Brian Lenihan Jnr (Dublin West, Fianna Fail)

If Senator Norris tables an amendment on the question of what a defendant should plead, naturally I will examine it. However, this Bill already requires that a defendant must swear a verifying affidavit on the defence filed and the defence will have to be verified on oath. This is a substantial change in the existing law.

On the point made by Senator O'Donovan, section 14(1) is a restatement of the existing law and section 14(2) is a restatement of an existing statutory provision. There is no new law in section 14; there is no change of substance but there is a change of wording. The defence of justification, as Senator O'Donovan rightly said, is being renamed the defence of truth but they have been the same in substance for more than 100 years.

The Law Reform Commission pointed out that originally the word "justification" was used to describe all the defences available in a defamation action. The defences of qualified privilege and fair comment were then developed and the term "justification" was restricted to the plea of truth. Subsection 14(1) will make the substance of the law the form of the law in providing that the defence is a defence of truth. With regard to Senator O'Donovan's point, I am not sure if it makes any difference on the substance of the law but it does mean the law is clearer and more intelligible. For that reason it is desirable to have the expression of truth there as this is at the heart of our defamation system. We put truth at a premium and those who utter falsehoods pay for them.