Catherine Connolly (Galway West, Independent)

I also commend the Minister for his honesty and openness but that raises all the more questions. He is a member of a party and he has the views that he formed, based on his research and experience, that this was a bad decision, but he is now asked to leave that aside and go with what the party is telling him. That is extremely worrying, not just for this debate but for many other debates and issues, in particular regarding war, neutrality and Gaza.

Let me stick with the issue of costs because that is the one thing the Minister raised when he said the cost would be higher if we kept the juries, which are costly, lose time and so on. The Minister said: “If we abolished juries, I can guarantee the House that we will develop a whole body of jurisprudence that will result in cases being repeatedly appealed to the Court of Appeal and probably the Supreme Court.” Is that not extremely costly? Where are the costs being saved there?

I understand that every single expert who came before the justice committee said not to abolish the jurors. Different people might have made different arguments to let the juries decide on issues of fact and let the judge decide on the money, or to let the juries decide on issues of fact plus a recommendation that the judge would not have to follow that, and so on. How can we stand here as elected Members? We should look at that committee. I know Ministers will stand up and say they do not have to follow committees but it is significant that this is cross-party. There is no dissenting judgment. There is nobody saying that we should abolish the juries.

I will go back and pick up on several points. I have left the law, and defamation was not my area, so I do not speak in any legal capacity but as an elected representative who has the greatest respect for democracy. The more time I spend in the Dáil, the more respect I have for the Judiciary and the independent law profession. I was extremely critical in my time, I can tell you. There are many problems with people being excluded from the Courts Service and legal aid, on which we are awaiting a review. There are many problems with the courts and access to the courts. However, the longer I spend here, the more respect I have for the independent Bar and the solicitors, who do tremendous work, as do the judges.

That is particularly the case having spent this time and having read the reports of the Grace case, which we will get time to look at tomorrow. I see institution after institution defending itself over and over again in the many reports. We will be going into this with little time tomorrow but there have been reports such as the Dignam report and the Devine report. I mention this because at every stage, it was an acute example of the institution defending itself. That is why we need an independent Courts Service and we need the role of the juries. I see the Minister nodding and I know he agrees with this. If he is not nodding, I do not mind, but he certainly seems to be.

Let us look at what the retired judge said in this regard. This decision to change the defamation law was necessary but the decision to abolish the juries came from a report done by the Department of Justice. That Department of Justice report completely ignored the Higgins judgment, which came afterwards, but those in the Department did not go back to look at that judgment even though it came within a month of the report being published. They never had the sense to say that the problems they were looking at - the volatility of the juries and their unpredictability - had now been captured by the Supreme Court judgment, which laid down guidelines and principles. They did not go back to look at that.

The former judge also points out that the Department of Justice report looked at case law that had nothing to do with the 2009 Act but went back further to legislation from the 1960s.

While I have the time I will read from this article:

... the decision of the Supreme Court in Higgins v Irish Aviation Authority, [was] delivered one month after the publication of the report.

The judgment of the court in Higginsmarks a historic watershed in defamation law, the implications of which are directly relevant to the grounds advanced in support of [the] abolition [of juries].

The [Supreme] court not only reversed the previous practice whereby it was not permissible to give guidance to a jury on damages by reference to monetary values or previous awards ... [and so on] but has also set out categories and ranges of damages to be applied in future cases for defamation ...

The express purpose of the guidance is to ensure an award of damages that will be proportionate [This is the very thing the Minister is accusing juries of not being capable of. A former judge is outlining that the guidelines from the Supreme Court said that the guidance will ensure the award will be proportionate] to the wrong/injury suffered in the circumstances of the particular case, the first objective for which abolition is advanced as necessary ... has already [been] addressed.

The Department of Justice did not see the need to go back after the Supreme Court judgment came out. The judge goes on to state, "It is particularly significant in the context of this debate that, in reaching its decision, the Supreme Court unanimously overturned the judgment of the Court of Appeal ...", and that it was the Court of Appeal decision that the Department of Justice report looked at. It did not come back to look at the Supreme Court unanimously overturning it. He goes on to deal with the legal process and the reduction in the duration of hearings and so on, which is the other argument being advanced:

Insofar as there were delays in having jury trials in defamation cases heard, this had nothing whatsoever to do with the fact that the cases were jury actions, but rather was totally due to the lack of resources and failure to appoint a sufficient number of judges to deal with the enormous increase in court business, particularly over the last two decades.

This former judge goes on to point out that judges were appointed. He acknowledges that, but he is undermining the arguments of the Department of Justice and the Government. He further states:

With regard to the claim that the length of the litigation process [and this goes directly to the Minister] and legal costs will be reduced by abolition of jury trial, it should not be overlooked that one of the longest defamation trials in recent times was a case tried by judge alone: the trial lasted 29 days.

It is in the nature of defamation law that, in serious cases, trial duration can be protracted ... [rather] than because ... [it is] a jury [trial].

I will probably not be speaking on this again. That is why I am taking the time that I have to look at this. The grounds advanced, including cost, the volatility of juries and the lack of proportionality are groundless. They are without basis. We have a Government that is now abolishing juries on the basis of pressure. I disagree with the Minister regarding 1988 when we abolished juries in other matters. I do not agree that the same absolute pressure was brought to bear then to get rid of juries without an analysis of what improvements would follow. It is pointed out in this very succinct document that "Ireland would become an outlier among other common-law countries, where there is either an entitlement, as of right, to jury trial in defamation cases or where such trial may be ordered by a court on application, in the interests of justice."

The Minister outlined that this is the last staging post, that we do not need juries any more, and if we do not need them in other cases why would we need them in defamation cases. The former judge has also addressed that. I keep referring to that. All of his arguments have been agreed by the other entities and organisations on the ground. I am simply choosing his words because they are clear and succinct. He states:

It is repeatedly claimed by those advocating abolition that the retention of the right to trial by jury in defamation cases represents an illogical anachronism that should be swept away in circumstances [as the Minister outlined] where the right to trial by jury has already been abolished for most, if not all, other civil wrongs ... [this] claim ... is as factually incorrect as it is legally wrong.

The fundamental rights of the citizen particular to the individual guaranteed by the Constitution – specifically, the rights to liberty ... [the right] of expression, good name, bodily integrity, an ownership of property, including the inviolability of the home – are among a ... [range] of other civil rights recognised by law that may be vindicated through trial by jury.

These are all of the arguments that have been outlined to us. Having read them all, having looked at the cross-party recommendations and having listened to the Irish Council for Civil Liberties, I cannot vote for a Bill that abolishes juries based solely on pressure, without evidence, when the evidence is quite to the contrary, at a time when we need language to mean something.

See this speech in context