On the last day Deputy Woods gave a very in-depth analysis and critique of civil juries and the position in the courts. It was an analysis of the arguments which were put forward by the Minister in his submission as to whether or not we should have civil juries removed from the High Court in personal injury actions. This is unfortunate legislation in that the case for it has not been proven. It has been too readily entered into. It is an assault on the rights of citizens. That has been happening all too frequently lately; we had it even yesterday and it seems to be a trend. In this instance it is not only an assault on citizens' rights but it is an assault on citizens who are victims of very serious accidents, in the main. It is an assault on people who are very seriously injured, who are often maimed for life and very close to death and who in many cases have to survive rather than live, who may be in a state of paralysis, in a state of brain damage, in a wheelchair, confined to bed or a quadraplegic. That is unforgiveable if it is not thought out properly, if it has not been the subject of public debate and if there has not been a demand on it and, worst of all, if these people have not been consulted in any manner about whether or not they wish the situation to be changed without consulting them.
We have healthy people deciding in the interests of a few vested interests in this country that we should change a system which has been time honoured and one of the few remaining bastions of freedom and civil rights and social justice whereby a person is tried by his peers in the case of one of the worst things which can befall a human being during the course of his lifetime, that is, to suffer a very serious personal injury and suffer very serious damage both physically and financially to a family, if there is a family involved, whether it is a spouse or whether it happens to be brother, sister or relative who has to take care of that person for the remainder of his life. This debate came about not as a result of a public outcry; in my view it arose as a result of a very short, sharp prod by one of the most entrenched sectors, namely, the insurance sector. The insurance companies wanted their costs reduced so that they could earn more profits. In the space of two weeks they were able to persuade the Government to change their minds and have them declare that it was their intention to introduce legislation to abolish juries in civil action cases. That was a disgrace and it happened twice within the past six or eight months. It was later proved that move on the part of the Government was totally wrong and they had to retract and admit their mistake. The Government fell for the same propaganda on the part of the gaming interests, when they introduced emergency legislation within two weeks to increase the stakes in that industry. In the first case enormous financial loss and hardship were suffered by citizens. In this case, in addition to the financial loss and hardship that will be brought about as a result of the abolition of juries, these unfortunate victims will suffer additional pain, physical and otherwise.
We might pose the question: from where did the demand emanate? It was not brought about by those people who had their cases tried before a jury. It did not arise on the part of John Citizen or by way of public demand. It arose as a result of representations to the Government from the top levels of the insurance industry. Indeed, it arose as a result of a public relations exercise on the part of that industry who are well able to afford it. They must have been amused at the quick results of their campaign.
Many of us in the House know how difficult it is to have any change effected within the bureaucratic system, or within the system of checks and balances obtaining at the different hierarchical levels in our bureaucracy. It is amazing to note how the rich and powerful can bypass that system. However, it is not difficult to understand when one remembers that they have easy access to the corridors of power or to ways of getting what they want done. That is applicable in this industry internationally. It is applicable in the case of other such powerful bodies, whether they be the multinational, the drug companies, chemical companies or whoever. In this case the unfortunate Irish man and woman must bear the burden.
I was particularly disappointed at the arguments advanced by the Minister in his opening remarks. They were very weak and did not make a case at all for change. I shall refer to those arguments as we progress. One might first pose the question: what steps have the insurance companies themselves taken to reduce the amount of awards or damages where they say they are losing out? Indeed, the insurance companies represent one of the most scorned, derided vested interests in any State, always having been regarded as filthy rich, having unbridled power, always making enormous profits with very few exceptions.
I read an article in Business and Finance of 18 July 1985 headed “New Life in the Insurance Game”. That article talked about the move away from motor and other forms of insurance into the more lucrative area of life insurance because, it was contended, it was more profitable and stable. It talked about the key to understanding the recent scramble to buy into the life business — the difference between life and general insurance — life insurance being profitable and stable. It was contended that general insurance is sometimes profitable but always unstable. It spoke about the difficulties experienced in the recent past with general insurance and the growth experienced in life insurance over the past five years, when the average growth amounted to approximately 20 per cent. The article referred also to the dangerously variable liabilities in the general insurance area — coming within the scope of the provisions of this Bill, personal injuries — contending that even experienced actuaries have a difficult time attempting to second guess juries and potential awards. The same article talked about underprovision or over-provision maintaining that life business does not involve a company in litigation or court cases except in the most rare situations.
There is a school of thought which contends that the insurance companies should really lump all of their different types of business together, that if they suffer a loss in one area, such as the motor industry or public liability area, then that should be taken into account in the huge profits they make in another. Otherwise pressure will be brought to bear on the Government to become involved in the insurance sector, the same as in the banking sector. If the banks are not prepared to take risks in certain areas of business then the Government have to become involved, as they have in recent months. In the same way the Government would have to become involved in the insurance area. Let us pose the question: what have the insurance companies done to help themselves or to remedy the situation? From a critical examination of the position it would appear they have not done very much. Two reports have been published in relation to the motor insurance business, one the O'Connor and the other the MacLiam report.
I might refer to another article which appeared in Business and Finance of 13 June 1985 headed “Insurers have become embroiled in arguing about the jury system and the high cost of awards. They should be looking to more fundamental matters.” That article posed some questions, such as: Is there the political will to tackle the basic causes of the high premiums? Why are the insurance companies not lobbying to a far greater extent for the fundamental changes needed in our existing system? Why are they not co-ordinating their efforts and their advertising campaigns accordingly? That is all based on the premise that the cost of insurance is too high. The writer goes on to say:
The insurers would have us believe that today's claims reflect tomorrow's premiums...
He asks:
I wonder what steps the insurance companies are taking to minimise the number of claims and the accidents that result in these claims. Insurers surely have a vested interest in accident prevention which they do not seem to be exercising.
Our attention is drawn to the number of designated black spots where accident statistics are very high and we are asked if this reflects our national attitude towards identifiable areas of known accidents or known risks. Surely we should eliminate the bridges, turns, corners, the sections of roadway and our driving procedures that are black spots in our national insurance claims record.
Statistics show that the most dangerous time to be on the road is after pub closing time and that most accidents, particularly fatal ones, are drink related to a greater or lesser extent. There is a high cost to the State. Every fatality that occurs costs the State £220,000 and every serious injury costs £67,000. When it is realised that there are 400 or 500 fatalities every year together with tens of thousands of serious injuries it can be seen that the cost to the State is enormous which, in fact, means that the cost to the taxpayer is enormous.
It is now suggested that insurance companies should be helped to make bigger profits by having the cases of seriously injured people heard not in front of a jury of their peers but judged by a graduate of what can only be described as an elitist group of the establishment. As a result of the system which we have many people believe that judges are not really in a position to judge fairly all the time every section of the community, human fraility being what it is.
People feel that, as a result of one person judging cases, some sections of the community from certain backgrounds and environments will be categorised and awards given accordingly. A jury determine a case and then they are exempt for ten years if the case is a serious one. A jury look at one case and the circumstances surrounding it. A jury will take the human hardship involved into account more than a judge will who is a person with a lot of experience of law and whose senses can be dulled by the constant daily decisions which he makes. It is important that the human element be retained. We are not dealing with an inanimate object but with a human being whose life span has perhaps been curtailed.
We are talking about serious injury. A person will not go to the High Court, which has power to give awards in excess of £15,000, unless there is documented evidence of serious injury. Approximately 95 per cent of cases do not go to court. There is usually a formidable file from medical consultants to verify the serious injuries. It is important that a jury should deliberate carefully on the person's injuries and the effect they will have on the person and on the family.
Every Christmas we are warned on radio and television that a campaign will be launched by the gardaí in order to enforce greater safety on the roads. Statistics have proved the worth of this. However, after Christmas the campaign ceases and we continue to have mayhem on the roads. Why do we not have this campaign all the year round? Why do the insurance companies not take over advertising around black spots? Why do we not bring in laws which would discourage drinking and driving and ensure that people who want to drink must not drive? This is another example of us failing to correct the system and then penalising innocent people by taking from them the basic civil right to trail by jury in the High Court.
There are many ways we could lower the accident rate but I will not go into detail on that now. However, we should deploy gardaí in a better manner. We have a lot of them available and they should be organised in such a way as to reduce the carnage on our roads. I should like to develop that line of thought, which is relevant to the Bill. The Minister has said that the main reason for the legislation is the high cost of insurance, but that is an appalling reason. Why do insurance companies not campaign for greater safety on our roads? They have campaigned, for example, for greater use of seat belts; but a seat belt is not much use in a car that does not have any brakes or that has fundamental defects. Why do we allow cars on our roads which have not been tested? Why do we not have compulsory testing of vehicles as occurs in other countries? We have been talking about that for donkeys years but people continue to drive defective vehicles. Cars with bald tyres, bad brakes or broken exhausts are involved in many accidents. Why is it that we do not ensure that the provisions of Road Traffic Acts are stringently adhered to?
Accident black spots are well signposted and a lot of them are close to licensed premises. As a nation we seem to be appallingly lacking in consciousness of what are fundamental safety standards in other jurisdictions. Insurance companies have submitted that the Irish are more litigation conscious than others. Some Members hold a similar view, but I do not think we are any more litigation conscious than any other nation. Most actions are successful in our courts because drivers or employees are negligent or in breach of statutory duties. Most of them fail to comply with the provisions of our Road Traffic Acts or legislation governing safety in industry. I do not think we can discuss personal injuries or the high cost of insurance without mentioning the huge number of uninsured drivers we have in Ireland. I accept that it will be compulsory to display an insurance disc from July, but this is another example of us letting things get out of hand before we do something about them. This is a reactionary society. We do not do anything if there is a break up in a particular area until everything gets out of hand. Then we are prompted into fire brigade action. It is never a question of prevention but of trying to lock the stable after the horse has bolted.
I do not see why it is not possible to insist on tax and insurance being renewed from a certain date each year. We have everything computerised and I do not think it would be difficult to introduce such a system. In Canada, for example, after 1 April the police carry out intensive checks on all cars for tax and insurance offences. The colour of the number plates there changes each year and the driver of a car found with the previous year's colour after 1 April is pulled into the side and prosecuted. In that country one never sees an advertisement in a newspaper offering a car that is taxed to the end of the year for sale. Drivers are not allowed to tax their vehicles for three months or six months. The vehicle is taxed for 12 months, but we do not do that. We are content to carry on with an old system which causes us enormous problems.
Another reason for the high cost of insurance premiums is the slow reaction of insurance companies. Very often they are to blame for the high legal cost because the cases are drawn out over a number of years. Insurance companies must be informed within seven days of an accident or, if not, the policy may be declared void. However, they do not respond. If insurance companies handled claims quickly, either on a man to man basis or with the minimum of correspondence, there would be less involvement by the legal profession and, consequently, less cost. Insurance companies are in a position to settle cases quickly if they want to. Surely it is not asking too much of them to take the initiative and dispose of claims at the earliest possible moment.
The legal profession come in for a lot of blame — some of it is warranted — but most solicitors say that they have to drag insurance companies towards a settlement by initiating proceedings even where the same insurance company covers the two parties involved in an accident. Insurance companies must accept a lot of the blame for the delay in dealing with civil action. They have to be dragged towards the courts. They will drag a case out for as long as possible, even to the extent of taking advantage of a person who sustains serious injuries in an accident. I make that statement from my own experience and having thought out the issue very carefully. In the case of a serious injury, where the person is not likely to survive insurance companies deliberately drag out the case and use the possibility of the imminent death of the injured party as a reason for not settling the case or settling it at a much reduced amount. That occurs frequently. I have had two family experiences of that. My brother died as a result of a motor accident and his next of kin did not get one farthing. My father-in-law was paralysed from the neck down as a result of a motor accident but his case was not settled by the insurance company for five years. When we discussed a settlement with lawyers, the insurance company involved told us, following their examination of him, what the lifespan was and that if we did not settle with them they would appeal the case through the High Court and on to the Supreme Court. They delayed for five years and then settled for a reduced amount. The settlement was reached nine weeks before that man died. That man was compos mentis and was confined to bed in a county home. He could not get the care and attention he wanted because the insurance company did not even pay part of the award. That occurs frequently, but now we will have the Supreme Court coming along to fix a ceiling of £150,000 general damages. That is appalling. If men and women were appointed to the Supreme Court bench tommorrow it is quite likely that on consideration the ceiling would be changed because if the judges did not have experience of being personally involved in injury cases they might change the £150,000.
If a person who has sustained the worst possible injuries is paralysed for life from the neck down, he or she will get a maximum of £150,000. The rest will be made up of special damages for hospital care and attention. Allowance will not be made for future hospital charges. Nearly always in such cases complications arise long after the settlement of the injuries action but the person will not be entitled to go back and claim damages. The people involved in such cases are ruthless, as all business people are in getting their pound of flesh. I know the Minister would be very concerned that such would be the case. If he extracts from his own speech the three arguments he used for changing the civil jury system he will find them very weak and that they do not hold water. It is not sufficient to go back over the history of the court system and talk about Chancery and other courts and how they got rid of juries. That seems to have been an administrative decision as time progressed and we ended up with the Circuit Court operating without juries and with a ceiling of £15,000. Therefore, it does not follow logically that the next step should be to take another bit of cherished freedom from unsuspecting citizens and say: "They are unsuspecting, we will remove the juries and there will not be an outcry".
As I continue in public life I find fewer and fewer outcries about anything. The reason is that people are getting fed up of getting battered. They are weary of taking on the system and even more weary of losing, whether they are fighting dumps or for the protection of the environment or for the retention of the few rights available to them under the common and criminal laws. We have a Parliament, we introduce laws, and Ministers play the numbers game. They bring in pieces of legislation, they have a majority on their side of the House, very few Deputies contribute to the debates and when they go into the lobbies most of them do not know what they are voting for. Therefore, they rubber stamp the legislation.
The Dáil has lost much of its power. It is the intention to change that, but I despair of it happening. That is the way our civil liberties are being eroded. This legislation has been set up here, the Committee Stage will follow and I ask myself what are the changes I can suggest to protect citizens against the removal of their right to have cases tried by jury in the High Court.
Deputies are either for this or against it. I am against it. Lawyers have argued for the retention of civil juries in the High Court, particularly barristers. This is a laugh: they have been labelled as doing so with a vested interest, because they want to retain high fee earning possibilities — I will consider that in a minute. Not for once has anybody suggested that the insurance companies are arguing because of their vested interests, for what they can save by having uniform lower awards. They will now be able to get a price for a finger, a price for a below-the-knee injury, a price for a foot, a price for an arm.
In that way we will see the folly of the Supreme Court being allowed to have a ceiling of £150,000 for general damages. A person might lose a leg and get £60,000 or £70,000, and if he were to lose half of the other leg he might get another £30,000, or £100,000 for the loss of a leg and a hand; if he lost an arm as well, he might get near to the £150,000. Little thought goes into the care and protection of the injured person during the rest of his or her life after a serious injury. Juries, on the other hand, showed concern for the care and protection of injured persons for 20, 30, and 40 or sometimes 50 years after an accident. If other medical complications arise after a settlement the injured person will be at a great disadvantage.
John Citizen will be the loser again by this legislation. He has taken a bashing and he will continue to do so. It is ironic that this comes from a Government who have introduced so much social legislation, who have had the courage to do so. They introduced recently the Combat Poverty Bill, three Children Bills — a Child Care and Protection Bill, an Adoption Bill and a Legitimacy Bill — a Contraceptive Bill, regardless of criticism, and now have given the people an opportunity to decide whether we should have divorce in the event of marriage breakdown. It is ironic, therefore, that that caring Government should be introducing a piece of anti-social legislation like this.
The only suggestion I can make on Committee Stage is that the Minister will not go ahead with this. I do not think such an appeal would be successful. Many people are concerned about this. Many Deputies on this side are worried and we have had meetings about it. I do not know if it is half-and-half or not, but numbers of us are concerned.
This legislation is not as important as the Criminal Justice Act or the two Bills that went with it in order to temper the first harsh piece of legislation aimed at eliminating crime — those Bills tried to strike a balance by providing protection for the person in custody, for citizens' rights and the rights of the Garda.
It is ironical and sad that this Bill was rushed into the House. I know when machinery is set up it is hard to stop its operations. I have tried to bring the matter to the attention of the Minister and I have called for an open discussion on the need to reconsider seriously the whole question before removing juries in civil cases in the High Court. If people had been given more time to make their opinions known, it would not have caused any great damage or hardship.
The Minister set out his case in his speech but he was very fond of quoting from minority decisions. I was surprised at that. He used those minority decisions to make his case but that does not make sense. In his speech he made the following comment:
It was against this general review of the present operation of the civil jury system and in the context of the renewed debate on the issue in relation to insurance matters, that the Government considered in principle last year to change the present system...
I do not know what is the Minister's argument. He referred to a "general review" but there was no such review. He also spoke about the "renewed debate" but I ask what renewed debate? Does he mean the insurance companies decided to lobby to have the procedure changed, that they did it in a period of two weeks and that members of the Government caved in? What we are talking about is collective responsibility on the part of the Government. I know there is an element of social concern in the Government but were those members who stand up for social rights asleep when this matter came before the Government? Where were they when this brilliant argument as set out in three paragraphs of the speech was used?
The Minister stated that for well over 100 years there has been "a gradual erosion of the right to jury trial in civil matters". I am saying it is a right and it appears the Minister also believes it to be a right. Yet, we are removing it. In his speech the Minister said that jury trial achieved its present form by the 15th century and he made the following statement:
In the Court of Chancery a jury's finding on issues of fact could be obtained by sending that issue to a common law court but that was rarely availed of and for all practical purposes Chancery cases were decided by a judge alone.
The system evolved in that way and nobody objected. People do not object to any great extent about matters any more because they are fed up and they know how difficult it is to change things. They can tackle something obvious that happens on their own doorstep or district, but it is a different matter for them first to understand what happens here, then to get a sympathetic TD to listen to them and then to extend that to getting a majority of Members here to support their case. They consider the game is not worth the candle.
The Minister stated:
The Common Law Procedure (Ireland) Act, 1854, provided that the parties might, on consent, and with the approval of the court, allow issues of fact to be tried by a judge alone.
I ask a simple question: in 1854 what say had the common man in deciding whether he would allow issues to be tried by a judge alone? Was he asked? At that stage the British House of Commons were legislating for this country also and the House of Commons was controlled by people with property rights who were the ruling class. It was very nice of them to word the Act in such a way as though the ordinary common man had a say in the affairs of State. I presume some of the bigwigs, perhaps barristers or counsel in Kings Inns, Grays Inns, Inner Temple got together and decided at their club that this should happen. The Minister tells us that rules made under the Judicature (Ireland) Act, 1877, obliged a party requiring a jury trial to state this when setting out the action for trial.
Up to a few years ago one could say with absolute truth that people in the Law Library were an elitist group and some would argue that they continue to be an elitist group. Certainly when I was there in the late sixties and early seventies it most definitely was an elitist group. Can anyone here say what was the literacy rate of the common people of Ireland in the period from 1850 to 1870? How many of them spoke English and how many of them would have been consulted? Some of those poor wretches did not even know they were going to he hanged until the rope was put around their necks. Many of them did not know until they were half-way to Van Diemen's Land that they had been sentenced to deportation. Yet, this is the case the Minister is making to prove to us that juries were being abolished as though by common demand. There is no such demand at the moment.
Many people believe the only chance they have is trial before a jury and I go so far as to suggest that a person should be able to opt for trial by jury even in the Circuit Court. If, as is the case at the moment, a person cannot opt for trial by jury in the Circuit Court the defendant or plaintiff should be able to take it to the High Court for a hearing before a jury. That demand exists because many people believe they should have that right. Some quake when they think they have to appear before a judge and they quake even more when it is pointed out to them that they have to appear before a particular judge. Often they are told by their counsel that a certain judge is liable to act according to his moods, that a person could either get off or have to pay maximum damages.
If a person has the right to a jury he can be sure that he will be heard by 12 men and women good and true, a different group each time, and one does not have to go to court too often. The 1877 Act obliged the party requiring jury trial to state this when setting down the action for trial. The Chancery (Ireland) Amendment Act, 1858, provided that the right to a jury in chancery actions should be in the discretion of the judge. We can take it that these Acts were enacted by Members who acquired their fathers' seats at Westminster. The landed gentry, the people with wealth, made these laws, not the common man. Their successors are the insurance companies, people with vested interests, people with power — one would find many lords sitting on the boards of these companies — and they are now laying down the law for us.
Eight months ago the gaming barons came here and whispered into the ear of the powers that be that they might lose a few million pounds if the law was not changed. Within two weeks we obliged by bringing in legislation to increase the stakes. To the shame of this House we still have not reversed that decision. This legislation is still on the Order Paper which says we will increase the stake and the payout on gaming machines for the benefit of these racketeers who make more money than drug barons and drug pushers. We still have not brought in legislation to ban these machines.
In the same way we are playing around with the civil and human rights of our citizens, the most unfortunate people in our society, the sick and the indigent invalids, the people our spiritual leaders ask us to look after. These are the people who would be most affected, not the healthy people. They are very sick people who have suffered the most appalling injuries in car accidents or at work. They may have brain damage, or they may be broken and weak but their lives are seriously affected, yet we are telling them they can no longer have a jury system.
We had the Common Law Procedure (Ireland) Act, 1854, the Judicature (Ireland) Act, 1877, the Chancery (Ireland) Amendment Act, 1858, and the Courts of Justice Act, 1924, which provided that no party to an action for a liquidated sum, or for damages for breach of contract, or for the recovery of land, should be entitled to a jury unless the court considered that a jury was necessary or desirable. None of these decisions was made by the ordinary person. The result of these developments is that, for all practical purposes and with limited exceptions, jury trials in the High Court occur only in personal injury cases. That is all we have left and now, in one fell swoop, we intend to remove that.
This brings us up to the sixties and the Minister mentioned civil juries in modern times. In their third interim report in 1965 the Committee on Court Practice and Procedure, by the narrowest of majorities — six to five — recommended that the right to civil jury trial should continue in the High Court. The Minister preferred to depend on the view of the minority. The 1937 Constitution was passed by the narrowest of margins as well. If the coming referendum is beaten by the narrowest of margins, do we take the minority view? The Committee on Court Practice and Procedure also recommended that the right to civil jury trial in the Circuit Court should be abolished and this was effected by a provision in the Courts Act, 1971. I think that is a mistake and, if a concession were to be made, I would ask that that right should be given to the people who wish to opt for a civil jury. The committee in their 20th interim report in 1978 reaffirmed their earlier view that no change should be made in the High Court system, although the Minister said they only considered the latter incidentally. That is not good enough because there is no case for the removal of the jury system. The only case made was by the insurance companies, with their power, contacts and inside track with the establishment.
I do not agree with the O'Connor committee report which decided that while juries should be retained, the responsibility for deciding the quantum of damages should rest with the judge assisted by assessors. The Prices Advisory Committee on Motor Insurance — the MacLiam committee — concluded in their report in 1982 that the jury system should remain and they spoke about the problems of inconsistency and unfairness.
The Minister said:
It is clear from the Court Committee's report that strong arguments arise on both sides of the issue, and that there are strongly divided views on the matter. This is true even of Judges. Professor Bryan McMahon in his article "July Trial for Personal Injury Cases in Ireland", published in May 1985 in The Irish Times, found that High Court judges who responded to a questionnaire from him were evenly split on the central issue...
Even the judges cannot decide unanimously or by a majority that we should abolish trial by jury. Where is the argument? In the 19th century the propertied classes, the aristocracy and their representatives decided these matters in Westminster. They decided in their own interests always, not for the common good, what the ordinary wretch was entitled to. That is not so here, yet the Minister finds an argument in this for abolishing juries. The flaw in the whole thing is that he need not have gone to this trouble. If he had put this out for public examination initially he would have come to the conclusion, by argument anyhow, that the right to trial by jury should not be removed.
The Minister said: "It was against this general review of the present operation of the civil jury system and in the context of the renewed debate on the issue in relation to insurance matters," that the Government decided. That does not make sense because that general review, as has been demonstrated, is flawed. It was not a general review at all. It was an evolved matter under the administrative system that went on in a partly disenfranchised country where women had not the right to vote until the twenties and where the propertied classes, the landed gentry and the rich controlled the Parliament and made the laws and their sons — there were no daughters operating in the courts — were the counsel, the barristers and the judges. The highest placed families came from that sector. They made the laws for the millions and they decided on this and that is how it came about. The Taoiseach when introducing the Minister as Minister for Justice said that this concern for justice would show through. If that is so, then we should strike a blow for the common man and try to reverse some of these decisions that were made against the common man, against the person whom he, I and all of us here represent in our constituencies because the aristocracy are long gone, as he is aware.
Another point that must be made forcibly is that the type of person who becomes a judge and to whom it befalls in the event of the removal of civil juries to make the judgment in these cases comes, as many of us have said here, from if not entirely an elitist group, at least from the few people for whom this State was founded, who benefited most as a result of the founding of this State and whose sons and daughters through the profession have continued to benefit from 1922. They grasped what was there and got into positions of influence and power and held on to the professions largely to the exclusion of the rest of the population and they maintain those positions. I maintain that to a large extent the Honourable Society of King's Inns, the Benchers and the Incorporated Law Society of Ireland are elitist groups. Many of us have called for a change in this system and to date we have not been successful in this. If we succeed in changing the system and have the professions opened up and legal education removed from both the Society of the King's Inns for barristers and the Incorporated Law Society for solicitors and the State gets control of those, I might have more confidence in even considering this matter.
However, even if that was done, I would still be faced with the problem of recognising that education, third level education in particular is the preserve of the few in this country. Statistics available show that in my constituency, to quote an appalling example, in areas of Inchicore 1 per cent of the population get third level education. However, they make up 27 per cent of the population of St. Patrick's and Mountjoy. In an area like Ballyfermot, of 40,000 to 50,000 people, 4 per cent, a miserable 400 or 500, get a crack at third level education and they make up 17 per cent of the population of St. Patrick's and Mountjoy. Yet we are asking that those people's peers be not given the opportunity to judge their cases of serious personal injury, people who would have a better understanding of what the unfortunate victim of a motor accident or an injury at work is going through, the circumstances under which that person is living and the pain and suffering and the miserable existence that is his lot because of the lack of social justice and equal opportunity.
We are asking these people to give up their right and to let their future and their welfare and the amount of money they are to be awarded in such a case be decided by a member of the establishment, by a member of a profession who is accustomed to wining and dining in places that some of these people might never have frequented or will never frequent in their lifetime. These establishment people as part of their examination had to eat 48 dinners, 12 a year for four years, at the King's Inns and dress formally to do so in the seventies and eighties. They get into a profession because they can nominate or know a person of ten years' standing in that profession who will sign a memorial for them. How many people in this country know a barrister of ten years standing? How many know a barrister at all? That is the kind of condition that the `Honourable' Society of King's Inns demand of their students when they decide to let them into the profession. They can decide that they will limit their numbers this year to 40 or 50 graduates otherwise the rabble coming in might crowd out their opportunity of earning more fees. They can decide as benchers to sit around a table and indicate arbitrarily which student will go through their examination and who will not. Even if some students fail but happen to be well connected or their family have been members of the same profession, they will be brought through on the nod. These are the people who judge in our courts, who have rejected down through the decades ever since the foundation of the State the common man from membership of the Honourable Society of King's Inns.
I am speaking from knowledge, not from guesswork or from anyone telling me. I had difficulty in finding a barrister of ten years' standing to sign my memorial. I had the difficulty of getting recommendations and I was rejected because I was a member of the working class, the common class of whom there were not too many up there at that time. I have seen my fellow students compelled to borrow money that they could not afford in order to buy themselves suits of clothes to go up and eat dinners that they could not afford to eat in order to fulfil the regulations as laid down by the Honourable Society of King's Inns. If ever an institution qualified for "Dis" in front of its "Honourable", that institution do and they have not changed much in the intervening years, except that certain concessions have been made in order to remove the spotlight from their unfair and dishonourable deeds over the past number of years.
Until that institution sorts itself out we should be very slow to make any concessions or to entrust justice to them. We should be even slower in handing over State money, which we did last year to the amount of £600,000 to do up the Inns, without having control over the regulations they make for the admission of students and their legal education. However, we did that in the same way as we brought in the emergency gaming law after a limited debate of two hours even though people who wanted to speak were not allowed to do so.
If the referendum is passed we hope to bring in divorce legislation and we are assured that special divorce and family courts will be set up. This is an important point. The Taoiseach, the Government and the Minister who is introducing this legislation have assured the worried population — they are genuinely concerned — that special family courts will be set up with judges sitting who have a special interest in that area. However, that is not happening in this case. The argument is that the judges who sit in our courts at present are members of an élitist group who may not be suitable to judge all sectors of society. Until that is changed and we become a more egalitarian society, we should not change the system.
I was talking about insurance companies earlier and I want to continue the argument that they have not helped their industry or made any real contribution towards reducing motor or civil liability insurance because of their actions, or lack of them. I said that most solicitors will tell you that they literally have to drag insurance companies towards a settlement by initiating proceedings. When they enter into negotiations settlements are made much more quickly. There seems to be a new reality dawning on insurers and solicitors at least in relation to personal injury claims and an awareness on both sides of the advantages of earlier negotiations and settlements. It has been demonstrated that 95 per cent of all claims are settled before going into court in cases of personal injury, some of them on the steps of the court, and much of that is the fault of the insurance companies.
There have been some improvements but more need to be made. One is that the Incorporated Law Society have implemented the exchange of medical reports which has reduced the waiting time by at least six months for a High Court action.
Insurance companies seem to blame the legal profession for high costs but they do not accept that there is a reluctance on the part of insurers to realise that the old order has changed and that there is an anxiety on the part of the legal profession for the earliest possible disposal of claims. That applies to barristers as well as solicitors. A solicitor has no reason for dragging out a claim as he is anxious to get it off his books and to get on with the next case and the same applies to the barrister. Some insurance companies delay matters by having to obtain the opinions of a number of counsel and sending them to head office overseas before they are given authority to expedite claims. That is because some of the foreign insurance companies based here do not have much confidence in the grey matter between the ears of most Irish people; we cannot do things very well, so they go back to their head office.
Some insurance companies also instruct their counsel to fight every claim. For years and years the major insurance company here had a policy of fighting every claim; they dragged them out to the last and of course then they did not have enough money to cover outstanding claims. Eventually the company collapsed and had to be taken over by the State. That was deliberate blackguarding by an insurance company and the earlier case to which I referred, in which my father-in-law was paralysed from the neck down, is proof that he was a victim of that company. They dragged out the case and their counsel said that if he did not settle for a lesser amount they would drag it out for so long that he was likely to die before he got anything. That is the fault of the insurance companies and not of the motorists or taxpayers and is damning to the case the insurance companies are making.
Insurance companies have a vested interest in lobbying for changes in court procedures, extending the hours of sitting, reduction in vacations, more judges and for regular reviews of the jurisdiction limits. If they adopted a unified approach to these matters their voices would be very influential and powerful. Most insurance companies have internationally based offices and could import useful procedures used abroad to much advantage. They can cite advantages and disadvantages in other countries; they are involved and why do they not do something about it? They seem content to work within the unsatisfactory system which operates here. Insurance companies concentrate their energies too much on complaining about juries, the effect their decisions have on high awards and the overburdening of cases by the necessity to employ three barristers in each case. Changes in these procedures will not effect the savings which the insurers hope for and they have confirmed that premiums will not be affected. I remember quite distinctly, when the former Minister first mooted this idea, that I was the first to object at my own parliamentary party meeting.
The Minister has searched long and hard in his Department for arguments but has not come up with even one. The sole reason given was that premiums were too high and that the abolition of juries would reduce them. The arguments produced since for bringing in legislation have been pathetic. This debate could have taken place in committee rooms around the House with Members of all parties taking part. Members from all sides met the former Minister for Justice to bring in emergency legislation in relation to gaming which is still on the books. We could have met in the same way about this and we would not now be in a situation where we are involved in a Second Stage debate about a Bill which the Minister is unlikely to change at this stage.
Why am I going on about it if he is unlikely to change it? The answer to that is very simple. One gets various opportunities to make points. One is in the parliamentary party; another is among one's colleagues and by going to see the Minister and talking to him. Finally, if it is insisted upon, we come in here. One has to make it very clear, even if one is a member of a party and is going to be whipped in what one's position is in relation to legislation. As it happens, the main Opposition party do not agree with the removal of juries. I do not agree either. I do not accept the alternatives put forward by the spokesman for the Opposition, but I will get to that later. I just do not want the jury system tampered with at all.
The Minister referred to the MacLiam and O'Connor reports in which the situation was considered in detail and which concluded that the retention of juries was appropriate to certain modification of procedures. I maintain that this legislation is an assault on the rights of citizens and it is inexcusable. This removal of juries is not being done by popular demand. One must ask who is making this demand and the answer is irrefutable — the insurance companies argue that high premiums are the result of the cost of actions and the high fees of the lawyers. Let me point out that there is a tendency among lawyers to drag out cases. There is a lot of horse dealing going on. I have actually experienced cases where barristers talk slowly to make cases go on for a certain length of time and perhaps get one or two days out of it. That situation has come to the attention of many people and Members of this House who want to change it. While cases are being dragged out, a bit of horse dealing is going on in the corridors and, after two or three days when fairly high fees have accumulated, they come back in and say that a settlement has been arrived at.
These insurance companies are complaining about the high cost of settling claims in court, but 95 per cent of these cases are settled out of court. So what effect is the small percentage that end up in court having on the cost of premiums? One of their arguments is that because jury awards are sometimes high, they set the standards for the settlements out of court. The insurance companies themselves must have some control over settlements. Costs could be reduced if they moved faster, if they gave clearer instructions — it is not necessary to instruct two senior counsel to settle an action.
If we really want to do something about that, the answer is in our own hands. There was an attempt twice here to fuse the two sides of the legal profession, the barristers and the solicitors, and it is one of my greatest regrets that it did not come off. In 1970 the then Minister for Justice, the late Michael Moran, said it was his intention to fuse the professions and he worked to do that. In 1973 his successor, Deputy O'Malley, then Minister for Justice, worked towards that. Both said definitely and categorically that they would fuse the professions. But the fellows with the curly wigs and gowns up in the Law Library got together to try to stop this. The Minister was determined to win but he was beaten by the clock, not by the legal profession. He was beaten by the coming to power of the Coalition. I have to say that the Coalition were then, as they are now, a predominately legal party.
