In my previous post, I noted that the Defamation (Amendment) Bill 2024 has been restored to the Dáil Order Paper, and will therefore continue its journey through the Oireachtas.
Anois teacht an Earraigh, beidh an lá dul chun síneadh, and the Government will publish a Spring Legislation Programme. It has duly done so, and it lists the Bill among the Bills restored to the Dáil and Seanad Order Papers, to recommence at Committee Stage.
However, no Oireachtas committees have yet been established, because the row over Dáil speaking rights has not yet been resolved. The earliest this is likely to be achieved is at a meeting of the Dáil Reform Committee next Wednesday, but unless the Government amends its proposals, that meeting is unlikely to settle the matter. Meanwhile, the long delayed Defamation Bill has taken another step back.
As I noted in the post before that on Defamation in the Programme for Government, the Minister for Justice having carriage of the Bill is Jim O’Callaghan. As a backbencher speaking on the Second Stage of the Bill in the Dáil (noted on this blog here), he characterised the decision to abolish juries in the High Court as “short-sighted”, raising question as to whether he would amend the Bill. We now have an answer to that question.
An Irish Times Editorial on the challenges facing him in the Department. The Editorial noted his criticism of the proposed abolition of juries in High Court defamation actions; and it continued:
That legislation is a “priority” in the new programme for government. O’Callaghan now says it will be passed without significant amendments.
So, after a little studied ambiguity, at least we have clarity on this point. Whilst I broadly agree that it’s time to abolish juries in defamation cases, there is a better way to do this. In any event, the Editorial welcomed O’Callaghan’s change of heart:
… the punitive and disproportionate awards made under current legislation are out of line with international best practice and have a chilling effect on media freedom.
Other ways to address high damages awards may be rather more successful. Nevertheless, this is clearly a step forward for the Bill.
The Editorial continued that the episode around O’Callaghan’s views on the abolition of juries
raises questions about his commitment to any broader reform of Ireland’s archaic and grossly expensive legal system. As a barrister who continued to practise right up until his appointment to Cabinet, he has been a beneficiary of that system, and may not be inclined to regard it with the same reforming zeal he has expressed towards other parts of his brief. … O’Callaghan has every incentive to make a success of his term in office. How well he fares will be a major contributory factor in how this Government is ultimately judged.
It is here that I part company with the Editorial. I think it represents a mis-step on the part of the Irish Times. I draw the opposite lesson from that episode. If O’Callaghan is prepared to change his mind of the juries issue, then he will be able to change his mind on other issues too, and I don’t think that his legal practice will have any bearing on this. I agree that he “has every incentive to make a success of his term in office”; and finally delivering the Defamation (Amendment) Bill 2024 will be an important part of this success. Time will tell, of course, but I doubt that the matters raised in the Editorial will get in his way.
The Irish Times, like every other newspaper, spends a fortune defending defamation claims, and its editors lose plenty of sleep worrying about potential lawsuits. When you see their stance on defamation through that lens, it starts to make a lot more sense.
In the latest issue of the Law Society Gazette, recently retired Mr Justice Barton makes a solid point: Ireland has fewer judges per capita than any other EU country, which leads to clogged court lists. He argues that it is this fact, rather than the option of jury trials in defamation cases, that is the real cause expense in Irish courts.
Considering he recently managed the defamation list in the high court, Barton probably knows what he’s talking about. But to The Irish Times, his opinion is probably just another self-serving take from someone who “benefitted” from “Ireland’s archaic and grossly expensive legal system.”
The irony is hard to miss. The Irish Times spends massive amounts defending jury trials and is clearly invested in keeping them around, yet they’re quick to accuse legal professionals of being biased because of their “vested interests”. By that logic, should we be taking The Irish Times’ views on defamation law seriously at all?
Thanks for this Sean. You make a very interesting point, that the Irish Times is self-interested in pushing for the abolition of jury trials because they spend fortunes defending defamation claims. They may be self-interested, but that doesn’t mean that they are wrong. After all, it is usually those who are adversely affected by a legal provision who campaign for its amendment or repeal. As I say in the post, I think that a less absolute abolition than that being proposed in the Bill would be a good idea.
I agree with you on the language used by the Irish Times about legal professionals, which is where I parted company with them in the post.
That being said, I wonder whether the second sentence of the last paragraph is misdirected? I would have thought that the Irish Times is invested in not keeping juries around?
Finally, a special word of thanks for bringing Judge Barton’s paper “Jury Service” in [2025] Law Society Gazette 30 (pdf) to my attention.