Michael McDowell (Independent)

No, I think I have said everything I have to say about amendment No. 5. I just want to make the point that the House was informed on the last occasion that there were concerns in the Office of the Attorney General about the seriousness requirement being introduced into Irish law on the basis that the good name of the citizen, which is an explicit right in the Constitution, might be in some sense compromised by introducing a threshold of seriousness in respect of defamation actions. I want to repeat that I do not agree with such concerns. I do not believe that something that is not serious can be litigated as a matter of constitutional right or that a seriousness threshold in some sense infringes the rights under Article 40 of the Constitution to the defence and vindication of a citizen's good name. If something is not serious, it should not be litigable, in my view. While the Office of the Attorney General is free to express concerns to the Minister's Department on issues like that, I would be very surprised if a fully worked-out opinion that it could endanger the citizen's rights under the Constitution was ever prepared, considered, brought to the Attorney General and received the Attorney General's approval as the legal advice to the Government. It is on that basis that the refusal of the Minister to accept an amendment to introduce a seriousness threshold for defamation on the one hand, while introducing it for corporate defamation cases on the other in a later section of the Bill, fails to make a just distinction between incorporated and unincorporated businesses, retailers and the like. I do not see how the threshold differs from, as I said, Michael McDowell, the butcher in Ranelagh, personally running his business and having his stock defamed or whatever and a company that I own 100% of the shares in, running precisely the same business, and a different test being introduced for those two different situations.

I am not saying that it is definitely the case but I refer to the concerns expressed by the Office of the Attorney General that seriousness could be suspect from the point of view of the Constitution and the citizen's fundamental rights in Article 40. If this has in any sense affected the drafting and proposal of the measure in this Bill and insofar as it is contributing to a reluctance on the part of the Minister to accept an amendment that would bring us in line with Northern Ireland, Scotland, Wales, England, Canada and Australia, I think it is misplaced. We are in danger of missing a real opportunity to do something substantial, that is, to rid many people of the huge burden of nuisance actions in litigation for defamation, which cost individuals and individual trading concerns and retailers so much management time, concern and, in the end, legal fees. The Minister said that if insurance companies took a different view and were - I cannot use the term "manly" - brave in the defence of these cases, maybe there would be a different attitude among plaintiffs. However, as the Minister well knows, insurance companies right across the spectrum from personal injuries to other matters only look at the bottom line. They consider if it is worth having a courtroom squabble for €10,000 when it is easier to give the person the money and the solicitor a few bob for costs. That is easier than being brave or taking a stance that this is a relatively trivial matter. On that basis, I maintain my view that the Bill should be amended to introduce a seriousness threshold to all defamation cases.