Patricia Stephenson (Social Democrats)

I thank the Minister for coming in. I am also supporting Senator Ryan's amendment. I know we are not speaking about the amendments together but I have a similar amendment coming in after this. The amendments that both Senator Ryan and I tabled are effectively a fall-back position on the retention of jury trials, with some modification, as recommended by the Oireachtas joint committee on justice. If the Minister insists that the Government will not be moved on the issue of jury trial removal in its entirety, then I urge him to consider this amendment, because it is consistent with the Government's position of delivering judge-only jury trials in defamation actions, a position that I do not agree with, but I think Senator Ryan's amendment and my amendment both propose a sort of halfway house.

As the Minister will be aware, since 2022, the law on the method of trial in the North has been amended to bring it into line with the law in Scotland, England and Wales. Specifically, defamation actions are to be tried by a judge alone unless otherwise ordered. That is in the interests of justice. The court has the power to allow for jury trial when it deems it critical for the delivery of justice. This amendment therefore aims to ensure there is uniformity in the method of defamation cases across this island.

I would like to take this opportunity to touch on the Good Friday Agreement and to emphasise the incongruity that this new law will bring between the North and the South with respect to access to justice. In the North, it is open to parties in defamation cases to request jury trials in the interests of justice. If the Bill goes ahead without my amendment, in its current form, we will see a canyon of differential rights between the two jurisdictions on this island and there will be a divergence of rights afforded to litigants. The Minister will no doubt be aware of the fundamental principles of the Good Friday Agreement. One of the fundamental principles is the principle of equivalence of rights and equality protections. Equal rights for people living across the island is one of the cornerstones of the Good Friday Agreement, so I take great umbrage with the removal of juries, because it erodes the right of public participation in the justice system and relies too heavily, as Senator McDowell outlined, on judge decisions only, which I believe undermines justice.

In addition to that, this Bill erodes a fundamental piece of the Good Friday Agreement. I am deeply concerned that the Irish Government, as a co-signatory of the Good Friday Agreement, would ever consider taking a step that would see a divergence of rights on this island. We should be working towards greater equalisation. We all saw the fiasco of Brexit and what damage that did to the Good Friday Agreement and the divergence of rights. Both with regard to having an option for a jury trial and in the context of the Good Friday Agreement, I urge the Minister to consider accepting Senator Ryan's amendment or mine.

Democracy and rule of law are founded on the principle of people being at the core of administrative justice. I know the Minister has much experience in the legal profession, so I am not telling him something he does not know. The removal of juries will lead to taking rights away from the people. The justice committee unanimously agreed last term to recommend that jury trials be maintained. The Government is going against the express recommendations of the justice committee, hence the importance of this amendment. The committee heard all sides of the argument and came to the decision that jury trials should be maintained. I would love to hear why the Minister is choosing to ignore those recommendations of the Oireachtas committee. We heard from the Law Reform Commission, which also unanimously recommended the retention of jury trials.

This Bill was produced after a report following a review by the Department of justice. There were several reviews. We had a review in 1924, 1930, 1961, 2003, 2007 and 2008, and in 2022. I think that is seven reviews of defamation. We had reviews in the Department of justice and of course the Oireachtas joint committee report, which I mentioned before. All the independent reviews have said that we must keep trial by jury. The only outlier is the review by the Department. It is curious to me how the vast majority of reviews say we should keep trial by jury.

The central concept of the core of the legal system is democratic principles, specifically in the involvement of the public in the administration of justice. It is really core to our democracy. In fact, hundreds of years before we even had the right to vote, we had the right to trial by jury. That dates back to medieval times and the Magna Carta. I know the Magna Carta is a British document. We have our own version in the crypt of Christchurch. The concept of trial by jury is one of our oldest public rights in the democratic process. That we are being asked through this Bill to take the jury out of the question is, I believe, profoundly undemocratic. I cannot fathom why, beyond Senator McDowell's comments about media concerns. People are not out on the streets demanding that this right be removed from them. We have many rights enshrined in our Constitution, including the right to a good name, freedom of speech, the right to assembly, the inviolability of the home, the right to private property, bodily integrity and the liberty of the citizen. They are fundamental rights guaranteed by our Constitution. All of these rights allow for the plaintiff in the case to be entitled to trial by jury. Currently, all of these rights are therefore vindicated by trial by jury, not trial by judge.

As it stands, the public have a choice, to a trial by judge or a trial by jury. The removal of the statutory right in defamation cases means you are removing the choice from the public. If this measure is enacted without our amendments, we would create an extraordinary exception. Of all the rights, only with defamation will Irish citizens be deprived of the choice of trial by jury. I ask the Minister to comment on why we are creating such an extraordinary exception in our laws. Surely by the Government's own logic, we should then be abandoning trial by jury in all civil cases equally, for cases of false imprisonment or trespass. If the Government believes that juries can indeed be trusted in other civil cases, why can they not be trusted in defamation cases?

As well as the ousting of the public in the administration of justice in defamation cases only, there are significant other logical and factual flaws behind the decision to remove juries. That brings us to the Higgins case. Guidance to juries on damages was provided after the 2009 Act. I know the Minister will know this. This is as much for my benefit and perhaps that of other colleagues who have not been following this case. In the very first case that guidance was provided to juries, a significant amount was awarded and the defendant appealed the decision and went to the Court of Appeal. The Court of Appeal decided that the award was really outsized and took away 80% of it on appeal. This Court of Appeal ruling is the bedrock of the Government's decision to remove jury trials. It apparently provided evidence - I emphasise "apparently" - that the juries gave outsized awards. However, the law on how defamation cases assess damage was then fundamentally changed by the Supreme Court ruling on exactly the same case when it rejected the Court of Appeal ruling, restored the original award to the plaintiff and said it was correct. The publication of the Supreme Court ruling should be the actual basis of legislation in this area and this Bill does not draw from that Supreme Court ruling. It is drawing from the appeal court ruling. As I said, I know the Minister is aware of this but it is important to state it for the record.

Why did this all matter? The report recommending abolition is based on an understanding of the law as it was in 2022, including a decision of the Court of Appeal, but the Supreme Court ruling which overturned the Court of Appeal decision and returned the full award to the plaintiff came just three weeks after the report publication. By doing so, the Supreme Court ruling swept away the legal basis for this Bill, because the Supreme Court in the Higgins case totally changed the law on how damaged are assessed. What does that all mean? Under the 2009 Act, the number of successful appeals on the basis that juries give disproportionate awards is fewer than five cases out of almost 100. That tells us that the idea that juries give outsized awards is largely based on fantasy and not on fact. I know we are not debating this section yet because we are not debating the Bill in totality, but I urge the Minister to consider withdrawing the abolition of jury trials. If not, at the very least, I urge him to consider the amendments we have tabled today that offer some method of jury trial, both in the interests of the Good Friday Agreement and in the interests of democracy and accountability.