I notice that one of the provisions of this Bill is a restriction of the right to trial by jury in respect of the Circuit Court. The Minister in his speech referred to the third interim report of the Committee on Court Practice and Procedure. It is significant that in that very report it was stated that not only was the solicitors' profession evenly divided on the question as to whether there should be any restriction of the right to trial by jury but the Bar were overwhelmingly against any restriction of the right to trial by jury. So also were the law schools of both UCD and Trinity College, who were consulted.
It is somewhat disturbing, therefore, that the Minister should come into the House to introduce a provision which involves a restriction of what is a very fundamental right. One would have thought that if there were any serious doubt at all expressed the Minister would not have moved in this matter. Not only was there doubt expressed but the overwhelming body of authoritative opinion which was consulted on the question expressed itself against a restriction of the right to trial by jury.
This is probably a subject which does not set the public imagination alight because most members of the public are fortunate enough not to have to come in contact with the courts in the course of their lives. However, those few who have will probably realise with considerable force the value of the jury system as it operates in this country at the moment. It is a protection for the ordinary member of the public against a completely ingrown legal profession laying down its own rules and interpreting those rules often within fairly wide limits set by Parliament.
I think it is fair to say that the jury system, being probably one of the only methods whereby the ordinary member of the public, the non-lawyer, can directly participate in the legal system, serves to make the law intelligible to the ordinary member of the public. It is very important that we should preserve and be seen to be preserving the fundamental right of the ordinary member of the public, who is not a lawyer, to participate in the judicial process.
It is important that the legal system should not become a professional ritual solely performed by the legal profession. The ordinary member of the public should be allowed to participate and any restriction of this right is, to my mind, wrong. Where there is a jury trial a number of different minds are brought to bear on the determination of a question. The people who are serving on the jury may not be geniuses but there are a variety of different people there and there is less likelihood that they will be wrong than there is that one individual will be wrong, no matter how brilliant he is, because he is acting alone and they are acting as a panel of 12 men. There is less likelihood that they will make a mistake.
There are also many cases coming before the courts which require a practical knowledge of business— questions like the assessment of damages. Somebody who has been involved in business, either as an employee or as an employer, will know exactly the extent of damage caused to a person by a particular injury in regard to jeopardising, or minimising, his prospects of employment. If one is involved in this sort of work or involved in employing people, one is likely to know the effect of a particular injury much more than if one is just a man sitting on the Bench who more than likely has never done manual work in his life and more than likely also has never even been in the position of employing manual workers at any time in his life. Jurymen are much more in a position to assess the real impact of a particular injury on a man's employment prospects than are judges.
There are also many cases where the common law lays down that the criterion should be the judgment of a reasonable man. One should note that the common law does not lay down that the criterion should be the judgment of a reasonable lawyer. It is the judgment of a reasonable man, an ordinary man, not somebody who has been schooled in law and whose judgement is possibly canalised into particular lines of thought but the judgment of an ordinary reasonable man who has been open to many influences to which lawyers, due to some form of occupational myopia are not likely to be open. The implementation of that maxim is something which can only be properly carried through if there is full and frequent access to jury trial. Although it is true that the present provision for jury trial in the Circuit Court which it is now proposed to abolish, is not availed of to a very great extent that is no reason for removing that right. It is very important that that right should be there.
The other point is that while people might not have felt the necessity to avail of this right of jury trial, with its present financial limits for jurisdiction in the Circuit Court, it is proposed in the Bill that these jurisdictional limits should be widened considerably. It is likely with the increased financial jurisdiction involved in the Bill that actions of a sufficient seriousness will be dealt with by the Circuit Court. People who from now on will be involved in Circuit Court cases may feel that the seriousness of their case warrants a jury trial yet as well as widening the jurisdiction of the Circuit Court this Bill proposes to remove the basic right to jury trial from people appearing before the Circuit Court. This should not happen.
One thing which is absent in the Bill, and which should not be absent —although I recognise the financial limitations involved—is some provision for civil legal aid. In many civil actions there is not true equality between the litigants: one side may be a wealthy corporation or a wealthy individual and the other side may be a very poor person. Very often cases do not come to trial, although if they had it might well have been the case that the persons through whose fault they had not come to trial would have won. This is because the people concerned do not feel sufficiently confident about their case to be prepared to take the risk of employing counsel, although if they had employed counsel they might have won. They are not prepared to take this risk because there is no provision whereby they can get State funds to enable them to insist on their rights. There should not be a financial bias in favour of wealthy litigants in that they are in a position to take risks and employ very good counsel.
Reference is made in the Bill to maintenance orders. It has been a matter of comment for a considerable time that courts are not empowered to make reasonable maintenance orders. Up to now the courts could not order the putative father of an illegitimate child to pay more than £1 a week towards the maintenance of that child. In terms of the present cost of living the figure of £1 is unrealistic; so also is the £4 a week limit in respect of a deserted wife. While the new limits are a definite improvement the case can be made that £15 is not enough as a limit. I am not saying that in every case this figure of £15 should be reached but we must remember that what we are setting out here are limits to the court's powers to order the payment of maintenance. There may well be exceptional cases where a figure above £15 is necessary.