We are going to oppose this motion more in relation to the nature of the way it is being taken than in relation to the content. We object fundamentally to what is being done here by the Minister for Social Welfare. The motion contains matters totally outside the scope of the original Bill. As has been said by previous speakers, it is bad enough that the Minister for Social Welfare had such fundamental objections in principle to the Bill two years ago but now all those objections seem to have vanished into thin air. The Minister is not only pushing the Bill through but he is also determined that additional measures will be incorporated in the Bill today.
Like other speakers, I believe we need to hear from the Minister in the course of the debate today what has taken place and what reasons he now has for supporting the Bill. Granted it was not his brief in the past 13 or 14 months, but he had such strong objections to the proposals in 1986 that I believe he owes it to himself, to his constituents and to the public at large to explain how this conversion has taken place. I hope that, in the course of the afternoon, the Minister will give us some detail as to the reasons he can now speak so convincingly this morning in support of the motion and of the Committee Stage of the Bill.
I believe it is also regrettable that we are not having a Second Stage debate on the Bill because there are now 30 Deputies in the House who have never had an opportunity to discuss the Second Stage of the Bill. In addition, the matter was quite inconclusive in May 1986 when Second Stage had not been concluded. I can only assume that it is in order to take Committee Stage when a Bill has not been concluded within the term of a previous Dáil. Perhaps the Minister would refer to that point in the course of his contribution later.
There are many fundamental questions being rushed through the House. Public confidence in the administration of justice demands that people and ordinary citizens should be involved in the workings of the courts through the jury system. I believe there is respect for the courts among the people. In large measure this is due to the fact that the courts are not administered by judges alone but, in particular, in serious cases, juries participate in the process as the judges of fact.
The situation was spelled out very clearly by Mr. Justice Niall McCarthy of the Supreme Court when he addressed the American Bar Association in Dublin in July 1985. He made cogent arguments for the participation of the citizen in the administration of justice by way of the jury system. It was his view that judges do not have any greater insights or greater ability than 12 fellow citizens when assessing liability or damages in civil cases. It should also be borne in mind that trial by jury in serious cases is an institution of the State. It has been part of the legal system since 1922, and it was retained in the Circuit Court up to the seventies.
The Minister's current proposal is that personal injury actions brought in the High Court before a jury should be abolished. I have looked at the background to this — the attacks on the system over the years. The Irish Insurance Federation fought for a number of years to bring this about. They presented the case that juries make excessive awards and this is reflected in the insurance premiums. At the time of the ICI debacle, consideration was being given by the then Government to this question but no final decisions were taken at that time. With the onset of the ICI problem in the aftermath of the PMPA collapse, there was renewed pressure for the abolition of juries. At the time there was a very blatant and misleading effort to link these commercial disasters with the continued use of juries. There was absolutely no connection. At that time it was patently clear to all that the ICI and PMPA collapses were related to internal mismanagement of both those companies. Nobody can deny this.
However, the Government decided to amend the law by doing away with the right to trial by jury. I was against this decision at all times and I and my Labour colleagues voted against this decision when that proposal was brought forward in Cabinet. The then Attorney General outlined substantial arguments, grounded in principle and in policy, for the retention of juries in these cases. I ask the Minister in due course to inform us whether the present Attorney General has given advice to the Government on the merit and wisdom of proceeding with this Bill at this time.
One of the most distasteful aspects of the Bill before the House is the fact that the decision then made, and which is now being adopted by the present Government, was made at the insistence of the Irish Insurance Federation. It is obviously a pressure group and a lobby group. There was very little public debate on the issue. There was no consultation with bodies with specialist knowledge of the resolution of civil claims. There were no convincing arguments made that the administration of justice would be improved by the abolition of jury trials in such actions. In fact, matters were quite the contrary. The report of the Committee on Court Practice and Procedure, 1965, rejected the abolition of juries in such actions and the MacLiam report, 1982, concluded that juries should be retained, but that judges should be entitled to give some indication to the jury as to what the appropriate level of damages might be in the case being tried.
The Committee of Inquiry into the Insurance Industry which was presided over by Professor Martin O'Donoghue reported in 1976 and recommended that rules should be introduced which would simplify the legal procedures for claiming compensation for personal injury arising out of a motor accident. Serious steps were taken by the industry itself in this regard and, of course, substantial legal changes occurred, such as the increase in the jurisdiction of the District and Circuit Courts in 1981 to £2,000 and £15,000 respectively. The recent revisions of the rules of the superior courts whereby pleadings were tightened up so that full particulars of a claim must be given in a statement of claim and defence at an early stage have also been of great assistance. However, substantial changes could be made in pre-trial procedures which would facilitate the reduction of the number of issues that need to be tried in an action. Even with the abolition of jury trials arising from cases of serious personal injury, these cases would still be complex and difficult and further steps are necessary to avoid delaying such cases and to facilitate the reduction of the issues that have to be tried.
I want to ask the Minister whether they have taken into account the situation which has arisen in Northern Ireland. Last year the use of juries to try cases of personal injury was discontinued in Northern Ireland. This has happened since the original debate in this House. Heretofore a jury of seven had tried both the liability and damages aspect of such cases. I want to ask the Minister whether they have made inquiries to the Northern Authorities in relation to the following questions. Has the level of awards increased or decreased in that jurisdiction? Have premiums been reduced as a result of the discontinued use of juries? Are there any cases in which the Northern Authorities, whether the Judiciary or otherwise, believe that jury trials in such actions should be introduced, as they are entitled to do?
I believe we deserve to have answers to these questions before we proceed today with the proposal before us. As I perceive it, we are abolishing by Statute what has been perceived as a civil right. We are now proposing to abolish it today. We should be all the more cognisant of the fact that the official advice available to previous Governments has been to the effect that juries should not be abolished. Perhaps the Minister would clarify for us the advice given by the present Attorney General in relation to this policy issue. Have the Government given consideration to and taken into account the decisions of the Supreme Court in the case of Synnott v. CIE and Reddy v. Bates wherein rules laid down by the Supreme court had the effect of reducing damages substantially in serious cases?
Have the Cabinet considered these cases and their effects on the awards of damages being made in the courts? What advice did the Taoiseach, the Ministers for Industry and Commerce and Justice receive from the Attorney General in relation to these cases before they took their decision to reverse their previous policy while in Opposition, of opposing the abolition of juries? Are the Government aware that the tendency now in the courts is for juries to make modest awards? In the words of many lawyers, juries have become mean, adopting a much more sceptical attitude to the claims of plaintiffs. Many plaintiffs' claims have been thrown out by juries. Would it not be much better that such claims — if they are to be thrown out — should be thrown out by juries rather than by a judge? Can a citizen whose claim has been thrown out by a jury complain when 12 jurors, his peers, have heard all the evidence in a case and have adjudged against him? If the matter is tried by a judge alone will it not be the case that it will be said that the judge was prejudiced, is not an employees' man, of the bosses' class, or even that he is in cahoots with the lawyers on the other side? These raise very serious questions in relation to the respect of the community for the administration of justice.
Our Judiciary merit the praise of the community and of this House. In large measure they, and they alone, have been responsible for the circumstances obtaining in which the rule of law prevails and in which the judicial process and the legal system in general are accepted. I believe we are about to weaken that by way of the proposal before us today. Perhaps the best argument that can be advanced in favour of the Government's proposal is that trials be shorter. Is it not better that a case take somewhat longer, perhaps a day or two longer, if in the end we are all to be more satisfied, and litigants confident that a fair trial has taken place before their peers in the jury?
The general impression is given to the community at large that this proposal relates exclusively to road accident-type cases, but claims arising from injuries suffered in road accidents constitute a proportion only of those brought in the courts. Thousands of cases are dealt with every year in which plaintiffs bring claims against employers, their doctors or other professional advisers. Is it really appropriate — as will be the case in the future — that a case of, say, professional negligence involving a medical practitioner should be tried by a judge alone? Would the judge tend, albeit unconsciously, to prefer the professional man who had made a once-in-a-lifetime error which might have had devastating consequences for his patient? The answer to that is simple: one excludes the possibility by ensuring it cannot happen and that such a trial is by jury.
We should examine what has been the experience in the United Kingdom, often quoted in support of the move to effect changes in our laws. In this instance it is noteworthy that, in the United Kingdom, they did not abolish juries. What they did there was to confer a discretion on judges whether to allow a jury trial in any given case. Since the decision of the court of appeal in Ward versus James in 1965 — 1: All England Report— judges have exercised their discretion in negligence actions involving personal injuries against the jury system. What has happened there is that a statute did not abolish juries, rather the judges, in exercising the discretion conferred on them by statute, tended not to favour juries. Furthermore, the legal profession in England tended not to ask for juries in such cases anyway.
There is a danger that the proposal before us will not be fully considered here today because we are into a Committee Stage debate. My fear is that no longer will it be possible to get a trial by jury in a case of personal injury involving employer's liability, occupiers liability or in a case of professional negligence. These are the very cases in respect of which it is essential to have a jury involved in the process of the administration of justice. It should be remembered that it is the jury who bring common sense and common or garden, everyday knowledge to such cases. It is noteworthy that this proposal is before the House without any suggestion that steps are being taken by the Government to improve safety in the workplace. For example the question should be posed: when will effect be given to the proposals of the Barrington Committee? When will legislation be introduced giving effect to Mr. Justice Keane's report on the Stardust disaster?
One cannot deal with the cost of insurance in isolation. The Minister referred to a package. I do not see this package as containing even half of what it should contain. The Minister knows well that accidents in the workplace, in many cases, derive from the failure of employers to maintain safe practices and systems of work and that current practices generally here fall far short of what is desired in many industries. This proposal before us will do nothing to increase safety or reduce the cost of insurance in the workplace.
Our amendments and their effects are significant in that they would involve to some degree an acceptance of the thrust of the Bill. What we are seeking to do is retain the right to trial by jury in cases in which a judge considers that, on account of the special circumstances of the case, jury trial would be preferable. At the same time we propose that the jurisdiction of the Circuit Court should be increased in cases of personal injury arising from negligence of £25,000. This would have the effect of confining the jurisdiction of the High Court, in personal injury cases, to those cases where there was a reasonable prospect of damages being recovered in excess of £25,000. Arguably, any restriction on the right to trial by jury, in principle, is wrong. But we are prepared to go some distance with the Government, to concede — as has already been done in cases falling within the jurisdiction of the Circuit Court — that many small cases of personal injury be tried by a judge alone, with the saver that trial by jury may always be sought in a substantial case involving damages in excess of £25,000, or where there are special circumstances rendering trial by jury desirable.
The Bill, as drafted, is designed not to affect any case in which notice of trial has been given before the passage of the Act — section 4 (3). There must be a question raised about the constitutionality of the provisions of this section. I should like the Minister to refer to that matter. The issuing of legal proceedings introduce a justifiable controversy into the domain of the courts. In my understanding of the law it is the position that neither the Legislature nor the Executive may interfere directly in the administration of justice in any particular case or cases. That was the effect of the decision given in the case of Buckley v. Ireland, or the Sinn Féin funds case, as it is known.
The effect of the provisions of the Bill as drafted, is to restrict the right to trial by juries in actions which are already in being and in which litigants have a right to such a trial. It is difficult to see how it is within the competence of the Oireachtas to do this having regard to the provisions of the Constitution and the decision taken in the Buckley case. What the provisions of this Bill seek to do is very similar to what prevailed in the Buckley case, in that it is proposed to intervene in legal proceedings already in being, to direct that those proceedings should be tried in a particular manner without giving the courts — which already have seisin of these cases in which proceedings have been issued — any opportunity to from an opinion on the respective rights of the parties to the actions in a trial by jury.
I believe the argument as to whether a given case could be dealt with more expeditiously has not been well put. I have not heard anything from the Minister this morning to change my view. There are substantial delays experienced in having appeals heard in the Supreme Court, in many cases up to three years; that is, without any impediment being placed in the way of the appeal by either party to the action. Such delay does not derive from any absence of effort on the part of the Supreme Court. Judges and indeed the Chief Justice have done everything possible to facilitate the early hearing of appeals but their numbers dictate that it is not possible to deal with them more expeditiously.
There are many fundamental objections to the motion being proposed here this morning. We object to it, in terms of practice in this House, in that it does not constitute a proper way of conducting business, in circumstances in which a Government who have not moved the original Second Stage debate, want to add something to a Bill which should have been brought back in for Second Stage debate. Over 25 per cent of the Members of this House have had no say on this Bill in the past. They should have been afforded such an opportunity. I do not believe its provisions will achieve any of the aims the Minister or previous Ministers have claimed.
