Brian Lenihan Jnr (Dublin West, Fianna Fail)

Members of local authorities enjoy qualified privilege and that is dealt with in the next section. A qualified privilege is a privilege to make an utterance or publish a statement in circumstances where the privilege can only be destroyed in the event of malice being established. That is the current position in regard to local authorities.

Senators should recall that absolute privilege is a drastic device. It means that all statements are immune from any actionability. When Senator Norris raised the question of the courts system I made the point that one of the reasons the courts must enjoy absolute privilege is not just because of the position of the Judiciary in the Constitution but because of the need to prevent litigation spawning further defamation actions. That is the fundamental reason we attach a privilege, for example, to the utterance of a witness in a court proceeding because as Senator O'Toole pointed out, the utterance of a witness in a court proceeding can often be reported and can often be defamatory but the State must attach absolute privilege to that statement because we cannot spawn another defamation action arising out of the facts in dispute in the court case. That is the fundamental justification for absolute privilege in court proceedings.

The absolute privilege the Houses of the Oireachtas enjoy stems from the Constitution. Senator O'Toole raised the issue of whether in the case of that absolute privilege, we should legislate for it and whether the legislation is superfluous. I agree with him that matter should be reviewed, and I will have it reviewed, and if there is any element of surplusage in the legislation which is additional to the Constitution and unnecessary, it should not be in the legislation. However, I do not agree with the Senator that it is a mistake to provide an exhaustive list. It is important, given the absolute character of this privilege, that we do an exhaustive list now. The constitutional references have crept in because there was an exercise to establish a comprehensive list of occasions of absolute privilege.

That leads me to the points of substance raised by Senators Alex White and Regan about the occasions that should qualify and whether there is a case for an extension. The Law Reform Commission examined the question of quasi-judicial bodies and came to the conclusion, reflected in the legislation, that absolute privilege does attach to a statement made in the course of proceedings involving the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution where this statement is connected with those proceedings and also, in subsection (f), made by a judge or other person performing a judicial function. Therefore, a person performing a judicial function or a person exercising limited functions and powers of a judicial nature enjoys absolute privilege under these provisions.

The Law Reform Commission pointed out that defining a quasi-judicial function can be a difficult exercise in draftsmanship and it is impossible to provide an exhaustive list of quasi-judicial bodies. For that reason it included the reference to Article 37 in its recommendation because at least it provides a definition that has a foundation in existing case law. We can say with clarity, therefore, that a range of bodies will be covered by virtue of the reference to Article 37. The more general reference in the section to any person performing a judicial function would cover a wide range of bodies. It would certainly cover, for example, a county registrar exercising limited civil functions.

Regarding bodies on the employment law side, I would envisage, for example, that the Employment Equality Tribunal is a body exercising judicial functions and hearing and determining evidence and therefore statements made there would attract an absolute privilege.

On the other hand — Senator White will probably be better than me on this — the Labour Court as an institution is not necessarily judicial or quasi-judicial in its functions. It is not hearing evidence and making a determination on evidence.