Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance) | Oireachtas source

At the outset, let me thank former judge, Mr. Justice Bernard Barton, for giving me a briefing on this issue some time ago and apologise to him - he is probably watching - that I have not been able to get back to him in the past two days. It has been a bit manic in advance of this debate. However, I am cognisant of his strong views on this Bill and I agree with them and with the concerns the Irish Council for Civil Liberties and others have raised about the Bill.

I do not claim to be a legal expert but, in a way, that is the point. The legal system and the jury system are precisely about law and justice being accessible to ordinary people and not just being the property of legal experts. In this case, a judge is replacing a jury of peers and the right to have a jury of your peers judge whether your good name has been defamed. The attempt to remove the right to a jury in High Court cases concerning people's right to protect their good name against defamation strikes at the heart of democracy. The right to a jury is in the Constitution to protect all sorts of rights people have and for those rights to be judged by a jury is absolutely critical to our entire democracy and to the possibility of getting the best justice. No system is perfect. It can have absolutely devastating consequences for people to be defamed, to be wronged in that public way. I do not see, when we talk about people's character being defamed, how anyone could argue that having a single judge, who with the best will in the world is just one person and may have prejudices and a limited ability to appreciate what defamation might do to someone, could possibly be superior to having a jury of 12 people who are randomly selected to represent the community and society. Defamation is precisely about, among other things, how people are perceived by society. The Bill replaces that representative sample of society with a single individual. I am not trying to malign judges in any way, but they tend to be from a certain class of society and appointed by the political system. Inevitably, there are limits to their ability to fully appreciate how things might be perceived or understood across a society that is much more diverse. The idea of a jury that is genuinely representative of society, of different genders, different class backgrounds and different or no religious beliefs, brings us at least closer to the possibility of having a real appreciation of whether someone is being defamed, what the potential impacts of that might be and, if they find that people have been defamed, their good name has been taken, of being able to decide what recompense they deserve and what is required to give them justice. It goes to the heart of a decent justice system and democracy because that kind of jury system is a central part of what democracy is about. To remove the right to a jury in those cases, which can have such huge impacts for people, is a retrograde step and we should not do it.

I understand that there is something about freedom of speech which is very important. I understand that a free media and their right to criticise people, question people and investigate the wrongdoing of people are also important and precious. We also have to protect that. We all know there are degrees of responsibility when it comes to the media and that certain social media companies would say anything about anyone and allow anything to be said about anyone even if it does not have the remotest connection to the truth. They do not care.

If a lie will get lots of clicks, they are willing to publish the lie. More than ever, people are vulnerable to that kind of defamation in respect of their character or actions. Unfortunately, lies are rampant. There are certain people who make money out of sensational lies who have no desire - in fact, they see it as striking at their ability to make extortionate amounts of money - for there to be any restrictions on their ability to slander and defame people. They do not care about that. People need protection in that regard.

Yes, we must protect freedom of speech. However, we must also ensure that people with lots of money cannot just use their access to that money to protect themselves from serious questioning and public interrogation, including by people who might want to expose something in the public interest that amounts to real and important information or questions. It is a difficult balance to achieve. I do not see how getting rid of juries can possibly help us to deal with that. Where there is a difficult balance or where there might be a very serious contention of the issues in a case, requiring efforts to unravel all of that and come to a fair and just adjudication of the arguments that might be made or the facts of the case, it does not make sense to replace a representative cross-section of society with one individual. With the best will in the world, the individuals in question tend to come from the better-off sections of our society and from a particular educational background. I do not mean to paint all judges and members of the legal profession with the same brush. There is a variety of legal perspectives from people who work in the profession. However, nobody is completely free from a certain degree of prejudice. No matter how much we assert the independence of the Judiciary, we cannot claim that people are not in some way influenced by their own prejudices and life experiences.

A jury gives us some prospect of balancing out the different prejudices, perspectives, world views and life experiences in trying to adjudicate on the very difficult matter of people's good name being taken, while also balancing that out against the right of people to have freedom of speech and expression and the freedom of the press. That is my main argument against the Bill. Unless the Government gets rid of this element of the legislation, I will vote against it. I will support those who are campaigning against getting rid of juries in these types of cases. Juries are just too fundamental to democracy. There is a slippery-slope potential in that if we do this in these cases, will an argument be made to get rid of the right to a jury trial in other circumstances?

My other points probably have been made by other speakers. I did not have the opportunity to hear everybody else's contributions. It is asserted by those who have looked closely at these issues and are more expert in this area than I am that any suggestion that this proposal will save time or money is erroneous. While a jury trial might take a little more effort, time, cost and so on, it is much more difficult to overturn a jury decision, whereas if it is just a judge making the decision, it is much easier to appeal it. What is gained on the swings is lost on the roundabout, and vice versa. There is no reason to believe there will be any particular saving in terms of time or costs by doing this.

Moreover, the right to a jury trial is one of the oldest components of common law and of the entire legal system. This proposal is really striking at the very foundations of what is considered to be a crucial part of a good justice system, going right back to the beginning of justice systems. We would do that at our peril. We should also be concerned that certain corporate interests will be very glad if this measure goes through. Social media companies and so on will be delighted if the provision is enacted. That should give us pause for thought as to what the Government is proposing. For all those reasons, we will oppose the Bill unless this central element of it is removed.

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