Feargal Quinn (Independent)

I welcome the Minister to the House. He is a regular attendee. It is difficult to follow Senator Ormonde who speaks with such passion. I agree entirely with her, especially on the coverage of the death of Liam Lawlor, for which I have not seen the apology that was due, and also in regard to yesterday's coverage. I will not speak with the strength of feeling that Senator Ormonde has. On a previous occasion I mentioned to the Minister how I had been libelled in the Irish News. Some 30 years ago if not more I tried to fly across the Irish Sea in a balloon for publicity purposes. While I got publicity in the Irish News, it referred to me as "the former IRA man Feargal Quinn". I was rather upset and contacted the editor who promised to correct it immediately. I got even more upset at the correction, which went to the pain of stating that it had confused me with my uncle and that I had nothing to do with the IRA. It went on to state that I was so opposed to republicanism and Nationalism that I was almost a right-wing Tory. I almost needed to get a correction to that piece as well. However, at least it was corrected.

I welcome with a certain sense of awe the arrival of the Bill before the House. Many of us doubted it would ever see the light of day given that this subject is a case of the irresistible force meeting the immovable object. For many years it has been obvious that our defamation law was inadequate and against the national interest. However, it seemed that in this area our political process was incapable of responding to a national need to have it changed. Now the logjam has at last been broken, which alone is a cause for celebration.

It is also worth celebrating that the Bill has arrived in this House alone and not accompanied by its much less desirable twin brother, the Privacy Bill 2006, which was mentioned earlier. I take this as a sign that the original idea to tie the two measures together has been abandoned and if this is true, which I hope is the case, I applaud it as a wise course to take. The Privacy Bill was spawned by the same political difficulty that kept us from considering new defamation legislation for all these years. It is hard to disagree with the conclusion of many critics of that Bill that it would be in many respects a step backward rather than a step forward.

From one point of view, the Bill before us represents a gauntlet thrown down before the media interests. This is because the success or otherwise of this legislation will depend very much on whether the Minister's proposed new press council and press ombudsman work in practice as they approach the difficult task of regulating or at least monitoring the media. It is largely up to the media to ensure that this new system works to the benefit of all concerned. I take Senator Ormonde's point that the front page of yesterday's newspaper, which I refuse to mention, was like throwing down a gauntlet to us.

The structure of the press council, which is recognised by the State while being independent of it and also independent from the vested interests concerned, is the right one for the job. This form of structure, if it proves itself successful in this case, might offer us a model which could be followed in other areas in future. Anything that cuts down the number of appointments in the gift of the Government of the day is positive.

This Defamation Bill is clearly a great improvement on what we have had up to now and I hope it will prove to be so in actual day-to-day operation. However, the Bill does not go far enough in changing one aspect of our defamation law, which is a matter for regret. The amount of damages to be awarded in a defamation case will still be decided by a jury. I am a great supporter of the jury system. In general it works very well for us and has done for many generations. However, where the jury system works at its best is where the jury is charged with deciding on the facts of a case. While a judge may direct a jury on the law it must follow, the jury's view on the truth or otherwise of the underlying facts is rightly held to be sacrosanct. It is the jury's decision whether the facts are correct. It brings a down-to-earth element into a legal system which otherwise might not be guaranteed always to follow the dictates of common sense.

However, in our criminal law, we rightly restrict the power of the jury to deciding on the facts. If, God forbid, I lost the run of myself and decided to assassinate the Minister today, a jury would decide on whether I was guilty of that deed. Having done so, that would be the end of its function. It would not be up to the jury to decide what punishment I should suffer or whether I should be punished at all. We rightly believe that when it comes to sentencing, the jury has no role. That is where judges come into the picture.

However, in civil matters the role of the jury is wider, which is a mistake. To take the present instance, in a defamation case the jury is expected not only to decide whether a particular statement was defamatory, but also it is expected to decide how much the offended party should get by way of damages. We have spent some time discussing this matter in the recent past and again today. This requires the jury to range beyond the area of facts, where we rightly put a special premium on the common sense of ordinary citizens, and into a much more vague and murky area where the benefit of juries is less obvious.

It is commonplace that people are always much more generous with other people's money than they would be with their own. Even today someone suggested that a wealthy person could well afford it. It is a widespread feeling among the public that the larger an organisation and the more impersonal it appears, the better it is equipped to pay large sums of money without apparent detriment to anybody. For instance, people are very relaxed about the notion of insurance companies paying out very large sums while forgetting that they, as policy holders, eventually pay for it. We have seen a great case being made recently in this regard, which has been very much influenced by the work of Senator O'Toole. This is a major issue in the area of defamation, and it is a grave mistake to leave any such role for the jury in our reformed law.

The change envisaged in this Bill is that the judge is to have a role in directing the jury as to the amount of damages and that the amount awarded can be appealed to the Supreme Court, which indicates that the Minister is taking this matter into account to some extent. However, there is no indication how this will work in practice. Is the judge to direct the jury on the exact amount to be awarded? If so, it is a sham to involve the jury at all. Will the judge offer a range of figures to the jury within which it must operate, or a maximum figure it must not exceed? If that is to be the way, there is little point in bringing the jury into the matter again after it has done the major job we expect of it — deciding on the facts.

There is also the issue of how exactly the judge is to arrive at his or her direction, in whatever form it takes. Assessing in monetary terms the impact of a defamatory statement is highly subjective, much more so, for instance, than assessing compensation for a physical injury. There is no particular reason to believe that a judge's legal training makes him or her more skilled in making such an assessment than a lay person. A further question arises of different judges having perhaps widely different views on the appropriate amount of damages. The Bill should specify an official system of damages, a tariff that would set out the broad parameters of damages that can be awarded in particular cases. While I realise it will not be as easy to draw up such a tariff as it is in the case of physical injuries, it is surely not beyond the wit of man to do so. In any case, such an approach is infinitely better than relying on the different intuitions of a range of judges. The amounts set out in the tariff could be adjusted from time to time by ministerial order to take into account changing circumstances over time.

I welcome the Bill and the input of the Minister and his officials, particularly after such a long wait. However, I do so with reservations so long as this flaw remains in our approach to defamation.