labour Party would support multinational corporations in the way the Senator has.

Senator Alex White

That is untrue.

Senator David Norris

Socialism is changing and I know there is a middle way and a new Labour.

Senator Alex White

That is silly.

Senator David Norris

I am on the side of the small person in this.

Senator Denis O’Donovan

The Taoiseach is a socialist.

Senator David Norris

They must be defended.

I welcome Senator O'Donovan's honesty in saying what we all know, that this Bill is a result of intensive lobbying by media interest and the press barons. The politicians, by and large, have strong and serious reservations about it. I hope the Minister will be in a position to take on board at least some of the amendments put before the House today.

Senator Alex White

I was going to address the last issue later as it is perhaps a bit more relevant to other sections but as the point has been again made by Senator Norris, I will address it.

In the context of dealing with defamation law, the fact that the newspaper industry has pressed for change and some of the changes included in this Bill may be welcomed by the industry does not of itself suggest we should oppose them. If I have a view on a matter, the fact that somebody else, whom I dislike or even detest, holds the same view does not undermine the strength of my opinion.

Senator Norris is going a little over the top or is at least missing the point when we talk about freedom of expression and freedom of the press. This is not just something going to the pockets of the press barons. It may, of course, because it suits them. I am more interested in access of the public to the maximum amount of information, free comment and debate in a modern democratic society. The fact that the newspaper industry is also on that side of the argument should not push us off our perch. With respect, Senator Norris is confusing two different things.

Senator David Norris

I have experienced a gross obfuscation of my views. It should be a lesson to us all.

Senator Alex White

I would be perfectly happy to have a debate on the newspaper industry but it seems the most serious issue in that area is the proliferation of ownership and control among a small number of people, whether it is the O'Reillys or anybody else. A small number of people nationally, and increasingly internationally, control the newspapers and media. Governments clearly must intervene in that regard to ensure we have real freedom of the press and get away from the concentration of ownership among a small number of people.

I regard freedom of expression as precious, and to throw out this in the wide latitude that ought to be given to debate on public issues——

Senator David Norris

I hope the Senator is not using it there as well.

Senator Alex White

——does not line me up with press barons, irrespective of whether I am a member of the Labour Party. I am perfectly free to make the argument in the context I make it. I will not fly off the handle as other people seem to do at the least suggestion in here but I take exception to the coupling of the argument I am making, in the context of freedom of expression, with the notion of the big bad press barons. I am very critical of those as well.

Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan)

We have had a very wide-ranging debate on this section and it has afforded Senators an opportunity for a quasi-Second Stage debate. I will add my tuppence worth.

On the net issue of the section, I have indicated to Senators that I am anxious to reconsider the section in terms of its consequence for an order for costs in the Supreme Court. That issue should be examined. It is desirable that we have a section confirming the appellate powers of the Supreme Court in this area.

It is also important that if the Supreme Court is to substitute a verdict for the verdict of the jury in the High Court — a power it has and which we are confirming in the legislation — there should not be serious implications for costs for a plaintiff who has succeeded in the High Court action. Iam prepared to review the matter on Report Stage.

On the wider matters raised, Senator Norris referred to judicial authorities in connection with the jury and the central function of the jury in our law of defamation. I stated yesterday that the Supreme Court has confirmed that the jury is an appropriate constitutional tribunal for vindicating the reputation of the citizen, and that is not an issue in the legislation. The right of a citizen in Ireland to have his or her reputation vindicated before a jury is carefully protected and preserved in this legislation.

That a jury verdict can be appealed to the Supreme Court is also a well-established feature of our legal system and it is not proposed to change this. The courts and the Supreme Court have tended to view the verdicts of juries with great respect and Senator Norris — I was going to say Judge Norris — quoted an authority to that effect, which is as it should be. He also referred to judgments regarding the question of feelings. The point I made about feelings is that they are not the gist of the action. It is not possible to sue for hurt feelings in our law — it is possible in some other legal systems. It is necessary to establish an element of falsity or rather the newspaper must disprove the falsity of the statement on which the plaintiff is suing.

Senator David Norris

I understand other speakers discounted the notion of feelings altogether.

Deputy Brian Lenihan

Once someone establishes that he or she has been defamed, of course feelings come into the equation in the assessment of damages as Senator Norris outlined very well.

The Senator questioned whether we should have lodgements. Lodgements are a well-established part of our civil litigation system for the obvious reason that they discourage litigation. Litigation is very expensive for the State, which has an interest in this matter along with the parties. The State provides machinery for the adjudication of civil disputes, which is the courts system. Equally the State has an interest in discouraging parties from recourse to civil proceedings that are heard at full length, which is done through the lodgement system. The whole purpose of the lodgement system is to encourage individuals to settle their claims. The view is taken, to which I subscribe, that it is in the public interest to quieten claims and settle matters in so far as they can be settled. We are always outlining how undesirable it is for matrimonial proceedings to go their full distance and how desirable it is for parties to settle their unhappy differences before they enter the courtroom. However, that applies to most disputes. The State provides a lodgement system to encourage individuals to settle their disputes. A lodgement system needs to be a central feature of defamation law in our system.

Senator O'Donovan referred to the level of award for damages. In the continental jurisdictions the levels of awards for damages are lower than they are in common law jurisdictions. We have used the examples and experiences of other common law jurisdictions in deciding how to reform the law here. That brings me to Senator Alex White's general reflections on how we should reform our defamation laws. In this area we are dealing with powerful media organisations irrespective of whether their ownership is concentrated or diffuse. They are powerful organisations and can command substantial legal expertise. There has never been a shortage of intrepid and able lawyers willing to take them on. They are very powerful organisations that cannot be allowed to dominate debate on a subject like this. As the class of potential plaintiffs has no equivalent lobby group, it is important that careful scrutiny be given to this legislation.

That is why governments in most common law countries have embarked on an extensive period of consultation, discussion and report before proceeding to houses of parliament in this area. That has been the experience in the United Kingdom and has also been the process in this jurisdiction. The Bill did not fall out of the sky from the headquarters of some powerful media organisation. Considerable work was done by the Law Reform Commission and the Mohan committee. This issue was considered in great detail. The arguments on each issue were assessed. My philosophy on this legislation is that anything we can do to encourage the media organisations to apologise more readily is to be welcomed. Anything that promotes a culture of greater responsibility in writing in media organisations is to be encouraged. This legislation is a substantial step in that direction.

Senator David Norris

This point goes to the matter of the press council. The Minister raised the matter of apology. A few years ago, The Sun newspaper was admonished very strongly by the British Press Complaints Commission for publishing particular photographs of Princess Diana. The Sun dutifully published the PCC’s judgment and then republished the offending pictures under the heading “This is what all the fuss was about, folks”. That effectively undermined the Press Complaints Commission. It depends on the quality of the apology, its sincerity and the prominence it is given. I understand that matter is addressed later in the Bill. I know the Minister is sympathetic on this issue. Apologies can be given tongue in cheek and in such a manner that the newspaper gets a second strike at its victim.

Deputy Brian Lenihan

We will be able to revisit apologies.

Question put and agreed to.

Section 13 agreed to.

SECTION 14.

Question proposed: "That section 14 stand part of the Bill."

Senator David Norris

This section relates to the reliance on a defence of truth. I made a point during the Second Stage debate and I regret that I did not table an amendment. I wish to signal that I will table such an amendment on Report Stage. Truth is the very best defence because nobody could possibly object to newspapers publishing truth however painful it might be for the person embarrassed or inconvenienced by that truth. The person against whom the allegations have been made in a newspaper should be entitled at a relatively early stage through his or her legal representatives to know the basis upon which that claim of truth is being made. On Report Stage I will table an amendment along the following lines: "Where the defendant relies upon truth as a defence he or she should be obliged in the pleadings contained in the defence to set out the facts upon which he or she will rely in the defence". That would give the plaintiff the opportunity to examine it, rather like the notice for further and better particulars, etc. If an appalling claim is made about somebody and the defendant relies on the defence of truth, it is only fair that the other side should get the opportunity to examine it in order to prepare for proper cross-examination in the process.

Senator Denis O’Donovan

I accept what the Minister said earlier that the Bill did not fall out of the sky or originate as a result of a considerable media lobby. There has been considerable thought by successive Governments and the Law Reform Commission. The Minister also mentioned Mr. Mohan's input on the matter. We are enlarging on the old phrase, "justification". I may be wrong in this. However, my perception is that to prove something beyond yea or nay, the burden of proof is much stronger to prove something is true before a judge and jury. Is there a raison d’être for using the word “truth”, as I would have felt the old defence of justification was quite acceptable? I saw no great desire by any lobby to use the word “truth”. While I may be getting this wrong, I feel the use of the term “truth” raises the bar. It is much stronger to establish truth rather than justification in a court of law, especially before a jury.

Certain justifications can be claimed. I was at a meeting the other night at which I was told "Sure you're all on the take and looking for more money", which is a general perception. However, the truth is that 95% or 98% of politicians are decent, honest and hard-working people. Justification and truth are at different levels. We are raising the bar. I ask the Minister to explain why he is making this change. While I may be missing the point, I feel there will be a far greater onus on the defence to establish that something was true beyond yea or nay. Justification seems to be easier to establish from a court perspective.

Deputy Brian Lenihan

If Senator Norris tables an amendment on the question of what a defendant should plead, naturally I will examine it. However, this Bill already requires that a defendant must swear a verifying affidavit on the defence filed and the defence will have to be verified on oath. This is a substantial change in the existing law.

On the point made by Senator O'Donovan, section 14(1) is a restatement of the existing law and section 14(2) is a restatement of an existing statutory provision. There is no new law in section 14; there is no change of substance but there is a change of wording. The defence of justification, as Senator O'Donovan rightly said, is being renamed the defence of truth but they have been the same in substance for more than 100 years.

The Law Reform Commission pointed out that originally the word "justification" was used to describe all the defences available in a defamation action. The defences of qualified privilege and fair comment were then developed and the term "justification" was restricted to the plea of truth. Subsection 14(1) will make the substance of the law the form of the law in providing that the defence is a defence of truth. With regard to Senator O'Donovan's point, I am not sure if it makes any difference on the substance of the law but it does mean the law is clearer and more intelligible. For that reason it is desirable to have the expression of truth there as this is at the heart of our defamation system. We put truth at a premium and those who utter falsehoods pay for them.

Question put and agreed to.

SECTION 15.

Senator David Norris

I move amendmentNo. 3:

In page 12, subsection (2), lines 3 and 4, to delete paragraph (f).

I oppose the inclusion of judges in the exemption from defamation. The Minister has strengthened my feeling on this matter when he talked about truth. Why would a judge want to lie about anybody? Judges should not make outrageous or untrue comments about anybody. After all, a judge should know better than anybody else the primacy of truth and the reason for telling it. In vigorous argument between the combatants in a court case or in a robust debate in this or the other House, I can understand it and there is an argument for protecting people by absolute privilege. Will the Minister explain why a judge would wish to libel somebody? What part of a judicial function is it to libel the ordinary citizen? A libel by a judge on a citizen in the course of a judgment which is protected is far more damaging.

Some people are of the opinion there should be a clear definition of defamation at the beginning of the Bill. It is defined in section 5(2) as:

. . . the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person)...

Why would judges wish to do this? I know it is a practice and the Minister probably is aware it is a practice. I am sure the Minister can remember back — I certainly can — to the days when Nell McCafferty was writing In the Eyes of the Law . A number of judges routinely and for the purposes of entertaining and diverting the audience in the court made the most appalling comments about people which if made outside a court probably would be libellous. We are just reciting a whole list of establishment figures who have to be protected. I do not see any reason to license the Judiciary to lie about the citizenry.

Senator Alex White

I support this section and disagree with Senator Norris. I do not think it is a licence for judges to defame people. I ask the Minister to confirm this but my understanding of this protection — if it can be called such — is practically ancient. Authority for this proposition goes back at least 400 years——

Senator David Norris

I disagree.

Senator Alex White

It certainly goes back to the early 17th century. The principle is a very good one. I suggest if Senator Norris reflects on it, a good analogy is the protection afforded to us in this Chamber. We have a responsibility in this House to debate public issues, to deal with the cut and thrust of those issues. There have been occasions when — I will not say Senator Norris — some of our colleagues over the years may have been tempted to engage in very robust analysis and debate of issues and of the conduct of individuals. They have speculated on individuals and their actions and on what they ought to have done. This Chamber affords a protection for both Senator Norris and me and other Members. We are not exposed to being sued for libel in circumstances where we stray into that area, albeit one hopes, on rare occasions. In other circumstances we could end up in the High Court being sued for defamation. There is a very good reason for that protection and if Senator Norris reflected on it, he would see it is right he has that protection in this House. It is not a protection that should be abused but it is right that Senator Norris has that protection.

The same applies in regard to the exercise of a judicial function. The independence of a judge is vitally important to the conduct of his or her duties. Judges must be fully and entirely independent in the exercise of their important job. If they are to have a concern or a fear that they may be sued for defamation in respect of remarks they might make — these are sometimes very intemperate and I have criticised in this House remarks made by District Court judges — this would risk undermining the important independence of their function. Judges should be able to administer justice in a free, impartial and independent way. I suggest to Senator Norris it is quite wrong to interpret this section as being a protection for a member of the establishment — that we are singling out individual members of the establishment and giving them protection that is not given to other people. The issue is to do with the function they exercise for the community and for society. We as a community believe it important that judges have full independence in the carrying out of that function. This is for the protection of the community rather than it being a licence for individual members of the Bench to say whatever they want about whoever they want at any time. Senator Norris is under a misconception of what is at stake. A very important principle is at stake and it is the same principle that applies in this House and in the other House in the protection of persons. Those of us engaging in public debate in the House can at times stray into areas that could expose us to suit, even without knowing it; we could defame somebody.

It would undermine the effectiveness and the important independence of the role of the Judiciary if this section of the Bill were to be changed. Senator Norris's proposal would constitute a change. I do not have before me the particular provision of the 1961 Act but I am almost certain a similar provision exists in that Act. It is our law, as I understand it, that judges cannot be sued for defamation in the exercise of their judicial function. They are not protected when they step down from the Bench and start, willy-nilly, to gratuitously defame or attack people. They ought to be protected when they are carrying out their functions.

I have other issues to speak about on the same section of the Bill.

Senator Jim Walsh

Like Senator White, I will refer to other examples in the section when they arise. Speaking on amendment No. 3, I fail to understand how a judge can be prevented from commenting on a case which is then reported. Because of the nature of the people who come before the courts, judges will often comment in very derogatory terms about the criminal activities of some of those people. It is right they should comment and that these comments should be reported.

I agree with the sentiments expressed by Senator Norris. There are many examples, in particular at District Court level, of judges who exceed what is fair and reasonable. While I appreciate the views expressed by Senator White, if we step over the line in this House, the Leas-Chathaoirleach will call us to account if we breach our privilege. However, a judge is master of his own comments in his own house.

While I fail to see how Members can deal with this issue in this Bill, I have long been an advocate of accountability for judges.

Senator David Norris

Hear, hear.

Senator Jim Walsh

There should be a judicial commission and were such a commission comprised exclusively of judges, I would have no objection. I refer to instances in which judges step out of line, of which there have been examples. The Oireachtas has conducted inquiries to deal with such issues and such inquiries should have had a structure other than the cumbersome model under which my colleague, Senator O'Donovan, was obliged to labour in one instance. It was a very difficult task. There should be a mechanism for dealing with this issue. When judges breach the privileges they enjoy, accountability to their peers should be an important component of the structures incorporated in the judicial system.

Senator Eugene Regan

I agree this provision is required. In the next paragraph, section 15(2)(g), privilege also attaches where a witness or a legal representative or a juror makes a statement. Consequently it would be entirely incongruous to exclude a judge performing his or her judicial functions from the protection of the privilege afforded in the Bill.

Under this section I also wish to ask whether——

An Leas-Chathaoirleach

Members should discuss only amendment No. 3 at present.

Senator Eugene Regan

Very well.

Senator Denis O’Donovan

I understand the reason Senator Norris tabled this amendment. In effect he asks for the removal of all protection from the Judiciary, which would be similar to taking a sledgehammer to crack a nut. However, I can see where he is coming from. I refer to the court case yesterday involving three ladies who were taking drugs back to County Cork and who went astray. The judge made certain remarks I considered to be highly appropriate. The amendment would place a severe curtailment on the Judiciary and would not achieve the correct result. It is common practice in all courts and in the District Court in particular for judges to tell a young brat who comes in with cock and bull story that he is lying through his teeth. As this is quite common, where would one stop?

Senator Walsh touched on a very important point and while I do not wish to stray from it, I consider the establishment of a judicial council or commission to be a necessity in future. Although a former colleague and previous Minister promised it some years ago, it has not arrived yet. Hopefully, like this Bill, it has been cooking for a long time and that when the time comes, like a Christmas cake, Members will get the mix right.

In my experience of approximately 30 years of dealing with judges and so on, our Judiciary and judicial system has served the country well since the foundation of the State. While there are exceptions, by and large we have some excellent judges and to remove section 15(2)(f) from the Bill would do far more harm and damage to the necessary defences than it would achieve. Consequently, Members must be extremely careful. I support section 15 in general and section 15(2)(f) in particular.

Senator David Norris

While I will be happy to withdraw the amendment, I am glad I tabled it because it has teased out a number of issues. I greatly welcome Senator Walsh's comments that were supported by Senator O'Donovan. I agree that one must protect the independence of the Judiciary. However, one of the instances given was very interesting. If, for example, a judge in his or her court told someone, who was what Senator O'Donovan referred to as a little brat, that he was lying through his teeth, this would get a headline. However, were that person to be found innocent the next day, damage would have been done. This is the kind of point I was making. While I did not expect this amendment to be accepted, I wanted to draw such a case to the attention of the House.

This strengthens the call made from the Government side for the establishment of a form of regulatory or overseeing body. I also accept Senator Alex White's comments in this regard. While I am happy to withdraw the amendment, if the Minister responds he should indicate whether he agrees with his colleagues on the Government side. I refer to the necessity for some form of regulation in the circumstances that have been suggested, that is, if a judge makes plainly defamatory remarks that turn out to be unsubstantiated and damaging to someone who is found innocent. This is inappropriate and it is a question of regulating behaviour.

I agree that I took deliberately a sledgehammer to crack the nut. However, if the nut gets cracked by the mild blow of a nutcracker forged skilfully by the Minister, I will be perfectly happy.

Deputy Brian Lenihan

First, for the reasons outlined by all the Senators and accepted by Senator Norris, the effective operation of the judicial power in the State requires that absolute privilege should attach to the statements made by the Judiciary in court. Members of the Oireachtas enjoy such privilege and it is absolute in character. While Members also have a committee that regulates the abuse of that privilege, from a constitutional point of view it is clear that if Members enjoy this privilege for their effective operation, a co-ordinate branch of government, namely, the judicial power also should have that privilege. Moreover, apart from the question of equality, there are far more practical reasons that one must have such a privilege attaching to statements made in court, which have been outlined by Members in the course of their contributions.

Another reason becomes obvious when one considers the list of those to whom absolute privilege attaches. It attaches not only to statements made by judges or other persons performing a judicial function, but also to statements made by a party, a witness, a legal representative or a juror in the course of proceedings presided over by a judge or other person performing a judicial function. The reason for this is that in addition to being essential for the effective operation of the particular institution, the State has an interest in preventing further litigation about litigation. Were one not to have an absolute privilege attaching to court proceedings, one would have fresh actions stemming from disputes that were already resolved in the original action, in which points of fact were at issue. This would be a disastrous inconvenience for the State and constitutes the other reason for attaching absolute privilege in this regard.

However, the sentiment that motivated the tabling of this amendment concerned the issue of judicial conduct and misconduct. While this is an area in which Members must respect the independence of the courts, I can state that the Government is committed to a judicial council Bill that will provide for the regulation of judicial conduct. Of necessity, a great deal of such regulation must be self-regulation. However, there is a strong case for collective self-regulation in this area and this is in accordance with the Constitution. I am aware that Senator O'Donovan explored the outer limits of the constitutional provisions that we posses in this regard.

Senator Joe O’Toole

However, his work was ignored. It is still sitting there.

Deputy Brian Lenihan

It is fair to say that his work came to a conclusion. One of the difficulties associated with spelling out in greater detail in the Constitution how one removes a judge is that it makes it easier to so do, thereby undermining the independence of the institution. However, there was a full exploration in the last Dáil as to how one would go about such an enterprise. As for the judicial council Bill, I am anxious to make progress in this regard and I await the views of the Chief Justice on this Bill.

Senator Joe O’Toole

Hear, hear.

Deputy Brian Lenihan

When I have those views to hand, I will introduce legislation on it. Senator Norris makes a fair point. While I do not wish to be seen to criticise the Judiciary as I am the Minister for Justice, Equality and Law Reform, it is important that utterances from the judicial bench do not damage people in their reputations. I recall that a wise District Court judge, who has now retired, told me that on his appointment, the first thing he taught himself to do was simply to read the statute, read the penalty prescribed by the Oireachtas and read it out to the guilty party when imposing sentence without making any other comments whatsoever regarding the imposition of sentence. It is a wise rule.

I await the views of the Chief Justice in this regard. While I understand the reason Senator Norris raised the issue, it cannot be dealt with in this Bill. It is a matter for a separate item of legislation.

Senator Denis O’Donovan

I wish all judges had that rule.

Senator David Norris

I thank the Minister for his undertaking and his understanding of what I was getting at and I am happy to withdraw it.

Amendment, by leave, withdrawn.

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;”.

Deputy Brian Lenihan

The purpose of this proposed amendment to section 15 is to provide for certainty that absolute privilege will attach to the reporting of family law cases. Section 40 of the Civil Liability and Courts Act 2004 provided for a relaxation of the in camera rule, with the key safeguard that the confidential nature of family law cases would continue to be respected. Section 40(3) specifically provides that nothing in any enactment can prohibit the preparation of a report of proceedings in family law cases on the publication of the decision of the court in those proceedings. The identities must not be disclosed. That is a safeguard of great importance. Reports under section 40(3) of the Act do not attract absolute privilege at present and it is important to clarify the law in that regard.

Senator White inquired as to whether the provisions in section 15 are new. They are new; they were not contained in the 1961 Act. This is a codification of the law on absolute privilege. For example, the absolute privilege enjoyed by a judge in judicial proceedings was something that rested in common law rather than in statute. In this section we are providing an exhaustive list of the circumstances in which absolute privilege can be claimed. Having examined various issues, this amendment was tabled to cover that point.

Senator Alex White

That serves as an introduction for the comment I wish to make on the balance of the section. As the Minister stated, it looks like an exhaustive list of circumstances which will be covered by absolute privilege. This is something new to our statute law. As lawyers would acknowledge, the very fact that it is a detailed list would give rise to a serious concern about matters which do not appear in it. If they are not in such a detailed list, it would be clearly seen to be our intention to have excluded them. In those circumstances I wish to raise two issues with the Minister and I am interested in his view on them.

Reference is made to courts, and it is quite proper that this is the case because, as we have already discussed, that is one of the fundamental areas that it is sought to protect. However, what is the position with quasi-judicial tribunals? I have a professional background in this area. In the previous debate speakers repeatedly pointed to worries about conflict. I do not have a conflict but I should point out that I do practise in the area of employment tribunals and have some familiarity with them. These are quasi-judicial tribunals set up under statute. Did the Minister consider whether privilege ought to attach to the proceedings of these tribunals? I refer to the Employment Appeals Tribunal, the equality tribunals, and perhaps the Labour Court. I am interested in whether the Minister addressed this issue and if so, why it was determined not to include them?

The second area relates to local authority meetings. Did the Minister consider whether privilege ought to attach to the proceedings of meetings of local authorities? I am sure he did address the matter. What was his rationale for the conclusion that they ought not to be granted the protection of absolute privilege?

Senator Eugene Regan

Senator White raised the issue I wish to raise, namely, privilege for local authority meetings. In carrying out their public duties, councillors perform important work in the public interest. Was consideration given to the extension of this section to local authority meetings and local area committee meetings? The work of councils is significant. Much of European Union legislation is now implemented through local authorities. This is important work and there would appear to be a case that the privilege referred to in this section might be extended to local authorities and local councillors. I invite the Minister to comment.

Senator Joe O’Toole

I am completely opposed to the inclusion of local authorities in this section. They would be uncontrollable and that would give me cause for concern.

I was prompted to ask this question by the first point raised by Senator White. I am uneasy about an exclusive list, which is what this section appears to contain. We appear to have taken a decision to collate aspects of common law, existing legislation and the Constitution. Is it necessary to put into legislation something which is clearly understood to be protected? What is the rationale for including in legislation statements "made in proceedings before a committee of either House of the Oireachtas"? We know that to be the case, as it is covered in the Constitution and is stated at the beginning of every meeting. The extension of the privilege of the Houses to committees has been previously addressed. At the beginning of each meeting the basis on which the committee takes place is made very clear by each committee Chairman.

I find it interesting that in his protection of the Judiciary, with which I completely agree, the Minister intends to extend privilege to witnesses. Very often it is the comments made by witnesses in court that can cause a problem. In an earlier section we made it a requirement that when people put forward something in pleadings, they would have to swear an affidavit as to the factual nature of the statement, and that they stood by it, yet at the same time one can introduce a witness who can lose the run of himself of herself and say things about somebody in a court. This gives rise to serious questions. Why do we need to put into legislation something which is already covered either by previous legislation or by the Constitution, not to mention common law? It worries me to do that.

I remember arguing this case previously. When the first version of the Official Languages Act came before the House approximately five years ago, an issue arose concerning the provision that Members of the Oireachtas could speak in Irish or in English. I see the Minister is smiling but I will not talk about the obvious. I opposed this measure vehemently. It was a tautology, to say the least, and completely unnecessary that something which is a constitutional right was being given a statutory basis. Why do we need a statutory basis for something which is constitutionally protected? This is unnecessary, unless there is a constitutional imperative to do something, which is not the case here.

Following that debate, in the next version of the Bill that section was omitted. I worry when something that is in the Constitution is relegated to a statutory protection. This is unnecessary. The point raised by Senator White is an important one. If one starts making lists then the fact that something is not on the list will gives rise to questions.

Senator Jim Walsh

I am a strong proponent of the list approach because absolute privilege should be confined to where it is essential and necessary for people to function effectively. The question of local authorities is an interesting one. Councillors enjoy some privilege if not absolute privilege when speaking.

A case occurred in Wexford a quarter of a century ago when one of my colleagues on the county council criticised the management of the local landfill site in fairly condemnatory language. There was much agitation in the area because of the nuisance people encountered with flies, smells, etc., due to the way in which the site was managed. On the face of it, the comments made appeared to be fair but the landfill site employee whose job it was to maintain the site took a legal case against the councillor, who was a former eminent Member of the Lower House at the time or subsequently. The case went on for a considerable period but to the best of my knowledge he was found not to be in breach of making a defamatory statement. The judge sensibly took the view that in his position as a public representative, he was entitled to make the point but it struck me, with the points being put forward, that it is an interesting anecdote in terms of ensuring that councillors, in the genuine performance of their functions, are not exposed to similar circumstances which could inhibit them functioning effectively at local authority level.

Senator Paddy Burke

I support my colleague, Senator Regan, and the other speakers on the question of some form of privilege for local authority members. As one who served on a local authority for many years I do not believe there was ever an occasion where privilege was used but anything can happen in the heat of the moment and if occasions arise where, in the heat of the moment, battle can be established, there should be some form of privilege for the member. Heated debate can take place in chambers and comments made in anger or in the heat of the moment. However, I agree with Senators who said there should be some form of privilege for a local authority member. I ask the Minister to examine that because it is an important issue for local government.

Deputy Brian Lenihan

Members of local authorities enjoy qualified privilege and that is dealt with in the next section. A qualified privilege is a privilege to make an utterance or publish a statement in circumstances where the privilege can only be destroyed in the event of malice being established. That is the current position in regard to local authorities.

Senators should recall that absolute privilege is a drastic device. It means that all statements are immune from any actionability. When Senator Norris raised the question of the courts system I made the point that one of the reasons the courts must enjoy absolute privilege is not just because of the position of the Judiciary in the Constitution but because of the need to prevent litigation spawning further defamation actions. That is the fundamental reason we attach a privilege, for example, to the utterance of a witness in a court proceeding because as Senator O'Toole pointed out, the utterance of a witness in a court proceeding can often be reported and can often be defamatory but the State must attach absolute privilege to that statement because we cannot spawn another defamation action arising out of the facts in dispute in the court case. That is the fundamental justification for absolute privilege in court proceedings.

The absolute privilege the Houses of the Oireachtas enjoy stems from the Constitution. Senator O'Toole raised the issue of whether in the case of that absolute privilege, we should legislate for it and whether the legislation is superfluous. I agree with him that matter should be reviewed, and I will have it reviewed, and if there is any element of surplusage in the legislation which is additional to the Constitution and unnecessary, it should not be in the legislation. However, I do not agree with the Senator that it is a mistake to provide an exhaustive list. It is important, given the absolute character of this privilege, that we do an exhaustive list now. The constitutional references have crept in because there was an exercise to establish a comprehensive list of occasions of absolute privilege.

That leads me to the points of substance raised by Senators Alex White and Regan about the occasions that should qualify and whether there is a case for an extension. The Law Reform Commission examined the question of quasi-judicial bodies and came to the conclusion, reflected in the legislation, that absolute privilege does attach to a statement made in the course of proceedings involving the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution where this statement is connected with those proceedings and also, in subsection (f), made by a judge or other person performing a judicial function. Therefore, a person performing a judicial function or a person exercising limited functions and powers of a judicial nature enjoys absolute privilege under these provisions.

The Law Reform Commission pointed out that defining a quasi-judicial function can be a difficult exercise in draftsmanship and it is impossible to provide an exhaustive list of quasi-judicial bodies. For that reason it included the reference to Article 37 in its recommendation because at least it provides a definition that has a foundation in existing case law. We can say with clarity, therefore, that a range of bodies will be covered by virtue of the reference to Article 37. The more general reference in the section to any person performing a judicial function would cover a wide range of bodies. It would certainly cover, for example, a county registrar exercising limited civil functions.

Regarding bodies on the employment law side, I would envisage, for example, that the Employment Equality Tribunal is a body exercising judicial functions and hearing and determining evidence and therefore statements made there would attract an absolute privilege.

On the other hand — Senator White will probably be better than me on this — the Labour Court as an institution is not necessarily judicial or quasi-judicial in its functions. It is not hearing evidence and making a determination on evidence.

Senator Alex White

It is somewhat controversial at the moment as to whether it is or not.

Deputy Brian Lenihan

Yes, my advice is to be careful with regard to the Labour Court. The Labour Court may well enjoy a qualified privilege because the parties making statements there have an interest in making them and the person hearing the statements has a duty to hear them. There may well be a qualified privilege but it is desirable, as a matter of principle, to have an exhaustive list of the occasions to which absolute privilege attaches.

That leads me to the last question which Senator Regan, and all of the Senators, naturally raised and that is the question of local authorities. The current position is that they enjoy a qualified privilege. The question then arises whether an absolute privilege is attached to it. This House enjoys an absolute privilege for the effective operation of its system of supervision of the Executive but even in the experience of this House we have seen arguments about the abuse of privilege. We have a committee in each House to regulate the abuse of privilege so when an abuse takes place the House, of its own motion, can discipline a Member for a breach of privilege.

It is a drastic extension of the law to create very large numbers of bodies. In justice we could not confine it to county councils; we would have to include town councils as well. The number and range of bodies is so large, the problems of regulation of abuse so extensive and the risk to the reputation is so great for those who could be defamed by these statements, that on balance there is not a good case for it.

Amendment agreed to.

An Cathaoirleach

Amendment No. 5 is a Government amendment and amendment No. 45 is cognate. Therefore, amendments Nos. 5 and 45 will be discussed together by agreement.

Government amendment No. 5:

In page 12, subsection (2)(r), line 44, to delete “under the Constitution” and substitute “by law in the State”.

These are technical amendments which provide continuity with the correct reference to a court established by law in the State, which is already correctly referred to in section 15(2)(i).

Amendment agreed to.

Progress reported; Committee to sit again.