Catherine Connolly (Galway West, Independent) | Oireachtas source

I appreciate the time to speak on this Bill. I wish I had more time. The Dáil is just back in session and this is very serious legislation, as is the next Bill we will consider, the Mental Health Bill 2024. The Defamation (Amendment) Bill involves a lot of reading. I have a lot of people to thank for their help. Once again, under pressure, the library and research service has produced a Bill digest. I thank the justice committee for its work. In particular, I thank Deputy Pringle for organising a presentation in the audiovisual room with eminent people who, with nothing to gain, put information before us.

I will start on a positive note because I certainly will be going on to a negative note in regard to the proposal to abolish juries in the High Court. The rationale behind that proposal and the arguments for it that I have read are absolutely contemptuous of the ordinary person. There is a complete failure to recognise the importance of the citizen or resident of Ireland taking part in court proceedings, whether as a concerned environmentalist, for example, in making submissions on planning applications that end up in court and certainly in regard to protecting one's good name. The proposal to abolish the jury, on spurious grounds for which there is no evidence, is particularly worrying. I will go through some of the points as best I can.

On the positive side, I welcome the introduction in the Bill of special provisions regarding SLAPPs, which is very important. Sections 9 and 10, as the Minister of State outlined, relate to the offer of amends. Of particular note is the requirement to place the apology in a place of prominence, a requirement which applies equally to the publication of the judgment. There are many other good provisions in the Bill that I welcome. However, I will absolutely find myself in a position of having to vote against it on the basis of the abolition of juries, which, as has been noted, is based on corporate interests and is a proposal without evidence. Science Foundation Ireland has hauled us into the audiovisual room on many occasions to tell us about the importance of evidence-based policy decisions. That goes by the board on many occasions in this House because we follow a particular pressure group. We did so in 1988 when we abolished juries in personal injuries cases. Awards did not come down as a result and nor did the cost of insurance. Now, we are proposing to abolish juries in the High Court where a plaintiff has brought an action to protect his or her good name.

The Bill digest outlines many aspects clearly. On page 28, it states:

In his opening statement to the Joint Committee during PLS [pre-legislative scrutiny] of the Bill, The Hon. Mr Bernard Barton, a retired High Court judge who presided over defamation actions warned that: "The proposal to abolish the legal right to trial by jury in High Court Defamation actions represents a far reaching and fundamental alteration in the law which, if enacted, carries with it serious consequences not only for the legal rights of any citizen or corporation bringing defamation proceedings to recover damages for injury to his, her or its good name but also for the administration of justice. The primary consequences of the proposal are inherently undemocratic."

Another legal academic who was with us today in the audiovisual room said that the Department's chosen path would render this jurisdiction an outlier in the common-law world in removing juries in their entirety from defamation actions.

I will come back to the judge in a minute but I will first go through the other submissions and their authors' views on the removal of juries. We are talking about the Defamation Act 2009, which is about to be amended and changed, and that set out the definition of a defamatory statement. It is a statement which "tends to injure a person's reputation in the eyes of ... [right-thinking] members of society". Equally interesting, important and significant is that the presumption of damage recognises the difficulty or impossibility of proving the effect on one's reputation in society or a community of a defamatory statement. We have various submissions. I will go to that of the Bar of Ireland and the Law Library. They tell us on pages 2 and 3 of their submission, again significantly:

Inevitably where reform of defamation law is contemplated, the media will prominently contribute (and rightly so) in the context of making proposals for reform. However, one important practical point that is often lost sight of is that the majority of defamation claims are made in proceedings which do not involve any media ... [outlet].

[...]

The most significant proposal ... is ... to abolish juries in civil actions. This proposal runs contrary to the longstanding jurisprudence regarding the importance and value of members of the public being called upon to determine issues with regard to damage to reputation and ... [the freedom of] speech.

The Law Society of Ireland states: "We disagree with this proposal [to abolish juries in the High Court] and maintain that juries should be retained in defamation actions." That is in a very succinct and relevant submission.

As regards the cross-party Committee on Justice, there is a great absence of its members here to speak to such an important issue. I never like to personalise matters but the committee is extremely important. It is a cross-party committee, as the Minister of State well knows, to scrutinise legislation before we pass it in the Dáil. I do not have the privilege of being on the committee. I go back to its recommendations. It made 18 recommendations. The first states, "The Committee recommends that the proposal under Head 3 [of the heads of the Bill at the time, which the Government has put into the Bill] to abolish juries in High Court defamation actions should be removed." It makes 17 other recommendations, which by and large have been ignored. It welcomes various aspects as well. This has been absolutely ignored. One would wonder why we have cross-party committees to tease things out, and I wonder where the members of the committee are. I think Deputy Jim O'Callaghan is on the committee - correct me if I am wrong. He was here today and made some very interesting points. I gather from what he said, although it is sometimes difficult to make out what Government people are saying, that he thought the proposal to abolish juries was not acceptable. Again, I am subject to correction, but that is what I heard him say. I wonder then, since he is a member of Fianna Fáil and a possible future leader, what influence his opinion has on the Fianna Fáil Party. Will Fianna Fáil Members vote for this to abolish juries in the High Court, even though their spokesperson on justice says this is wrong?

We talk about disinformation and the importance of communication. All of this is a narrative based on nothing but saving costs, contemptuous of the ordinary person on a jury because it is believed he or she cannot cope with big sums. It seems to me that the Government is a particularly good example of being unable to deal with big sums in the context of the big sum we are to get from Apple. The Government does not know what to do with that money. It has no idea what to do with money of that size. Yet we have a narrative that the ordinary person is not able to do that. I would think that the ordinary person is best placed to decide if a person's reputation has been reduced in the eyes of the community.

It is worth going into the submission the former judge Bernard Barton made. The reason I do so is that there was an expert report that the Government is now acting on to abolish juries, and that expert report is the first report, among all the various reports and committees up to now, that actually recommended the abolition of juries. It never happened before. It is a fundamental and catastrophic change without any basis. I repeat before I go into this submission my experience since 1999, when I was elected as a local councillor. I apologise for making any reference to that because one gets bored. I even get bored myself. The reason I mention it, however, is that I watched the systematic undermining of public participation in every aspect, at local authority and courts level. I have had 25 years of seeing that, everything from the removal of power as regards waste management plans to the removal of powers as regards water, with nothing left, really, for local authorities or their members except a development plan and a budget that is carefully choreographed. We reduce the public's participation in the planning process all based on absolute nonsense that people are objecting. My experience is that people make huge effort to make submissions because they are concerned. Any system - a planning system, a judicial system - should be robust enough to deal with such submissions, which are not objections. It takes a great effort for people to do that. What did we do? We abolished the two-part system such that if you did not make a submission at local level, you could not appeal to An Bord Pleanála. We have put every single obstacle in the way of public participation, although the courts have repeatedly highlighted the importance of the trinity in planning law: the courts, the developer and the ordinary person. Normally, a trinity is sacrosanct, but no, we keep demonising the ordinary person and going with a narrative from the expert group that the Government has gone with.

As regards that expert group, it did not take account at all of the Supreme Court decision, which I understood came after the publication. I am not sure because I have not had a chance to check. Depending on where I read it, the Supreme Court judgment came very shortly after the publication of the report. Whether it came shortly after it or later, I thought there would have been an onus on that committee to look again at that. That is what the process of consultation is about, is it not, to look again at the recommendation to abolish juries based on the idea that juries are reckless, volatile, unpredictable and costly and delay matters? The Supreme Court, which I am sure the Minister of State is very familiar with, probably more so than myself, set out in Higgins v. Irish Aviation Authority, which ran for a few years, guidelines and parameters which had to be henceforth applied to a jury in a defamation action. Therefore, the very mischief that this Bill sets out to achieve has already been sorted out.

On top of that, the former judge and other members who made a presentation today said to us that the special review group based its decision, or a lot of its findings, on a number of cases that had nothing to do with the 2009 Act. They were actually dealing with the Act prior to that, that is, the Act of 1961, 1962 or whenever it was, and did not take cognisance of the Supreme Court. I agree with the judge that it represents a radical departure from a long-settled public policy that lies behind the legal right of the citizen to trial by jury, namely, that fact-finding in serious criminal and civil cases, and one's good name being taken away, is a serious matter. All we have as politicians is our good name, and that is rapidly being eroded. That is all other people have as well - a good name.

That judge went on to outline that as far back as the Magna Carta of 1215, when citizens had very few rights, they still saw the importance of putting in individual rights and a trial by jury. The reason for that is because it became associated as a bulwark against the arbitrary misuse of authority, the exercise of which ultimately led to the inclusion of the right to jury trial in the Magna Carta as far back as 1215. I am reliably informed we had a Magna Carta in Ireland after that. I am going to quote from the judge's submission, which is unusual for me. The 18th century jurist, William Blackstone, defended and justified the concept of jury trial in civil matters as the best preservative of English liberty for it had the distinct advantage of protecting the citizen against the judicial caprice.

There is a lot of variation in judges, as there are in barristers and politicians. It is ironic that it is the judges, barristers and solicitors who are appealing to us to not abolish the juries. This must be looked at again. Another look should also be had at putting a Bill before the Dáil where there are important amendments to come in the future, which we will have barely a chance to look at. I also ask the Government to look at what the Irish Council for Civil Liberties has said, that is, to not abolish the juries. It has made other important points, one of which in particular concerns civil legal aid. There was no action on that whatsoever.

I wish I could support this Bill. There are a lot of good things in it that need to pass but, once again, something has been put in the Bill I cannot possibly support. The rational, reasonable and, if I may say so, intelligent submissions from the various groups were ignored. The decision to abolish juries has been based on an internal review which was selective in the cases it chose. The cases were either before the 2009 Act or cases after it but which came under the De Rossa judgment, which is the same year as I went in politics. It sets out a particular guiding principle that was finally undone by the Supreme Court in the Higgins case. None of that is reflected in the review on which these actions are based.

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