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European Commissioner for Justice queries Irish defamation laws
Ireland’s defamation laws “raise concerns as regards the ability of the press to expose corruption”, the European Commissioner for Justice has stated.
Justice Commissioner Didier Reynders addressed the Oireachtas Joint Committee on European Union Affairs in March and underlined concerns in the EU around the frequent use and high costs of defamation cases in Ireland.
Reynders was in Ireland to discuss the EU Commission’s Rule of Law report, which produced specific country chapters for each member state. It includes analysis on the topics of judicial independence, media plurality and anticorruption measures.
Published in September 2020, the first annual report on the Rule of Law across the European Union is intended to kickstart an inclusive debate on rule of law culture across the EU.
Ireland’s defamation laws are amongst the strictest in Europe and there has long been calls for reform of the laws by those who believe that the bar for lawsuits is set too low. Around 80 per cent of all defamation actions in Ireland are brought against the media.
Damages in a defamation case can be extremely expensive and the prospect of such costs, in addition to legal costs, means that the majority of libel cases have traditionally been settled before coming to court.
When the Defamation Act 2009 first came into force, it was envisaged that the Minister for Justice would complete a review of its operation within one year, however, despite repeated efforts over the last decade to progress a review, none have been completed.
Responding to a comment by Senator Michael McDowell, who when Minister for Justice in the early 2000s initiated reforms of the defamation law, that Irish defamation law is “a little bit suffocating of investigative journalism”, Reynders added: “The report indicates that frequent defamation legal cases, the high cost of defence and the high damages awarded by the Irish courts are seen as an inducement to self-censorship and a constraint on media freedom.”
The Commissioner says that this “works to the detriment of the fight against corruption”.
Ireland’s Programme for Government has set out an ambition for the Government to review and reform defamation laws, aiming to “ensure a balanced approach to the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice”.
Noting that the Government has pledged to reform defamation laws, Reynders said that ensuring a balance between freedom of expressions, the right to the protection of reputation, and the right of access to justice, is very important.
In February 2021, Minister for Justice Helen McEntee TD, published the Government’s Justice Plan 2021, which included amongst 200 actions to be implemented in the next 12 months, a pledge to review and reform defamation laws.
The plan set out intentions to complete and publish a statutory review of the Defamation Act 2009 by quarter one of 2021 and to prepare a Scheme of Defamation (Amendment) Bill by quarter four.
Rule of Law
Reynders opened his address to the Oireachtas Joint Committee on
European Union Affairs by expressing his gratitude to the legislature and authorities in Ireland for their “strong commitment to upholding the rule of law”.
Setting out the basis for the Rule of Law Report, the Commissioner said: “Respect for the rule of law is key in the Union. Yet, we have seen these years it cannot always be taken for granted.”
On the independence, quality, and efficiency of the justice system in Ireland, the Commissioner welcomed the establishment of an independent Judicial Council at the end of 2019 and pointed to a general perception that the independence of courts and judges “has been consistently high over the last years” in Ireland.
However, the Commissioner pointed to concerns around the controversial Judicial Appointments Commission Bill 2017, which included the creation of a judicial appointments commission chaired by someone who was not a judge amongst other reforms.
While the Bill was prevented from passing into law before the end of the last government mandate, in December 2020 the Minister for Justice announced that she had secured government approval for the drafting of a Judicial Appointments Commission Bill. The Bill provides for the establishment of a new commission to replace the Judicial Appointments Advisory Board.
Commenting on concerns raised in regard to the previous bill relating to the composition of the judicial appointment commission, Reynders said: “A decrease in the number of candidates to be submitted to the Government for consideration, as well as the application of the procedure to all judicial appointments could limit political discretion.” The Commissioner underlined the importance of reforms to take account of the Council of Europe recommendations and said that the EU Commission was following the creation of a new Bill in Ireland closely.
Reynders pointed to the potential for accountability of judges to be improved through the establishment of the body in charge of disciplinary proceedings against judges but added that as the Dáil remains in charge of deciding the removal from office of judges, this could “raise concerns about the politicisation of the process”.
Finally, he stated that the Commission is aware that work is still ongoing on establishing a compensation scheme to award damages in the event of protracted court proceedings, as required by a European Court of Human Rights judgement.
EU Commission Justice Commissioner Didier Reynders.
Anti-corruption
On the anti-corruption framework, the Commissioner acknowledged the reforms that have been carried out in Ireland, in particular through the Criminal Justice Act 2018, aiming to strengthen the fight against corruption. However, while he recognised the positive development of the Act including several offences relating to corruption, he added that the dual criminality provision “may limit the scope for prosecuting foreign bribery”.
As outlined above, Reynder, under the pillar of media pluralism, set out his belief that the frequent use and high costs of defamation cases raise concerns. However, the Commissioner highlighted “constitutional guarantees and solid regulatory structures” in Ireland around media pluralism.
“These operate within a political culture that avoids intervention in editorial content of media outlets and prevents conflicts of interests in terms of media ownership,” he stated, adding that steps by the media regulator to update and publish information on media ownership on an annual basis is to be welcomed.
Checks and balance
On the last pillar of the report, the Commissioner said that Ireland has an established practice of consultation on draft legislation by the Government and Parliament, and of impact assessments.
“The scrutiny over Private Members’ Bills that pass a certain stage of the legislative process is similarly developed,” he said, adding that the Commission’s understanding that the Human Rights and Equality Commission is “well equipped” to carry out its functions.
However, he said that some concerns had been raised in relation to restrictions on funding possibilities for civil society organisations. Stating the Commission’s understanding that the space for civil society organisations is generally considered open in Ireland, Reynders pointed to some concerns that the current interpretation of the Electoral Act is a constraint on civil society actions.
The Commission is working on the second edition of the report, which is set to be adopted in July of this year.
Seanad byelections
eolas examines the circumstances of the recent Seanad byelection and the mechanisms by which Seanad byelections are decided.
One of the main points of criticism of the Seanad has been its limited electorate, with its 60 seats made up of 43 vocational panel electees, 11 nominations by the Taoiseach, three from the National University of Ireland constituency and another three from the University of Dublin (Trinity College Dublin) constituency. For example, the electorate that elected the 25th Seanad in 2016 numbered just 1,155 people, of which 1,124 voted. As Michael D’Arcy was a member of the Agricultural Panel and Elisha McCallion was a member of the Industrial and Commercial Panel, the byelection triggered by their respective resignations was voted on only by Oireachtas members.
D’Arcy’s resignation came in September 2020, when he decided to resign his position in order to become Chief Executive of the Irish Association of Institute Management. This brought to an end D’Arcy’s 17-year career as an elected representative. Having been elected to the Wexford County Council in 2003, D’Arcy was elected to the Dáil in 2007, but lost his seat in 2011. That same year, he was elected to Seanad Éireann on the Administrative Panel.
In 2016, he was once again elected to the Dáil and appointed Minister of State for the Department of Finance, but again lost his seat in 2020, at which point he was again elected to the Seanad, this time for the Agricultural Panel. His resignation just five months later also brought to an end the D’Arcy family’s time as representatives of Wexford. D’Arcy’s father Michael was first elected to the Dáil in 1977. Just like his son, he would lose and regain his seat, serving as a TD from 1977-87, 1989-92 and 1997-2002. Between Dáil stints, D’Arcy senior also served as a Senator from 1993-97.
McCallion, on the other hand, resigned her seat from the Industrial and Commercial Panel in October 2020 after it had emerged that three Sinn Féin offices, including McCallion’s former Westminster office, had failed to promptly return Covid-19 small business grants that they had erroneously received from the British Government. The former MP, MLA and Mayor of Derry resigned her seat, accepting that she had been responsible for the bank account and should have acted sooner.
As both of the resigned members had been members of vocational panels, the
electorate for the byelection consists of Oireachtas members only, giving the election a total electorate of 218: 160 TDs and 58 Senators. In normal circumstances, the 43 vocational panel Senators are elected by an electorate of TDs, outgoing Senators and members of Ireland’s city and county councils. Nomination is normally restricted to Oireachtas members and designated nominating bodies.
These nominating bodies are civic society organisations and there are 110 in total. Aspiring Senators apply for nominations to a given body for the sector they represent, with the criteria of the amended 1947 Seanad Electoral Panel Members Act allowing the body to then nominate the given candidate. With 110 bodies across five panels, the nominating bodies vary across a wide range, from the Irish Georgian Society, the Royal Irish Academy of Music and the Federation of University Teachers to the Chambers of Commerce Ireland and the Construction Industry Federation to charities such as the Irish Kidney Association, Enable Ireland and the Multiple Sclerosis Society of Ireland.
However, in this byelection, candidates simply require nine signatures from sitting Oireachtas members, be they TDs or Senators. Ballot papers for the election were issued on 7 April, with polls closing at 11am on 21 April.
Three candidates challenged to replace D’Arcy on the Agricultural Panel, with two former Senators in the mix: Maria Byrne of Fine Gael, a Senator form 2016-20; Angela Feeney of Labour, a Kildare County Councillor; and Ian Marshall, the independent former Senator from 201820.
Marshall himself was elected to the Seanad in 2018 after winning a byelection to fill the vacancy on the Seanad’s Agricultural Panel caused by Denis Landy’s resignation. In doing so, he became the first explicitly unionist member of the Oireachtas since the 1930s. Sinn Féin, instead of running its own candidate, is supporting the candidacy of Marshall, as it did in 2018.
The former president of the Ulster Farmers’ Union and Markethill, Armagh native campaigned against Brexit and came to the attention of southern politicians through doing so, leading to then-Taoiseach Leo Varadkar to approach him to run in 2019. Marshall lost his seat in 2020 and had expressed disappointment not to be among new Taoiseach Micheál Martin’s nominations.
Byrne has also served on the Agricultural Panel in the past as a Senator from 201620, when she served with Marshall. Like Marshall, she lost her seat in 2020.
There were are four candidates to replace McCallion on the Industrial and Commercial Panel, again featuring two former Senators: Ciarán Ahern of Labour, an employment lawyer; Hazel Chu, Lord Mayor of Dublin, running as an independent despite her status as Green Party chairperson; Gerry Horkan of Fianna Fáil, a Senator from 2016-20; and Billy Lawless, an independent who was also a Senator from 2016-20.
Perhaps the most interesting aspect of this seat race is the candidacy of Chu, Dublin’s Lord Mayor and chairperson of the Green Party. In March 2021, the Green Party executive council and a majority of its Oireachtas members agreed not to run candidates in either of the byelection races, leaving their two larger partners in government to run one candidate each to honour an informal agreement between the parties. However, Chu announced later in the same month that she would run as an independent candidate which prompted party leader Eamon Ryan to say that he would not vote for her and refuse to confirm that Chu would be allowed to continue as party chair. “I will sit down and talk to my colleagues about that,” Ryan said.
Nonetheless, Chu secured signatures from six Green Party Oireachtas members and three independents.
Lawless, the businessman, became the first overseas Senator when he was appointed by Taoiseach Leo Varadkar in 2016. Having been based in Chicago, Lawless is now back in his native Galway and his candidacy is being supported by Sinn Féin.
At the time of writing, polling in the byelection had not closed and thus the outcome is unknown. All votes in the election are cast by postal ballot and are counted using the single transferable vote system. Ballots in this case are initially given a value of 1,000 to allow calculation of quotas where all ballots are distributed in the case of a surplus.
Hazel Chu, Lord Mayor of Dublin
Minimum wage workers in Ireland
Ireland’s minimum wage employees are more likely to be located in sectors hardest hit by the pandemic, an ESRI study has found.
The findings were part of a comparative analysis of minimum wage across Ireland, compared to other European countries where a minimum wage is operational. The EU has suggested a Minimum Wage Initiative, proposing a legal instrument to ensure that every worker in the European Union has a fair minimum wage by 2024.
A total of 21 of the 27 EU member states, as well as the UK, currently have a statutory minimum wage. Ireland is second behind Luxembourg in nominal terms, however, falls to seventh in rank when purchasing power standards are applied.
Almost 11.5 per cent of minimum wage workers in Ireland were at risk of poverty pre-pandemic, which is the lowest poverty rate of minimum wage workers among all of the countries analysed by the research.
In the context of the pandemic, the research indicates that minimum wage increases in Ireland may only have a limited impact in trying to alleviate household poverty due to the spread of minimum wage workers across various household income types.
The analysis indicates that increases to the minimum wage in Ireland will target a relatively small share of workers in lowincome households as minimum wage workers in Ireland are not heavily concentrated in low-income households and are instead spread across the income distribution, including often being in highincome households.
Data for the report was gathered in 2017 and 2018 and it found that Ireland had an almost 10 per cent rate of employees paid the minimum wage. This compares favourably with member states at the highest scale of minimum wage employment, including Portugal (15.6 per cent), Germany (15.1 per cent), Poland (14.8 per cent), Hungary (14.2 per cent) and Spain (14 per cent). The UK’s rate was 13.6 per cent. However, some countries have a much lower minimum wage incidence rate than Ireland such as Belgium (1.7 per cent), Netherlands (2.6 per cent) and Greece (4.5 per cent).
Like most EU member states, in Ireland, age is a strong predictor of minimum wage status. The ESRI research found that employees in Ireland that are aged above 29 years are between five to eight percentage points less likely to be on the minimum wage compared to younger employees.
However, minimum wage status is not isolated to younger people alone. In Ireland, 13 per cent of minimum age workers are aged 50 or over, a figure which compares to higher levels of over 25 per cent in the likes of Germany, Estonia, France, Hungary, Latvia, Portugal and the UK.
Interestingly, Ireland fares well when considering the difference in likelihood of minimum wage employment between genders. Both Ireland and the Netherlands are the only two EU countries not to register significant differences in the likelihood of minimum wage employment between genders. In other member states, women are between one and six percentage points more likely to be on the minimum wage than men, even when controlling for other factors.
In the majority of member states, nonnationals are more likely to be on the minimum wage than nationals. This was the case for nine out of 14 member states for which data was analysed. However, the range between member states was
Incidence of minimum wage employment across countries (%), EU-SILC 2017 and 2018
Ireland's minimum wage employees aged 18 to 65 by economic sector (%) EU-SILC 2017 & 2018
18% 16% 14% 12% 10% 8% 6% 4% 2% 0%
PortugalGermany PolandHungary Spain United KingdomLuxembourgEstonia France Ireland Latvia GreeceNetherlandsBelgium
Note: Based on authors’ calculations using EU-SILC UDB Data for 2017 and 2018, version of 20/03/2020. The incidence of minimum wage employment is defined as the percentage of employees aged 18 to 65 earning on or below 105 per cent of the minimum wage. Source: ESRI
Source: EU-SILC UDB Data for 2017-2018, version of 20/03/2020
quite significant and were between one percentage point for Belgium compared to nine percentage points in Estonia and Spain. In Ireland, non-nationals are three percentage points more likely to be minimum wage employees than Irish nationals. Around 20 per cent of minimum wage employees in Ireland are nonnationals and at 13 per cent, it has one of the highest shares of non-nationals among all employees.
Another critical factor identified by the research is education. Employees with third-level education in Ireland are eight percentage points less likely to be on the minimum wage compared to those with a secondary or less education. Ireland has the highest-educated workforce among all countries studied and at 46 per cent, Ireland also has the highest percentage of highly educated minimum wage employees.
In terms of economic sectors, just under half (43 per cent) of all minimum wage employees in Ireland are located in the two sectors of wholesale and retail and accommodation and food. The ESRI research found that Ireland’s concentration of minimum wage employees in these sectors was the highest of all countries sampled. The concentration in these two sectors in Ireland is not consistent with analysis of comparative data on all employees, where countries including Greece, Spain and Portugal have a higher percentage of employees within these two sectors.
The research suggests that the “disproportionate number” of minimum wage employees in these two sectors when compared to other countries has implications when considering the public health measures in response to the pandemic, specifically business closures.
“Our analysis suggests that minimum wage workers in Ireland may be more susceptible to negative employment outcomes due to the public health measures compared to minimum wage workers in other countries,” the report states.
19% 23%
3%
11%
23%
21%
Agriculture and industry Wholesale and retail
Health and social work Public admin and defence Accommodation and food
Other
