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Seanad Éireann debate -
Wednesday, 3 Dec 2014

Vol. 236 No. 2

Defamation (Amendment) Bill 2014: Second Stage

I welcome the Minister of State.

I move: "That the Bill be now read a Second Time."

Cuirim fáilte roimh an Aire Stáit. I welcome the Minister of State, Deputy Aodhán Ó Ríordáin, to answer formally on behalf of the Government for this Bill. I also take the opportunity to wish him the best in his future endeavours in his portfolio. He has a strong personal and professional commitment to the issues of equality and human rights and I am delighted that he is the person who has been chosen to represent the Government's arguments with respect to this Bill.

As the Minister of State will be aware, transparency and accountability are two of the cornerstones of public life and public governance in democratic countries. The formal institutions of State have certain obligations to behalf in a democratic fashion and as well as that, in order to challenge them, we have always tried to encourage an enthusiastic, but fair-minded, cadre of journalists and other commentators and critics to question Government policy on behalf of the people.

We are lucky in this country. In other countries these can be dangerous occupations. Sadly, in the world today there are journalists still languishing in prison; others have been shot, executed or tortured for having the temerity to disagree with the policies of the governments where they live. Sometimes we do not appreciate enough what a privilege it is to live in a democracy where people still have these freedoms and where they are cherished and, in general, well respected by Government. There are, however, subtle forms of soft power in this country which, if misused, can sometimes have the effect of silencing, quashing and disincentivising dissent. Certainly, in politics, we have often commented on the issue of the Whip system and the way that parliamentary accountability in the country appears to be somewhat less than it is in other democracies because of the strength of the Whip system, difficulties with freedom of information, etc. These all are issues which can provide hurdles to full transparency and accountability.

In addition, we have perhaps a more highly entrenched constitutional position in support of the concept of defence from defamation in this country with a constitutional recognition of the right of an individual to having his or her good name. In my brief career to date, this is the fifth piece of attempted legislation I have introduced here and three of them have revolved around issues of transparency and accountability. The first was an attempt to regularise a position which had become topical for various reasons at that time concerning overtures which were made to the Judiciary by politicians with respect to the outcome of criminal cases. The second related to transparency around the issue of Government's interaction with the tobacco sector. The third is this Bill.

The Bill is an attempt to de-fang one weapon which sometimes is used inappropriately by public bodies in defence of their position against valid criticism. The specific incident which provoked me into thinking of this Bill involved a general practitioner, Dr. Rúairí Hanley, who was writing for the Irish Independent and who wrote a column on what was at the time a very controversial issue. The Minister of State and Members of this House and the other House will be well familiar with the controversy that arose with respect to the apparent change in medical cards and the rules for getting a medical card. This was a controversy which, understandably, attracted passionate contributions from those who felt that there had been a row-back in the provision of what were called "discretionary medical cards" and those who defended the Government and the HSE's position stating not only was there no row-back, but such a thing as a discretionary medical card had never existed. I will be the first to admit that nobody was acting in bad faith in this debate and those on the Government side and the HSE side certainly were dealing with a situation of terribly constrained resources and an attempt to arrange priorities for healthcare spending, but those on the other side of the argument were aware that it was not only Government who had hard choices to make. They were aware that citizens sometimes had hard choices to make in their own homes and in their own hearts about matters such as whether they will pay for this drug, seeing as they have lost their medical card, or whether they will pay for the rent or for food. These were trying issues.

Dr. Hanley wrote an article in which he suggested the HSE was terrifying medical card holders with the prospect of their medical card being withdrawn. He received from the HSE's public relations department a reply which dealt not only with the substance of the issue but also with its view that he made charges with which the HSE disagreed. As a consequence it threatened him with unspecified other actions in defence of the good name of the HSE. It struck me at the time that this was wrong. In the first instance, the person who should have been replying to Dr. Hanley was somebody from the substantive chain of command of the HSE who was involved in decisions with regard to medical cards and medical card policy and should not have been a professional public relations officer in the public employ.

The Minister of State and I have not had the opportunity to interact too often previously, but I wish him to know that this is a bugbear of mine. I believe there should be no professional public relations professionals employed anywhere in the public service. Public servants should perform their duties and their reputation should rest on the quality with which they do so. Public relations professionals, by definition, are professionals who have a client-attorney relationship with the person who pays them. Their job is not to foster communications, it is to make their employer look good. This is not something which we should be subsidising in the State. Staff should be their own PR agents in the public service.

With respect to the specifics of this issue, I was troubled that the reply came from a PR person and that the entity, the HSE - I use it specifically in this case, but this is a more general charge - would decide that it had something called its own good name which, as an abstraction, was so deserving of defence that the HSE could use legal challenges to those who would criticise it. In the area of public policy, we need to be able to criticise the public bodies. We need to be able to criticise and challenge those who work in those bodies to defend the bodies on their track record, not on some vague abstract such as the good name of the organisation.

The Bill does not prevent individuals who work in the public service from defending their good name. We have a tradition, in the Oireachtas in general, of not being unnecessarily critical of individual public services who, by and large, do their job in a responsible way. Often these are difficult and thankless jobs and the often do not get much thanks from persons such as myself. I am sorry if I sometimes appear to cross a boundary in that regard.

We are not trying to prevent any individual from protecting his or her good name, but we do not believe that the bodies corporate should have an abstract right to defend the good name of the organisation using defamation charges. That is why the most we can do - we are not able to ban their resort to defamation - is strike a strong symbolic blow against it by limiting the damages which they are able to claim.

This short Bill has three sections. The first provides a broad definition of the public bodies which will come under the scope of the legislation. We believe we have managed to cover all the gaps for the 700 plus public bodies and, I do not mean to use the word uncharitably, "quangos" which still exist. There has been a certain culling of quangos in the tenure of this Government, but we estimate that there are still more than 700 of them. It will also apply to bodies in which the Government holds a majority shareholding, bodies which are set up by Statute and bodies in which the relevant Minister is the only shareholder.

Section 3 is a technical provision dealing with how appeals from a High Court case to the Supreme Court will be handled in the light of the legislation. Section 4 is a technical set of instructions outlining how judges may instruct juries in the interpretation of the law in the context of these provisions.

I take the opportunity to thank Shane Kenneally and Aoife O'Toole who work in my office for their efforts in preparing this legislation. Shane has been a major contributor to the design of all five of the attempts at legislation that we have advanced.

We had a promise of new politics when the Government came to power. Some three years into its tenure, a certain scepticism was expressed about how realistically that pre-election commitment to new politics had translated into action. However, I have seen signals in recent months that there has been something of a realignment and in this respect this commitment is perhaps assuming some priority on the Government's legislative agenda. I was very heartened, for instance, when the Minister for Health, Deputy Leo Varadkar, did not reject the amendment we advanced to the Health (General Practitioner Service) Bill 2014 which had the effect of preventing the insertion of a gagging clause into any contract GPs would have to sign. That was very forward thinking of the Minister and I am grateful to him for it.

I will be equally grateful to the Minister of State, Deputy Aodhán Ó Ríordáin, today if he sees fit to accept this modest Bill. His doing so would send a powerful signal that there is a commitment on the part of the Government to transparency and accountability and fostering constructive criticism without people being able to reach for the nearest defamation lawyer when they hear something they do not like.

I welcome the Minister of the State. It is an honour to second the Bill brought forward by Senator John Crown. There are several distinguished debaters on the Government benches today and I look forward to a stimulating discussion on the right to free speech.

Article 40.6.1° of the Constitution begins:

The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-

i The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

It is wonderful that "criticism of Government policy" is included as a right of citizens in our Constitution. Transparency and accountability are the essence of why we are here. I do not wish to go over old ground, but I will observe that it was part of why this House was endorsed in the referendum. People like the idea that persons such as Mary Robinson and Owen Lancelot Sheehy Skeffington in the past and Senator David Norris today have come here to express views. Great debates take place up and down the length of this country, in clubs and pubs, all the time and they must be allowed to continue. Indeed, some would say the capacity to engage in that type of debate is one of the great discerning characteristics of Irish people.

I speak as one for whom the provisions of the Bill have a personal resonance in that I once found myself in the position that a State body found something I wrote objectionable. I admired the lawyers who stood by me on that occasion, but it was an eye opener to see the other side, with a massive number of lawyers plugged into the national debt, so to speak, in an effort to prevent publication. Happily, the result was the one I was seeking. This thin-skinned approach to the expression of public opinion is not suited to the type of world in which we live. A nation that faced such a crisis as we did in 2008 to 2011 must have full scope for criticism of what went wrong at that time. We in this House have a duty to stand over every penny that is spent. It is what those who voted for us want us to do. Let us stand up for a society where opinions are freely expressed without people reaching for the defamation lawyer.

An item in one of the newspapers today sets out the view of a person working in the ambulance service that this vital service is being abused. He expresses the opinion that a person who miscalls the ambulance service three times should lose his or her medical card. It is helpful to nobody if every person who has legitimately called an ambulance should claim to have been maligned and defamed by this individual articulating the view that some people misuse the service. It is that notion of a type of collective destruction of what people feel is their right to a good name. There has been too much of that and the individual in question is entitled to express his views about the ambulance service. Likewise the Galway poet - I will not be more specific than that in case there is defamation involved - who said of a certain welfare officer in Galway that he was so stingy in giving out the money that one might think it was his own money. That is a legitimate expression and there is no call for every staff member of the welfare service in the city of Galway saying they have been defamed.

I agree with Senator John Crown that public bodies should not have public relations departments. Let the people we pay heavily to manage some of these large organisations come out and engage in a public debate. Resorting to lawyers because people have legitimate complaints and criticism of public policy is not acceptable. That type of criticism is part of the normal cut and thrust of debate. Senator Crown has suggested that if one is really thin-skinned, one may have €1 in damages. Those who feel inclined to take such cases should grow up and engage in proper public debate. The public is entitled to ask questions and have answers to those questions. It is a right enshrined in the Constitution and is at the core of our democracy.

It is an honour to second this Bill and I hope the Government will look upon it favourably. Its acceptance would be a meaningful reform initiative which serves to enhance transparency, accountability and public debate. We have made huge progress in recent years such that people who were previously outside our democracy and, in some cases, resorting to physical force are now inside it and engaged in democratic debate. This Bill is a logical development of that process. It would be a terrific boost for democracy and free speech in this country if the Government were to accept it.

I commend the Senators for bringing forward this Bill which the Government does not intend to oppose. I agree with the points made regarding the beauty and fragility of free speech and democracy. Some weeks ago I was stuck in traffic outside the Romanian embassy when I saw long queues of Romanians living in Ireland waiting to vote in the elections in their home country. It was to see people willing to queue for six or seven hours for the chance to cast their ballot. We in this county can sometimes be complacent regarding the nature of free speech and our capacity to engage in the democratic process.

Senator Sean D. Barrett referred to the referendum on the abolition of the Seanad. I certainly have changed my position since that referendum and am more appreciative of the richness of debate in this House and what it brings to the business of the Oireachtas. Senator Ivana Bacik will be delighted to hear it.

This short Bill seeks to amend the Defamation Act 2009 on the relatively narrow issue of the bringing of defamation proceedings by corporate bodies under section 12 of the Act. The Minister, Deputy Frances Fitzgerald, considers that the Bill as drafted is deficient and would require extensive further examination and amendment. On a preliminary examination, we have a number of substantial concerns which I will present in due course.

The present legal position is that the Defamation Act provides, at section 12, that:

The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

This provision sought to recognise the full commercial and non-commercial importance of a body corporate's reputation and to protect that reputation against defamatory statements, even in situations in which it might be difficult to prove or to measure resulting financial loss. For example, it might be difficult if a company had recently started up or just entered a new market, or if the main impact of the defamatory publication was to make it difficult to recruit or retain staff or to cause distrust in relations with core partners such as banks, customers, or trade unions. Under section 12, a body corporate which is not involved in commerce is similarly entitled to protect its reputation against defamatory statements, regardless of whether it operates in the public or the private sector, even if it is not suffering identifiable financial loss. The 2009 Act also provides for a number of statutory defences to a defamation action - the defences of truth, absolute or qualified privilege, honest opinion and fair and reasonable publication on a matter of public interest.

Having set out the current position, I would like to comment on the changes proposed by the Bill before the House. This legislation would amend just three sections of the Defamation Act 2009: section 12, which provides that bodies corporate can bring defamation proceedings; section 13, which allows for the Supreme Court, on appeal, to revise the amount of damages awarded for defamation in the High Court by a jury; and section 31, which lists various factors the court must take into account when deciding on an award of damages for defamation. All of the changes proposed in this Bill relate to the bringing of defamation proceedings by bodies corporate under section 12 of the 2009 Act. The central change in the Bill is the proposed new subsection 12(2), which would radically limit the damages that could be awarded to specified types of corporate bodies, in a defamation case, to a nominal €1. As the proposed changes to sections 13 and 31 are ancillary in nature, I will concentrate my remarks on the proposed changes to section 12.

As I have indicated, the Minister considers that the Bill as drafted is deficient and would require extensive further examination and amendment. I will set out some of her reservations, which are based on a preliminary examination of this legislation. The Bill's central proposal is to impose a limit of €1 on the damages that could be awarded in a defamation case to any of the very wide range of bodies corporate listed in the proposed section 12(3). The text provides that a court may not even consider any higher award, irrespective of the nature and extent of the damage actually suffered. This radical proposed intervention would require very careful scrutiny, including with regard to its constitutionality. The Bill would impose this new limit on any body which falls into any of the extraordinarily broad and diverse list of categories set out in the proposed section 12(3). The Bill defines any body covered by this list as a "public body". We have serious concerns about the excessively broad scope of the list. I will explain those concerns briefly. The stated objective of the Bill is to limit the damages that public bodies can be awarded in defamation cases, apparently with a view to discouraging them from bringing defamation proceedings. The list proposed in section 12(3) seems to fundamentally confuse different sorts of public and corporate bodies. As a result, it includes in the Bill many bodies that do not seem relevant to the Bill's objectives.

We have to bear in mind that the bodies we know as public bodies are a diverse mix, including bodies incorporated under the Companies Acts, under other statutes, or in some cases under charter. They include bodies which have corporate identity and entities which do not. Some of these bodies have commercial purposes or activities, while others are non-commercial. Many of our commercial State-sponsored bodies operate and compete in markets alongside private company competitors. I will give some non-exhaustive examples. The list includes bodies which are not corporate, which means they were never eligible to bring defamation proceedings under section 12 of the 2009 Act and are, therefore, not relevant to the purpose of this Bill. For example, the Departments of State, listed in the proposed section 12(3)(a) are not bodies corporate. Similarly, it is not clear that all of the diverse public health bodies listed in the proposed section 12(3)(h) would be bodies corporate.

The list also includes bodies which are not public. That is a problem because a body that is included in the list is defined by section 12(2) of the Bill as a "public body". For example, the entities established by charter that are included in the proposed sections 12(3)(b) and 12(3)(g) are not necessarily public bodies. The list also includes undefined bodies. Half of the eight categories in the list - those proposed in sections 12(3)(b), 12(3)(d), 12(3)(f) and 12(3)(g) - refer to "entities". As this term has no legal definition, it may be difficult to decide what bodies fall into these categories. The list also includes bodies which are public but commercial. The proposed sections 12(3)(b),12(3)(c), 12(3)(d), 12(3)(e) and 12(3)(f) appear to cover a wide range of State-sponsored bodies with commercial activities. This means that under the Bill, a commercial State-sponsored body that suffers financial losses due to a defamatory publication could not recover more than nominal damages, while one of its competitors operating in the same market would not be subject to any such limit.

The list also includes charter bodies, which may be corporate and public but not governmental. The proposed section 12(3)(b) includes in the list any body which is "an entity established by charter". This group seems to include bodies established by charter such as Trinity College, the Incorporated Law Society and the Royal College of Surgeons. It is not clear whether the Bill intends to impose a €1 limit on the damages that can be awarded in a defamation claim by any of these or similar bodies. Section 13 of the Bill, which refers to appeals in defamation cases, identifies the Supreme Court as the normal appellate court from the High Court. Since this Bill was published, significant changes have been made to the Supreme Court's appellate jurisdiction. I refer to the coming into effect on 28 October 2014 of the amendments provided for in the Thirty-third Amendment of the Constitution, and the establishment of the Court of Appeal on 28 October 2014 under that amendment. In addition, the wording of the proposed section 13(1)(b), unlike the proposed section 13(1)(a), does not seem to indicate what the appellate court may substitute for an award of nominal damages made by the High Court under the Bill.

Furthermore, the Bill proposes the substantial approach of imposing a far-reaching limit to redress in any defamation action taken by a broad range of corporate bodies, in pursuit of an objective which appears quite disproportionate. The Bill's stated intention is to prevent public bodies from using the resources of the State to issue defamation proceedings to influence comment by the press and public. In practice, defamation proceedings by public bodies are very rare. It can hardly be argued that the press or the public in Ireland are reluctant to enter into robust criticism and debate regarding the actions and policies of public bodies. This Bill seems at best a legislative sledgehammer to crack a very small nut. The Defamation Act which is just five years old and was debated in some detail in both Houses in 2009 represents a recent and well thought-out balance between the right to freedom of expression and the right to protection of good name and reputation.

I have highlighted non-exhaustively some of the numerous questions that have arisen in our preliminary examination of the Defamation (Amendment) Bill 2014. More time is needed to consider the Bill in detail and further assess its potential wide-ranging implications. The Office of the Attorney General also needs to be consulted, as do the Departments and State agencies potentially involved. Section 5 of the 2009 Act already provides for a statutory review of the Act's operation, to be commenced within five years after the passing of the Act and to be completed within a year. Preparations for this statutory review have already begun within the Department of Justice and Equality. Subject to the reservations I have mentioned, the Minister considers that there may be a case in principle for reviewing the specific question of whether and to what extent a public body which is a corporate body should be entitled to bring a defamation action under section 12 of the 2009 Act and for assessing to what extent such an action remains relevant and appropriate. Such a review will need to take careful account of the many different types of public bodies which are corporate bodies. In particular, the issue being raised in this Bill is just one piece of a large and complex jigsaw. It would be unwise to treat it in isolation, particularly outside the context of the imminent statutory review of the 2009 Act. That review offers a valuable opportunity for consultation and discussion with stakeholders on this question and on the wider context of the Defamation Act overall, and should be fully used. The Government will not oppose the motion before the House today. In view of the reservations I have set out, however, further examination and substantial amendment of the Bill will be required and proposed by the Government on Committee Stage.

I thank the Minister of State for his contribution. I also thank Senators John Crown and Sean D. Barrett and especially Mr. Shane Conneely for their work on this important legislation which relates to the awesome and overwhelming power of the State to silence people who have information and wish to criticise the State.

The Minister for Health spoke yesterday about the ambulance service. I have had meetings with paramedics who raised concerns with me many months ago. They cannot simply come forward and give the powerful testimony of what they have seen and what they know is wrong with the system, which is a matter of life or death to those who will need their services.

Our protection of whistleblowers has been poor. In 2002 the Irish Bank Officials Association, IBOA, asked for whistleblower legislation to protect people in the financial services industry. The reply from the State, the civil servants who guard that famous building where all our legislation originates - it is not this building because more often than not it comes from the civil servants - was that we needed a more comprehensive Bill. It is not enough for the financial services to have whistleblower protection. We must have it for everybody. If that had been in place between 2005 and 2008 would people have come forward to say the place is going to explode and Anglo Irish Bank is a shell of a company? Perhaps they would. The civil servant who raised it in the Department of Finance was ostracised and had no protection. Those who criticised it were vilified. The power of the State against the individual is awesome and overwhelming.

The case of Louise O’Keeffe is connected to this. She took on the State and the State informed her and everybody else when she was defeated in the High Court that it would clean her out, for what she had done. When the Supreme Court gave its ruling the State wrote to all those who had taken cases against it saying their cases were exactly the same as hers and that they would lose as she did, and would lose their houses. Many backed down. She took it to the European Court which thankfully reversed the decision of the Supreme Court. The State again wrote to all those people and told them this time that their cases were different from hers. That is the awesome power of the State against the individual. At every opportunity we must take the power from the State and give it to the individual.

Senator John Crown is quite clear about the defamation being limited to €1 but it does not mean that there cannot be special damages. If somebody makes reckless allegations for example that the electricity from the ESB causes cancer but electricity from another supplier does not, the ESB can take an action and be awarded only €1 under this legislation but special damages can be awarded. It offers protection to the State body but also guards against reckless behaviour by citizens.

We want to encourage the citizens in a country where there is little courage and little support for whistleblowers. A person would want to be very brave to come forward against the State because of its awesome and overwhelming power. As Senator Sean D. Barrett pointed out, not only does it have overwhelming power but it can use all its resources, financial and other, against the individual. In a country that has suffered for so long because of the silence of those who knew better, and knew much more than they were ever willing to tell, people must be encouraged in every way possible to bring forward what they know and tell it to the public and the press. If those paramedics spoke on radio and television and said it was a fact the whistleblower legislation might protect them from being absolutely destroyed by their management. I know many who would come forward if they did not feel the overwhelming power of the State to destroy them and take everything they have. If the Government gave them every possible protection they would speak out. Speaking out is vital. It has not happened enough. The financial crash happened and the child abuse issue went on for so long because those who knew did not have the courage and were not given the protection, I do not know in which order. I often feel they did not have the courage, but the protection was not there either. We have to rebalance and overbalance it. The power rests with the State. It must rest with the citizen.

I welcome the publication of this Bill. It is important to have a debate about freedom of speech. For a second while listening to Senator Mark Daly, I wondered if I was involved in a debate in North Korea because he gave the impression that there was no free speech in this country. I remind him-----

It can be costly. It might not be free that often.

I remind the Senator that his party was in government in 2004 when my legal office identified a major defect in legislation involving people in nursing homes. We found that 80% of their pension was being deducted and no legislation gave power to the health boards to do that. The response of the Government in 2004 was to immediately rush legislation through the Dáil and the Seanad in three days which tried to make legislation retrospective. In fairness to the then President, Mrs. Mary McAleese, she had the foresight to send that Bill to the Supreme Court and in February 2005 the Supreme Court struck the legislation down. It is nice that I should be able to remind the Senator that his party was in power when that occurred, just in case he thinks the decision was made by civil servants. That was a decision made by his party when it was in power.

This Bill is welcome because the Minister of State outlined quite clearly that section 5 of the Defamation Act 2009 states that it must be reviewed within five years. That review is now being carried out. It is important for this debate to take place as part of that review procedure. The day of passing legislation which is set in stone forever is over. Circumstances change all the time. It is important that we respond to those changes.

I will give an example of my concern about this Bill. If someone made adverse comments about something the Voluntary Health Insurance, VHI, a State entity, was doing, that detrimentally affected its ability to compete on the market this legislation would impose restrictions on it. That is a cause for concern especially when one considers that VHI competes with non-State organisations. The Minister of State referred to this aspect of the draft Bill.

The 2009 Act clearly sets out a defence of the truth being told. It is a defence to plead absolute privilege, qualified privilege, honest opinion, fair and reasonable publication on a matter of public interest. People are not restricted from criticising State entities or companies or organisations such as the Health Service Executive, HSE. It is important that organisations are criticised. Yesterday, the Oireachtas Joint Committee on Health and Children heard a very robust presentation from the Health Information and Quality Authority, HIQA, criticising aspects of the management of the ambulance service. I raised already in the House this morning the fact that people at management level acknowledge they do not have the skills.

HIQA is doing a very job in highlighting this issue. It is not leaving itself exposed by making this criticism because it is a valid criticism. While the debate is welcome, we need to be careful to ensure there is balance. The Defamation Act 2009 provides that balance. Certainly let us review it and this is the process for doing that. As a Member who has been involved in bringing forward Private Members' Bills there is a great deal of work involved and I compliment Senator John Crown and his staff and everyone involved on bringing it forward because it forces onto the floor of the House a debate on this matter. It also ensures that everyone has the right to put forward an opinion on how to deal with legislation in this area in the future. I welcome the Senator's contribution. I hope his concerns can be dealt with in the review and, if necessary, in amending legislation.

The Minister of State is very welcome and I am delighted to see him in the House again.

This short Bill, the Defamation (Amendment) Bill 2014 is worthy of consideration. I am delighted to see that the Minister of State will consider it. Senator John Crown and his team have come up with very sensible legislation. It is good for the customer, which is the taxpayer, who will not have to fork out money for actions by public bodies.

Senator John Crown referred to PR companies and expressed his concern about these companies. I remember some ten years ago, the then Minister for Health speaking to me about the number of quangos, although the Minister of State is loath to use that term, that were around the country. What really got to him was that whenever one of these bodies wanted an appointment with him, a PR company made the appointment. Sometimes there were two quangos in the same town doing the same job and each had a PR company. I can understand Senator John Crown's concern about that matter. The legislation will also bring us in line with the United Kingdom and the United States. It is worth noting that in some other jurisdictions public bodies are allowed to sue in cases where there may be a major negative financial impact on them. It would be interesting to hear from the experts in that area. The Minister of State has touched on it. In many countries there are laws in place to prevent public bodies from suing for defamation because public bodies are not seen as having a ‘reputation’ entitled to protection. In Article 1, a human rights organisation points out that public bodies are "abstract entities without a profit motive, they lack an emotional or financial interest in preventing damage to their good name". While the European Court of Human Rights has not called for a blanket ban on defamation claims by public bodies, it has held, “The limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician.”. If we prevent public bodies from suing for defamation it may encourage more free speech. The concept with which Senator John Crown has come up is that public bodies may sue for defamation but they are limited to one euro. That makes a great deal of sense.

Do we have figures on how much money has been spent by public bodies in suing for defamation in the past? I would not be surprised if Senator John Crown has that information for the past number of years. I would like to learn how much taxpayer's money has been spent. If we do not know, we need as a starting point to have more transparency in this area.

I was listening to the Minister of State as he spoke, and he referred to a symbolic gesture of limiting it to €I, which I though was well thought out. He referred to the very radical proposed intention and pointed out a number of concerns. I was urging the Minister of State to accept the Bill on Second Stage and debate these concerns on Committee Stage. The Minister of State certainly caught me on the hop because in the very last line of his speech he states exactly that this is what he would do. I was listening to what he was saying rather than reading it in advance. He did catch me by surprise because that is exactly what I hoped would happen. It is not, however, enough because in the past I have seen the Government accept a Bill on Second Stage and we never heard another word about it. I am delighted to hear the Minister of State say "substantial amendment of the Bill will be required and proposed by the Government on Committee Stage." I hope the Committee Stage debate will happen soon. I congratulate the Minister of State on accepting the gist of the Bill and Senators John Crown and Sean D. Barrett for coming up with the concept which is worthy of consideration. However, some of the points made by the Minister of State are worthy of consideration also, but they can be sorted out.

I welcome the Minister of State, Deputy Aodhán Ó Ríordáin to the Chamber. I welcome his comments on the Seanad, in particular his change of view. I am very heartened to hear that, as we all are in this House. I would like to think we have brought about his change of view through our work and contributions

I can change my mind again.

That is a threat.

The of State is honest.

It is certainly honest. I commend Senators John Crown, Sean D. Barrett and Mark Daly on bringing forward this Bill, in particular Senator John Crown who introduced it on 3 July. It exemplifies the best work of the Seanad when we bring forward Private Members' Bills that are accepted by the Government. I welcome the Government's decision to accept it.

I, too, happened to see the queues of people queuing up at the Romanian embassy to vote. I think there were so many people that in the end some of them were not accommodated by the embassy in voting in a very tightly contested presidential election in Romania. It should make us appreciate our democratic systems more. The real strength of a democracy is when the Legislature is strong, when the Oireachtas is strong. When we see Private Members' Bill coming forward, that is a real mark of strength. I speak as somebody who has had Private Members' Bills accepted.

I agree with the point made by Senator Fearga Quinn in terms of the delay in bringing the Bill to Committee Stage. That can be a problem, but I take heart from the fact that a review process is already built into the Defamation Act 2009. This will clearly feed into it. I think we can anticipate this will come forward.

The Minister of State and I have been working on the Employment Equality (Amendment) Bill which is languishing on Committee Stage in this House. I know that there have been difficulties in bringing forward Government amendments, but I am very hopeful, as I know he is, that we will see these amendments brought forward very early in the new year. That should encourage us in terms of the processing of Private Members' Bills. It does take time, but we have had some successes in this House in that respect.

I have another point on the Seanad before turning to the specifics of the Bill. The heads of the sexual offences Bill were introduced last week by the Minister for Justice and Equality, Deputy Frances Fitzgerald, which I greatly welcomed, particularly the provision on the purchase of sex. I ask the Minister of State and the Minister that the Bill be initiated in this House. We have had a good record of debates on Bills that have been initiated in this House. The Department for Justice and Equality, not just under this Minister but under previous Ministers, has been particularly good at commencing Bills in this House. I would ask that this might be done as quite a number of us were very active in the Joint Committee on Justice, Defence and Equality when it did a report which led to some of the provisions of the Bill.

The Defamation (Amendment) Bill 2014 is seeking to amend the Defamation Act 2009, on which we had extensive debates in this House and in the other House. That Bill was a very comprehensive codifying Bill seeking to establish the balance between the right to freedom of expression and the right to the protection of one's good name and reputation. Clearly, it brought in many constitutional considerations. The Bill raises a significantly important point, which seeks to restrain the use of defamation proceedings by public bodies as a response to critical or public comment. I think Senator Crown speaks of this as potentially offering an unwarranted curb on free expression, that the balance is weighted against the rights to fair comment and freedom of expression. Having listened carefully to Senator John Crown's speech, in which he refers specifically to the HSE, that seems to be a particular focus of the Bill. I note also from the Minister of State's comments, however, that the definitions of public body in the Bill appear to be far wider than just the HSE and it covers entities - the non legal term of entity - which may have unforeseen consequences. I can see that is one area where there would need to be very careful review and amendment. Senator Sean D. Barrett and I were particularly interested to hear the Minister of State say Trinity College Dublin would potentially be covered by the Bill in its current form.

The other interesting point is that we would all agree that defamation law generally should not be used in this way, but I would reflect on the Minister of State's comment that this is relatively rare. Most public bodies - I admit I am not so aware of the HSE's policy - do not tend to take defamation proceedings. In fact, the most recent case in which defamation and public bodies are associated in the public mind was the case earlier this year, where we saw RTE - in my view and the view of many of us - caving in too early to a threat of defamation against it by private individuals and organisations. I am, of course, referring to the incident in which Rory O'Neill made certain comments on the Brendan O'Connor show, which were then targeted by various people, who sought to sue RTE for defamation, and RTE then settled very quickly and paid damages. The targeting of public bodies in defamation suits may be a bigger issue, but that is something we would have to tease out.

I take the point that this is one issue that must be considered in any overall review of the Defamation Act, but I will conclude by saying that the most pressing issue in the Defamation Act of 2009 which requires review, is section 36, which, as everyone knows, created a new statutory offence of blasphemy. In this House, Senator David Norris and I in particular were very critical of that Bill. It was introduced by then Minister, Dermot Ahern, as a late amendment. Nobody was quite sure why, but he said there was an urgent need to introduce a new statutory offence of blasphemy. There was no case for urgency as far as I was concerned, and there has been much criticism, nationally and internationally, by human rights bodies of this definition of blasphemy. To return to the theme of democracy, it is inappropriate in a modern democracy to have this sort of provision, which can be used to bolster prejudice against different religions. We have seen blasphemy used in Islamic countries to bolster prejudice against Christians and Christian religions. Proper law on incitement to religious hatred, refinement of that law, would be much more appropriate than imposing a €20,000 fine on anyone who blasphemes. The Constitutional Convention has recommended that the offence be removed from the Constitution, but in a review of the 2009 Act we could certainly just look at removing section 36.

Cuirim céad fáilte roimh an Aire Stáit. Cé go bhfuilimid beagáinín amhrasach faoi chuid de na forálacha a bhaineann leis an mBille seo, táimid ag tacú leis le dul ar aghaidh go dtí an chéad chéim eile den reachtaíocht. Measaim go bhfuil cuid de na himní a bhí againn léirithe chomh maith ag an Aire Stáit, agus go mb'fhéidir go mbeimid in ann leasuithe a chur chun cinn a thiocfadh chun tairbhe na reachtaíochta. Despite having reservations about the Bill, we in Sinn Féin believe it to be well intentioned and will support its passage to Committee Stage. It is welcome that the Government has seen fit and the Minister of State has indicated that he will allow that to happen. An rud is annamh is iontach, mar a deirimid i nGaeilge, ach is maith ann é agus is maith é an Aire Stáit as ucht a bheith sásta an chrógacht sin a thaispeáint agus a rud féin a dhéanamh, mar ní dhéanann gach Aire é sin.

Having spoken to Senator John Crown, we understand the background to the Bill and we support the spirit out of which it was born. The Senator spoke about a situation where the HSE issued a statement concerning medical cards, alleging that public figures were making defamatory statements about its handling of the affair. We feel this is ridiculous given the HSE's handling of the particular issues, which was nothing short of shambolic in its own right. However, we have certain reservations regarding the Bill.

When defining a public body, the Bill goes so far as to include "any voluntary or joint board hospitals and other body which receives grants from the Department of Health". We are concerned that this could affect community organisations in receipt of funding from the Department of Health and it may be unnecessary and ill-placed.

The Bill also refers to both the High Court and Supreme Court when taking defamation proceedings. I understood that defamation cases could also be taken in the Circuit Court to the tune of €50,000. This seems to be a flaw in the Bill in that it would create a loophole, although perhaps I could be corrected on that issue. We do not want to create legal loopholes in our legislation and this is something we should seek to clarify and possibly amend on Committee Stage, if necessary. The Bill may also have a number of unintended consequences which have been overlooked by the drafters such as the one I have outlined regarding the other bodies that receive grants from the Department of Health. However, this is something that can be amended and we feel that should happen.

Sinn Féin also believes people should be able to criticise public bodies without fear of being hauled through the courts and punished financially. However, we do not believe this is necessarily the right way to go about this. We must ensure we are striking the right balance between not inhibiting citizens from expressing concern with certain public bodies while also ensuring public bodies have a right to their good name, in the same way as any individual. It is unfair to have a situation where an individual can make all sorts of wild allegations against a public body with the result that it is left in a situation where it has no way of defending itself. That would be irresponsible.

I reiterate that we support the spirit of the Bill from Senator John Crown and other Senators. We do not think the Bill, as drafted, is correct, but we support its passage to Committee Stage and will seek to amend it should it get there. Ba mhaith liom tréaslú leis na Seanadóirí faoin mBille a thabhairt chun cinn agus tá áthas orm bheith in ann tacú leis go dtí an chéad chéim eile.

I thank Senator Colm Burke for stepping in on my behalf earlier and welcome the Minister of State to the House again. The Minister of State breathes fresh air in a political system and culture that needs to be shaken up and fundamentally changed.

Senator John Crown's Bill also echoes the type of fresh air and grown-up politics we need in this country. I am glad that the Government, at least on this occasion, is not opposing the Bill on Second Stage. I hope that this will follow through into Committee and Report Stages because the time has come in this and the Lower House for us to take a more mature approach to Private Members' Bills that come from people with certain expertise such as Senators John Crown, Sean D. Barrett and others. It is a pity that this culture which is beginning slowly but surely to happen in this House, under the leadership of Senators Maurice Cummins and Ivana Bacik, is not shown in the Dáil. The people voted to keep this House and we are slowly taking baby steps to acknowledge the fact that the people voted to keep this House by taking a mature approach to Private Members' Bills.

The vast majority of people - in fact, all the Members elected to this House whom I know - are here because they want to do the right thing for Ireland, for the citizens of Ireland and for the people who pay taxes and find themselves in some cases without jobs and so on. People who find themselves being defamed by institutions are citizens and taxpayers also. I acknowledge the example Senator Ivana Bacik gave about RTE. RTE acted in extreme haste in that particular case. It was probably afraid of potential bullying and just gave in, which is a shame, because it is not what I would call fair process. Similarly, organisations such as the HSE, and their power, wealth and status in society, can bully ordinary individual citizens. They can threaten to sue someone for defamation. It makes sense that one would be talking about damages of €1 and that it would certainly be curtailed. I welcome the Bill which is necessary. I look forward to seeing how it progresses on Committee Stage because the Minister of State has rightly pointed out that there are concerns about the Bill, but they are technical concerns, I hope, and can be dealt with on Committee Stage. I would like to see the same mature engagement on Committee Stage from all sides on the Bill that we are seeing today. I hope we will improve in a small way the defamation laws in this country as a result.

I thank in particular the Minister of State. We talked earlier about the new politics and we have seen a good example of a very constructive approach. I was humbled by the detailed and appropriately forensic analysis of the legal deficiencies in the Bill, which were pointed out, and I am delighted to have had the opportunity to have so much free legal advice as I have had this afternoon. We will eagerly await Committee Stage amendments and will look at them very constructively. The Minister of State has demonstrated commitment to new politics because the reflex position in this House seems to be that if an idea comes from the Opposition, it will fall into one of two categories. Category 1 is, "It is a terrible idea and we are rejecting it," while category 2 is, "It is a good idea, you have not done a very good job on it and we will be back with something better." It is rare that we see the third category. Senator Feargal Quinn has been very good at it and I have been lucky with another Bill or two down the years when the Government side will say, "Actually, this is not a bad idea and we think it may actually be something we can build."

I thank the Minister of State.

With regard to the question about the rarity of the event, although the event may be rare, the threat is not quite as rare. There can be instances of a thinly veiled resort to this threat. I am a student of science and I use statistics so I do not like to delve into anecdotes. Nevertheless, I am aware, anecdotally, of a number of cases where the threat has been mentioned or is implicit in a reply to criticism.

The broad scope of the organisations that would be covered exercised us quite a bit and the Government is correct in that there may be specific cases where we would need to work out if organisations have legitimate interests. The question of special damages is not dealt with by the Bill. This relates to cases where it is judicially decided that, as distinct from the theory of defamation, a company is at the receiving end of unfair or inaccurate criticism by a commercial competitor. The best example in theory would be VHI, although I am not here to criticise that company today. If in order to get commercial advantage it was alleged that VHI, the only shareholder of which is the Minister for Health and which will be covered under the Bill, was selling a deficient product, the Bill would not stop VHI from claiming for special damages. However, the pure abstract concept of claiming for defamation would be denied. We should remember that not every entity is VHI and this would also have covered NAMA or Irish Water. There can be cases made that there are appropriate targets which might be tempted to resort to this kind of defence.

We get very spiritual at times, but when I hear of the Minister of State's conversion to rectitude on Seanad reform, like that conversion on the road to Damascus, we should remember there is more joy in heaven over one sheep that returns to the fold than over 100 which have never strayed.

I thank the Senator for the ecclesiastical conclusion.

Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Tuesday, 9 December 2014.
Sitting suspended at 4.05 p.m. and resumed at 7 p.m.