Courts Bill, 1986: Committee Stage (Resumed).

Debate resumed on amendment No. 1:
1. In page 2, before section 1, to insert the following new section:
"1. —(1) Notwithstanding section 94 of the Courts of Justice Act, 1924, or any other provision made by or under statute or any rule of law, an action in the High Court—
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
(b) under section 48 of the Civil Liability Act, 1961, or
(c) under section 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act, 1936,
or a question of fact or an issue arising in such an action, shall not be tried with a jury.
(2) Subsection (1) of this section also applies in relation to—
(a) an action in which damages are claimed both in respect of personal injuries to a person caused as specified in subsection (1) (a), or the death of a person, and in respect of another matter, and
(b) an action in which—
(i) the damages claimed consist only of damages in respect of a matter other than personal injuries to, or the death of, a person, and
(ii) the claim arises directly or indirectly from an act or omission that has also resulted in personal injuries to, or the death of, a person,
and in relation to a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection.
(3) Notwithstanding the preceding provisions of this section, subsection (1) of this section does not apply in relation to an action where the damages claimed consist only of damages for false imprisonment or for intentional trespass to the person, or in relation to a question of fact or an issue arising in such an action.
(4) For the purpose of the application of subsection (1) of this section in relation to an action, or a question of fact or an issue arising in an action, any set-off or counterclaim, or any other claim by a party (other than a plaintiff) to the action, shall be disregarded.
(5) Subsection (1) of this section does not apply in relation to an action, or a question of fact or an issue arising in an action, if the trial thereof began before the commencement of this Act but does apply to the retrial of such an action, question of fact or issue if the retrial begins after such commencement.
(6) Where, as respects an action in relation to which subsection (1) of this section applies, or a question of fact or an issue arising in such an action—
(a) a notice of trial containing a requirement to have the action, question or issue tried with a jury, or
(b) a notice signifying a desire to have the action, question or issue tried with a jury,
was served or given before the commencement of this Act, the requirement referred to in paragraph (a) of this subsection or, as the case may be, the notice referred to in paragraph (b) of this subsection shall be disregarded.
(7) In this section `personal injuries' includes any disease and any impairment of a person's physical or mental condition."
—(Minister for Social Welfare.)

Before the luncheon adjournment I was referring to the contribution on this important issue by the Minister for Social Welfare when Opposition spokesman on Justice during the course of the Second Stage debate on the Bill on 28 May 1986. I should like to refer to some more comments by Deputy Woods on that occasion. Deputy Woods on that day was dealing with the attitude of the insurance industry and whether or not the abolition of juries would lead to a reduction in insurance premiums. He quoted the response of the insurance industry and went on to say, as reported at column 520:

In any event, the insurance industry are adamant that the abolition of the jury system will not result in an immediate drop in premiums although it may in time contribute in some way. This was accentuated in a "Morning Ireland" programme when the spokesman for the industry, when pressed about the question of premiums coming down, said the hope was that they would be contained and that following the abolition of the jury system other things would follow, such as the streamlining of the whole system, the reduction in the severity and the number of accidents, the surveillance by the Garda authorities....

Again, we have this vagueness. What are the "other things" that are supposed to follow? Where are they? I do not see any sign of them and I do not see anything in the Minister's amendment, or in any action by the Government, to indicate that they are bringing in these "other things". All that it amounts to is this pious hope that in some mystical way insurance premia will drop when juries are abolished. This morning in the course of his contribution the Minister for Social Welfare was on the same tack. He said, "We will expect concessions from the insurance industry then". Many people expect a lot of things but they do not happen.

I must be naive because I expected that, having regard to the attitude adopted by the Minister for Social Welfare, and the Fianna Fáil Party when in Opposition in 1986 in response to the Bill, they would drop it like a hot potato. All sorts of things happen that one does not expect. Are we to take this major step of abolishing that basic right of the ordinary person to have his or her damages assessed and facts determined by a jury if all we have in return is the expectation of concessions from the insurance industry? The House would be foolish to put its trust in that. One would have wanted a much more definite commitment to decrease premiums by 10 or 20 per cent across the board. The insurance industry have made it perfectly clear that this will not happen. They have given no commitment. They have said the best we can hope for is containment. There will be no question of juries going and premiums coming down. Whence comes the motivation for this move? It escapes me.

The Fianna Fáil Party sent in their former Front Bench spokesman on Justice, now Minister for Social Welfare, and he gave a long and detailed analysis in one of the finest speeches he has made. It was an excellent speech analysing all aspects of the problem down to the last detail. I heard it all and found it so convincing that in my own contribution on that occasion I more or less agreed with him and deplored the fact that this Bill was being brought forward by the Coalition Government. The Labour Party were not happy with this project and the Labour Ministers voted against it in Cabinet.

Who told the Deputy that?

The Labour Party did not want the abolition of juries then and do not want it now. Of course the Fine Gael Party want the abolition of juries and if there is a merit in consistency they have it. They are not concerned about the rights of protection for the ordinary man. Like the Progressive Democrats, they take the elitest position. Unfortunately the Ceann Comhairle was not here this morning to hear the disgraceful performance by the Leader of the Progressive Democrats talking about the youth of this country being unacceptable or not doing a good job as jurors because they were uneducated and could not tell the difference between £10,000 and £100,000. These kinds of comment do no credit to any politician.

The Fianna Fáil Party, having considered this matter in 1986 and analysed all aspects of it, decided to oppose it, yet when in Government they decide that their considerations count for nothing and they press upon this House the very thing it took Deputy Woods an hour and a half to argue against. There must be some strong lobby from some source to bring about that sort of change in a major party. Where is that lobby? Who is pressing for this? I wish the Minister could tell us what changed his mind and that of his party to the extent that they could bring themselves to this monstrous about-face in advocating this measure.

They argue that awards made by juries are inconsistent. That argument has been mentioned many times. It is said that there must be consistency in awards and that they should be predictable. It is a line of argument. It happens on occasion that awards made by High Court juries are unpredictable. They have on occasion made awards that were too high. The record will show that. On the other hand, it would also have to be conceded that on very many occasions juries have made awards that have been too low and there have been cases — not a few in number — where jury awards have not been reduced by the Supreme Court but have been increased. One notable case where the Supreme Court substantially reduced damages was a case which coincidentally had been assessed by a High Court judge Mr. Justice Hamilton, sitting alone without a jury. The idea that putting awards in the hands of a judge alone will achieve one kind of predictability and that in the hands of a jury the award will have another kind of predictability does not stand up.

We are making the ordinary man in the street even more remote from the law. The law is a rather intimidating institution anyway, but at least with the jury system there was always a connection with the ordinary man. The young person so disapproved of by Deputy O'Malley, the ordinary person, became a part of the process, was sworn in and listened in the jury box to the evidence. In some way at least he was identified with the system because he was a part of it. If we take away that last vestige of connection between the ordinary man and the legal system we will be transforming the law into an elitest system of specialists, judges, barristers, solicitors and so on who make up the panoply. The one involvement that was left with the ordinary man is being taken away. To what end? Is it to achieve predictability in awards? The award that can be expected for a particular injury is already predictable within certain fairly narrow parameters. If one describes to any average practising barrister the injuries in a particular case he will be able to tell within those narrow parameters the likely range of the award of damages. The fact is that jury awards are already predictable and, what is more, these awards come under the supervision of the Supreme Court. There is no jury sitting in the Supreme Court; that is made up of judges alone. One way or the other, the ultimate supervisory decision as to the amount of damages is under the control of judges alone. It is commonplace for appeals to take place before the Supreme Court on the amount of damages from High Court jury awards and the Supreme Court gives its guidelines — judges alone, quite uncontaminated by any jury. Where is the panic, where is the pressure?

The number of cases that go to the Supreme Court on damages on appeal is relatively few and it is fair to assume from that that there is a broad average spectrum given in High Court jury awards. It is and has been the basic, unalienable right of ordinary people, if they wish, to have their cases decided by a judge and jury of their peers. They know that when they go into the witness box and describe the ordinary everyday events that happen to them, be it driving a car, or as a pedestrian, or as a worker in a factory, they will know that there will be sitting there people who will understand, perhaps other factory workers who know what it is like to work in a factory and know the risks that very often they are compelled to take which cause so many of the industrial accidents that take place. They are entitled to and have always had that right. It ill behoves any Government, or any party, to take away that right which has been vested in them for all those decades and which has become an enshrined principle of the law. I might be prepared to consider it if anybody could show me any great advantage in it, what benefits would flow to anybody from this. If the insurance companies are asking the Government to do this so that they can have more money in order to reduce premiums, that would be one thing.

In fact it is not the jury awards that are untoward. There are other aspects that could be attended to that could reduce the costs. I deplore that the Government have introduced the number of counsel into this measure in this way, to confuse the issue. Two completely separate and distinct issues have been amalgamated in the Bill as now presented to the House by the Minister's measure in bringing forward the notice of motion. These are disconnected items. The question of the number of counsel in a case is one thing. It ought to be discussed by the House in detail and at length on Second Stage of a measure, so that there could be an analysis of the type of counsel, junior or senior, or the type of case. If it is a particularly severe case, perhaps involving a paraplegic or something of that nature, is that not to be distinguished from the ordinary run of the mill £15,000 road accident cases? Are we just to have some block arrangement as is brought in here? That is a very important issue.

I fully accept and support the proposition that there has been overstaffing in so far as legal teams are concerned. Something must be done about that. In that connection, you cannot consider that matter in isolation. There are other connected matters that have to be dealt with at the same time if you are going to provide for one counsel per case — and I agree with one counsel per case, be it junior or senior. That is a matter that will have to be teased out. You must deal with the organisation of the courts. You have to carry out a radical reorganisation of the listing system of these cases before the courts if you want to do that. It was the unwieldy nature of the listing system that brought about the need for a multiplicity of counsel in the first place. As a deliberate act perhaps four or five times as many cases were put in for decision in one day as it was known there would be courts available to deal with them. As a result, the legal teams were forced into the position of having more than one counsel.

The Minister is quite right in wanting to bring in regulations to deal with the staffing of cases, but at the same time he must organise the listing system for the hearing of court cases. I see no mention of that. Where is the arrangement about that, apart from some vague talk? There are the other vagaries, the other promises. This book of damages I have heard talked about since 1986 and through 1987 to 1988, which was supposed to be such an integral factor, when is that magical book which will solve the problems going to appear? What has been done about that? I heard some reference to it in the Minister's speech, but nothing very much. I come to some of the comments made by the Minister, Deputy Woods, on 28 May 1986, column 521.

That is the ancien régime. Those bets are off since then.

Just the same man, different policy; same party, different policy.

The Talleyrand team.

(Limerick East): The 15 yards difference.

Or the Vicar of Bray.

A complete change, not even the subtlety of just some minor variations.

Would one ever believe that both Deputies were in Government at the time?

The Minister was against this team when he was on the other side of the House.

It is an undeniable and very regrettable fact that the status of politicians in this country as compared with others is at a very low ebb. I do not know if people would agree or disagree with that proposition. In my opinion and experience, the esteem in which politicians are held here is low and there is good reason for that. When one looks at this situation one begins to understand why this is so. When matters of principle are espoused, be they on one side or the other, at least they ought to be stood over through good and bad. However, I was referring to my puzzlement at what it could possibly have been that brought about such a complete U-turn after such an exhaustive research of this problem by the Minister, Deputy Woods.

The Deputy is now being repetitive. He is trying to keep going, as instructed by Deputy McCartan.

At least in financial matters the Minister could not say that he did not know how bad the books were.

I do not take any instructions from Deputy McCartan, or anybody else.

I concur with that.

The Deputy gives them but cannot take them.

As to how I am proceeding, could I remind the Minister that he spoke on the matter for an hour and a half?

That was on Second Stage.

We did not have any Second Stage.

That is correct. We had no Second Stage. The Government denied us that.

I would advise Deputy Taylor to speak on the matter before the House and not to respond to interruptions.

And the Minister will not interrupt.

It is hard to contain myself.

Have you any admonition, a Chathaoirligh, to add to the Minister as to the nature of his interruptions?

Acting Chairman

The Deputy to continue. He is in possession.

The Minister found it quite in order to talk on this subject on the last occasion for an hour and a half and——

On Second Stage.

——he feels uneasy because I am setting about reminding him of what he said on that occasion. I sympathise with him in his position. It is a very unenviable one in which he finds himself. When he interjects and chips in in this manner, it is understandable. One would have to have a great deal of sympathy with him. Nonetheless, it is a job that must be done because one must highlight what has gone on here. I am speculating on what it was that brought about this remarkable U-turn on the part of the Fianna Fáil Party, now in Government, in doing this.

Is there some institution that has just determined that juries are to be abolished in civil cases in this country? Does it really matter who is in power? We should consider where the real power in this country lies. Apparently some power has determined while one Government is in that juries should be abolished. There is then a change of Government and into power comes a party who held a diametrically opposed view, and yet we find ourselves in the same situation, that juries in civil cases are still to be abolished.

It is called flexibility.

Is there some power orchestrating the Members of this House, marionette-like, to produce the desired result that has been enunciated not by any party in this House but by some outside power? That seems to be the unavoidable conclusion that must be taken from this. At column 521 in the Official Report of 28 May 1986, Deputy Woods said:

However, we do not accept the status quo. While we would prefer to see the jury system retained in the interests of the ordinary citizen, we are proposing the following steps which it has been shown will definitely reduce insurance costs.

If the Minister would prefer that why does he not just do it? Why does he not set about introducing these other things about which he was talking? Deputy Woods referred, column 522, to the particular relevance that juries have in very serious cases. We have tabled an amendment here as a saver to provide for the provisions of juries in very serious cases. I will be looking with interest to see if the Minister will support that amendment, to cover what he said, as at column 522 of the Official Report.

Are there great costs involved in operating the jury system? If there are great costs involved, that is certainly a matter to be considered but we will look at what Minister Woods said on that subject, column 528:

When we look at the role of the jury we find that in themselves they cost very little. All the people who sit on juries get is their lunch. They are not very expensive. The Minister has told us that there is considerable inconvenience, but there is inconvenience in any democratic process such as this.

The Minister goes on to highlight the importance of the democratic system in which the jury system evolved and he was absolutely right. The Minister is as right today as he was then. The Minister went on, column 528:

Juries cost very little, but they set the standards for the treatment of citizens who have been injured. That is their key, central role. They come, they give their view and they go. They have no vested interest other than their understanding and compassion.

Whence will come the compassion, now that the Minister is sending them off about their business forever? The Minister went on:

Any error on their part is likely to be on the side of the ordinary citizen.

Is that not a desirable thing to have? The Minister went on, column 529:

If one counts the number of times a jury erred one will find that it was more often on the side of the ordinary citizen who has been injured, and, possibly, maimed for life.

"That is the point" said Minister Woods: "What is wrong with that?" What indeed is wrong with that? There is nothing wrong with it, so why then set about abolishing it? The Minister went on:

How hard-faced have we become if we are not prepared to suffer the inconvenience of calling people up and arranging lunches and so on for them so that they can set the standards which we live by? Are juries to be condemned because of their understanding and fairness?

Are they to be condemned? The fairness that the Minister spoke about is truly a recognised facet of the jury system by and large. As reported in the same column, the Minister asked:

Should a jury of 12 men and women not be the arbitrers of the will and standards of the people?

I do not mind what is done in England.

It would appear that the Minister minds a great deal about what is done in England, because here he is now going to considerable pains for no apparent reason to do what they do in England.

We are going to lope after the English 40 years in arrears.

That is correct and the Minister said here:

I do not mind what is done in England.

The Minister is putting his own objective considered viewpoint on the matter, not taking any note of what they do in England——

There is a quick change between acts two and three.

Quite. Is the English system all that great anyway? I think not, because a leading QC, Greville Janner in introducing a Private Member's Bill in Westminster on last June 4 described the English compensation system by judge alone as nothing more than an archaic lottery. The English system that the Minister is running so fast to catch up with and to emulate has been described by a leading QC at Westminster as an archaic lottery. I suppose the Minister is partial to lotteries. The lottery system has great appeal for the Government. It is very useful for them in dispensing largesse where it suits them and where they think it will produce votes for them so maybe it has the attraction of the lottery.

It was, unfortunately, our idea.

—— and a regrettable one.

I completely agree.

It was an excellent idea.

Nonetheless it is an idea that Minister Woods has taken up with great vigour and great glee and an idea which he is using for political purposes.

A great deal has been made about the complaints of the insurance companies, about how the insurance companies, detest this idea of a jury system and about how they should be pitied because of how badly they are doing and how much money they are losing. Is it not really terrible for them when one looks at the offices they have put up and the millions of pounds of investments and all the rest of it? It is not really necessary for us to pour out our hearts for the insurance companies. They are incredibly wealthy organisations and I am not at all impressed by the losses they show in their books and which they put forward with a moan and a whinge and all the rest of it. They do very well for themselves and if one looks at their activities and their profits that is obvious.

The insurance companies in many cases do not practice what they preach anyway. In relation to, for example, the number of counsel in a case, they complain that a person has, say, three counsel. It is a fair complaint, but one would have thought then that they for their own legal teams would say that they did not need three counsel and that they would confine themselves to one. They do not do that, however. There has never been anything which compelled the insurance companies in court to practice what they preach. Nobody compelled them to have three counsel but they always do. If one goes down to any of the jury actions one will see the insurance companies there with the two senior counsel and one junior, that is if all three are there at the same time which is highly unlikely. They are whingeing and complaining about the necessity for them to pay the other side for having three counsel. Voluntarily they take on three every time. I wonder whether the Minister has ever quizzed them about this or raised that question with them, I think not. Still, they go on about this question on juries, how they do not like juries and how juries are exaggerating the amount of damages but what do they do in practice? I took particular interest in a report which appeared in The Irish Times of 18 June 1986 and I referred to this report in my speech on Second Stage. I would now like to refer to it again. The report is headed “Judge criticises insurance firms” and it stated:

A judge has criticised insurance companies for insisting on costlier High Court actions rather than Circuit Court trials.

Judge Diarmuid Sheridan said at Carlow Circuit Court yesterday that insurance companies had moved heaven and earth to do away with High Court jury hearings, but the opposition to leaving such cases in the Circuit Court jurisdiction, where they are dealt with by a judge alone, was coming from the insurance companies themselves.

He said that the insurance companies had mounted a very large campaign for waiving jurisdiction of High Court juries. To his certain knowledge since last October he had transferred at least 15 to 20 cases from the Circuit Court to the High Court. In each case he had inquired as to whether the parties would leave the cases in the Circuit Court and consent to jurisdiction, but in each case one party objected to that course and that invariably was the defendant who almost always was involved with an insurance company.

Judge Diarmuid Sheridan said he could not understand this and quite frankly neither can I.

In the course of his magnificent oration, as reported in column 530 of the Official Report of 28 May 1986, the Minister, Deputy Woods, referred to a statement by Justice Douglas of the American Supreme Court in regard to juries and noted his comments with approval. He quoted Justice Douglas as saying:

A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its limits. A group of 12, who are drawn to hear a case, makes the decision and melts away. It is not present the next day to be criticised. It is the one governmental agency which has no ambition.

The Minister went on to say:

Is it not wonderful to think that we can have 12 people give a verdict which can set a standard? Those people do not have any connections. Certainly those people are not open to back-handers or any involvement.

He quoted Justice Douglas as going on to say:

It is as human as the people who make it up. It is sometimes the victim of passion but it also takes the sharp edges off a law and uses conscience to ameliorate a hardship. Since it is of and from the community, it gives the law an acceptance which verdicts of judges could not do.

The Minister said there was a lot of truth in what Justice Douglas had to say and that we should listen to such views before we threw away an institution which had set a standard for us in this area. I agree with him entirely, his comments were very well placed.

It was an excellent speech.

It was a first-class speech.

I am glad that the Deputies are admiring my speeches.

Does the Minister think that the abolition of juries would in any way affect the amount of awards which the courts would give? He gave his considered opinion on that question at column 535 of the Official Report of 28 May 1986 when he summed up the position as follows:

In my opinion, therefore, the cost of awards would not be affected greatly by the abolition of the jury system.

At column 536 he had this to say:

If we do away with juries we will leave the legal profession totally to control the procedure and level of compensation and the setting of the standards which will have to be observed by all.

That is what the Minister is setting about doing. He has changed his mind on the issue. He is now the supporter of the legal profession and is quite content to leave the entire administration of the legal system in the hands of the legal profession, something about which he expressed serious reservations on the last occasion. Also in the same column he said:

The availability of a jury trial serves the useful social function of discouraging and even preventing litigation from becoming the domain of an exclusive professional group of lawyers, judges and advocates.

The Minister went on later in his speech to advocate an increase in the jurisdiction of the Circuit Court and I agree with him on that. We have tabled an amendment to increase the jurisdiction of the Circuit Court and it will be interesting to see whether the Minister will support it. At column 541 he referred to the functions of the House and said:

We have a function and a responsibility in Opposition to tease out these things and to see what is really going on, and when you do so what you find is amazing.

The situation in which we find ourselves today is certainly amazing and when we try to tease out what is going on behind the scenes and where the orchestration for this measure is coming from it becomes even more amazing. When the Minister came to the conclusion of his speech after one and a half hours he said:

I have said all I want to say about this now. We come to the conclusion that in the measure which the Minister proposes the case has not been made for the abolition of juries. It has not been established and will not result in the savings which have been mentioned. We have considered this matter long and hard.

Notwithstanding all of that we now find he is now imposing it on the House with the aid of the Fine Gael Party and the Progessive Democrats. It is interesting to note the unity of intent on this issue between the three right wing parties and there is a message to be drawn from this because when the curtain is drawn aside we are left with the position where the concept of the abolition of juries which provided a protection for the ordinary person and the ordinary worker does have interestingly enough the consensus of the Government, the Fine Gael Party and the Progressive Democrats. Deputy Seán Barrett——

Your people voted for this Government.

They voted against it in Cabinet.

The Deputy was not there, I was.

If the Deputy reads what I had to say in my speech on Second Stage he will find that I called on the Minister to withdraw the measure and not to proceed with it. It is interesting to note that he heeded what I had to say because he did not proceed with it any further.

Your people did not vote against it in Cabinet.

As the Deputy is aware, it did not reach Committee Stage during the term of the previous Government. I would like to think that the Fine Gael Party had a rethink on the issue but when one hears the comments of Deputy Barrett in this House today, clearly that is not the case and the basic trenchant right wing position of the Fine Gael Party is as strong as ever. They are competing with the Progressive Democrats and they are in unison with Fianna Fáil. They all espouse the same position. The fact that Deputy Barrett has come into the House to make an Opposition speech only clouds the issue and may fool some people but the reality is that they support this measure.

At least we are consistent.

When a vote takes place, where will they be? They will have gone home for their tea and they certainly will not be in the lobby opposing the measure.

Wait and see.

When they have not got a good point to make all they can do is barrack and chip in. That is their standard practice.

The Deputy should not make remarks about us which he cannot stand over.

I can stand over them because the record speaks for itself. Take a look at the facts.

Your people voted for this.

When a vote takes place, where are they? They are not an Opposition party in the Dáil. The Opposition is constituted in this Dáil by the left wing groupings — the Labour Party, The Workers' Party and a couple of Independents. The designation of Fine Gael in my opinion——

Acting Chairman

I would like to remind the Deputy that he is not speaking to the Bill at present and that we are on Committee Stage of the Bill. The Deputy's remarks so far are more appropriate to a Second Stage debate. The Deputy should not respond to interruptions.

What can I say to you except that you are absolutely right and I accept your ruling but that perhaps some of your reprimand might be addressed to those Members who are interrupting and causing this slight momentary diversion away from this very important issue?

The Deputy should not say things that he cannot stand over.

Even now the Deputy cannot control himself.

Let us talk about the Bill.

It certainly behoves the Government to look for measures that will reduce insurance costs. They would be very important measures. Much play has been made of the question of escalating insurance costs as a result of many motorists not taking out motor car insurance. That of course is a very valid point. It is compulsory for them to do so and that matter should be actively pursued through all available channels.

There is more to jury actions and compensation claims than motor car accident cases. There is another area that involves very often serious injury to people and that is the industrial accidents area. It behoves the House to address itself to insurance in industrial premises and the accidents that occur there all too frequently. It is entirely wrong and an outrage that it is not compulsory on people who run factories and other industrial premises of that nature to have insurance on their workers and to pay damages where they sustain injury in an accident. That situation has been permitted to continue for far too long. The case is equally strong to make insurance compulsory for factory owners and people who run industrial premises as it is for motor car owners. It is regrettable that there are large numbers of factory owners who do not carry insurance on their workers. There are many workers who claim injury awards against such factory owners and never succeed in recovering the money that was awarded to them by the court, whether it was with or without a jury. If it is made compulsory, and I believe it should be, to have insurance across the board on industrial premises — I am sure Deputy Barrett with his knowledge of the insurance industry would agree — that would bring down insurance premiums within that category. That is the sort of thing that should be looked at and brought in instead of this sham concept that some panacea is going to be created by abolishing juries, that some degree of certainty that is not already there is going to be brought in, that there is going to be any major change in the situation and, most important of all, that the response in regard to insurance premia will be as the Minister hopes. None of these things will happen. These pious hopes are not going to be realised. In the meantime the damage will have been done and the system will have been altered irretrievably. There is no going back when juries have been abolished. We have to sit back here and rely on those pious expectations from the insurance companies. If that is all we have to hang our hat on, it is a bad day that this House approves of this measure.

Acting Chairman

I am calling the Minister and then I will call Deputy McCartan.

I have been here since 10.30 a.m. and I was allowed only three minutes on the previous motion.

Acting Chairman

I sympathise with the Deputy but I am advised that I must call the Minister next and then I will call the next speaker.

I will not be long, Deputy. At this point I would like to bring some reality back into the debate. Deputy Taylor has gone back to the history of this Bill in 1986 and seems to be stuck there for quite some time. Strangely enough, he was part of the Government which brought through the Second Stage of the Bill, which is the principle of the Bill, and supported it at that stage.

The Minister saw my speech.

I questioned, as was my duty in Opposition, the savings that would flow from the abolition of juries alone. I sought from the then Minister, during the course of the Second Stage debate, assurances that not only would there be containment of costs — that was not sufficient — but that there would be real reductions in costs as a result of the measure, and preferably as a result of a package of measures instead of the abolition of juries alone which was, at that time, being considered almost as a panacea to bring about all these savings. What has happened since then? That is the main import of what Deputy Taylor has to say this afternoon. He said that if he thought benefits would flow and premia would be reduced, he would be more prepared to accept the measure. He did not say he would accept it but that he would be more prepared to accept it, although he accepted it in principle earlier.

pened since 1986. A great deal of effort has been made by the Government to secure from the insurance industry very firm commitments about the kinds of savings and reductions in premia that will arise from the House taking these measures today. The Insurance Industry Federation have said that the abolition of the three counsel rule will result in a 10 per cent saving in legal costs. That is a difference from the position in 1986. The industry are now talking about actual reductions and not about containment. It is obvious that every Member of the House who is a member of the legal profession is contributing to this Bill today, as the Deputy mentioned earlier. The federation have given statements to the Minister for Industry and Commerce and they cannot do any more than that. We have to take that in good faith. They have also said that, because of the knock-on effects of the abolition of juries and the various other effects, assuming that the other actions are taken in association with it to increase the efficiency of the whole operation, savings in the order of 10 to 20 per cent will be realised. Indeed they go beyond that.

That is not true.

That is what they have said.

In the statement by the Insurance Industry Federation they said there would be no reductions.

Acting Chairman

Order, please. Please allow the Minister to continue.

The Deputy is on the other side of the House now. I am giving him the information that the Minister for Industry and Commerce has given to me. I went to refresh myself on that matter immediately prior to the Bill coming back to the House. In relation to Deputy Taylor's point, a number of companies have already reduced their premia this year in anticipation of the step which is being taken by the House. The Minister for Industry and Commerce can quote the various companies already taking that action in the current year.

On what type of insurance?

I mentioned earlier that one company have introduced a special scheme with reduction of between 10 and 20 per cent for young drivers, with certain conditions: they must have been named on their parents insurance for two years and must be accident free. That is another practical step that is being taken. There is another example of a company which stated that they have pre-empted the Irish insurance industry by offering reductions in anticipation of the passing of the Courts Bill, 1986, removing jury awards in insurance cases, which they expect to become law by 31 July.

Various steps have been taken which indicate that there is a clear change in the environment and what we, as a Government, are looking for are definite reduction in premiums and the industry are promising these reduction and delivering them, to some extent, even at this stage.

May I raise a point which is relevant to what the Minister is saying?

Acting Chairman


The Minister might consider as part of his reply the report of the sub-committee on motor insurance, which I had the privilege to chair during the last Dáil and which was a sub-committee of the Committee on Crime, Lawlessness and Vandalism, which the Minister chaired. The report said that the committee would not recommend the abolition of the jury system unless the insurance industry could satisfy them that there would be an immediate benefit in terms of lower premiums for motorists. The committee noted that reductions in VAT and the abolition of duty on car parts, though reducing the cost of car repairs, did not appear to have been passed on to the insured. What assurance has the Minister that the benifits would be passed to the insurers in this case? I thank the Minister for courteously giving way so that I could make this point.

The assurances were given by the industry to the Minister for Industry and Commerce and, as he has said in this House recently, he will insist on those savings being passed on. That is the position at this stage——

The Minister is asking the House to do something on the Minister's undertaking, but we want to know that gauge the Minister is putting into this to represent a personal sacrifice——

Show us the written commitments.

I know Deputy Taylor is not very enthusiastic about the Programme for National Recovery——

I most certainly am not.

In the Programme for National Recovery the employers, the trade union and the Government came together. Page 16, paragraph 4, of the programme reads:

Irish liability insurance rates place many Irish firms at a cost disadvantage, particularly in comparison with UK competitors. The Government will move quickly to facilitate a reduction in costs by proceeding with legislation to abolish juries in personal injury cases, by introducing legislation to give effect to the main recommendations of the Commission of Inquiry on Safety, Health and Welfare at Work (the Barrington report) and by promoting the introduction of safety audit arrangements by insurance companies.

On a point of order, is it in order to quote selectively and misleadingly from the report, and in particular to fail to draw the attention of the House to the fact that the Irish Congress of Trade Unions have consistently made clear their opposition to the abolition of juries and have indicated that the only situation in which they could tolerate it would be if there was a move towards compulsory insurance in employer liability cases? Surely that would be a complete picture to present to the House?

Acting Chairman

You will get an opportunity to make your own points later. The Minister, please.

Paragraph 4 continues:

The scope for promoting the publication of a Book of Quantum of damages, for introducing a pre-trial procedure system and reducing the level of legal representation in the Superior Courts to help reduce legal costs will also be examined. Insurance industry representatives have given assurances that reductions in liability insurance premia will follow the introduction of an improved framework.

That comes from the Programme for National Recovery to which the various interests have subscribed, and that is the programme which is improving the economy, and the Deputies on the other side know it. It must be tough for them to see this happening but the resolute action of the Fianna Fáil Party is bringing that about.

What has that to do with this Bill?


The Government are bringing that about as a result of our efforts.

Acting Chairman

The Minister is responding to points raised.

I would not disagree with the Deputy.


Acting Chairman

Each Deputy will get an opportunity to make his points.

Some Deputies have been waiting here since 10 o'clock this morning listening to Second Stage speeches without any help from the Chair.

The Fine Gael Party favour the legislation to abolish juries in civil actions and have urged the Government to give this legislation priority and to have it in law before the end of November. This is mentioned in the Fine Gael discussion document——

We know that.

I am reminding Deputies that that is their position because his colleagues——

We have been consistent in our economic policy, our social policy and this policy.

Deputy Taylor said nothing happened since 1986, nothing will happen and there is still a situation of containment of costs and premia, but that is no longer the position. I hope the Deputy has noted that, because I tried to make that point clear this morning.

Deputy O'Malley referred to Order 36 of the Rules of the Superior Court and his amendment which has been ruled out of order. I can appreciate his concern. However, I can assure him that the Superior Court Rules Committee, which is empowered under courts legislation to make rules governing pleading practice and procedure generally in the Superior Court, including the power to fix venues for the sittings of the High Court, are aware of the need to revise the provisions of the rule in question following on the enactment of this Bill. I understand they are reviewing the matter at present. In these circumstances, a statutory provision would not be appropriate. It would conflict with the present statutory powers of the Rules Committee and would, among other things, fix the venues in legislation so that any change that might be desirable could only be effected through amending legislation rather than by Rules of Court. Since that matter is currently being reviewed by the Superior Court Rules Committee. I trust the Deputy will be satisfied with my reply.

Acting Chairman

I am calling Deputy McCartan and ask him to move amendment No. 1 in his name and in the names of the other Members of The Workers' Party, to amendment No. 1

The amendments in the names of The Workers' Party are being discussed with amendment No. 1.

Acting Chairman

We have agreed that and you may now formally move your amendment No. 1.

On behalf of The Workers' Party I formally move our amendment. Our amendment No. 1 to the Minister's amendment No. 1 reads:

In subsection (3), third line, to delete "consist only of", and substitute: "comprises in whole or in part of a claim for".

This amendment deals with the paragraph in the Minister's amendment in respect of claims for damages which arise out of false imprisonment or intentional trespass to the person. The wording of the Minister's amendment is that the claim should consist only of damages, whereas we are proposing that the words "consist only of" be deleted and be substituted by the words "comprises in whole or in part of a claim for". The reason for our amendment is that the small percentage of the writs issued and litigated before the court, but which are ultimately dealt with by way of hearing, often involve a multiplicity of claims and the wording of the Bill from the Minister's point of view is much too restrictive. He suggests that the restrictive wording of the section arises out of a desire to avoid the multiplicity of claims in a writ so as to bring the ordinary car accident or other type of incident before a jury. I anticipate that that will be the case in any event, that there will be skilful drafting of writs in areas other than those covered arising out of general accidents whether they happen on the road, in the workplace or at or in property. I anticipate them being drafted in a way which would allow action be taken by jury at the election of the relevant lawyers or litigant. I do not anticipate lawyers giving in very readily to the provisions of this Bill. I anticipate that henceforth the ingenuity of our lawyers will be such as to get around the specific provisions of this Bill.

The second amendment to amendment No. 1 proposed by The Workers' Party is in regard to the date of commencement of this Act. The Minister contends that this must take place as and from 1 August next. If our amendment is conceded he anticipates that jury action would continue for perhaps four years. I believe he is absolutely wrong about that. Even if it were to happen, would it not be much better that there be a phased approach to this rather than the absolute deadline suggested? In any event will we not be calling in jurors around the country for the purpose of hearing other allied actions, other types of actions, that would be entitled to juries as of right? That is a point that has been missed absolutely in the course of this debate. It will be incumbent on the registrars of the High Court, wherever it sits, to assemble jurors and juries for every sitting. For example, who is to know what action might arise within the term of that court sitting that would be entitled to a jury trial, say, in cases of defamation of character, false imprisonment, personal accident and so on.

It will be seen that the working of this provision would present no pragmatic difficulty, recognising that the most important stage in litigation is when the decision is taken to issue the writ. So many writs are currently in existence which have been issued on the basis of a decision taken by a litigant at the time, that it should be remembered that ultimately such a litigant will have the possibility of a trial by jury. It is very unfair and grossly wrong for Government to intervene in the proceeding in being and say: we are now taking away a feature of the decision on which you initially launched your proceedings. There is no doubt that many proceedings and cases are launched on the basis that a litigant will have the opportunity of a trial by jury, the benefit of having his or her case argued in front of his or her peers.

We suggest that this be approached in a phased manner. I have not heard any rejection on the part of the Minister of the percentage figure presented, that 0.2 per cent of all personal accident cases end up at hearing, so that one will realise we are talking about a miniscule number of actions requiring recourse to the facility of a jury hearing should this amendment be acceded to. Nonetheless it constitutes a recognition of the rights, the factors obtaining at the time a litigant started proceedings, ensuring that those same conditions would obtain at the end.

As has been pointed out, the third amendment in the name of The Workers' Party is consequential on the second, in that it involves the deletion of subsection (6).

I have found the Minister's response to each one of the amendments exceptionally disappointing. With the Minister coming in advocating a complete and utter change of heart on the part of the Government on the principles involved, one might have expected some concession by the same Government with regard to some of the more practical approaches being advocated by Deputies in the course of the debate.

I want to address some of the more general points surrounding the Minister's amendment, that is the need to abolish juries in the first place. The single, greatest point advocated by the proponents of the abolition of the jury system in civil actions is that, in time, it will lead to a reduction in litigants' costs and, on the other, in the amount of the premium to be paid by persons seeking insurance cover.

In regard to legal costs, Professor Bryan McMahon, in his booklet entitled Judge or Jury? published in 1985, in anticipation of this debate said:

The jury trial of itself, i.e. the actual hearing, is not a really significant cost factor in causing high premiums. Very few cases actually go to trial. The shadow which the trial casts on the settlement arena, however, while difficult to fully assess, is a significant factor.

In a footnote to that passage Professor McMahon indicated that it is estimated that 0.2 per cent only of all cases set down for hearing ever end up being heard. Many practitioners who know the workings of the courts also appreciate that cases that even commence at hearing rarely, if ever, see the end of the full deliberations. Settlements are achieved within the first half hour, hour or two hours of hearings, often, if not invariably, before the first day of the hearing is over.

The first point to be made is that the convening of a jury, embarking on a jury hearing, does not add substantially to the cost of litigation. The fees are regulated on the basis of a one-day hearing — known as a brief fee — without consideration being given to whether or not the case is settled on the door of the court or is embarked on in a hearing before the jury.

In regard to insurance premiums, whether one accepts the argument advanced that jurors and juries lead to increased costs on the basis of irregular or excessive awards, there was not one piece of convincing evidence in anything the Minister said to indicate that the abolition of the jury, per se, would, in turn, reflect a reduction in premiums being sought by insurance companies.

The point has been made here that in no way do Government control the levels at which insurance premiums are fixed. If we have been talking in terms of reductions in premiums in recent years such discussion has not taken place in anticipation of anything contained in this Bill. Rather it has taken place because of increased competition. We should recognise the fact that for instance, the PMPA have got back on their financial feet. It is remarkable that they have done so, that they have wiped out a deficit in excess of £53 million by increased efficiency, competitiveness in the market-place, without one day of juries having been abolished. They did not need the abolition of the jury system to put their house in order, to get back into good, productive competition. The Government cannot regulate or control premium levels within the insurance companies. Indeed, there has been no indication, beyond promises, that the insurance companies would respond. The example has been cited of the 10 per cent reductions in premiums being levied on young drivers. All of us have known over the years that the actual level of premium charged by insurance companies to young drivers was ridiculous, outrageous, way over the limit. Therefore, it will be seen that the insurance companies are merely reducing their excessive margin of profit derived from the pockets of such young drivers; they have been doing nothing more than responding to community pressure. That did not take place on account of the provisions of this Bill. Rather did it come about because of the demonstrations, drives through the city, by young drivers on their motor cycles and the pressure of representations from politicians directly to the industry. The insurance companies realised they could not get away with the daylight robbery they had carried out on young drivers over a number of years.

I want to say to the Minister that neither he, the Government nor anyone who has changed their minds on the matter since 1986 has made a case on why we should do without juries today. In fact, I would argue in the opposite direction. The Minister highlighted a number of facts which developed in the interim period and which he said changed the horizon and the scenario and make it easy for him and the Government to change their minds. He indicated that there is a court officers' Bill at an advanced stage of drafting. One has to ask when that will see the light of day.

It is interesting that the Minister's speech in 1986 did not mention pre-trial procedures as a matter of concern but that they are mentioned today. There was a time when there were excessive delays in the listing of cases but it has to be recognised that actions, particularly in the High Court, now move at an exceptionally rapid pace. There is no inordinate delay in getting to hearing on a civil action in the High Court in a list waiting for jury hearing. In fact, if anything, practitioners are attempting to slow up and delay the setting down of actions because it takes so much time to investigate an injury or accident that lawyers are simply not geared to moving as quickly as the lists of the High Court demand them to move once an action is set down.

The book of quantum damages has been referred to. I cannot for one moment see how that will affect decisions on the level of damages any more than the decisions of the Supreme Court which were made in the period 1983-85 have had where the Supreme Court laid down very strong guidelines to the lower courts on how to deal with the level of general damages to be awarded in accident cases.

The Barrington Commission which dealt with procedures and safety at work was referred to. The roadside surveys — and I think the Minister told us that the last survey was carried out in 1985 — indicated that then there was a 15 per cent evasion rate. That has now been reduced to between 6 and 8 per cent. This is a significant development.

All of these aspects, if they have an impact to make on the issue, go towards the argument that what we should have had here today was a Second Stage debate so that all of these points could have been investigated and debated because all of them impinge on the principle of whether it is right to abolish juries in civil actions. They go nowhere in justifying a decision made without explanation as to why the Government should change their minds on this matter. The only point I can decipher from what the Minister for Social Welfare, Deputy Woods, has said is that promises have been made that premia will come down, that such promises were received by the Minister for Industry and Commerce sometime in the recent past and that there have been decipherable trends of downward movement in premium levels. Those promises are not worth the paper they are written on and I suggest that the downward trend is due to factors other than, and substantially other than, the legislation we are now dealing with. I say to the Minister that he has not made any case which would warrant his massive change of heart on the issue. If all these factors impinge on it the least we should have done was embark on a Second Stage debate on the matter.

The point has to be made that there is no public demand for the abolition of juries. The only demand for their abolition has come from within the insurance industry itself. They have their own reasons for this but they have not fully explained or outlined them. I do not believe those reasons stand up to any criticism. The point has to be made that of the overall level of claims levelled against insurance companies, only 4 per cent arise from actions taken by way of litigation in our courts for personal injury. A very small percentage of the overall level of claims made against insurance companies start from claims originated in litigation and only 0.2 per cent of them ever threaten the doors of the High Court looking for a hearing before a jury.

The juries are an essential part of the democratic process and of the democratisation of the law. That is a fact that cannot be overlooked. They are a means of giving the public and the community an opportunity of being involved and having a say in the running of our courts and the administration of justice. I believe that that democratic feature is recognised by the exceptions written into the Bill and by the amendment from the Government, the exceptions in the area of a personal injury arising from a personal attack and false imprisonment. I would love to know why the Government think it is important to have a jury in those cases but not to have a jury decide who was the cause of an accident either at work, on the road or wherever. Juries provide a safeguard. They are rarely sought in civil actions as a means of remedying an issue but they are incredibly important in terms of their being there and of a litigant knowing they are there and available to him or her should he or she be dissatisfied with what has been negotiated or settled on their behalf. They are a means of bringing the public into contact with the processes of the court and what goes on there.

In that context I want to take the opportunity of referring to the unbelievable intervention of Deputy O'Malley this morning when he sought to cast insult on young people in particular who have come forward in huge numbers to assist the jury system in our civil and criminal courts. The point has to be made that no court officers' association, none of the legal professions and indeed, looking at the survey of Professor McMahon, none of the judges who work in the courts demand that juries be abolished, sent home or done away with. I have to make the point again, because it is overlooked, that we are not relieving the courts of the necessity of having jurors attend and be available for the hearing of actions, be it in the High Court in Dublin or wherever, because there are many other actions running in the lists any day of the week that may or could require the presence of a jury. I have found among the hundreds of thousands of people who come into our courts to attend hearings that, irrespective of their age, there is a huge enthusiasm for getting involved. I have spoken primarily to people on the criminal side who have come out from jurors rooms and I have heard some of the greatest sense being applied to the decisions of the court cases taken. I have listened to the inconsistencies and the level of debate in this House today, primarily from lawyers. Perhaps we should be giving some serious consideration to the abolition of the legal professions rather than of juries when it comes to political debate. What Deputy O'Malley says must be corrected by at least some of his colleagues in his party, and some of those members in his party who are much younger than he. I would address Deputy Colley, recently appointed to the Front Bench of the party——

I was on it before now.

——in the context of how to deal with legal affairs. I hope that when she gets the opportunity to stand up here she at least will recognise the important development of the de Burca case, that was the case which, for the first time, brought in the right of women, unhindered and on an equal basis, to sit on our juries. Their input into the working and administration of justice has been remarkable, and I hope the Deputy will make that point. Irrespective of their age, it was a very good day of justice when women, as a result of the de Burca and Anderson case, were able to involve themselves in our jury system.

It is important that we recognise the idea of a jury as our peers. If we give decisions to our young people to vote the likes of Deputy O'Malley a Dáil Deputy into this House, what right has he to turn around and say to these people, whom he with his party courted with all kinds of carnival and false promises to put him in here, in the course of this debate that they are ignorant, uneducated and incapable of understanding the "noughts" system? I hope it is well noted and remarked by them when it comes to the next time Deputy O'Malley goes to the polls and looks to the 18 year olds to help put his party and the likes back here.

We will remind them anyway.

Argument has been put before this House that juries are in some way inconsistent and unreliable. I posit the question: does any of us know whatever goes on behind the doors in a jury's deliberations? I believe that on the whole, whenever they come to decide issues they introduce an element of commonsense and community feeling and act as an important safeguard. Where there have been excesses the right of appeal is written into our Constitution. That has been readily availed of wholeheartedly by the insurance industry with increased costs or whatever is involved, and matters have been put in order by the courts by directives from the Supreme Court.

However, in any event, who is to know what is in the mind of a judge? How many different considerations run through the head and mind of a judge sitting on the Bench alone? How many little men and women are in his mind talking away to him when he is listening to the evidence trotted out in front of him as he attempts to make up his — or her — mind as to a figure and a decision? Judges on their own or any one single person on his or her own deciding an issue is equally unpredictable and unreliable — if that is a word to be used in this context — as any 12 men and women assembled to sit on a jury.

The Minister has been well and truly taken to task for what he said during his contribution to the Bill in 1986. I do not intend to go back over all that but I will make one point. As a fellow constituent representative I say that was one of the best speeches I have ever read. I was amazed at the depth of the arguments put forward by Deputy Woods in 1986 in defence of the jury system. I would like to take on board every point and argument he made then because they are equally, every one of them, relevant and applicable today.

The Minister indicated eight other areas where he felt action should and must be taken and I would support him in every one of those. There were points of ending the two senior rule, appointing more judges to deal with the longer lists, raising court jurisdictions, an exceptionally important point in terms of the level of court jurisdictions at the moment, reducing medical costs which are outrageous in terms of the level of fees charged by doctors, controlling specialist fees in cases — again nobody could argue with the Minister on that — tackling uninsured drivers, cutting down on accidents and enforcing the laws of safety on roads and in the workplace. The final point he raised was reforming social welfare payments in the context of compensation awards. I agree with all of those points and will support any legislation brought before this House to deal with them. I support them particularly in the context of trying in some way to cut down on the cost of premiums to insured people and the cost of litigation to people who come before the courts to look for compensation. Those are the practical points that will affect the levels of cost in both areas, and that was the view of the Minister then. There is no evidence, good bad or indifferent, to show that the abolition of a jury in High Court civil actions will affect costs in either area substantially or at all. That point has to be made very forcibly here today.

This is not an unresearched issue. Deputy Spring in his intervention this morning referred to various reports of studies of the matter in this country and not one of them has proposed the abolition of juries in civil actions in the High Court. He mentioned the third interim report of the Committee on Court Practice and Procedures entitled Jury Trial in Civil Actions issued in 1965, the Committee of Inquiry into the Insurance Industry in 1972 known as the O'Connor report and the report of inquiry into the cost and methods of providing motor insurance in 1982 known as the MacLiam report. None of them advocated the abolition of juries in civil actions as they existed then. The first one suggested it in regard to the Circuit Court and, as Deputy O'Malley indicated, that was undertaken in the 1971 Act.

England was referred to as an example and the matter has been looked at in the report entitled, Civil Jury Trial in Scotland commissioned as far back as 1959 which recommended the retention of juries there. They have been retained and are considered to be more conservative in their awards than judges alone sitting in the other part of Great Britain, England. The Committee on Supreme Court on Judicature of Northern Ireland, who reported in 1970, again recommended the retention of jury trials there as they exist. Finally, as was pointed out, the Pearson report on jury trials in civil cases dealt with the matter in Great Britain and it is an elective opportunity still there to be called upon if necessary. Therefore, this is not a subject that has not been researched or gone into. People studied it and have come to the conclusion that juries should be retained. The only people who said otherwise were Fine Gael and Labour, when they were in Government in 1986, and the insurance industry. The regrettable thing is that Fianna Fáil are now adopting their arguments.

I must refer to the position of Fine Gael. Deputy Barrett, in his vain attempt to make an Opposition intervention, pleads for the ordinary man and says that he must be looked after. What about the position of ordinary men and women who are now denied the opportunity of sitting on juries and being involved in the democratic elements of our court procedures? Have they given consideration to that?

The Progressive Democrats advance their case on the basis that the system is in some way strange and more appropriate to the 18th and 19th centuries. Does Deputy Desmond O'Malley consider that a jury in a criminal trial is strange and more applicable to the 18th and 19th centuries? It would be interesting to recall his intervention as Minister — and that of a Member of this House — when the Special Criminal Court was introduced, consisting only of three judges. I have already remarked on the points he made about young people and his suggestion that they had trouble with actuarial evidence. That is rubbish in the extreme. "Actuarial" is a fancy word but it comes down to what any young person can appreciate and understand, their future life expectancy and what they would hope to gain if they were in useful employment. That is translated into common language with great ease from the reports and by the people who present them. He also bemoaned the de Burca decision as he considered it opened up juries to people other than men of property. He regrets that people with no wealth are able to have a say in what goes on in our court system. By definition, he also regretted the arrival of women on our juries.

The Government should withdraw this Bill in the light of the interventions and comments made. The procedure is exceptionally tortuous and complicated and we should look afresh at the whole matter. This was the plea made by Fianna Fáil in 1986 to the Government, and indeed members of the Fine Gael Party also made this plea. The Labour Party also wanted the matter to be looked at afresh and the Bill to be withdrawn. Certainly, if we are to invade the premise of the jury, at least we should do it in a good, comprehensive package.

I accept the Minister's comments that a Bill dealing with the courts and court officers is at an advanced stage. Perhaps, in the context of that Bill, we should look afresh at this matter. It would be a way of dealing with litigation and insurance costs. We should not abolish juries as they are an important feature of the court system. However, if we do, it must be on a fair and reasonable trade and that is not what is being offered today. I regret that we will abolish a very important phenomenon and that we intend to replace it with nothing concrete in terms of delivery or a reduction in litigation or insurance costs to the general public. We will all regret this in due course.

I have expressed myself on this matter in the past in the Dáil and at parliamentary party meetings. My views have not changed and, if I was not subject to a Whip — a process with which I agree — I would be voting against this Bill.

Deputy Andrews loves the lash.

I do, it is a form of legislative self-flagellation.

The Deputy is killing me——

I do not want to dig deeper holes for myself to fall into. The jury system is a good one, it serves the democratic system well and the judicial system will be badly served by the removal of juries in civil actions. That has always been my view and it remains so.

In the process of this long, ongoing debate, there has been much criticism of the Bar and the Law Library in particular. I am a member of that honourable profession. I have been a barrister for 25 years and I have practised effectively for about 12 of them. I should like to pay tribute to the Bar and the people there with whom I have been associating over that long period. A lot of the criticism has been based on misinformation and indeed no information and on a lack of knowledge of how the Bar and the Law Library work. The people who are mainly responsible for that are the law librarians themselves, the barristers. They have not defended themselves against attack from the outside by people who do not understand how the profession work and who do not appreciate the type of work they do in the interests of the ordinary man or woman.

The Bar do not need me to defend them but maybe one of the main reasons for being confronted with this Bill and the fact that their views did not obviously sit well where it matters lies with people like myself. I take collective responsibility for what is happening in the Dáil in respect of the legal profession. I make no apology for being one of the so-called "two jobbers". I work extremely hard and I can serve two masters well. I certainly do not think my constituents have suffered as a result of my involvement as a barrister, albeit sometimes on a part-time basis.

The Bar is a decent place and the people who practise there are decent people. They are not out to do down any organisations or individuals. They are there to help and to make a living. What is wrong with wanting to make a living at the Bar? I intend to be brief in my contribution because I do not want to burden the House with my views once more on this subject. I do not mean any disrespect to the Judiciary when I say that in some cases heard before a judge sitting alone the plaintiff has not done very well. There have been cases where plaintiffs have not done well before juries. At this stage I should like to pay tribute to young people who serve democracy well by serving on juries. Many young juries have awarded people the proper sum of money for the injuries plaintiffs have suffered. I am in a rather invidious position in regard to this in that I have what could be described as an insurance practice. It may not serve me well to express my views, which are contrary to those of the Federation of Insurers who support the measure. However, that does not worry me because, having worked with insurance companies for many years, I know that those involved are people of the highest integrity. They do not have any problem with my views on the Bill and I do not have any problem with theirs. They are entitled to hold their opinion, but I do not agree with those views.

Democracy has been well served by the jury system in civil cases and it will suffer by the abolition of juries. I do not agree with the view of those in the insurance industry that the abolition of juries will lead to a reduction in premia, but after a year or two I may be proved wrong. If that happens I will say so. I would be failing in my duty as a public representative, and barrister, if I did not identify my special interest in the Bill, which is that we should retain juries in civil actions. In time we will find out if the Bill was wise and whether costs will be considerably reduced with the abolition of juries. I do not think so, but the insurance companies have stated that there will be certain reductions as a direct result of the introduction by the Government of the Bill. Therefore, the ones to benefit will be those who pay car insurance. They should be our main, but not our only, consideration, because there are many strands interwoven in the context of what the Bill seeks to achieve. Consistency can be seen to be an act of foolishness in politics and, if that is the case, I am guilty of that act of foolishness. It might also be considered to be an act of foolishness to make one's views known from the Government back-benches. However, I am anxious to place on record my support for the retention of juries in civil actions.

At the outset I should declare an interest and it is that, like Deputy David Andrews, I am a barrister. However, I should also declare the limits of my interest. Over the years I found myself involved in only a small number of jury actions and I think I can bring some objectivity to bear on this. The procedure we are following today is a most curious one. In the ordinary course of events any Bill when published is presented to us for a Second Stage debate. On that Stage we debate the principle of the measure, we form a view and if our view is that that principle is desirable the Bill goes on for discussion on Committee Stage, when Members probe the details of the legislation, section by section, line by line. That has not happened here. There has been in this Dáil session no Second Stage debate. Of course, it is the case that our Standing Orders provide for a carryover of legislation from one Dáil to another, but what has happened here is something very far from ordinary in two respects. First, it is far from ordinary in that the Government, who are now sponsoring the legislation, opposed it vigorously when in Opposition. That is peculiar.

It is peculiar also that the measure which is to be taken up on Committee Stage is a Bill that is radically different from that which secured the approval of the House to its Second Stage during the life of the last Dáil. On those grounds this is a most peculiar way to do business. To add to that we have the fact that the hapless Minister for Social Welfare finds himself sitting in on this debate in the absence of the Minister for Justice. We were told earlier that the Minister for Justice was attending a meeting of the Anglo-Irish Conference today and none of us would wish that he would be anywhere else — if we have any complaint it is that there have not been enough meetings of the Anglo-Irish Conference — but we wonder about the way in which the business of the Dáil is ordered, a subject which is within the control of the Government. As I understand it, the Minister for Justice is accompanied at that meeting of the Anglo-Irish Conference by the Minister for Energy and Communications. Deputy Ray Burke, who is standing in for the Tánaiste. I also understand that listed for debate today, as a back-up to this measure, was the ESB Bill but that it was withdrawn from the Order Paper because the Minister for Energy and Communications would not be available, given his obligations at the meeting of the Anglo-Irish Conference. I wonder why the same procedure could not have been followed in this instance.

Those complaints of procedure are not nit-picking, because it is not a case where a Bill that had been all but debated, and was dealing with something like the borrowing powers of a particular company, is taken up where we left off. What is involved represents a very fundamental change in the way in which we administer justice. This involves very fundamental changes in the rights that people heretofore enjoyed. I should like to remind the House, so that there will not be any confusion, that the Bill in its original form was introduced by Fine Gael when in Government. The decision that juries should cease to operate in personal injury cases was taken after a degree of soul-searching and debate. It was no secret then that I was not enthusiastic about the measure and it is no secret now that I am not enthusiastic about the proposal to eliminate juries.

Indeed, if there was a free vote on this measure I can say with absolute confidence that Deputy David Andrews and myself would be in the lobbies together opposing the abolition of juries and in support of the individual against the institution, which, essentially, is what the debate is all about. However, in saying that I have serious doubts about the wisdom of abolishing juries I should like to say that my concerns are not for the practitioners or the legal profession but for our system of justice. More particularly, my concern is for the way in which our system of justice is regarded and perceived.

I happen to believe, and it is probably a minority view within the legal profession, that the jury system as it has operated has been bad for the Bar because it has tended to concentrate influence and prestige in the profession within a very limited circle. It has been bad for the Bar because it has diverted some of the finest talents at the Bar into that area of work rather than into areas of work that in some instances might have been of greater value to the community. I do not think the Bar will lose out in all of this, but rather the way in which our legal system is regarded.

Our legal system is already regarded as being somewhat insular, somewhat remote from the concerns of the average citizen and somewhat sluggish in its response to these concerns. To a quite unusual extent our legal system offers only the most limited opportunity for participation by the layman. Other legal systems have opportunities for lay involvement. In some cases lay assessors assist a judge; in the case of our nearest neighbour magistrates, who are lay people, hear the great majority of cases that come before their legal system. We have no such opportunity. The only opportunity for lay people to be involved in the legal system is by serving as jurors in the criminal or civil courts. I do not want to pretend that the individual juror who receives a summons in the post regards this as a great honour and feels he is doing his bit by democracy. In most cases I am sure they regard it as a dreadful nuisance.

Some 30 per cent turn up.

I do not doubt that. Of course they regard it as an inconvenience. Those who do turn up deserve our praise and congratulations and should not be abused and villified as they were this morning by the Leader of the Progressive Democrats. Their presence ensures a degree of public confidence in what happens. It ensures that it is not a question of a small club of people, overwhelmingly male and from the same social background, making decisions about how people's lives are to be. The presence of those who answer the summons ensures that people have some confidence that their peers will have a say in what may be one of the most important decisions affecting their lives.

It strikes me as curious that some of the most impassioned debates we have had in the past couple of Dáil sessions have related to judicial decisions. We have had impassioned debates on an all-party basis in which we have expressed concerns about inconsistencies by judges on sentencing policy. Despite the fact that there has been that degree of concern and consensus, there is apparently a belief that no similar problems would arise were judges to be allowed to exercise their function alone.

Ours is a very small and very intimate society in which people who find themselves in courts all know each other. They mix socially, they come from similar backgrounds. They live in the same areas and they probably went to the same schools. A person finding himself in that system is entitled to the reassurance that it is not just a club from which he is to be excluded. A person finding himself before the courts is entitled to be reassured by the presence of his contemporaries and people from a similar background to himself that this is not an alien environment. The abolition of juries will reduce that sense of security and result in a diminution of confidence in getting a fair deal.

I would pose a couple of possibilities. Let us suppose a case is brought against a Member of this House, perhaps somebody who has served as Minister for Justice, arising from an industrial accident at a factory owned by him. The plaintiff who comes before the court would feel more comfortable in a situation where a decision on liability in that case would be in the hands of 12 people drawn at random rather than in the hands of the judge whose appointment was perhaps the responsibility of the defendant as Minister for Justice. I am not saying that any judge would be influenced. I absolutely believe he would not, but it is fundamental that not only should there not be any influence brought to bear but that people should know and be confident that there would be no undue influence.

Let me put another possibility. Suppose there is an action arising out of a claim for medical negligence. A person may go into hospital and if some error is made in the surgery performed he may decide to bring an action against one of the leading surgeons in this city. In the absence of a jury that case will be decided by a judge who almost certainly will have known that surgeon for years. He will have been with him and against him in personal injury cases and will have had the surgeon appearing as a witness before him subsequent to his elevation to the bench. The case will be argued before the judge by barristers, all of whom will know the surgeon. If the judge takes the view that there was no negligence and the plaintiff is sent home without compensation for his injuries, would it be anything other than human nature for the aggrieved plaintiff to feel that he was an outsider from the beginning, that everybody else seemed to know each other and that he was the only one perceived to be a stranger in their cosy world? I have not the slightest doubt that no judge would allow the fact that he knew the defendant in such a case, either personally or by reputation, to influence him; but again it is a case where perception is important. What we would be doing in regard to perception would be seriously wrong.

I am surprised, given the degree of debate there has been about the extent to which we make our legal system amenable to public scrutiny, the extent to which, for example, the DPP is accountable or not accountable for decisions made by him and the controversy in this House in relation to individual judicial decisions, that there should be such a consensus on the removal of what I regard as an important safeguard.

The argument in support of changing the jury system is that this will involve lower costs for litigants and, indirectly and consequently, lower insurance costs. The rationale behind that argument is that the abolition of juries will mean greater certainty. There is also an expectation that awards would as a result be lower.

Let us consider those two issues. What evidence is there that there would be a greater uniformity of approach by judges sitting alone and therefore a great certainty of expectation as to what the outcome is going to be? I have already commented that it is a matter that has been publicly debated in this House, that there are substantial divergences of practice when it comes to imposing sentence. In the civil area also, what evidence has there been that individual judges would all adopt a common position? Let us look at what happens in the Circuit Court. There, the court is confined by the upper limit of £15,000 so that the parameters within which a judge could, as it were, stray up or down from the norm are very sharply confined. Notwithstanding that, anybody who practises in the courts will tell you that there is an extremely wide divergence in the approach taken by different Circuit Court judges. There are Circuit Court judges who are widely regarded as being very much on the generous side and there are Circuit Court judges who are notorious for the very conservative approach they adopt when coming to assess damages. That is in a situation where the parameters are restrained, where the opportunity to diverge from the norm is limited.

Who is to say that it will be in any way different when judges are at large? Who believes that it will be different? Do the insurance companies believe it? If they do, why do they conduct themselves in the manner in which they now do? It is a very frequent occurrence that a case will come on, perhaps late in the day after the jury panel has gone home, or there may be other reasons that arise, where the question of proceeding without a jury is on offer to the parties. If there were substance in the case that has been made out on behalf of the insurance industry, one would expect that what would happen would be that plaintiffs would say that they could not proceed with the judge alone, that they would not touch that suggestion with a barge pole and insurance companies would be pressing on to have the case heard by a judge alone. But that is not what happens. Day in, day out, insurance companies' defendants decline to proceed, decline to allow the case to go ahead with a judge alone, and why? There are a couple of reasons. The first is because they have formed the view that the award is likely to be as great, or greater, and second, they have formed an assessment of the likely tendencies of that particular judge who would be hearing the case, whether on the conservative side or the generous side when it comes to assessing damages. They clearly do not believe that all the judges will be the same, that all will tend to reduce jury awards.

I commented that it is a curious situation — and others have also commented on it — that the Bill is being piloted through the Dáil by the Deputy who, in Opposition, was the spokesman for Fianna Fáil in opposing this measure. One would have thought that given the radical change of heart that there has been a great deal of evidence would be adduced to explain to the satisfaction of the House why this conversion took place and, no doubt, to bring those of us who would be still dubious on side. Where has been the carefully argued case for change? I shall not go back over the territory that Deputy Taylor went over at such length this morning, but what about the various alternative suggestions of allowing the judge to guide in relation to general damages and all the other suggestions? Why are we not being told what views were formed on each of those proposals as outlined by the now Minister in his speech of May 1986? Surely we are entitled to know that much.

Again, we are told that there is an expectation that awards will be lower and ultimately that insurance costs will be lower. One might have thought that the Minister, in those circumstances, would have come in with some analysis of comparable awards in different jurisdictions. One might have thought, for example, however much it might have offended Deputy Kelly if he did so, that the Minister might look to our nearest neighbour and tell us how awards in this jurisdiction with juries compare, by and large, with Britain without juries. My understanding is that whereas, historically, awards in England were very much lower than here, that divergence was explained by the fact that they were much more restrictive in the instances in which they admitted actuarial evidence, that they have changed their practice and the result is that in many classes of cases awards in Britain are now higher than they are here. I would be interested to know what sort of information the Minister has on that.

Again, for very many years juries have continued in Northern Ireland. As I understand it, that has been the subject of quite recent change there. Could we be told what the results of that change have been? What have been the results in terms of the size of awards, in terms of costs to litigants and what, if any, have been the results in terms of the benefits that flow down to the driver and to the employer paying his insurance policy? Surely we are entitled to have that sort of information by way of explanation for what is really a quite extraordinary change of mind. There is also a belief, which was most evident in Deputy O'Malley's contribution, that truly the jurors are only laymen or, indeed, as that Deputy suggested, they are only young and uneducated——

That is not what the Deputy said.

——and that the business is altogether too complex for them.

For some of them. The Deputy should be accurate.

What is there about the task that they are required to perform that is inherently more suitable for performance by a member of the Judiciary than from a panel randomly and representatively selected?

A member of the Judiciary who was able to buy a bag of sweets for a penny when he was a child — an old penny.

An old pound was mentioned the last time.

Let us consider that, both in terms of a possible decision in relation to liability and in terms of a possible decision relating to the amount of compensation to be awarded. Let us suppose that what is at issue is the way in which a factory is being run, whether it was reasonable to offer protective clothing, or whatever. Whom would you regard as more suitable to express an opinion on that — a judge who, as a matter of overwhelming probability, has never set foot inside a factory in his life unless he came from a political background, was previously a candidate for election and did the odd tour while campaigning but other than that is most unlikely ever to have set foot in a factory and most certainly never worked in one, or a jury of 12 people who, on the law of averages, would include a number of people with practical experience of the world of work? Who could be expected to make the most reasoned and informed decision in that case? It seems that by widening the area of experience that can be brought to bear on the decision-making process one improves the prospect of getting a good decision.

Let us suppose then that it is a question of how much to award by way of compensation and that it is a case of an 18 or 19 year old girl who has been seriously scarred. What is it about the judge's training or his background that makes him more appropriate to try to put a monetary value on what is required to compensate that unfortunate girl? It seems that you are more likely to get a real view of how society would regard that scar and would wish to see it compensated from a randomly selected group of people who come together from very different backgrounds and bring their different experiences to bear.

It is clear that the Government now support the abolition of juries. It is clear the the Progressive Democrats do so and that Fine Gael do so. So, we must be realistic, and the reality is that juries will not be with us for very much longer. There remains the question of whether or not juries should go in all circumstances or whether some discretionary mechanism should be available to allow for juries in particular cases where it is regarded as particularly appropriate. I strongly believe that such a mechanism is required in certain cases, perhaps because the gravity of the injuries or the nature of the incident is such that it would be regarded as appropriate to bring in outsiders to have a look. The classic example is the professional negligence case. The House should give considerable thought to including such a scheme so that in such a case there is an opportunity to apply to the court to seek the privilege in that instance of a jury trial. We can talk about the mechanics of it at some other time.

I will not deal with the other sections as I understand that this is a Committee Stage debate, although it is an unusual Committee Stage debate. I hope that the Minister will not just continue to refer back to his brief and say that all has changed in two years, that we now have assurances from the insurance industry and that everything will be fine. I hope the Minister will address the serious concerns that a numbers of Members of the House have and which he himself recently had.

I am in a most peculiar situation, being the first speaker for some time in this House actually speaking in support of his or her party's position. Consistency awards around here have to go to the Progressive Democrats alone in the House.

I support this Bill. I was not a Member of the House when the Second Stage debate was taken. I am aware that the Bill has changed substantially since then and I am also aware that the other curious aspect of this debate is that it resembles a Second Stage debate much more than a Committee Stage debate. I can only assume that the reason a debate akin to a Second Stage debate is necessary is because there are such substantial changes and that the two Stages are being rolled into one.

The situation regarding jury trials in personal injuries cases has over the last number of years got out of hand and that is why action was taken some two years ago, although inexplicably it was not continued. The amendments which the Minister has tabled are worthy and in general reflect a closing of loopholes that might have existed had the initial Bill gone forward. We have to have regard to why the system of trial by jury for personal injuries cases got out of hand. It comes down to one word and that is "inconsistency". The inconsistency of outcome and award under this system led to many things. First, there was the incentive to go to trial. There was the incentive that if one took a chance it might well pay off. It was worth taking a gamble and many people did. It is well known that most juries take the plaintiff's side in a personal injuries case. Most juries are sympathetic to the plaintiff and therefore it is worth taking a chance that not alone would the facts be found to be in favour of the plaintiff but also that the award would be substantial and it would be worth one's while to go to court.

The existence of jury trials has also had an effect on the numbers of witnesses who have been called in each trial. The numbers of witnesses trotted in and out, and who have to sit in waiting rooms for hours or days, were not necessary to the proper operation of democracy, as has been referred to here, or to the judicial system. It was a waste of time and money and it is misleading for plaintiffs to feel that this is in fact serving the course of justice. The numbers of counsel who have been employed and the list system used by the courts stem directly from the fact that there is this inconsistency in that people do not know what will happen or how long a case will last. They do not know whether the case will suddenly be settled for a smaller or a larger sum than originally offered, so they must put this team of counsel in. Everybody double books on the cases they have on hand and the system is running round in circles.

If we remove the use of juries in these cases it will discourage plaintiffs from pursuing cases to the bitter end and going into court. That will reduce the number of cases involved and if the number of cases are reduced there is no further necessity for teams of counsel to be standing by because the list is reduced. Alongside that, I see the Minister's amendment relating to the proof of costs in relation to the number of counsel in any case going part and parcel with the removal of juries, because the jury system has had the effect of increasing the necessity for the numbers of counsel. I am not blaming the barristers who operate this system. The system is appallingly stupid, to say the least. It has been left there to rot for many years, everybody knowing that there is some basic problem with it.

As Deputy O'Malley said this morning in his contribution, this idea was mooted by him in the early seventies when he was Minister for Justice. It was pooh-poohed at that stage and he had to wait another 17 years to find it actually coming on the stocks. Because of the jury system the length of a trial has been extended. We certainly can expect that because a jury is being used the facts in the case must be clearly and pointedly displayed to the jury in layman's language and no short cuts can be taken in terms of using professional or technical language. That must contribute to the length of every trial that goes before a jury. The amounts of the awards that have emanated from juries has been quite astonishing in many instances. Various Deputies in this House who have contributed, and indicated that they do not know of any call on the part of the public to abolish juries, must have their ears closed, because there is no doubt that many members of the public are calling for juries to be abolished because they see that the whole situation has got out of hand and that it stems from the fact that lay men and women sitting on a jury are not able to come to the kind of conclusions that are reasonable in these cases.

I am not going to allow myself to be led down the road which other people assume Deputy O'Malley went down and blame juries for this. During the years we have had a system of jury trials which have led to an abuse of the legal system. Plaintiffs have been encouraged to go right to the end of the road and into court no matter what. I am aware of cases in respect of whiplash injuries where the plaintiff has been encouraged to pursue his case right until the end and into the High Court because by doing so he may get a better deal. I do not think that that serves the system well. As a result the system has become clogged up.

Whiplash injury cases are all heard in the Circuit Court.

Perhaps I picked the wrong injury, but what I am saying is there is no doubt people are being encouraged to push their cases right up until the end because the jury system is unpredictable. Juries are not to blame for this. Plaintiffs and insurance companies are on a merry-go-round and they simply cannot get off without a change in the system. That is why I welcome this Bill. It will lead to a change in the system.

The legal costs involved are exorbitant. I am not confining these to the barristers' costs; I am also instancing the solicitors' costs and medical witness fees. I believe the fees charged by GPs right up to consultants are exorbitant. There is also the waste of time aspect, in that if a consultant or some technical expert is called to court and has to wait for hours or days to be called, it will cost them money. These costs are unnecessary. We have an antiquated system. Other legal systems have managed to move away from this arrangement and still have satisfactory systems where people agree to have recourse to the law. I do not believe it is beyond our capabilities to do this.

There is no doubt that high insurance premiums are in part due to this kind of system. I am not saying that this Bill will be the panacea for all of the ills relating to insurance premiums. However, I think we will find there will be an alleviation of the problem. I am well aware that the insurance industry up until fairly recently made the case very strongly that insurance premiums will be reduced if juries were abolished in personal injury cases. They are now pulling back from that position. It will be necessary to say to them very strongly that they will have to get their act together and put their house in order and that we will have to see the results of this both in economic terms, that is in the size of the premium, and in efficiency terms. A strong case could be made for an investigation into the insurance industry per se in order to see how it operates. This should happen very soon, bearing in mind the 1992 deadline, when I hope we will not find ourselves bailing out insurance companies who did not gear themselves for that deadline. In that context we should say to the insurance companies that we are going to keep an eye on them. There is nothing to stop us in three to five years' time, if we feel we have been totally hoodwinked and that this had no effect, introducing a Bill to bring juries back. I do not think that will happen but rather that we will see a reduction in costs, even though I do not know whether we will see a reduction in premiums.

Issue should be taken on the view that the ordinary person in the street is not going to get a fair crack of the whip in terms of his right of access to the court and to a jury trial. I do not think that will be the case as he would still have a right to a trial under this Bill. Constitutional cases are heard before a judge. They are not put in front of juries. The De Burca case has been referred to. I am not going to say that juries hold a monopoly of wisdom as regards the man or woman in the street. I do not know how a person can get to be a judge without knowing, whether from his practice at the Bar or, simply, life, what is going on in general.

What about political connection?

Nevertheless, I think there is a gap in this legislation——

Speak the unspeakable.

——and a gap in regard to the standardisation——

Even if Deputy Taylor's interruptions were helpful to Deputy Colley, they still would not be in order.

There is a gap in the legislation because no guidance is being given to a judge as to what amounts should be awarded, and that would have to be seen as a necessary reform in the system. If no guidance is given we will be back into this House complaining about the different awards which have been handed down by judges. There is no doubt that we need some kind of book of quantum damages. Such a book exists in other countries and its existence here should lead to consistency so that people would realise what they could expect to receive in respect of given injuries.

There should be certainty in the law. One of the basic tenets in the administration of justice should be certainty. As I said at the outset, inconsistency and uncertainty have bedevilled this whole area. Therefore, I think there should be some type of book of quantum damages. Nevertheless, I am not saying that it should necessarily come from the Department of Justice but that it could be drawn up in conjunction with judges or the Insurance Federation. It would state the average award granted in respect of certain types of injuries over a certain period.

There was reference earlier to the fact that there has been some research into what are the problems in the system, but I have to say that a fair amount of the research referred to dealt with the views of the legal profession on this area. I submit that they have a vested interest in maintaining the system, despite Deputy Birmingham's very persuasive pleas on behalf of justice itself and access to it. I do not think he was persuasive enough. The vested interests, who feel that there will be a reduction in the amount of work available if this Bill goes through, should not hold sway on this issue. There will be fewer court appearances and fewer counsel will be required to appear in those cases. There is no doubt that less work will be available and my commiserations go to those at the Bar, as I understand it is a very difficult profession in which to make one's mark because of the numbers involved. However, that is not a good reason for sticking with the existing legislation.

I would now like to say a few words regarding other Deputies' remarks on what Deputy O'Malley has said on jurors and their role in the system. If one reads the Official Report it will become very evident that what Deputy O'Malley was speaking about was the jurors' difficulties in coming to terms with a system which has run away with itself and a system which has become convoluted with technical information, professional evidence and professionals conflicting in their evidence, sometimes on minute points.

It is not, as has been indicated here today, almost always on ordinary points of everyday occurrences. They are not the difficult areas which juries encounter. The difficult area is where a jury has to decide which professional witness is the one who is correct. I support what Deputy O'Malley said, that we could not and should not expect jurors of whatever educational standard, age or sex to have the same kind of professional capabilities and understanding that professional witnessess have. On the other hand, in a system where the judge makes the decision, that judge has come through the system of presenting this type of evidence and of examining professional witnesses for many years — a High Court judge must have been practicing at least 12 years before being appointed. It is not fair to jurors to expect them to be able to decipher this type of evidence and come up with a reasoned decision. I am leaving aside for the present the amount of awards that should be made. I am talking about decisions on questions of fact.

I reject entirely the gloss that is being put on Deputy O'Malley's remarks. He was expressing sympathy with jurors who are put in that situation. He was castigating the system which has, as I have said, got out of hand. He was reflecting on the trend in the conduct of these cases, the fact that they have become something of a gravy train which is moving along at a rapid pace and the jurors are byproducts. The real protagonists are the legal profession and the insurance companies. As far as I can see, they are out to blind one another with science and the jurors are caught in the middle. That is a trend that has become established in fairly recent years. I know the jury system is an ancient one, well regarded and historic but in recent years it has got out of hand and it is not right, democratic nor good for the administration of justice to allow it to continue in that vein.

Much was made of the fact that there are judges who are favourable to plaintiffs and those who are more interested in a conservative type judgement and that there are occasions when a plaintiff may feel that he or she should have got a greater award than he or she got. One has to counter that with the acknowledged existence of many awards above what is reasonably expected to be given by juries. The scandal has been perpetrated by the ever-increasing amounts awarded by juries in this system. The area has got out of hand. In every system of justice there will be foibles and difficulties and we should do our best to iron them out but the balance here has to be seen to be in favour of abolishing juries as opposed to retaining them.

I realise that I have made something akin to a Second Stage speech and I apologise for that but I was not here on the other occasion. The Minister's amendments are reasonable and not to have brought them in would have led to difficulties in the implementation of the legislation. I understand what the Minister has said regarding Deputy O'Malley's and my amendment and I take it that this is being dealt with in another forum.

I will not strike a disagreeable or disobliging note by saying that I could not help noticing two strictly political dimensions to the debate this afternoon, one provided by Deputy Woods, the Minister, and the other by Deputy McCartan. I know that Deputy Woods made a speech 180 degrees contrary to what he has been saying here today when the substance of this measure was before the House in the last Dáil. Of course every Fianna Fáil Deputy has to win his spurs — I am mixing my metaphors — as a brass neck and Deputy Woods, by his performance here today, has shown himself to be well up in the Lenihan class where that is concerned.

I would be very proud to be associated with Deputy Brian Lenihan at any time.

So would I, not perhaps for that characteristic but for others such as his lack of bitterness and his good humour, most of all but, certainly, his brass neck is of a 22 carat grade. The Minister here today must be assaying well over the 20 carat grade at least to judge by his performance. If the Whip had said to a more sensitive man: "Somebody has to move this Bill because other Ministers are out of the way; the Minister for Foreign Affairs cannot meet Tom King and therefore we have to send the two stock political plug uglys that they use for that purpose to substitute for him and we would like you to deal with this Bill" he might have said: "There are after all 15 members of the Government and I am only one of them. I differ from the other 14 members in that I went out in front in opposing the measure you want me to promote in the House today". He might have expected from a sensitive Whip the response: "I had forgotten that; naturally we will find someone else, we would not wish to embarrass you by obliging you to say today that something is black which you said two years ago was white."

There has been much talk here this afternoon about the judicial and the legal world. I will say this for the judicial arm of the State — naturally it consists of men and women made of flesh and blood like the rest of us — of the three arms of the State, Legislature, Executive and Judiciary, it is the one which has sunk least low in public esteem. I do not believe it has sunk in public esteem at all. It is easy to say, when a case appears on the front page, high on the headlines, that a judge has made a fool of himself, that he has not sentenced somebody to a term long enough, that he has let somebody off that should not have been let off or that he has on the other hand been too severe or has misconducted himself through foolishness or misunderstanding in some way or other. That is easily said but by and large I do not think incompetence or lack of conscience has ever been imputed to the Irish Judiciary. I believe that when you make a man independent there is a very good chance that he is going to behave independently.

What I have to say about the Judiciary I say with total sincerity and I wish to make it clear that that goes for people appointed by all Governments. The Judiciary have come out of the last 60 or 65 years of this State with more credit and with less criticism than either this House or the various Governments that it has supported. I know that at moments when one feels like throwing an easy punch at something which cannot defend itself and which is not in the business of defending itself, it is easy to sneer at the benches, the gowns and the wigs, but when all these petty objections and resentments are disposed of, that branch of our State has delivered a service over the last 65 years, with all the failings that may be admitted to it, which ranks in the public esteem far above the service provided by this House or by the Governments, in other words, the Executive which it supports, let alone the various arms of the Executive. I am speaking about their political dimensions and not their official dimensions.

There is some sort of resentment of the legal profession in the judicial dimension and in the dimension of those who practice in the courts, which centers on things like the wigs and the gowns, the formalities, the outmoded forms of address, the language used in addressing a judge and so on. I sometimes hear people ask why cannot they all dress in suits like the rest of us, and not be intimidating plaintiffs, defendants and witnesses. I would be willing to defend the system to the last detail, not so much because it is as it is but because it is formal. There is a lot to be said for formality in court proceedings. It is not intended to, and it ought not to, intimidate people but if it does over-awe them, if it induces in them a certain reverence and a certain disposition to think twice before telling a lie, that is all to the good.

It is a matter of history that our judges and barristers wear a particular kind of outfit — I do not attach any special importance to that — but that there should be some kind of formality, most easily induced by dress and forms of speech, is entirely right. I know that point of view would be greeted with derision by virtually every audience in this country — and probably would be by my colleagues and friends in this House were it not for the rules of decorum — but I believe that is a very important reason why justice here has been well administered.

I practised for some years in the courts. I have no doubt it is no worse here than any other country, but many people, but not all litigants or witnesses, are inclined to tell lies even on oath. Everyone who has practised, even for a very short period — and I was there for five or six years — knows people are inclined, not perhaps wittingly, to tell lies. The side they are on somewhat distorts their recollections of an event or their appraisal of a situation. Any dimension of formality, even of over-awing, in a court procedure which tends to induce caution, a realisation in people that they are in something more serious than a conversation in a private house or in a public house, is to the good.

It is said the legal profession is a closed shop — whatever that means. To me it appears the profession is as open as any profession can be that applies minimal rules in regard to competence and which is geared and run for the benefit of its members at the public's expense. I am not in practice now nor have I been for a number of years, and I do not know if I ever shall be again, but I never felt like that about the legal profession. I have no axe to grind now and I do not expect, in the foreseeable future to be in practice, but in my years at the Bar I was never conscious that it was a conspiracy against the public. On the contrary, I always felt the public got a very good service. In particular, they got from the Bar, the branch of the profession I feel best qualified to speak about, what I might call partisan emotion which never could be got from an engineer or an architect, and I say that not out of disrespect to those professions. It was common at the Bar — and I felt it myself — to become involved in a client's case. In fact, it was very important to try to maintain a certain perspective, to keep a certain distance from becoming involved.

I remember being disproportionately downcast if I lost a case. It might not have been my fault, but sometimes it was. Depression would fall on me for days at the thought of having allowed somebody to go out of the court with no compensation because of a mistake I had made. What other profession is there in which this is so? Equally, I remember being perhaps unduly elated when I won a case. It did not matter that my fee in those days might be 14 or 15 guineas for having stood around for two days, but I felt a sense of satisfaction which infinitely exceeded the money involved. I am not holding myself out as an example, because I believe that was true of the profession in general. I know from my friends who are still at the Bar that they have a dog's life in many respects. They are not able to plan holidays, weekends or spend time with their families in the evening because they are tied to a grindstone and if they detach themselves from it, their practice can be gone in a very short time.

When I was at the Bar the incidence of TB was lessening but there were people who were laid up for four, six or eight months. When they came back to work their practice had virtually disappeared, not because anybody was trying to do them down but because the solicitors on whom they depended had to get their client's work done by somebody and they necessarily made new connections. They started to brief other barristers and when the unfortunate invalid finally resumed work, pale and convalescent, he might find that three-quarters of the solicitors on whom he had previously relied were no longer giving him the same volume of work. There is no pension, no insurance, nothing to fall back on if a barrister falls victim to the ordinary ills of the flesh. No one will cover up for him if he becomes an alcoholic. These are things which the public, who are apt to sneer at what they perceive as the privileges and the selfishness of the legal profession, forget. Much of what I have said, I have no doubt, could apply also to the solicitors profession, although I have no personal experience of it.

I have strayed somewhat from the political point I wanted to begin with. I say this without meaning to offend him because I have never had any trouble with him and I do not want to get his back up or to make an enemy of him, but I think it was a graceless performance of this Minister, whose Bill this is not, to have acquiesced in coming here and putting a face on something which he argued 180 degrees against not many months ago. Having dealt as well as I can with Fianna Fáil, now let me move to the other side of the rainbow.

Will the Deputy move to the amendment?

Let me move from one leprechaun to another. I have listened with a lot of interest to Deputy McCartan's contribution and learned a good deal from it — I say that without sarcasm — but I could not but be amused by the praise which he heaped on the efforts which had successfully got a particular insurance company out of their difficulties, even though there is still a jury system in place. He was talking about the PMPA and how they had managed to haul themselves out of a deficit of more than £50 million. How had they done that, asked the representative of The Workers' Party with warm admiration in his voice? By dint of improved efficiency and competition. How much efficiency and competition would there be in the State assurance company in Dubrovnik if The Workers' Party were in power? It would be a State authority with no incentive, high or low, for efficiency or competition. Sauce for the goose must be sauce for the gander. I hopped off the Minister, Deputy Woods, for having been willing to say today something is black which he said not too long ago was white.

Although I have no personal quarrel nor have I had any trouble with Deputy McCartan, I feel he has made an extraordinary exhibition of himself this afternoon by appearing — and I do not think I am putting too unfair a gloss on his words — to endorse not just a policy but a philosophy which his party were founded in order to destroy. If he really believes efficiency and competition are the secret of success he belongs in some other party, not with Deputy Taylor I agree, but somewhere else in the House, and not perhaps with the Napper Tandys we do not see too often unless we are discussing one of their pet subjects, but certainly not in The Workers' Party.

I would like to repeat the question other speakers have raised. What is the motive for this measure? I am sorry that I ask myself that question. It is a bit like the method of diagnosis which Conan Doyle learned as a young doctor which he thereafter grafted onto his creation, Sherlock Holmes: when you have excluded the impossible, whatever else remains, however improbable, must be the truth. I have run through the other possible motives for this measure, most of which have been dealt with very effectively by speakers here today, including Deputy Andrews. I have had to exclude all of those as impossible. I am left with the one which might seem in a republican Parliament to be highly improbable, though I am afraid long experience of that Parliament has taught me that it is by no means improbable, namely, that we are doing this because it was done in Britain. As usual, we are doing it about 40 years later than them. Not only do we catch their penny but it takes 40 years for it to drop. That is shaming.

Why are we stuck here with two alternatives only? We could invest 50,000 different modulations of systems of assessing liability and measuring damages in personal accident cases. But we appear to be so uninventive, so stuck in a rut, so little justifying the independence that generations before us worked for, or sweated for, that we can think of two alternatives only: either the system we have or the system the British have. There is nothing else or, if there is, I should like to hear from the Minister what consideration his Department gave it. I do not mean to impute merely to his Government this intellectual lethargy, this shaming, slavish approach to any problem: get down the British statues, lads, and see what they have done. It was the very same under Fine Gael and the Labour Party. I know that this is a point of view which equally will be derided by those who are not interested in the era of their fathers or grandfathers, but unquestionably the most innovative period in the history of this State was its first ten years. In order to save the Minister's feelings I do not mind throwing in the following five years as well, let us say, roughly up to the Second World War. In that period there were people who were still sufficiently young to remember the Independence Movement before it had achieved anything, people who were sufficiently young and vigorous to realise that what was central to it was the conviction that we were able to do things for ourselves, with our own perspectives and objectives, better than anybody else. It was not simply resentment of the British; it was not simply anxiety to be out from under the foreigner; it was also the idea that, if we were on our own, running our own State, we could design that State and all its works to suit ourselves. I believe that. But I do not think any Government ever believed it so passionately as did that of William T. Cosgrave and de Valera in their early days.

After the Second World War — it may have been that some of them were ageing and that the vigour had left them, or it may have been that some of them may have forgotten — easy ways and corruption of one sort or another had begun to creep in. That fine pride and conviction had begun to disappear by the time the war ended. But in the twenties in particular it was very strong. In the very area about which we are talking a more striking innovation was made than in any other in the State. I know there are superficial things one could point to which are important — the symbolisms of the State, its coinage, its uniforms, its stamps, yes, the derided green letterboxes, its modes of address, of official conduct and so on. These were all designed from scratch in the twenties.

Would Deputy Kelly agree with me that he perhaps has spent a fair amount of time, as it were, digging the foundations on which he is going to base his case? Apart from the fact that he may have buried some things in those foundations, perhaps he would now give us his views on the amendment.

I am coming to the judicial system, to the innovative improvements it underwent in the first ten, if not in the first two, years of the State's existence, under the pilotage over there, where the Minister is sitting, originally of the first Attorney-General, Hugh Kennedy, and subsequently of Kevin O'Higgins, the Minister for Justice, who between them got the Dáil to enact the Courts of Justice Act, which perhaps not completely, but very substantially tore away the judicial system of the State from the pattern the British had left. The District Court was an entirely new creation, the Circuit Court was an entirely new creation and the Supreme Court was an entirely new creation. Naturally, they could not shed the legal system they had inherited, they could not shed some associations of jurisdiction with the courts which they replaced.

All I am trying to emphasise is that the very thought of creating a brand new court, staffed differently, the judges to which would be differently recruited, would be a bold and innovative step beyond anything which today's Deputies would seem willing to countenance or, I am sorry to say, the people who support them. Why should that be? Why is it that we are stuck here with two alternatives only: either we go along with the old jury system, in which I am sure there are some flaws, or we go for the British system, which is essentially that which the Minister opposite is promoting. Surely there are other possibilities which could be canvassed? I am not recommending any of them in particular. For example, would it not be possible to divide the functions of the court, in the trial of a civil action for damages for personal injuries, let us say, in such a way that the jury would decide the issue of liability only and that the judge, perhaps with the assistance of expert assessors, would assess the damages, or the other way round? Could some gains be made by reducing the number of the jury in a civil case from 12 to, say, six? Would it be any use if we had the jury sitting with the judge? That could not be done in the criminal sphere, because I believe Article 38 forbids us to meddle with the jury in essentially the same character it had in 1937. It could be done in the civil sphere because the Constitution does not entrench juries for civil trial purposes.

I mention those possibilities off the top of my head. I should like to hear somebody explain to me why none of them is practicable, why no variation of any of them might be practicable. Why are we stuck with these two alternatives only?

I want to explore some of the motives behind this. I contend that one of the reasons the Bill before us is being promoted by this Government, as it was by the last, is the agitation which has gone on about high insurance premiums. I know very little about the working of insurance companies. Deputy S. Barrett in front of me would know a hundred times more. I believe the principle of the workings of an insurance company is that it operates on the basis of pooling the risk and that it varies its premiums in terms of the sort of pool that will be necessary in order to meet what it expects in the way of claims from certain categories of risk — fire, life, accident and so on. I believe that even within those categories assessments of the level of risk will vary, depending on the people involved.

If it has been the experience of insurance companies that 18 and 19 year old drivers constitute a higher risk than drivers of my age, why should they not charge premiums proportionately? I am damned if I can see the reason for not doing that — all this whingeing and whining about young drivers being penalised. I was 30 years of age before I could afford a car let alone pay the insurance premium on it. Granted, the exercise is troublesome. Let us look at it this way: my own car is a four-year-old Fiat and I am not in the two car category. For comprehensive insurance cover on the vehicle I pay in the region of £800 a year whereas, had I third party cover only, I am sure it would amount to very much less. Even supposing the premium amounted to £800 for third party cover, which is far in excess of what it would be, I would still be paying only £2 a day for that insurance cover. Is that a fortune? Consider that for those £2, I can drive while drunk, I can cripple someone for life, leave a family fatherless; I can write off a line of parked cars by side-swiping ten or 12 of them as I drive along the street. I can do all of these things with total impunity, at least civil impunity, for a mere £2 a day. Naturally it does not relieve me of my criminal liability for such behaviour. But, so far as compensating the victims of my behaviour, is concerned, £2 a day will let me out. Where is the excessiveness in that? Mind you, it is not really £2 a day because if I had merely third party cover the premium would be very much less and it is not very long since it was £1 a day.

What is the reason for politicians, with their tails between their legs, running away from young drivers? Are we never going to stand up to anybody and say: "You must carry your own weight in the world and face the consequences of your own situation. Do you not have the compensation of being young, without mearling and whingeing about having to pay insurance on a car in a risk category which is particularly high?" I have nothing but contempt for politicians who run with the herd like that. It is not very long since an 18-year-old person could not dream of having a car. When I was a student the families of most 18-year-old students did not have a car, let alone the students themselves. Let us not run, driven by a stampede, shouting and roaring about premiums that has brought this Bill into the House.

Somehow we have been given the idea and sold the idea, that premiums will magically come down if we get rid of the juries. If I really could see a necessary connection between the abolition of civil jury trials in accident cases and the size of premiums I would probably have a different opinion. I practised in the courts for five or six years and I appeared several times before a jury in the High Court and addressed juries in accident cases. I have a little experience of this, though not, I suppose, as much as Deputy Andrews has. I also accept that my experience of it is now a bit rusty, but I cannot see the connection between these two matters. For example, I cannot see that the existence of a jury prolongs a case in duration substantially beyond what it would be before a single judge. Cases can also run for very long-periods of time before a single judge. When Mrs. Ryan, the fluoridation plaintiff, was in the High Court in 1965 her case, which involved not a road accident but, one would have thought, the simple question of whether she was being poisoned by the drinking water, took 63 days to hear. I know there was technical evidence and so forth involved but I would need to be persuaded, and I am not sure anyone could persuade me, that a judge sitting by himself who is slow — and when I say "slow" I do not mean slow of understanding; I mean slow in the sense of being careful, cautious, not anxious to skimp the taking of evidence and sure he understands something before he goes on to the next point — would conduct the hearing of an accident case, in which both sides are allowed to call their evidence and allowed to cross-examine the other side's evidence, substantially quicker than a jury would. I have not heard any argument in this debate along those lines.

I should also like to know to what extent the prevalence of uninsured drivers on our roads contributes to the height of premiums and what relative impact compared to what we are promised now — and we are not really promised anything very concrete — catching up with these uninsured drivers would make. I do not think the public understand that the cost of uninsured drivers and the accidents they cause falls essentially on those people who are insured, for reasons I am sure everyone in the House understands. It ultimately falls on them and it has the effect of pushing up the premiums because the insurance companies essentially have to carry the loss of people who drive uninsured. Naturally, if one could be sure that no uninsured drivers existed any longer, that ought to have an effect on the levels of premiums.

When I see the word "clampdown" or "crackdown" in the papers I always think it is like a picture when I said to myself "This is where I came in" and looked for my hat and coat to go home. I have been reading for years about ministerial crackdowns on uninsured driving. Where is the sign of this crackdown? About six months ago I was in a line of traffic on which a spot check was being conducted by the Garda to see whether drivers had tax and insurance. This is a very good idea. No doubt that kind of spot check will net a good many uninsured drivers. Equally, if the Minister and his crackdown team walked around the streets and spot checked parked cars which have no insurance disc — and in that regard I must commend the idea of insurance discs which I tried in vain to promote during the seven or eight months I was in the Department of Trade — that no doubt would net a good deal more.

I have not been told that the general level of uninsured driving has substantially fallen. I would expect a Government to crack down and keep on cracking down until such time as this country, instead of having 10 per cent of its drivers uninsured, would have less than 1 per cent, which would be the continental European level. When that is done we can start looking at our system of judicature and ask whether it is perfectly adaptable to the task which it has on hands.

The same goes for the weakness of the Government's position, and of the Government who promoted this Bill in the last Dáil, in regard to comparisons with what happens in Britain, and from which this Bill is being copied. All right, let us sink our national pride, forget about the Republic, the dead generations who have gone before us and the Easter Declaration and let us suppose we are an outcrop of the United Kingdom, which for legislative purposes we might just as well be when it comes to dealing with something like this. Let us suppose we have a subordinate Legislature like they had in Stormont and that that is all we have here — and that is how we frequently behave — might we not be told how they have got on across the water in England in regard to the level of awards. Have they fallen substantially? How substantially did they fall in 1948, or whatever year it was, when civil actions for injuries and the kind of things we are talking about here ceased to be tried by juries and became tried by judges? What is the present situation there in comparison with the situation here? What is the tariff, let us say, for a broken pelvis — to get down to concrete injuries — of a 28 year old women or a slightly shortened leg of a man of the same age?

Have a look at Kemp and Kemp. It is all there.

I know it is all there. I know it is all there in the textbooks, but is it demonstrable that our current and conventional level of damages is so much higher? Even if it was higher, what does that prove?

I am sorry that I will not be finished before 7 p.m. but I have to dwell on this point because it is absolutely essential. We have been discussing the Bill — and I accept this is the basis on which the Bill is being put before us — on the basis that it is going to reduce insurance premiums. Let us not forget something which I believe is a good deal more central; we are talking not about insurance premiums; we are talking about justice. We are talking about a Bill called the "Courts Bill". It is not called the "Courts (Reducing Young People's Premiums) Bill. It is the Courts Bill, the courts which under Article 34 are supposed to administer justice. Let us not forget that.

I again concede that there is no obvious tariff which you can read off which will deliver a simple answer in the case of personal injuries. What is an appropriate sum for a broken leg, for the loss of an eye or some other injury like that? I would not wish to suffer a grave injury like that for any money. Only in circumstances such as were said to exist in India — I do not know if they still do — where destitution and desperation are so appalling that people are said to throw themselves under cars in order to build up a claim for compensation. I hope I will not offend a friend of India or anyone else by saying so. I may be wrong, maybe my information was wrong at all stages or is out of date, but I have read or heard that and if it is so it is a desperate situation which nobody would wish another human being to be in. Nobody here would endure an injury, no matter for what money, therefore there is no, so to speak, obvious valuation to be attached to an injury. We know roughly what value we attach to our house, our car and so on, but what value can we attach to a disability which perhaps will be with us for life? There is no tariff for that. It is purely conventional, but if it is purely conventional the promoter of a Bill of this kind ought to feel a duty to persuade the House that those conventions are likely to be better achieved by a single judge who on average will be a man in his fifties or sixties than by a jury who would be much more likely to represent an ailing——

Progress reported; Committee to sit again.