Brian Lenihan Jnr (Dublin West, Fianna Fail)

With the leave of the Leas-Chathaoirleach, I will return to section 1 with Senator O'Toole who asked a question about the commencement of the legislation. I appreciate we have moved on two sections but I am delighted to deal with the issue. This Bill could be enacted without a commencement provision. It could enter into force seven days after the signature of the President. I am open to an amendment deleting the commencement section, although with measures of law such as this which affect civil rights and liabilities in a reforming and changing way, it is generally desirable for the Minister to fix the first day of a certain month as the date upon which the measure will commence, if only for the sake of the legal profession which must have recourse to the dates to find out when legislation comes into operation. There is no intention to delay the enactment of the legislation.

While I agree with Senator O'Toole in the context of this Bill, having been the Minister charged with the implementation of the Education (Welfare) Act in the previous Administration, I would have reservations about that approach and whether it is necessarily a good idea always to have a cut-off point for the commencement of legislation. We can have that debate on another occasion. Suffice it to say that on this Bill that is my attitude to commencement.

On the point of substance raised by Senators about the retrospective nature of the provisions of the Bill, it is quite clear that what section 3 means is that the Act only applies to a cause of action which accrues after it comes into operation. It also proposes that the Act shall not affect the operation of the general law in force immediately before the commencement of the Act. Senator Regan inquired whether the form of words used went beyond that in some sense. I am advised it does not. It is the Parliamentary Counsel's rather complicated way of saying this new cause of action reflected in this legislation does not affect the operation of the general law in force immediately before the commencement of the Act.

The crucial provision in section 3 is the reference to "accruing". The accrual of this cause of action takes place on the publication of the material. It is publication which sets the timeline going in the tort of libel and slander at present and in the tort of defamation after the enactment of this legislation. If the libel or slander is written or uttered before the commencement date of this legislation, it is governed by the general law in force up to the commencement of the legislation. If the defamation is published after the commencement of the legislation, then it will be governed by what we may enact here.