Section 2 makes the legislation apply to all proceedings before the courts at present, whether those proceedings commence before or after the enactment of the Act. The purpose of the section is to ensure that the provisions of the Act, namely judicial notice to be taken of the Green Book and for the courts to have regard to the handicap assessment formula for hearing loss and tinnitus, apply to all cases at present awaiting hearing. There are 10,500 cases before the courts. If the Oireachtas is of the view that the Green Book report should be taken into account by the courts in assessing hearing handicap for future cases, it is only fair and equitable that such provision apply to current cases also.
I am aware that some misgivings have been expressed about the possible unconstitutionality of asking the courts to take judicial notice of the Green Book report and to have regard to the formula therein in a retrospective manner. However, the effect of the provisions merely require the courts to treat the Green Book as evidence and to have regard to its handicap assessment formula. Under these provisions the Green Book will acquire the status of proved evidence in court. However, the weight to be attached to this evidence will be a matter for the court to decide. The court will remain free to come up with whatever conclusion it sees fit. Since there is no interference with the adjudicative process of the courts, I am advised that a constitutional difficulty in respect of the separation of powers and judicial independence does not arise. All legislation is subject to strict scrutiny by the Attorney General, and on this matter his advice is as I have outlined.
I have wanted to create a precedent all my life, and I am not hidebound by tradition or the past. If each generation felt that it could not do something because there was no precedent, new ground would never be covered. It is hoped this new precedent will work but it is not obligatory on the courts.
Regarding the application of this legislation to new cases alone, let us say that 95 per cent of all cases are before the courts. If the new criteria were only applied to the remaining 5 per cent, that would be quite inequitable. That would also make the Bill redundant because the cases before the courts will create the norm for what will follow. Any intervention in providing a system which would help to get a better outcome would be null and void. For that reason I am unable to accept the amendment.