Introducing my new legislation to tackle the threats of defamation cases by public bodies and to allow more open and healthy criticism of public bodies

[Speaking in the Seanad during Second Stage of a Bill which I published – Defamation (Amendment) Bill 2014]

In summary, the aim of my Bill is to provide for limiting the damages certain public bodies may receive in defamation actions so as to protect public discourse from public bodies using the resources of the State, and the powers granted to them by the Defamation Act 2009, to influence comment by the press and the public

Here is a link to my Bill in detail:
http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2014/6314/b6314s.pdf

Cuirim fáilte roimh an Aire Stáit. I welcome the Minister of State, Deputy Aodhán Ó Ríordáin, to answer formally on behalf of the Government for this Bill. I also take this opportunity to wish him the best in his future endeavours in his portfolio. He has a strong personal and professional commitment to the issues of equality and human rights and I am delighted that he is the person who has been chosen to represent the Government’s arguments with respect to this Bill today.

As the Minister of State will be aware, transparency and accountability are two of the cornerstones of public life and public governance in democratic countries. The formal institutions of State have certain obligations to act in a democratic fashion and as well as that, in order to challenge them, we have always tried to encourage an enthusiastic, but fair-minded, cadre of journalists and other commentators and critics to question Government policy on behalf of the people.

We are lucky in this country. In other countries, these can be dangerous occupations. Sadly, in the world today there are journalists still languishing in prison; others have been shot, executed or tortured for having the temerity to disagree with the policies of the governments where they live. Sometimes we do not appreciate enough what a privilege it is to live in a democracy where people still have these freedoms and where they are cherished and, in general, well respected by Government.

There are, however, subtle forms of soft power in this country which, if misused, can sometimes have the effect of silencing, quashing and disincentivising dissent. Certainly, in politics, we have often commented on the issue of the whip system and the way that parliamentary accountability in the country appears to be somewhat less than it is in other democracies because of the strength of the whip system, difficulties with freedom of information, etc. These all are issues which can provide hurdles to full transparency and accountability.

In addition, we have perhaps a more highly entrenched constitutional position in support of the concept of defence from defamation in this country with a constitutional recognition of the right of an individual to having his or her good name. In my brief career to date, this is the fifth piece of attempted legislation I have introduced here and three of them have revolved around issues of transparency and accountability. The first was an attempt to regularise a position which had become topical for various reasons at that time concerning overtures which were made to the Judiciary by politicians with respect to the outcome of criminal cases. The second related to transparency around the issue of Government’s interaction with the tobacco sector. The third is this Bill today.

The Bill is an attempt to de-fang one weapon which sometimes is used inappropriately by public bodies in defence of their position against valid criticism. The specific incident which provoked me into thinking of this Bill involved a general practitioner, Dr. Rúairí Hanley, who was writing for the Irish Independent and who wrote a column on what was at the time a very controversial issue. The Minister of State and Members of this House and the other House will be well familiar with the controversy that arose with respect to the apparent change in medical cards and the rules for getting a medical card. This was a controversy which, understandably, attracted passionate contributions from those who felt that there had been a row-back in the provision of what were called “discretionary medical cards” and those who defended the Government and the HSE’s position stating not only was there no row-back, but such a thing as a discretionary medical card had never existed. I will be the first to admit that nobody was acting in bad faith in this debate and those on the Government side and the HSE side certainly were dealing with a situation of terribly constrained resources and an attempt to arrange priorities for healthcare spending, but those on the other side of the argument were aware that it was not only Government who had hard choices to make. They were aware that citizens sometimes had hard choices to make in their own homes and in their own hearts about matters such as whether they will pay for this drug, seeing as they have lost their medical card, or whether they will pay for the rent or for food. These were trying issues.

Dr. Hanley wrote an article in which he suggested that the HSE was terrifying medical card holders with the prospect of their medical card being withdrawn. He received from the HSE’s public relations department a reply which dealt not only with the substance of the issue but also with its view that he made charges with which the HSE disagreed. As a consequence it threatened him with unspecified other actions in defence of the good name of the HSE. It struck me at the time that this was wrong. In the first instance, the person who should have been replying to Dr. Hanley was somebody from the substantive chain of command of the HSE who was involved in decisions with regard to medical cards and medical card policy and should not have been a professional public relations officer in the public employ.

The Minister of State and I have not had the opportunity to interact too often previously but I wish him to know that this is a bugbear of mine. I believe there should be no professional public relations professionals employed anywhere in the public service. Public servants should perform their duties and their reputation should rest on the quality with which they do so. Public relations professionals, by definition, are professionals who have a client-attorney relationship with the person who pays them. Their job is not to foster communications, it is to make their employer look good. This is not something which we should be subsidising in the State. Staff should be their own PR agents in the public service.

With respect to the specifics of this issue, I was troubled that the reply came from a PR person and that the entity, the HSE – I use it specifically in this case but this is a more general charge – would decide that it had something called its own good name which, as an abstraction, was so deserving of defence that the HSE could use legal challenges to those who would criticise it. In the area of public policy, we need to be able to criticise the public bodies. We need to be able to criticise and challenge those who work in those bodies to defend the bodies on their track record, not on some vague abstract such as the good name of the organisation.

The Bill does not prevent individuals who work in the public service from defending their good name. We have a tradition, in the Oireachtas in general, of not being unnecessarily critical of individual public services who, by and large, do their job in a responsible way. Often these are difficult and thankless jobs and the often do not get much thanks from persons such as myself. I am sorry if I sometimes appear to cross a boundary in that regard.

We are not trying to prevent any individual from protecting his or her good name, but we do not believe that the bodies corporate should have an abstract right to defend the good name of the organisation using defamation charges. That is why the most we can do – we are not able to ban their resort to defamation – is strike a strong symbolic blow against it by limiting the damages which they are able to claim.

This short Bill has three sections. The first provides a broad definition of the public bodies which will come under the scope of the legislation. We believe we have managed to cover all the gaps for the 700 plus public bodies and, I do not mean to use the word uncharitably, “quangos” which still exist. There has been a certain culling of quangos in the tenure of this Government but we estimate that there are still more than 700 of them. It will also apply to bodies in which the Government holds a majority shareholding, bodies which are set up by Statute and bodies in which the relevant Minister is the only shareholder.

Section 3 is a technical provision dealing with how appeals from a High Court case to the Supreme Court will be handled in the light of the legislation. Section 4 is a technical set of instructions outlining how judges may instruct juries in the interpretation of the law in the context of these provisions.

I take this opportunity to thank Shane Conneally and Aoife O’Toole, who work in my office, for their efforts in preparing this legislation. Shane has been a major contributor to the design of all five of the attempts at legislation that we have advanced.

We had a promise of new politics when this Government came to power. Some three years into its tenure, a certain scepticism was expressed about how realistically that pre-election commitment to new politics had translated into action. However, I have seen signals in recent months that there has been something of a realignment and in this respect this commitment is perhaps assuming some priority on the Government’s legislative agenda. I was very heartened, for instance, when the Minister for Health, Deputy Leo Varadkar, did not reject the amendment we advanced to the Health (General Practitioner Service) Bill 2014 which had the effect of preventing the insertion of a gagging clause into any contract GPs would have to sign. That was very forward thinking of the Minister and I am grateful to him for it.

I will be equally grateful to the Minister of State, Deputy Aodhán Ó Ríordáin, today if he sees fit to accept this modest Bill. His doing so would send a powerful signal that there is a commitment on the part of this Government to transparency and accountability and fostering constructive criticism without people being able to reach for the nearest defamation lawyer when they hear something they do not like.

***

[Speaking after the contribution of Minister of State, Deputy Aodhán Ó Ríordáin and his indication that Government would not object to my Bill.]

I thank in particular the Minister of State. We talked earlier on about the new politics and we have seen a good example of a very constructive approach. I was humbled by the detailed and appropriately forensic analysis of the legal deficiencies in the Bill, which were pointed out, and I am delighted to have had the opportunity to have so much free legal advice as I have had this afternoon. We will eagerly await Committee Stage amendments and will look at them very constructively. The Minister of State has demonstrated commitment to new politics because the reflex position in this House seems to be that if an idea comes from the Opposition, it will fall into one of two categories. Category 1 is “It’s a terrible idea and we’re rejecting it.” Category 2 is “It’s a good idea, you haven’t done a very good job on it and we’ll be back with something better.” It is rare that we see the third category. Senator Quinn has been very good at it and I have been lucky with another Bill or two down the years when the Government side will say “Actually, this isn’t a bad idea and we think it may actually be something we can build.”
I thank the Minister of State.

With regard to the question about the rarity of the event, although the event may be rare, the threat is not quite as rare. There can be instances of a thinly veiled resort to this threat. I am a student of science and I use statistics so I do not like to delve into anecdotes. Nevertheless, I am aware, anecdotally, of a number of cases where the threat has been mentioned or is implicit in a reply to criticism.

The broad scope of the organisations that would be covered exercised us quite a bit, and the Government is correct in that there may be specific cases where we would need to work out if organisations have legitimate interests. The question of special damages is not dealt with by the Bill. This relates to cases where it is judicially decided that, as distinct from the theory of defamation, a company is at the receiving end of unfair or inaccurate criticism by a commercial competitor. The best example in theory would be the VHI, although I am not here to criticise that company today. If in order to get commercial advantage it was alleged that the VHI – whose only shareholder is the Minister for Health, and which would be covered under this Bill – was selling a deficient product, this Bill would not stop the VHI from claiming for special damages. However, the pure abstract concept of claiming for defamation would be denied. We should remember that not every entity is the VHI, and this would also have covered NAMA or Irish Water. There can be cases made that there are appropriate targets which might be tempted to resort to this kind of defence.

We get very spiritual at times but when I hear of the Minister of State’s conversion to rectitude on Seanad reform, like that conversion on the road to Damascus, we should remember there is more joy in heaven over one sheep that returns to the fold than over 100 which have never strayed.

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