I do not have the cluster of amendments in front of me but we are speaking about taking away the right to jury trials. I wished the Minister the very best in his new career but I cannot but go back and read out his speech. I do not know how he is going to get around that, other than by the fact that he now has power or, as has been alluded to already, has been captured by the Department. I do not wish to embarrass him. In fact, I respect him. I may have been in the Chair on the day on which he made the speech in question. He agreed with us in opposition and shared our concerns. I presume he still shares our concerns because nothing has changed except that the Government is now intent on ramming this through. The Minister is in a difficult position and that is where moral courage and leadership comes in. In a world where we really need it, this is the time to shine, to show moral fibre and stand up. I say that with the greatest of respect. I would not like to be in the position the Minister is in now and having to eat my words. I do not think he should eat his words. He should be proud of them. Let us see what he said. It was very succinct and clear. He stated: I wish to consider the abolition of juries. I share many of the concerns being expressed by other Deputies. The decision to abolish juries in the High Court would be short-sighted. Presumably it is still short-sighted. He went on: The reason for it is that there is a belief among media defendants, in particular, who are subject to defamation claims that if they get rid of juries, awards will go down and defamation cases will not go on for as long. My assessment is that is not correct. Presumably, that is still his assessment. The Minister addressed Deputy Howlin and then went on to state: If we abolished juries, I can guarantee the House that we will develop a whole body of jurisprudence that will result in cases being repeatedly appealed to the Court of Appeal and probably the Supreme Court. It is seldom the case that people appeal awards or decisions of juries because they know the appellate courts will be very respectful [and rightly so] of any decision reached by a jury. Obviously, if a jury gives an excessive award, as happened a long time ago, that will be dealt with by the appeal court, but, as has been indicated by others in this House, the Higgins case clearly set out guidelines ... I do not wish to labour the point. It is there in black and white. I appeal to the Minister to show moral courage. What is happening here is nothing less than bowing to vested interests. I attended an event in the audiovisual room lately. It was packed. I say this at the risk of losing votes, but that is immaterial to me. The only time that I ever see the audiovisual room packed is when the media turn up. I have the greatest respect for the media up to a point. On two occasions that I have been in the audiovisual room recently, we have been hanging from the rafters waiting for our little line from the media. The media appealed to our good nature and argued that we must respect them. Obviously, the media is absolutely vital in a democracy. We need the media and we need it to do a good job. On both occasions that I was there they went on to talk about abolishing juries and on both occasions they produced nothing except rhetoric and repetition. Indeed, I took the opportunity to point out to those present that they were simply using rhetoric, repetition and God knows what words without substance to describe the benefits of abolishing juries. Now the Minister finds himself in the position of supporting that empty rhetoric even though he was totally against it. The Irish Council for Civil Liberties is telling us absolutely not to do this, as are other organisations. I am not inclined to pick out one over another, I am always impressed with the Irish Council for Civil Liberties and all the other groups, but I do wish to quote a former judge. The Minister might have used this line when he made the speech to which I refer, but I am not 100% sure. Mr. Justice Bernard Barton, now retired, went to a lot of trouble. He is former head of the civil juries division of the High Court. He, along with senior counsels - I think junior counsels were also present on the day - made a presentation in the audiovisual room and set out the facts for us. The Minister knows that Science Foundation Ireland – as it was – always told us about the importance of evidence and that our policies and decisions should be based on evidence. Remember that? There was a lecture from on high from Science Foundation Ireland to always have facts. Here we have the facts from a former judge who told us precisely the danger of what we are doing if we pass this legislation as drafted. He stated: If enacted, the proposal would not only strip the citizen of the right to choose the mode of trial by which the facts of a case are to be decided – whether by judge and jury or by a judge alone – but would also [and this is equally important for me given the 25 years I have spent in local politics and the Dáil, where I have been watching the constant diminution of local democracy and the removal of powers, and now we are doing the same thing in the one area where people can participate in the courts] remove the public from participation in the administration of justice ... He went on to state: While the proposal is presented as a mere procedural change through the simple expedient of dispensing in the future with jury trial in High Court defamation proceedings, the means by which this objective is to be achieved is through the total abolition of an ancient legal right [as Deputy Gannon outlined, dating back to the Magna Carta] I do not know many judges would take the time to come to the audiovisual room with their colleagues and write a detailed paper to ask us to please not do this because, at every level, it is dangerous. The simple thing is that it is not based on fact. Whatever problems were there with the questionable validity of the decisions of juries or the fact that they gave disproportionate awards were all dealt with in the Higgins case. There was a cross-party committee. Was the Minister its chair or a member? He was neither. I am sure he is very familiar with the committee anyway. Nobody dissented from its report. The Minister has been left on his own tonight. I wish the members of that committee were here to give their opinions. The committee offered many recommendations. Backbenchers cry out for time to speak. We have had a major delay in getting on with the business of the Dáil because Members have said they do not have time. They should take a look at what is happening. There is no time limit on this debate and there is not a member of the former justice committee in the House that I can see. The committee made 18 recommendations, to which previous speakers have already alluded. I am not sure if they were made in order of priority, but recommendation 1 states, “The Committee recommends that the proposal under Head 3 to abolish juries in High Court defamation actions should be removed.” Recommendation 2 states, “The Committee recommends that juries should be maintained in High Court defamation actions in order to make findings of fact” and continues in relation to the quantum of damages. I really do not know what has changed since September 2023. I am not sure why none of the former members of the committee is here to stand over what they agreed to. I know we are all busy. I was taken by surprise that this debate began early. I am delighted that it did. I am not one to point the finger but it is certainly significant that there is nobody here from that committee to state that this was a cross-party view. The Ceann Comhairle will be glad to know that I will finish in a minute or two. I appeal to the Minister on a broader level about the fact that at a time when the Government talks about misinformation and disinformation and restoring trust, the biggest problem I experience as a politician is the lack of trust and belief in what we say. I have no difficulty in people having a different view as long as they can trust me. That is what I stand for - not rigidly, but I stand for something. I am not talking about myself in particular but any TD. Here we have someone of the Minister’s calibre and people of the calibre of those who served on the committee saying that we should not to abolish juries. We are going to abolish juries, however. Something somewhere is wrong. We need leadership today more than ever. Democracy is being diminished daily at every level. It has been diminished in the context of our planning laws - a process which started when we stopped people from appealing to An Bord Pleanála if they had not gone in at first at local authority level - the removal of powers to deal with waste management and the removal of powers from councillors. In addition, we go rid of town councils and so on. As a society, we have very few avenues by means of which we can participate. The Minister knows better than I, because he has been in the House longer, that the consensus mentality is dangerous. I read something recently that I will paraphrase: doubt is difficult; certainty is dangerous. The certainty with which the Government tells us that juries need to be abolished on the basis of non-facts and as a result of pressure exerted by particular groups is especially worrying. It tells us that we have learned nothing. Go back to the banking inquiry and the Nyberg report. The big thing that man highlighted was the consensus mentality and how nobody spoke out and everyone went with the flow. We are back at that stage with everything – with neutrality and with Gaza and Palestine, whereby if any of us speaks out, we are told we are anti-Israel or antisemitic. The Minister might ask why I am bringing all this up. It is because it is the same theme of the consensus mentality at all costs. I am asking the Minister to break that, not only for the sake of breaking doing so but also because of the words he spoke very honestly and openly here when he shared his concerns and thought it was the wrong decision. It is time to make the right decision.

Sentiment score: 0.12

The Minister also has a choice.

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I also commend the Minister for his honesty and openness but that raises all the more questions. He is a member of a party and he has the views that he formed, based on his research and experience, that this was a bad decision, but he is now asked to leave that aside and go with what the party is telling him. That is extremely worrying, not just for this debate but for many other debates and issues, in particular regarding war, neutrality and Gaza. Let me stick with the issue of costs because that is the one thing the Minister raised when he said the cost would be higher if we kept the juries, which are costly, lose time and so on. The Minister said: “If we abolished juries, I can guarantee the House that we will develop a whole body of jurisprudence that will result in cases being repeatedly appealed to the Court of Appeal and probably the Supreme Court.” Is that not extremely costly? Where are the costs being saved there? I understand that every single expert who came before the justice committee said not to abolish the jurors. Different people might have made different arguments to let the juries decide on issues of fact and let the judge decide on the money, or to let the juries decide on issues of fact plus a recommendation that the judge would not have to follow that, and so on. How can we stand here as elected Members? We should look at that committee. I know Ministers will stand up and say they do not have to follow committees but it is significant that this is cross-party. There is no dissenting judgment. There is nobody saying that we should abolish the juries. I will go back and pick up on several points. I have left the law, and defamation was not my area, so I do not speak in any legal capacity but as an elected representative who has the greatest respect for democracy. The more time I spend in the Dáil, the more respect I have for the Judiciary and the independent law profession. I was extremely critical in my time, I can tell you. There are many problems with people being excluded from the Courts Service and legal aid, on which we are awaiting a review. There are many problems with the courts and access to the courts. However, the longer I spend here, the more respect I have for the independent Bar and the solicitors, who do tremendous work, as do the judges. That is particularly the case having spent this time and having read the reports of the Grace case, which we will get time to look at tomorrow. I see institution after institution defending itself over and over again in the many reports. We will be going into this with little time tomorrow but there have been reports such as the Dignam report and the Devine report. I mention this because at every stage, it was an acute example of the institution defending itself. That is why we need an independent Courts Service and we need the role of the juries. I see the Minister nodding and I know he agrees with this. If he is not nodding, I do not mind, but he certainly seems to be. Let us look at what the retired judge said in this regard. This decision to change the defamation law was necessary but the decision to abolish the juries came from a report done by the Department of Justice. That Department of Justice report completely ignored the Higgins judgment, which came afterwards, but those in the Department did not go back to look at that judgment even though it came within a month of the report being published. They never had the sense to say that the problems they were looking at - the volatility of the juries and their unpredictability - had now been captured by the Supreme Court judgment, which laid down guidelines and principles. They did not go back to look at that. The former judge also points out that the Department of Justice report looked at case law that had nothing to do with the 2009 Act but went back further to legislation from the 1960s. While I have the time I will read from this article: ... the decision of the Supreme Court in Higgins v Irish Aviation Authority, [was] delivered one month after the publication of the report. The judgment of the court in Higgins marks a historic watershed in defamation law, the implications of which are directly relevant to the grounds advanced in support of [the] abolition [of juries]. The [Supreme] court not only reversed the previous practice whereby it was not permissible to give guidance to a jury on damages by reference to monetary values or previous awards ... [and so on] but has also set out categories and ranges of damages to be applied in future cases for defamation ... The express purpose of the guidance is to ensure an award of damages that will be proportionate [This is the very thing the Minister is accusing juries of not being capable of. A former judge is outlining that the guidelines from the Supreme Court said that the guidance will ensure the award will be proportionate] to the wrong/injury suffered in the circumstances of the particular case, the first objective for which abolition is advanced as necessary ... has already [been] addressed. The Department of Justice did not see the need to go back after the Supreme Court judgment came out. The judge goes on to state, "It is particularly significant in the context of this debate that, in reaching its decision, the Supreme Court unanimously overturned the judgment of the Court of Appeal ...", and that it was the Court of Appeal decision that the Department of Justice report looked at. It did not come back to look at the Supreme Court unanimously overturning it. He goes on to deal with the legal process and the reduction in the duration of hearings and so on, which is the other argument being advanced: Insofar as there were delays in having jury trials in defamation cases heard, this had nothing whatsoever to do with the fact that the cases were jury actions, but rather was totally due to the lack of resources and failure to appoint a sufficient number of judges to deal with the enormous increase in court business, particularly over the last two decades. This former judge goes on to point out that judges were appointed. He acknowledges that, but he is undermining the arguments of the Department of Justice and the Government. He further states: With regard to the claim that the length of the litigation process [and this goes directly to the Minister] and legal costs will be reduced by abolition of jury trial, it should not be overlooked that one of the longest defamation trials in recent times was a case tried by judge alone: the trial lasted 29 days. It is in the nature of defamation law that, in serious cases, trial duration can be protracted ... [rather] than because ... [it is] a jury [trial]. I will probably not be speaking on this again. That is why I am taking the time that I have to look at this. The grounds advanced, including cost, the volatility of juries and the lack of proportionality are groundless. They are without basis. We have a Government that is now abolishing juries on the basis of pressure. I disagree with the Minister regarding 1988 when we abolished juries in other matters. I do not agree that the same absolute pressure was brought to bear then to get rid of juries without an analysis of what improvements would follow. It is pointed out in this very succinct document that "Ireland would become an outlier among other common-law countries, where there is either an entitlement, as of right, to jury trial in defamation cases or where such trial may be ordered by a court on application, in the interests of justice." The Minister outlined that this is the last staging post, that we do not need juries any more, and if we do not need them in other cases why would we need them in defamation cases. The former judge has also addressed that. I keep referring to that. All of his arguments have been agreed by the other entities and organisations on the ground. I am simply choosing his words because they are clear and succinct. He states: It is repeatedly claimed by those advocating abolition that the retention of the right to trial by jury in defamation cases represents an illogical anachronism that should be swept away in circumstances [as the Minister outlined] where the right to trial by jury has already been abolished for most, if not all, other civil wrongs ... [this] claim ... is as factually incorrect as it is legally wrong. The fundamental rights of the citizen particular to the individual guaranteed by the Constitution – specifically, the rights to liberty ... [the right] of expression, good name, bodily integrity, an ownership of property, including the inviolability of the home – are among a ... [range] of other civil rights recognised by law that may be vindicated through trial by jury. These are all of the arguments that have been outlined to us. Having read them all, having looked at the cross-party recommendations and having listened to the Irish Council for Civil Liberties, I cannot vote for a Bill that abolishes juries based solely on pressure, without evidence, when the evidence is quite to the contrary, at a time when we need language to mean something.

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