David Norris (Independent)

I am through the Chair. He is through his tumbler.

The representatives of the Minister, representing his point of view at that time in Strasbourg on behalf of the people of Ireland, ranged far wider than the narrow confines he suggested and mounted a very comprehensive address covering the principles underlying the whole situation pretty comprehensively. They certainly did not say we were just exploiting the margins of appreciation. They did not make the case that we only wanted to legislate in whatever way we like it. That was not the case that was made. They addressed the Tolstoy Miloslavsky v UK case and on the Minister's behalf the following was what was said by our representatives in Strasbourg:

The Government objected to the applicants' overall approach. A balance had to be struck between protecting expression and reputations so that, once there was a finding of defamation, the weight of Convention support shifted to the protection of reputation. This latter right, guaranteed by Article 8, had been infringed to a devastating extent in the present case. The only remaining Article 10 issue was to ensure that the damages' award was proportionate to the harm done to that reputation, bearing in mind any chilling effect on further similar publications. The applicants' approach, on the other hand, reduced the Convention issues and the Tolstoy Miloslavsky judgment to simplistic mathematical formulae as if the only right at issue was freedom of expression without regard for the underlying values and contextual complexities of the matter including the power of the media, the devastating effects of defamatory allegations on reputations, the consequent destruction of the "human potential" which Article 10 supports and the respective roles of the domestic and European courts.

The Government considered "indirect and remote" any possibility of a chilling effect on political commentary by the press by the present or other damages awards.

This is what the press barons are saying. They are saying that if we do not have this change, against which the Minister defended us in Strasbourg, it will have a chilling effect and will kill off investigative journalism. The Government representatives did not restrict themselves to saying we reserve the right to legislate any way we want. They actively denied the possibility that retaining the situation as we have it would have the chilling effect about which we have heard editors bleating in every newspaper. It is pathetic to see Irish politicians so craven in their attitude towards the press barons. They continued, "No such causal link had been demonstrated in the present case and, in any event, awards in libel cases were inherently and unavoidably uncertain."

Finally there was a general argument. The Government was not arguing that it had the right to do whatever the blazes it wanted in its own back yard. It argued in defence of law and against the kind of change the Minister is introducing. They said, "The Government argued that the domestic safeguards against disproportionate awards were adequate." I do not fool myself on that. That is what the Government's representatives said. Less than two years ago the safeguards were adequate and now suddenly they are grotesquely inadequate. I agree the Supreme Court can be wrong. Does the Minister not appreciate that? It is not infallible. It would be blasphemous to suggest it were. Of course it can make a mistake. It is a poor day for democracy when the Supreme Court, which I greatly value and respect, sets out not only to second-guess a jury but also to third-guess it.

The Minister has put something very interesting on the record. A jury of 12 people found that this was a libel and they awarded considerable damages, quite deliberately and quite specifically, having heard all the evidence. They decided to teach the newspapers a lesson, and about bloody time in my opinion. The Supreme Court in its wisdom considered this was excessive and referred it to a new jury which was then empanelled. The new jury not only agreed with the first but decided the offence was so grave, it would double the damages. Then the Supreme Court second-guessed why and the Minister said it was because it could not possibly admit it was wrong.

Has the Minister any recollection of the late Lord Denning? The late lord would have sympathised with this view. It is an appalling vista. The Supreme Court cannot accept that it could ever be wrong because that is too appalling a vista even though two juries made this clear decision. What happens if the third does the same? Let us suppose it trebles it and it goes on like Alice in Wonderland where every time she takes a bite of the mushroom, she swells? What will we do? Will we undermine democracy totally?