The disjointed progress of the Defamation Bill, 2006

As the Dáil resumed yesterday, last week’s post on libel tourism has prompted me to pick up the story of the tortuous progress of the Defamation Bill, 2006 through the Houses of the Oireachtas [the Houses of Parliament]. When we left it on this blog, it had just scraped the through the Seanad [the Senate, the Upper House of Parliament] on the second time of asking; thereafter, it had a brief consideration in the Dáil [functionally equivalent to a House of Commons, the Lower House of Parliament] before the Summer recess halted its progress once more. This post, and the next few, will consider these stages of its progress, just in time to wait (and – probably – wait and wait) for further developments in the new Dáil session.

The Defamation Bill in the Seanad
The Defamation Bill, 2006 was introduced into the Seanad on 7 July 2006, and thereby began a long and winding road to enactment, a destination it has not yet reached. The Second Stage was taken on 6 December 2006; and the Committee Stage proceeded throughout February and March 2007; but a filibuster meant that it had passed by the time of the the election in July 2007. As a consequence, the Bill lapsed. However, after the election, it was restored to the order paper of the new Seanad (see 187 Seanad Debates col 68 (26 September 2007) (html | pdf)), and it was returned to Committee Stage without another Second Reading. This amounted to proceeding to a section-by-section analysis without the benefit of a prior general debate, and there were objections to that procedure from Senators Eugene Regan, David Norris, and Ronán Mullen (see 187 Seanad Debates cols 1868-1869, 1873-1874, 1889-1900 (4 December 2007) (html | pdf)).

Having begun with that teacup storm, consideration of the Bill continued through the first twelve sections, without much light being shed on the issues (see 187 Seanad Debates cols 1889-1931 (4 December 2007) (html | pdf). The Committee Stage resumed the following day with section 12, and proceeded through the next ten sections (see 187 Seanad Debates cols 1957-2000 (5 December 2007) (html | pdf)). And the Committee Stage concluded with the remainder of the Bill (sections 23-43 and Schedules 1 & 2) the following week (188 Seanad Debates cols 19-61 (11 December 2007) (html | pdf)). For the most part, by December 2007 the Bill had managed to limp back to where the filibuster had left it in March 2007.

And then, in March 2008, it hobbled one step further: the Seanad took the Report and Final Stages of the Bill (188 Seanad Debates cols 1723-1782 (11 March 2008) (html | pdf). The Report stage usually consist of formal discussion of additional amendments usually concerned with issues raised during Committee stage, whilst the Final Stage is an occasion for the sponsoring Minister to say a few more words in support of the Bill and in summation of the debate. Brian Lenihan, who was Minister for Justice at the time (and the Bill’s second sponsoring Minister, after Michael McDowell) sprinkled some bons mots into his contributions to the debate throughout and at Final Stage:

I am trying to close this chapter in the history of Irish legal reform. (col 1890; 4 December 2007)

Anything that promotes a culture of greater responsibility in writing in media organisations is to be encouraged. This legislation is a substantial step in that direction. (col 1964; 5 December 2007)

In this legislation we must ensure respect for those two fundamental principles – the right of the individual to his or her reputation and the absolute right of the press in a free society to publish freely about matters. Within that framework we must achieve another purpose, namely, to stop the present position where an individual, to vindicate his or her rights, must spend a long time in the Four Courts to arrive at a verdict after what can be traumatic court proceedings. (col 1738; 11 March 2008)

Unfortunately, the chapter is still open, and the various laudable aims which the Minister ascribed to the legislation are still unachieved. Moreover, there were very few highlights in the Seanad debates. Having begun with much time-wasting childish petulance (which was to recur again at Report Stage), debate at Committee Stage continued with a great deal of ill-informed, misconceived, misguided, rambling, superficial, self-satisfied, illogical, incoherent, and wilfully ignorant commentary. Senator Norris, having begun so well, during the course of the Bill’s progress through the Seanad played first the curmudgeon, then the gadfly, and finally, here, the stonewaller, guilty of much irrelevance, waffle, filibustering, bravado, cant, and downright silliness. This was hardly mitigated by his occasional flash of insight such as his renewed assault on the right of bodies corporate to sue for defamation in section 11 of the Bill on the grounds that “the difference between a corporate body and a natural body is that a natural body has feelings” which ought to be the focus of the Bill (see cols 1906, 1919, 4 December 2007; for the Minister’s reply, see cols 1924, 1925; see also col 1738; 11 December 2007).

Now and then, the dismal debate was illuminated by occasional barbs of wit from Senator Mullen, and by several interventions of forensic accuracy from Senator Alex White (see, for example, Committee Stage, cols 1907, 1961-1962, 1967-1968, 1979-1981, 1984; Report Stage, cols 1732-1733, 1752-1754, 1771-1772). His best move was to withdraw (col 1905) the misguided secretarial amendment originally proposed by Senator Joanna Tuffy. If the Seanad Debates on the Bill were a football match, then he was easily Man of the Match. To strain the sports analogy a bit further, in the next few messages, I’ll consider some of the other highlights of the Seanad debates.