Richard Boyd Barrett: Opposes removing juries from defamation cases

one of the disadvantages of being a small party is you can't follow every bit of legislation but I did speak against this earlier in the Dáil and I've taken the time out to come and speak against this as well because this bill strikes at a basic principle of justice which is the right of people to have serious matters that impinge on them judged by a jury of their peers that's a fundamental basic principle of law and to undermine it without really any explanation or justification is extremely worrying and that's what's happening here you know people don't follow these things for understandable they may seem quite technical to them and I want to thank as Alan Kelly also referred to him I want to thank Judge Bernard Barton for prompting me and briefing me to some degree on this and highlighting why this is such a problem and highlighting the fact that anybody sort of who's seriously concerned with the administration of justice the Irish Council of civil liberties uh those who represent the legal profession and I didn't know but that's interesting that you yourself minister when you were in opposition were against this you know it kind of says it kind of says it all uh but now we're going to push this uh through and I'd be curious to see has the minister any justification for this but just think about this for those who might be watching in on this this is about if you are defamed and you take a case so your rep your good name and your reputation is being taken from you because somebody defames you and your right to to have the case as to whether your good name and reputation has been taken heard in front of a jury of your peers or whether that will be purely decided by one individual a judge uh now it seems to me if what you're talking about is somebody's uh good name and reputation who better to judge that than a group of your peers a group of 12 of your peers rather than just one individual because they are surely in a far better position to assess has your reputation been taken has your good name but taken you know is it fair what's been done to your good name and your reputation or is it not surely a jury of your peers is the ideal group to assess whether that is the case rather than an individual uh judge who even if the best judge in the world is just one individual that inevitably only represents a particular sector of society and I think I don't think Bernard Barton would probably disagree with me if I said that you know judges even the best of them can't be said to represent the broad spectrum of society the chances that a jury might do that are far greater because that's the whole point of a jury is it's supposed to represent a broad spectrum uh of society judges even the best of them can't do that so why is the government doing this why is the government doing this now I think there was some claim put forward that it was something to do with awards that were being given that were disproportionate but it's already been said that's been dealt with because there's been changes since that 2022 case that was mentioned which mean that you know uh there's some guidance been given in that area uh but in any event I just don't see how replacing the jury to make those decisions even not frankly in my opinion on the issue of awards and what awards people might get if their good name has been taken if their reputation has been taken how it can be a good thing to replace a jury with a single individual uh a judge and the only plausible explanation but it'd be interesting to see is that those who own the big media outlets want this uh because let's be honest you know sensational comments about people that may veer into the area of the defamatory uh or the slanderous they can sell newspapers uh they can you know you go they can go further on the algorithms of certain social media outlets for that matter uh can't they uh so and it's not that I want to infringe on free speech I genuinely don't but you know somebody does have to judge whether you've stepped over the line whether this this is completely wrong unfair baseless sort of slander and defamation of character and taking away somebody's good name character uh and given the choice between one individual judge and a judge you know a representative body of your peers I know which I think is fairer and this is elementary in the justice system that that's true about other things as well serious matters uh criminal matters and so on so is it that just the government is just dancing to the tune to the the owners of of media and press uh and flying in the face of what should really be a sort of elementary legal principle and principle uh of a system of of uh justice it seems to me that you are doing that minister so I want to flag why I believe this is fundamentally wrong uh why we will be voting uh against it and I would be curious to see why the minister's vault face on this uh has taken place and how the government would justify it minister please thank my three colleagues for their contributions and I want to thank them at the outset for their uh support of the uh amendments that have been brought here from the uh shanad I know all three colleagues spoke about the issue of juries and I will deal with that presently but before I do that like I would not like people to think that the primary functions and purposes of this bill are all to do with the abolition of juries in the high court there's much more to the bill uh than that as I'm sure colleagues are aware and two areas that I think deserve recognition and attention I just want to mention them briefly is the area in terms of the amendment to section 26 the provision in terms of a new defense for retailers and also actually thirdly the provision of identification orders to enable people to go to the circuit court to get an identification order against a social media company that has published information that's defamatory about them but the identity of the person is hidden so they are very significant developments within the bill that I think will assist individuals who have been defamed and they want to get access to the identity of the person who's defaming them most defamation that takes place in Ireland as I'm sure my friends will agree happens online by unidentified persons who are defaming people using social media platforms at present in order to establish the identity of the defamer you have to go to the high court to get a large pharma order to get the social media company to identify the person behind us now as a result of the provision that's been introduced here there's a straightforward a statutory procedure that enables you to go to the circuit court I think all colleagues will welcome that and in terms of section 26 as well it hasn't operated the way we wanted to when it was enacted by the previous OCTAS back in 2009 and I think this will benefit us and what I'm putting in is to make sure that it's fair as well as reasonable and in terms of the retailers there's a specific section there that puts in place what was previously a form of qualified privilege that they had to stop somebody and ask them about whether or not they paid for goods and circumstances where they hadn't but what everyone wants to hear about is the abolition of juries in the high court I want to point out that if you take a circuit court action in defamation you don't get a jury the principle in respect of juries is that since 1988 juries are being removed from civil actions they used to be the case if we were here sitting here in the early 1980s when you had a personal injuries action in Ireland you had an entitlement to a jury we got rid of that on grounds of efficiency to speed up the process and unquestionably it is the case that one of the advantages or consequences of not having a jury in a case is that the trial will be speeded up it'll be expedited you get to a solution much faster deputy kelly wants to know why it is that i did i'll tell you i'm going to tell you exactly i answered it here before and i'll tell you why because first of all when you go into government as you know or if you're a member of a political party as you know you sometimes have to go along with things with which you necessarily probably don't agree like let me let me sorry you've got let me speak the labour party put forward a candidate in the last presidential election you didn't agree with it you didn't run off and resign from the labour party you expressed your opinion you made it known but you get on with it and you rode in that's one of the consequences of being a member of a political party and more so being a member of a government this government decision that was made in the program for government that the defamation bill which was commenced before i became a minister would be progressed and enacted that's why because sorry i'm prepared to recognize like you talk about where is your conviction it is not a point upon which i'm prepared to die on a ditch i'll be honest with you it is not the most significant change that i'm going to be introducing as a minister being frank with you and when you look at it what it is it's removing juries from the high court in defamation actions there is no right i was listening to deputy boyd barrett he very carefully used his language i was waiting for you to say it's a right and you didn't in fairness you said it's a principle it is not a right to have a jury in a civil action it is a principle that developed but which is gradually being removed on grounds of efficiency so there is a basis upon which government wants to remove juries from defamation actions there's an understandable basis as to why that is happening and i suppose what it'll mean in practice is that people will have a greater awareness as to what's the likely award in a defamation action if somebody defames you uh deputy kelly or deputy boy barrett or deputy ward and it's a bad defamation and you go to a lawyer and says well listen what will a court award me it is very difficult to advise you as to what will be awarded if you go on a high court jury it depends on what a jury will assess as being the appropriate value and there's no i know the higgins case has set it out for the supreme the supreme court said that what values should be but from a jury's perspective it's very hard to advise somebody is what's the potential liability so if somebody's been sued as well it's hard to assess or tell them what's the potential downfall in this case so if you now have just judge only determinations and i'm aware there are negative consequences to that there'll be positive consequences but of course there'll be negative consequences as well but if you have judge made law in respect to this area you will see greater consistency and greater ability to determine what's the likelihood of an award so um it is the case by the way in the circuit court you can get damages of up to i think it's 65 75 000 euro in the defamation case a lot of people go for uh defamation cases in the circuit court mainly because it's more predictable because there's an uncertainty if i go before a jury at 12 i don't really know what the outcome is and i suppose there is a point that's been made there probably is a greater uh certainly there's a very strong authority to a jury award and they're very hard to overturn and what we're going to find now is that you're going to get a lot of recorded and reserved judgments and defamation actions if you look through the law reports at present you won't find high court decisions on defamation actions in general because they're all like criminal cases determinations by a jury so you just see the award of the jury report and newspaper sometimes you'll see an assessment of a defamation case if it goes to appeal but from now on you'll see a body of law being developed written judgments by judges setting out why this plaintiff it was entitled to a hundred thousand euro or whatever the sum is for being defamed and it will develop a body of law which in its in itself i would have thought is a positive development as opposed to the unpredictability but to come back to your point the reason why i i've changed my mind well the reason why i'm here the reason why i'm here advocating this is because politics as you well know deputy kelly is about compromise and deputy boyd barrett is in there you said at the outset deputy boy barrett there are disadvantages to being in a smaller party and that's true you can't cover everything there's some great advantages to being in a small part and there's some real advantages to being an independent you never have to compromise so there are the answers questions uh i know you won't accept them but i thank you for supporting the amendments