Matt Carthy (Cavan-Monaghan, Sinn Fein) | Oireachtas source

Yes, the definition of a "periodical". It is a small point but I omitted to talk about it when we were skipping through section 3 and I want to put it on the record in case we table an amendment at a later stage.

I do not know if the Minister intended them this way but I interpreted his words to mean he did not agree with this but was bound by collective government, the programme for Government and decisions previously made to pursue it. That is astonishing. Of course, a Minister can bring a recommendation to Government that, on balance, a recommendation made by a previous Minister is not only contrary to the current Minister's belief but also that being dogged in the pursuit of that particular provision prevents the Dáil collectively from moving forward with reformed defamation laws. That is very disappointing.

On a number of aspects, the Minister misses the point the Opposition made and I find that disappointing considering, as has already been said, the Minister himself made virtually the same points we are making now. He understands as well as anyone, you would imagine, what it is that we are saying.

Sometimes the public has the view that the media, including newspapers and broadcasters, cannot publish lies. That is not what the law says. Media can, and on occasion do, publish lies. The law sets a high bar for somebody to take a case that he or she was defamed. The definition of "defamation", though not a legal definition, is essentially that it is the publication of an untrue statement that reasonable members of the public would think damages one's reputation. That is very different from publishing lies.

I reflect on a very delicate time in the peace process when a number of lazy journalists figured out that a good way of writing headlines was to say senior members of my party were accused of being informers. Those were downright lies, and at a time when it put people's lives at risk. They could not actually take a case for defamation because, in the eyes of the law, there is no distinction between British agents in a time of conflict or legal authorities in this State or elsewhere. It is not considered to be demeaning to your character if you are accused of assisting state authorities. Lies were able to be published ad nauseam and Sunday newspapers were competing against one another to see who could accuse the highest profile Sinn Féin representative or republican of being an informer, and they could get away with it.

That is moving off point a little bit but it is not being flippant about it. It is to say that media have a big responsibility and they are not always held legally accountable. I have seen articles written that were untrue but to prove they were defamatory would be difficult. That gets to the crux of why this is different from other civil cases the Minister has spoken about. Nobody can make an adjudication as to whether in the eyes of reasonable people somebody has been defamed better than a jury of one's peers. Judges have a very important role and do a very important job but they are removed from lived realties. Due to the circumstances in which they operate and the incomes they have, they cannot be described as reflective of society as a whole. That is with no disrespect to our esteemed Judiciary. The principle of juries was established in the first place throughout the common law system. In that system today, the role of juries in many civil matters has been diminished or, in some cases, virtually abolished. However, if we are to move as the Government proposes in this area, we will be a complete outlier in respect of defamation cases and juries.

I am trying to break down the Minister's arguments against the amendment to delete this section. The first issue he mentioned was delays. Of course we want to reduce delays. Appointing and swearing in a jury takes time. There have to be opening statements and the jury then has to deliberate. However, it is disingenuous in the extreme, and I think the Minister knows it, to suggest juries are the reason for the delays in our Courts Service. I do not believe they are at all, to be quite frank. If we were to take it to the nth degree that every component of court cases that causes a delay should be taken apart, then let us just get rid of trials altogether and arbitrarily make decisions. Presenting a defence causes a delay in the Courts Service but nobody argues we should get rid of that provision in order to speed things up.

The Minister also said he had a problem with the concept of a jury making a deliberation as to whether defamation had occurred and then a judge separately making a determination in our courts, but that is precisely what happens in the criminal justice system.

Juries make a finding in relation to the guilt or innocence of an accused and then judges impose a sentence based on the sentencing guidelines. It is not something I am wedded to at this point regarding whether there would be a distinction. However, it would be a good compromise to suggest there are juries and then there is the issue of costs, given the difficulty people within the legal profession might have in terms of advising clients as to the likely outcome. This would address that difficulty.

I am not sure if there is another argument for abolishing juries other than delays and costs. I do not understand why the Government would be so determined to move in such a way. I am looking through the document that was produced by Oireachtas Library and Research Service, which I commend because it is a very good document that goes through all aspects of the pre-legislative scrutiny. I am not sure if there is a legal expert or practitioner in the legal services who supports this provision at all. Certainly, the Bar Council and the Law Library seem to have particularly strong views, and I have noted the comments of former members of the Judiciary who are very vocal. We know that during the pre-legislative scrutiny, as was said by a number of other Deputies, there was unanimous support for juries.

This Bill was a long time in the making. Clearly, it was not something on which there was immediate agreement from the Government because previous Governments had ignored it for so long. To come to a point where there was unanimity within the Oireachtas justice committee on an issue as profound as this, including from members of the Government and the Opposition, seems a fairly big statement. To revert to Minister’s original statement, he said he was bound by the programme for Government, collective government and the agreements of his predecessors. In that case, I am sure most people would have to ask what the point of this House and of having debates is. What is the point of having Committee Stage if not only is it the case that the Minister is not going to be convinced, but even if the Minister is convinced, he tells the House he will not do anything about it because his hands are tied behind his back?

I ask the Minister to reflect very strongly on this. I genuinely believe he thinks this is daft. I think it is daft. I also happen to think it is potentially dangerous to remove the voice of juries in significant defamation cases where it is, ultimately, a jury of peers who should be making the decision as to whether the very high threshold of defamation has actually been met. I want to make that case as formally as possible.

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