Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I thank colleagues for their contributions, to which I will respond to presently. This is the first opportunity I have had since I was appointed as Minister for Justice to speak on the Defamation (Amendment) Bill. I was not, as is apparent, Minister for Justice when the House debated Second Stage.

It is important that I, as Minister, acknowledge the difficult role the Oireachtas is trying to perform when it comes to enacting defamation legislation. We are trying to balance two competing constitutional rights. On one hand, there is the right to one’s good name, which is expressed in the Constitution and which must be given statutory effect. That is the purpose of the Defamation Acts that have existed since the foundation of the State. Separately, we must recognise and respect the right to freedom of expression which is also contained in the Constitution. That is similarly given effect not just in terms of the defamation legislation but also in other legislation. It is a difficult balancing act for any Oireachtas to try to achieve when there are two conflicting constitutional rights.

My assessment during my membership of Dáil Éireann since 2016 is that there is probably greater advocacy on behalf of the right to freedom of expression than the right to the protection of one’s good name. That is probably because the former is more organised than the protection of the latter. However, as I have emphasised previously, we need to recognise that sometimes when it comes to the protection of one’s good name, the only remedy that people have is through the defamation legislation. We in this House are all aware of situations that arose when a prominent member of An Garda Síochána had scurrilous and calumnious allegations made against him. The only remedy that person had was through the defamation laws. It is sometimes forgotten in the debate about defamation that the reason the laws are there is for the purpose, first, to ensure that a person has a statutory mechanism to vindicate the right to their good name. Second, however, there must also be similar respect for the right of journalism and the media or any publisher to publish information which is true or information which is protected not because it is true but because of the other many statutory defences that are set out in the Defamation Act.

Before I deal with the two issues that have been raised in these amendments, I will speak in general about the role of juries in civil actions. Section 4 of the Bill includes a reference to the Courts of Justice Act 1924. After independence, it was generally the case that most civil actions were to be determined by juries. As has been mentioned by Deputy Sherlock, there was recognition in 1988 that it was simply no longer plausible to have juries determining personal injury actions. It worked fine when there were three or four personal injury actions per day in the Round Hall of the Four Courts but it is no longer tenable. Many personal injury actions take place, not only in Dublin but around the country. To have juries hearing personal injury actions would require a considerable number of jurors to be available. It would also delay the determination of those cases. In practical terms, there is a difference between a civil action that has a jury and a civil action that does not. Time is spent swearing in the jury at the outset. That can take approximately two hours. Time is spent at the end of the case with closing speeches to the jury. Time is also spent on the deliberation of the jury before it reaches its verdict. All those factors convinced a former Oireachtas in 1988 that for personal injury claims, we should get rid of juries. I do not think many people would suggest that was a wrong decision.

Deputy Sherlock mentioned that the removal of juries had not resulted in a reduction in the cost of insurance premiums. However, we do not know what would have happened had juries remained in personal injury actions. I do not think it would have been feasible for juries to remain in personal injury actions for a lengthy period.

There are two issues to which I am being asked to respond. The first is the amendment in the name of Deputy Kelly, which was spoken to by Deputy Sherlock. It seeks to do something different than what is sought by other Deputies. The amendment seeks to state that juries would have a role in the determination of questions of fact that arise in the course of a defamation action but would have no role in respect of the assessment of damages. That is what is contained in the amendment tabled by the Labour Party. I will respond to that briefly. My assessment is that it would be inappropriate and would divide functions between a jury and a judge. There should be a link between who determines that a publication is defamatory and the entity that decides what should be the remedy for that through the award of damages. I oppose the amendment submitted in the name of Deputy Kelly.

Deputy Sherlock mentioned that the Higgins case provided direction for a court in respect of the assessment of damages. If a jury is not going to assess damages, which is the position of the Labour Party, the Higgins case would not be relevant to a jury. That does become an argument on the general question of the retention of juries because, although juries will be advised about the findings and dicta in the Higgins decision, they are not as bound as a High Court judge is by the determination of the case. I regret to say I will have to oppose the amendment submitted by the Labour Party.

There is a broader principle and objection put forward by the Social Democrats, the Labour Party, Sinn Féin and Deputy Connolly. The contention there is that the section itself should be opposed.

Deputies Sherlock and Connolly have effectively referred to what I said on Second Stage. I will tell the House what has changed since the Second Stage debate. In many respects, Deputy Connolly and I are in different positions. There are great advantages to being an Independent Member of Dáil Éireann. There are also disadvantages.

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