For the information of Members, by agreeing to the motion to recommit, the House will allow a Committee Stage-style discussion on amendments Nos. 16 and 31 to 35, inclusive, when Members may speak more than once on each amendment. In respect of other amendments, I remind Members that on Report Stage a Senator may speak only once on each amendment, except the proposer of the amendment who may reply to the discussion on it. Also on Report Stage each non-Government amendment must be seconded. Amendment No. 1 is a Government amendment. Amendments Nos. 1, 2, 4 to 15, inclusive, 20 to 25, inclusive, 39, 42 and 43 are related and will be discussed together, by agreement. Is that agreed? Agreed. Amendment No. 12 is consequential on amendment No. 7. Amendments No. 23 is consequential on amendment No. 22. Amendment No. 24 is consequential on amendment No. 23. Amendments Nos. 25 and 39 are consequential on amendment No. 21.
Judicial Council Bill 2017: Report and Final Stages
When Committee Stage of the Bill was taken last April, there was a considerable volume of amendments to be discussed related to sentencing matters. On this occasion, there is also a considerable volume of amendments to be discussed, but this time related to personal injuries matters. I propose to take the approach taken on the last occasion, that is, explaining the purpose behind the various amendments I am proposing and associated related amendments in a way which I hope will facilitate an informed and structured debate on what is a very important matter both for this House and society at large.
By way of background, Senators will be aware that the proposal to assign a role to the Judicial Council in compiling guidelines on appropriate general damages for various types of personal injury first arose in July 2018 when the second and final report of the Personal Injuries Commission was published. The Government took the view that there was considerable merit in the recommendation, not least because its implementation, in promoting consistency in the level of damages awarded by the courts, should have a calming effect on the insurance market in general.
The first set of amendments I am proposing – amendments Nos. 1, 5, 6, 14, 15 and 20 – will effect a range of technical changes to the Bill to accommodate the personal injuries guidelines committee in its structure. Consequent on the establishment of the committee, it is necessary to have a definition of personal injury in the Bill. Amendment No. 6 deals with this issue. Also, because of the terminology being used, a small change is needed in the language used in section 17 which deals with the role of the judicial studies committee. Amendment No. 20 is relevant in that regard.
Amendments Nos. 2, 4, 21, 39, 42 and 43 are connected in various ways with the functions the new committee will have. A key amendment is amendment No. 21. Following the model related to both the sentencing information and guidelines committee and the judicial conduct committee, provision is made for the committee to prepare draft personal injuries guidelines and submit them for review by the board of the Judicial Council. The amendment specifies that the first draft of the guidelines must be submitted to the board no later than 12 months after the establishment of the committee. The committee will be required to review the guidelines on a three-year basis. If the review indicates that amendments are required, the committee will be obliged to prepare a draft of such amendments for submission to the board.
To assist it in carrying out its functions, the committee will have broad powers to obtain any information it might need. It may also consult appropriate persons and bodies, including the Personal Injuries Assessment Board, and conduct research into the level of damages awarded by the courts in the State and elsewhere.
Under the amendment, the committee is also mandated to prepare material for inclusion in the annual report of the Judicial Council on its activities.
The amendment is linked with amendment No. 42 which seeks to amend the Personal Injuries Assessment Board Act 2003 so as to remove from the board the responsibility it currently has for preparing the book of quantum and revising it at least once every three years.
Amendments Nos. 4 and 39 are central to the reforms I am proposing. Specifically, amendment No. 39 provides that the guidelines are to contain general guidelines on the level of damages that may be awarded or assessed for personal injuries. They may also offer guidance on matters such as the range of damages to be considered for a particular injury or the impact multiple injuries may have on the level of damages.
The amendment specifies various factors which are to be taken into account by the committee in preparing drafts of such guidelines. One such factor relates not just to the level of damages awarded by the courts in the State but also to the damages awarded by courts in places outside the State.
Much attention has been focused on the finding made in the second and final report of the Personal Injuries Commission that soft tissue injury claim costs in this jurisdiction are a multiple or over four times those which prevail in England and Wales. This element of the amendment will provide the committee with the tools it needs to take relevant international comparative costs into account when drawing up draft guidelines.
Another important factor concerns the principles set down by the courts in this jurisdiction. We have become very familiar with the idea that modest injuries should attract moderate damages. At the heart of this idea is an appreciation that damages for pain and suffering must be reasonable, having regard to the injuries sustained, and must be proportionate within the scheme of awards made to individuals for injuries which are of significantly greater or lesser import. In addition, the courts have recognised that damages should be objectively reasonable in the light of the common good and social conditions. I am confident that guidelines which reflect these principles will inevitably bring about a much-needed recalibration of the existing book of quantum.
A final factor to which I will briefly allude concerns the need to have regard to guidelines relating to the classification of personal injuries. While not specifically referenced, this would allow the committee to take account of the highly reputable whiplash associated disorder scale, which was developed by the Quebec task force and helps to determine the type and extent of medical care likely to be needed to treat an injury effectively and to resolve accompanying pain and discomfort.
The final element in this set of amendments is contained in amendment No. 43, which relates to section 22 of the Civil Liability and Courts Act 2004. One element of the amendment, which is purely technical, replaces references to the book of quantum, to which the courts shall have regard, with references to the personal injuries guidelines. The other element of the amendment, which is more significant, requires a court which departs from the guidelines to state the reasons for such departure in giving its decision. This amendment will allow for greater assessment of the extent to which the guidelines are being followed and will also be of assistance to the appellate courts in determining whether the reasons given for the departure are justified.
Amendments Nos. 7 to 13, inclusive, relate to the role of the council and the board of the council in the draft personal injuries guidelines. To ensure consistency with other provisions in the Bill, these amendments mirror the arrangements envisaged for the judicial conduct committee and the sentencing guidelines and information committee. As a result of these amendments, it will be a clear function of the council to promote among judges an understanding of the principles governing the assessment of damages for personal injuries. Express clarification is also provided that the council can enter into contracts or engage consultants for the purposes of enabling the various committees to carry out their functions. This is especially important in the case of the personal injuries guidelines committee.
Amendments Nos. 22 to 25, inclusive, are concerned with issues around membership of the committee and the procedures of the committee. Amendment No. 22 provides that the committee will consist of seven judges, with at least one judge drawn from each of the jurisdictions. Amendment No. 23 specifies that the standard membership term for the committee shall be four years, to be renewable once. The filling of casual vacancies is dealt with in amendment No. 24. Matters such as the procedures for meetings, the first of which is to be held not later than one month after the date of the committee's establishment, and the quorum for meetings, which is set at three, are addressed in amendment No. 25. I hope Senators will agree that the amendments I have outlined are comprehensive in nature. I look forward to their comments on them.
I will not prolong the agony of the House. It is striking that amendment No. 22 proposes that the personal injuries guidelines committee will consist entirely of judges. Will the Minister of State explain the rationale for that? I am reminded of one of the main contentious issues with the Judicial Appointments Commission Bill 2017, which I am loath to invoke. It is the last thing I want to do. I am conscious of the need to avoid conflating the two Bills. I will not labour that Bill any more than I have to. The question of whether the appointments committee should have a lay majority among its membership and should have a lay chair is the contentious issue that comes to mind. I ask the Minister of State to take this opportunity, before the Bill proceeds elsewhere, to explain the departmental rationale for the proposed composition of the personal injuries guidelines committee.
Awards are matters for the Judiciary rather than the lay members of the personal injuries guidelines committee. The Senator alluded to the lay structure that is proposed in the Judicial Appointments Commission Bill 2017 for the appointment of judges. This legislation is about recalibrating the guidelines. It is a matter for the Judiciary, rather than lay members, to do that. We have made a determination in this regard. The model we are proposing aligns with the model which operates in Wales, England and Northern Ireland. As will be the case here, the Sentencing Council for England and Wales has a broad membership which includes academics with appropriate expertise, whereas the Judicial College for England and Wales, which draws up personal injuries guidelines, is embedded firmly within the UK judiciary. We are in line with other jurisdictions. It does not seem that there is an obvious pool of disinterested parties who could be drawn on to participate in the function of the committee. There may be others who will advise - it will be possible for the advice to be taken - but subsequently the decision will be a matter for the members of the Judiciary only.
This issue is addressed in different ways throughout my amendments. I understand that the Judiciary acts with professionalism. Unconscious bias has a significant impact on the way we interpret laws and engage with the legal system. When this group of judges are looking at sentencing guidelines, will there be nobody else in the room? We need people with expertise, diversity and an understanding of the impact of sentencing on the lives of people, especially when there is unconscious bias. We understand direct bias in terms of race and gender, but unconscious bias can go much further than that. We will come to my amendment later in this debate. This is a concrete example of the issue I am seeking to address. It is proposed to fill a room with people who come from a certain social, cultural and economic background. I do not think it would be right for us to continue to look at introducing sentencing guidelines, and at how those guidelines will play out when they are implemented, without having a diversity of opinion in the room.
Who does the Senator believe should be in the room with the Judiciary when these decisions are being made? Should representatives of the insurance companies be present? Should medical practitioners be present? Insurance companies should not be represented because they have a vested interest. Medical practitioners could potentially have a vested interest too. There is nothing wrong with the Judiciary, through the council, setting the guidelines. It will be able to source information and knowledge from the Personal Injuries Assessment Board. It may require information from insurance companies or medical practitioners. When the time comes to conclude the matter, it will be up to the Judiciary to make the determination.
I welcome the Minister of State's amendments. I am glad they will provide guidance to us on awards. I have concerns about the timelines. The Minister of State might be able to shed some light on this matter. When will the personal injuries committee be in place? Has the Department taken logistical steps ahead of the appointment of the committee, for example, by putting aside office space to cater for it? When exactly will the guidelines be in place?
I have a timeline in mind. The Senator has probably heard me expressing my view on that. I understand that it is a challenging timeline. I am prepared to challenge any party. The urgency of this matter means it needs to be dealt with as quickly as possible. The first timeline will be met when I get out of here. I do not use that term in a negative way. I appreciate that people have been helpful in facilitating this Bill. I hope we will get through here today. When we are finished with the Bill in this Chamber, it can be concluded in the other Chamber. I hope we can get it through the Lower House as quickly as possible. Then we will have to get the Bill signed into law. I have asked for an earlier signature motion, but it seems that such a motion is not required. It would make a difference of no more than a couple of days. As this is a priority, an earlier signature motion is not required. We will not have to go down that route at all. Subsequent to that, the amendments provide for particular periods of time within which work will have to be done. That is the longest period. That is what I am saying. There is nothing wrong with this being done quickly and effectively. Some works can be done in tandem while structures are being put in place. There is nothing wrong with these structures being established as quickly as possible while work is being done to source and fit out office space. It can be done in parallel. We will not wait until everything is done in one phase before we start the next phase.
Has office space been found?
We will not look for office space until the Bill is enacted. It is only then that we will move, but preliminary work has been done to determine how we will proceed in that regard.
The Judiciary is very supportive of the incorporation within the Judicial Council structure of a function of formulating and issuing appropriate guidelines on compensation in personal injuries cases. The approach I am taking is in favour of a guidelines regime that will have a clear legal basis and that will be fully within the remit of the Judiciary. I am satisfied that this approach is one with which the Judiciary can work.
Under the proposed amendments, the personal injuries guidelines committee will be mandated to prepare a draft of the guidelines within 12 months of its establishment. That is the period in which it must be done. There is no reason it cannot be done before 12 months have elapsed. The guidelines will have to be adopted by the Judicial Council. Every Member of the Oireachtas understands the importance of this legislation. There will probably not be more important legislation coming through the Houses in this term. The insurance side is a small corner of crucial legislation to revolutionise how the Judiciary works. I compliment the Minister, Deputy Flanagan, on the legislation. I also thank him and the Department for giving me the opportunity to add a section on insurance to benefit insured persons and society as a whole.
I welcome the Minister of State and the opportunity to debate this Bill on Report Stage. It is an important Bill. I have already spoken on behalf of the Labour Party on Second and Committee Stages when I welcomed the legislation and the amendments.
I seek a response from the Minister of State on a specific issue. Senator Ó Donnghaile has raised aspects of it. It relates to this group of amendments about the personal injuries guidelines committee. Under amendment No. 22, the committee will comprise seven judges who will be nominated by the Chief Justice. Is there any provision - I do not see it in the amendments - for the committee to consult external persons or experts? I ask because I am contrasting the committee with the sentencing guidelines and information committee, which I very much welcome. This is set out in section 19 which specifically refers to lay members, in addition to judicial members. Section 20 provides that it would be desirable for the lay members to possess knowledge of and experience in a number of areas, including the administration of justice, sentencing policy, the use of statistics and the rehabilitation of offenders, and that the Public Appointments Service shall have regard to this desirability. That is important.
What Senator Ruane said about diversity of committee membership and an unconscious bias is important. The Senator has tabled specific amendments to deal with this issue. I support her in that regard.
It is worth reflecting on whether the personal injuries guidelines committee, by contrast with the sentencing guidelines and information committee, should have some lay members or, if not, at least the ability to consult experts in this area.
I very much support the sentencing guidelines provision, the proposed section 82, and the committee. From my work on sentencing practice over a number of years and my research into the issue, I realise the importance of having a structure for the exercise of judicial discretion in sentencing. I hope the structured framework will have regard to recommendations such as those of the Oireachtas justice committee. Some years ago, other members of the committee, including Senator Conway, and I made various recommendations which implied that imprisonment should be a sanction of last resort. We referred to the need for greater consistency in sentencing and less reliance on short sentences, which achieve so little in terms of rehabilitation. Unfortunately, our system has been too dependent on them for too long for minor, non-violent offences. We recommended a move towards community-based sanctions instead. I am hopeful we will see really positive and progressive developments in sentencing as a result of this legislation, but I am interested in contrasting the sentencing guidelines and information committee's structure with that of the personal injuries guidelines committee. I welcome the latter, but I just want to know whether there will be a facility to consult experts.
I apologise if I did not bring to the Senator's attention subsection (7) of the proposed new section 18. It states:
The Personal Injuries Guidelines Committee, and any person authorised by it to act on its behalf, may, for the purpose of performing its functions under subsection (2)—
(a) require any person to provide it with such records, documents or information as it may reasonably require for that purpose,
(b) consult with such persons as the Committee considers appropriate, including the Personal Injuries Assessment Board,
(c) conduct research on damages for personal injuries including—
(i) the level of damages awarded by courts in the State and by courts in places outside the State, and
This reflects the Personal Injuries Commission’s second and final report. Mr. Justice Nicholas Kearns, former President of the High Court, launched the report on behalf of the commission. It refers specifically to lower level injuries. I had a conversation about this issue with a party colleague of Senator Bacik yesterday, namely, Deputy Penrose. Much of what I am talking about concerns the lower levels of awards, or lower levels of damages, which are out of kilter by comparison with those made in our nearest neighbours, Wales and England. The work done was independently verified by KPMG. Damages awards at the lower levels in Ireland are 4.4 times higher than those made in England and Wales. There is an opportunity for persons to be consulted or spoken to on behalf of the committee.
The proposed subsection (7)(c)(ii) refers to "settlements of claims for damages for personal injuries". The proposed subsection (7)(d) states: "organise conferences, seminars and meetings relevant to those functions". This is as open and flexible as it can be to try to get in as much information as possible. The information will be analysed correctly and appropriately. The commission had the information analysed and independently verified by KPMG. The Department of Finance compared awards made in Ireland, England and Wales and concluded that awards made here at the lower end were five times higher than those made in England and Wales. The Personal Injuries Assessment Board also did work on the issue and concluded that awards made here were a little less than five times higher. There is enough evidence at this stage and enough scope within the Bill for the seven judges not only to consider the matter but also to authorise people, on their behalf, to obtain and analyse the information and ensure it will be scrutinised correctly in order that they will be properly informed. I refer to information from other parties, including the Personal Injuries Assessment Board and insurance companies, that may not be available to anybody else. There will be scope and flexibility to ensure we get all of the information needed.
Cuirim fáilte roimh gach duine ó Scoil an Duinnínigh, Sord, atá sa Gailearaí.
I welcome the Minister of State. I really welcome the Judicial Council Bill. The amendments the Minister has tabled on Report Stage will make a great difference. They address many of the concerns of businesspeople who are under tremendous pressure as the economy recovers from hikes in insurance premiums which are sometimes outrageous. They are putting some out of business and making it impossible to hold charity events. Much of this is being driven by excessive awards that are totally out of sync with those made in our European neighbours, particularly the United Kingdom, on the law of which much of ours is based. Therefore, I really welcome the Bill and the fact that there will be a commission to review all awards made and ensure they are brought back into line with European norms.
There is a concern that this work needs to be done quickly and that it cannot take two years. There is a significant concern among members of the Insurance Alliance, which welcomes many aspects of this Bill, that there will be delays in its implementation. We need the legislation implemented as quickly as possible. There is unanimous support for this in the House and among our citizens who take risks and set up their own business, and innovate. Many of the young people who are in the Gallery today will be among them. People need to be able to run their businesses without fear of being put out of business by fraudulent or excessive claims and excessive insurance costs.
Amendments Nos. 16, 26, 29, 31, 34 and 35 are related, and amendment No. 35 is consequential on amendment No. 34. Amendments Nos. 16, 26, 29, 31, 34 and 35 may be discussed together by agreement. Is that agreed? Agreed.
When the Bill was first presented, it provided for two committees of particular note: the judicial studies committee and the judicial conduct committee. Since then, provision has been made for a sentencing guidelines and information committee and, courtesy of the amendments just passed by the House, a personal injuries guidelines committee. The original arrangements envisaged that the committees then in contemplation would be established by the Judicial Council at its first meeting and, in the case of the judicial conduct committee, that its first meeting would be held not later than three months after the first meeting of the council. Within 12 months of its establishment, it would have to prepare and submit to the board of the council draft guidelines concerning judicial conduct and ethics. Given the number of committees now falling within the ambit of the council, it seemed prudent to look again at the arrangements for their establishment with a view to seeing if some phasing would be possible to alleviate some of the pressures that might otherwise arise if they were all required to begin their work within the same short timeframe.
Under the proposed amendments, provision is made whereby, at its first meeting, the council will specify a date upon which the individual committees will be established. Different dates may be set for different committees in order that some may begin their work sooner than others. All the committees will have to be established within six months of the first meeting of the council. In the case of the judicial conduct committee, the sentencing guidelines and information committee and the personal injuries guidelines committee, their first meeting will have to be held no later than one month following their establishment. The proposed phasing will ensure that, in the case of committees where lay membership is an issue, there will be adequate time to ensure that the necessary people are in place to facilitate their establishment. In the case of the judicial conduct committee, it is also essential that there be sufficient time to ensure that a registrar is in place so that the complaints regime can run smoothly from the outset.
There are also practical issues relating to the selection of judges for the various committees, the need to have a physical space where meetings can take place and the need to have adequate resources available to the committees in order that they can carry out their work in an effective way from their very first meeting. I am confident that much of this work would have been done in any event but it is no harm to have a measure of flexibility in the timing of establishment in case there are some unforeseen issues, however minor they may be.
I have a couple of queries because many committees come under the Bill. Will there be enough judges to fulfil all of the committee roles? Will the timescale that the Minister of State outlined for the committees that he is establishing be adhered to? He mentioned six months and said that a number of the committees will be prioritised initially. Some committees should take priority over others due to necessity and importance. Does he envisage a problem allocating judges to all these committees?
There are 165 judges and, therefore, we should have enough of them for the committees. All the committees will have to be established within six months of the first meeting of the council. In the case of the judicial conduct committee, the sentencing guidelines and information committee and the personal injuries guidelines committee, their first meeting will have to be held no later than one month following their establishment.
Let us make no mistake about it; a lot of work needs to be done. The initial work is being imposed on the Judiciary. It is reasonable to allow some phasing of the timelines within the legislation rather than have it specified and prescribed just in case there may be unforeseen circumstances that we have not considered. We do not want to put in place a structure that cannot be achieved. This proposal gives a degree of flexibility. That does not take away from what I said in reply to Senator Clifford-Lee earlier. We want to have this done as quickly and effectively as we can.
These amendments are all about the commencement of various committees.
Yes. I appreciate what the Minister of State said. He said that there are 165 judges. In my own area of Naas, one judge has complained that his current workload is excessive, and that is probably the case for many judges around the country. How many judges in total will be on these committees? Is the Minister of State confident that he will get enough judges to fill the committees within the timespan that he set out to commence them?
I do not know how many judges will be on the committees. The insurance aspect of the Bill is a small corner of very important legislation for the Judiciary. There are seven on the committee that I propose to establish under this legislation. There are four other committees so I do not know what the breakdown is per committee, unfortunately. There will be between 20 and 30 members of the Judiciary on all of the committees.
I move amendment No. 17:
In page 19, in line 31, after “judges,” to insert the following:
“including materials relevant to the exercise by judges of their functions in conducting criminal trials with a jury, including but not limited to the functions of:
(i) trial management;
(ii) jury management; and
(iii) directing the jury,”.
I second the amendment.
I thank the Senator. I am conscious the amendment speaks to a similar issue to Government amendment No. 18 and amendment No. 19, which has been tabled by Senator Ruane and her colleagues.
I believe all of these stem from the same impetus or motivation. I have raised this point on previous Stages of the Bill. Our purpose in drafting amendment No. 17 was to ensure a specific role for the judicial studies committee in providing judges with guidance on the conduct of criminal trials. Our amendment suggests the insertion of a provision into section 17 to change it somewhat. While section 17(3) already enables the judicial studies committee to prepare and distribute relevant materials to judges, we believe this should specifically include materials relevant to the exercise by judges of their functions in conducting criminal trials with a jury, including but not limited to the functions of trial management, jury management and directing the jury. We have been specific because of concerns that have arisen recently around comments made by judges, as well as judges controlling prejudicial comments made to jury by counsel. I have in mind specifically sex offence trials where issues have been raised in the public domain about aspects relating to the complainant's clothing in a sex offence trial. The recent controversies have illustrated the need for guidance to be provided to judges in how to conduct criminal trials where such prejudicial comment is made. Having been a practitioner I am conscious of the way so many appeals have come forward through the criminal courts relating to aspects of what a judge has said in summing up to a jury or in seeking to sum up evidence or give the jury instruction on procedure and criminal law.
It would be helpful to prescribe that the judicial studies committee should give guidance of this specific nature to those conducting criminal trials. I am conscious that the Government amendment, amendment No. 18, seeks to do something similar by inserting a line referring to the conduct of trials by jury in criminal proceedings. If either of the amendments come through I will not push mine to a vote. The Government amendment seeks to do something similar.
Senator Ruane's amendment seeks to address something different, that is to say, the issue of unconscious bias, although that is what I am trying to get at in my amendment as well. I hope that would be got at through the guidance provided by the judicial studies committee to judges in the conduct of criminal trials more generally.
I know there are judges' bench books in the Four Courts. Yet, despite their central importance they are private and unregulated documents. The overall tenor of this legislation is to seek to provide a structure to judges within which they may exercise discretion without being unduly prescriptive and without fettering judges in their discretion.
That is also an important point to make and it is similar to the point I have already made in respect of the sentencing guidelines. There has been considerable criticism over the years of the fact that our sentencing practice is largely reliant on an instinctive synthesis, as the Law Reform Commission has said. Over many years Tom O'Malley and other experts have called for a structure to be provided to judges within which they may exercise discretion. The Joint Committee on Justice and Equality has recommended a particular approach to sentencing that would minimise the use of short sentences of imprisonment for minor non-violent offences and instead place greater reliance on community-based sanction. We are moving in that direction anyway with greater emphasis on rehabilitation - I very much welcome that - and this Bill is an important part of that process. Just as we provide guidance to judges in the exercise of sentencing discretion so too should we specifically provide a structure and framework within which judges conduct criminal trials, direct the jury and exercise control and management of the trial process, including control over comments made in the course of a trial by counsel or others.
I should have said that amendments Nos. 17 to 19, inclusive, are related and may be discussed together by agreement.
I was waiting for you to say that, Acting Chairman.
You dealt with all three amendments anyway, but we can agree that they may be discussed together by agreement. Is that agreed? Agreed.
I will bring everyone in together. Did you wish to come in, Senator Ruane?
I thank the Minister of State for being here this afternoon. I welcome the Bill and the changes that are being made to it in the Seanad. The provisions on sentencing guidelines, education and training and the introduction of disciplinary procedures are most welcome.
The Bill is a welcome attempt by Government to modernise and improve the Judiciary and how it operates. It allows for the standardisation of experiences in order that there will be some form of continuity between courts and judges for people with similar legal cases and so that judges will receive standardised education and training sessions. Over time, this will start to build up further institutional continuity in sentencing.
While we want judges to have discretion in how they decide cases, we also want to ensure that the Irish legal system handles near-identical cases with some degree of similarity and that individual judges and courts do not hand out vastly different sentences. We are lucky to have high public confidence in our Judiciary and that needs to be maintained. However, the fact is that judges are human too. They may be charged with interpreting our laws and the Constitution but they are normal people and the fact is that people are a product of their environment, background and how they were brought up. Their experiences all come together to shape their perspectives on the law, life, society and other people too. When judges make judgments on a case or hand down a sentence they consciously use their years of experience of legal scholarship. However, unconscious factors will also come into play. It will not be intentional but arises from their unique life experiences. Every judge will see the same case in a slightly different way.
Amendment No. 19 seeks to ensure that judges would be regularly educated and trained on the impact of unconscious bias in their decisions and sentencing so that they know to be aware of it and take it into account. This is not to say that judges are biased in any way. It simply seeks to recognise the reality that no judge is the same.
As we progress a Bill that is designed to bring continuity of experience to our judicial system, this is a piece of the puzzle. Legal training and the continued development of our Judiciary must expand to ensure we continuously address the impact of unconscious bias on stereotyping and sentencing. We must look into the fact that it manifests itself in how legal proceedings can unfold.
I spent a good deal of time in and out of courts during the past 20 years as someone in the court as a young offender and later as someone who supported many people in addiction and homelessness in the court system. I have sat, witnessed and watched how different judges use different language and impose different sentences. I have seen different opportunities and chances, especially for people in addiction. I have said this before in the House. When one of the participants on our addiction programmes was before the court in Kilmainham, we used to hope for the female judge - I think her name was Catherine. I think she has passed away now but we hoped she would be in position because she had a unique understanding of addiction and the implications of a person's environment. We took the view that she was fair in her assessment of the individual before her because she had training or personal experience of someone living in addiction. That had a major and positive impact on the people who were before her within the court system.
As humans, we make quick assessments and we have preconceived ideas. It happens so quickly and it is not something we do consciously. We need to continuously challenge that to create a far fairer system. In that way, people from minority backgrounds might take the view that they are stereotyped less and that court proceedings are more fair and equal. It would be positive for judges to be able to constantly challenge unconscious bias and become aware of it within themselves. I hope the Minister of State can support the amendment.
I support the Government and Labour Party amendments in the section on jury conduct.
In its current form, section 17(3)(c) specifies that the judicial studies committee may provide education and training on matters relevant to the exercise by judges of their functions. In order to guide the committee, examples are given of several areas where training might be appropriate. During our Committee Stage debate, Senator Bacik spoke about using the opportunity provided by section 17 to reference the need to have training for judges who are conducting criminal trials with a jury. Mention was made of model charges to juries.
Having reflected on the matter, I have concluded that an amendment along the lines suggested would be a useful addition to the text.
What I am now proposing is a short amendment which simply refers to the conduct of trials by jury in criminal proceedings. I believe that this will be more than adequate to address the various issues that may arise in jury trials, such as trial management, jury management, directing the jury, etc. These were matters adverted to by Senator Bacik on Committee Stage and they are, of course, also itemised in the amendment which she has tabled. I have chosen to deal with this matter the training context set out in section 17(3)(c). I believe that this is the appropriate location for the text I am proposing. It does not, of course, preclude the distribution of relevant materials on this topic under section 17(3)(a). I believe, however, that it is better that that subsection continues to have a general import. I hope Senator Bacik can accept that a broad provision of the kind I am proposing is sufficient to achieve the objective we both share. I hope she will not press her amendment in these circumstances.
I also note amendment No. 19 in the names of Senators Ruane, Higgins and Kelleher dealing with unconscious bias. I will comment briefly. While I understand Senators' concern and why this amendment is being put forward, I am reluctant to include a provision of this kind in the Bill. As a consequence, I am not prepared to accept this amendment. I put that on the record because the fact that a matter is not specified in the indicative list provided does not mean that training regarding that matter is precluded. Matters set out in the subsection are by way of example. I anticipate that what the Senators are asking to be included is already included in the Bill. I do not believe it is appropriate to be putting specific areas into the Bill. The context of the amendment goes more to behavioural characteristics linked to temperament and attitude. We can all agree that it is important to recognise the reality of unconscious bias. I am very reluctant, however, to single out the Judiciary as being the only profession where specific training is needed on this issue. It is also the case that while training is not specifically itemised it is not precluded. I hope the amendment will not be pressed.
I thank the Minister of State for acknowledging my role in raising this issue on Committee Stage. It is an important issue and I am glad that the Minister of State has listened to what has been said and that Government amendment No. 18 was drafted in response to the concern I raised. It was certainly an omission from section 17(3) to not have reference in that provision to criminal trials specifically and to the conduct of trials by jury. I am glad that is now there. I will not be pressing my amendment because I accept that what I had hoped would be covered is now covered, albeit not as specifically set out in my amendment. I do, however, think that this provision meets the concern I had. This is clearly an enabling provision, as was mine. We should be cognisant of the fact that in England, the judicial college drew up the English Crown Court compendium under roughly similar statutory enabling powers. This sort of enabling power has been used elsewhere to provide the type of guidance I am seeking. It also serves to meet the concerns many people have about judicial control of criminal trials where prejudicial comments are made.
I also listened carefully to the comments of the Minister of State regarding Senator Ruane's amendment. She will respond herself on that. It is important, however, that within section 17 the judicial studies committee would be providing training and guidance to judges in respect of unconscious bias. Judges should be informed about the way in which gendered stereotypes, for example, can impact upon the conduct of sex offence trials. I use that again as a specific example. I also refer to the prevalence within society of rape myths built upon these gender stereotypes. These are the sorts of things on which judges must and should be receiving training when they are anticipating conducting trials for sex offences or, indeed, for criminal cases generally. I hope that sort of training will be built into the work of the judicial studies committee in any case. I know the Minister of State has stated that he does not want to be so specific as to address this matter in this section. As I have said, it is up to Senator Ruane as to how she responds. It is important, however, that we raise these issues in the debate. It is also important that what we have said would inform the work of the judicial studies committee as well. I say that because this is part of the very important training that could and should be provided. I can thank the Minister of State again for acknowledging my own role in raising this issue on Committee Stage. I will be supporting Government amendment No. 18 as it meets the concerns I had raised in my amendment No. 17.
Does Senator Bacik wish to withdraw her amendment?
I will withdraw my amendment.
The Minister of State said that he does not want to be specific but there are other lists in the legislation concerning what can be provided. Behavioural and attitude characteristics do play a part but unconscious bias does not necessarily show itself in negative behaviour. We must take into account a person's intentions. This is about preconceived ideas and their impact. That is not necessarily manifested in outwardly negative and obvious stereotyping. It may be, however, be couched in the types of sentences given. There may be no vocalisation of the reason as to why that has happened. Unconscious bias has an impact which is silent and that is not always behavioural.
As for not singling out the Judiciary, this Bill is focused on the Judiciary so I cannot look at any other profession within it. It is the only fair place for me to do this. Regarding other professions, I have been working, with many others, on the idea of doctors understanding the social context in which they work. I have done much work on this issue with the medical profession and it is usually open to assessing how medicine looks a little different in the different communities that people come from. I have also addressed this issue in respect of the teaching profession. I am definitively not, therefore, singling out the Judiciary. This is just an acknowledgement that human beings have preconceived ideas. We must remember that in this case, the Judiciary will possibly be imposing sentences. The impact of unconscious bias in this sphere can determine the rest of someone's life. It is important, therefore, that we address this issue and to do that in legislation. I am still trying to figure out whether I will be pressing the amendment. I have about two minutes to do that.
The Senator's raising of this issue here reflects, certainly to my mind, that this should be considered in respect of the analysis regarding the studies. That has been achieved by simply raising it. We can have a vote, if Senator chooses to press the amendment, and we might win or lose. I do not know. It will not further progress on this issue. This debate has, however, already advanced the issue that the Senator wishes to be considered.
I note there can be no further discussion because this is Report Stage.
I move amendment No. 19:
In page 19, after line 38, to insert the following:
“(iv) unconscious bias,”.
Amendments Nos. 27, 28 and 40 are related and may be discussed together, by agreement.
On Committee Stage, a number of Senators, in particular Senators Ó Donnghaile and Ruane, mentioned the need for the sentencing guidelines and information committee to have a monitoring role in respect of any guidelines which may be adopted by the council. An undertaking to consider this matter was given and, as a result, I have decided to introduce amendment No. 27 which includes among the functions of the committee the monitoring of the operation of sentencing guidelines. This will allow the committee to have a degree of oversight as to how the guidelines are functioning in practice and will be a useful tool in the context of reviewing the efficacy of those guidelines.
Amendment No. 40 parallels amendment No. 43, which we have already discussed in the context of the personal injuries guidelines committee. The provision in the Bill which is the subject of the proposed amendment requires a court to have regard to sentencing guidelines relevant to the proceedings before it, unless the court is satisfied that to do so would be contrary to the interests of justice. By virtue of the amendment, the reasons for departing from those guidelines will have to be stated by the court in its decision. This will facilitate an assessment of the extent to which the guidelines are being followed and will feed usefully into the review process. It will also allow for greater public insight into why it is that a particular sentence is arrived at in an individual case.
There is a further amendment in the name of Senators Ruane, Higgins and Kelleher which would enable the sentencing guidelines and information committee to conduct public consultations on draft sentencing guidelines. This is a power which the committee already has and, for that reason, I am reluctant to accept this amendment.
I commend the Minister of State for coming back with this amendment. It is appropriate. Some sort of oversight over sentencing guidelines and their effectiveness is important and welcome. If I may divert for a moment, I will welcome to the Public Gallery Dr. Sinead Kane, a solicitor who ran seven marathons on seven continents in seven days. She is very welcome to Seanad Éireann.
I welcome amendment No. 27 because of the need to have consistency in sentencing and to have a monitoring system in place to ensure that consistency and that justice is carried out in an even-handed fashion. I am not suggesting that it is not now, but issues occasionally arise which raise eyebrows and these need to be examined. It is good that there will be a system in place to do so. May I also speak to amendment No. 40 in this group?
The Senator is firing on all cylinders today.
Amendment No. 40 is in this group.
Yes, the group comprises amendments Nos. 27, 28 and 40.
This is an important amendment because it inserts the words "the reasons it is so satisfied shall be stated by the court in its decision". It is critically important that people understand the rationale behind this. It relates to amendment No. 43, which has already been discussed. Insurance Ireland specifically requested that when judges exceed a guideline they be asked to explain why they have done so. All in all, these two Government amendments are very important. They make up a critical part of the Bill and will be broadly welcomed.
I apologise to Senator Ruane. I have bit of a blind spot for her today.
The Acting Chair has forgotten me twice. She should not worry; I am not too sensitive. I will speak to amendment No. 28. It is fairly self-explanatory. It would allow for the sentencing guidelines and information committee that will be set up by the council and which will actually be drafting and disseminating the sentencing guidelines to hold public consultations on draft sentencing guidelines before they are formally adopted. This could take the form of inviting submissions and observations from the public and NGOs working in criminal justice reform.
As I mentioned on Committee Stage, I have drawn from the provisions of the UK's Coroners and Justice Act 2009 which gave the sentencing council for England and Wales a massive public engagement role which has been praised by stakeholders for giving real public ownership of, and confidence in, the management of sentencing policy. This council provides online submission forms, organises community round-table meetings, and engages with judges, magistrates, victims and witnesses. This is all really welcome and turns the drafting process into a collaborative experience, from which we could really benefit. At a time of reform in An Garda Síochána and an increasing focus on community policing and on what it could look like in the future, we cannot do enough to engage with the public and communities with regard to how this process will work.
I hope the Minister of State can accept the amendment. I note that he has said that he cannot and that the committee already has the power to carry out public consultation, but can the Minister of State inform us that it will actually carry out such a public consultation? That is very different from being able to do so. Will the Minister of State clarify that it will carry out a public consultation and make this a collaborative effort?
On numerous occasions I have heard Senator Reilly express his strong view that, when guidelines are not being adhered to, the court should explain why that is the case. This amendment gives that idea legal effect. I thank the Senator in that regard.
I hope that what we are doing in respect of sentencing guidelines will be done in conjunction with the Judiciary. We are outlining in legislation the direction in which we want things to flow. Can I tell Senator Ruane that the committee will carry out public consultation? I cannot but I hope and anticipate that, if it is required, it will be done. The aim of everything in this Bill, including the insurance side of it, is to improve the structures between people, sentencing and the Judiciary. That will benefit everybody. I do not have a principled objection to the Senator's amendment, but there are already two provisions in the Bill which will allow this to be done. I cannot make the committee do so if it does not want to. It is important that we accept that the Judiciary is our partner in this. The Bill should seek to influence the flow of events rather than to give instructions.
I move amendment No. 28:
In page 20, between lines 29 and 30, to insert the following:
“(b) conduct public consultation on draft sentencing guidelines,”.
I move amendment No. 30:
In page 25, between lines 10 and 11, to insert the following:
“Sentencing policy review
24. The Minister shall—
(a) not later than 2 years after the enactment of this Act, commence a review of current statutory mandatory, minimum and presumptive sentencing provisions, and
(b) not later than 12 months after its commencement, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.”.
Amendment No. 30 would require the Minister for Justice and Equality to review all provisions currently on the Statute Book which require mandatory, minimum or presumptive sentencing of individuals when convicted of certain crimes. This review and its conclusions would then be delivered to both Houses of the Oireachtas in a report. My point in calling for this review is that as we are now looking to a judicial system that will be guided by sentencing guidelines to ensure consistency in sentencing. As the Minister of State will be aware, most countries in which these kinds of set sentencing policies exist are states that do not have such guidelines. Now that such guidelines will shortly be introduced, a review of these provisions seems timely.
When the Oireachtas sets out mandatory, minimum and presumptive sentencing in law it removes the opportunity for judicial discretion and for judges to issue sentences which are sensitive to the details of an individual’s case and circumstances. They are a blunt tool that could do with review and reform in light of the work on sentencing that will be undertaken by the new sentencing guidelines and information committee. The review would take place over two years with a further 12 months given for the drafting of the report and its conclusions. I know this is an issue on which the Minister is keen to make progress but if such a review is given a legislative mandate it would continue even if there was an election or Cabinet reshuffle, which looks likely to happen in the next 12 months. I hope therefore that the Minister of State can accept the amendment.
I second the amendment.
First, no election is due until 2021.
I have listened with interest to what the Senator has said about the need for a review of current mandatory minimum and presumptive sentencing provisions.
Regardless of the merits of the proposal, however, the Bill does not provide the appropriate home for it. It is concerned with the Judiciary and the additional functions they are being given courtesy of its new provisions. It is not concerned with the way the Executive arm of the Government should address a particular matter, nor is it concerned with substantive matters to do with sentencing policy. The content of the amendment is more appropriately a matter for a criminal law Bill. It simply does not fit within the structure of this Bill.
As Senators may be aware, the traditional approach to sentencing is for the Oireachtas to lay down a maximum sentence and for a court to impose an appropriate penalty up to that maximum, having considered all the circumstances of the case and applying the principle of proportionality. There are some exceptions to this, such as a mandatory sentence for murder and a presumptive minimum sentence for certain drug trafficking and firearms offences. Such sentences were introduced because of the impact such offences have on society and on communities in particular. Such sentences are under consideration by the Department of Justice and Equality. That consideration has been given added impetus by a recent decision of the Supreme Court. Departmental officials are examining the judgment and its implications for existing legislation, together with the Office of the Attorney General. Any necessary recommendations arising from that consideration will be brought to the Government in due course.
- Bacik, Ivana.
- Clifford-Lee, Lorraine.
- Conway-Walsh, Rose.
- Daly, Mark.
- Daly, Paul.
- Davitt, Aidan.
- Devine, Máire.
- Gallagher, Robbie.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Humphreys, Kevin.
- Kelleher, Colette.
- Leyden, Terry.
- Mac Lochlainn, Pádraig.
- Nash, Gerald.
- Ó Donnghaile, Niall.
- Ruane, Lynn.
- Burke, Paddy.
- Buttimer, Jerry.
- Coffey, Paudie.
- Conway, Martin.
- Hopkins, Maura.
- Lawlor, Anthony.
- McFadden, Gabrielle.
- Mulherin, Michelle.
- Noone, Catherine.
- O'Donnell, Kieran.
- O'Donnell, Marie-Louise.
- O'Mahony, John.
- Reilly, James.
- Richmond, Neale.
Does the Minister of State wish to comment on amendment No. 32?
It has been discussed already.
I am not sure it has.
It is a new provision.
Some say it has been discussed.
No, the Bill has just been recommitted.
It has not been discussed.
This is a new provision which stems from a concern that there should be a person specifically tasked with putting as much preparatory work as possible in train pending the establishment of the Judicial Council. When new bodies are established, much of the vital administrative work often takes place in advance of their establishment. This is specifically contemplated by section 17 of the Interpretation Act 2005. In this instance, I have taken the view that there is merit in having a recognised person who can work with the Judiciary to identify the supports needed if the council is to carry out its functions from the date of its establishment. That person can also work in the background, carrying out the many routine administrative tasks which will be necessary in the time leading up to the establishment of the council and between its establishment and the appointment of a secretary by the board. The approach taken will allow the Chief Justice to appoint a member of the staff of the Courts Service to act as interim secretary pending the appointment of a secretary by the board of the council, as is provided for in section 26. The post is interim secretary and will cease once the formal appointment is made. This touches on a matter that I raised earlier concerning the establishment of structures. Work can commence in parallel, rather than afterwards, section by section.
The purpose of this provision is to impose an obligation on a person not to disclose confidential information obtained while performing specific functions, for example, as a member of the committee of the council, a staff member or a consultant. Unauthorised disclosure is an offence which, on summary conviction, carries the penalty of a class A fine, that is, a fine not exceeding €5,000. A confidentiality provision has been a standard provision in legislation of this kind in recent years. The Statute Book is replete with examples of similar provisions.
Amendments Nos. 36 to 38, inclusive, are related and may be discussed together.
The key amendment is amendment No. 38 which involves the deletion of section 79(4)(l).
Amendments Nos. 36 and 37 are simply a consequential tidying up of the text. For reasons that I need not dwell upon, the Bill which emerged from Committee Stage contained two provisions relating to the publication in the annual report of the name of a judge to whom a reprimand is issued following the conclusion of the complaints process. The amendment I had proposed is contained in what is now subsection (7) and this is the provision which I am the proposing should remain in the Bill.
Under that provision, the default position is that both the name of the judge and the reprimand issued shall be published. However, there is a saver where it is considered that to safeguard the administration of justice, such publication should not occur. Subsection (4)(i) will, however, ensure that there is information about the number of cases where a reprimand was issued, but the information about it is not made public.
I have been informed that there are good legal reasons which underpin the provision which the Minister for Justice and Equality originally proposed and these are grounded in the unique independent function of judges in the administration of justice in public under Article 34 of the Constitution. For example, it is important that regard is had to the ongoing functions of a sitting judge and, in certain circumstances, there might be a risk that litigants could use the fact of the published reprimand to seek judicial review of a judge’s decisions. There may also be instances of reprimands where the judicial misconduct was connected with the health of a judge and where publication might be inappropriate.
I repeat however that, as the amendment is structured, the default position is that there is a requirement to include both the name of the judge and the reprimand issued in the annual report. Non-publication will always be an exceptional step.
Sinn Féin will oppose amendment No. 38. It seeks to remove from the council's annual report information relating to judges who have been reprimanded by the council. That seems contrary to the spirit of the rest of the Bill and boils down to it being a matter of public interest. While I respect that where an accusation has been made and a judge has not been reprimanded for misconduct, that anonymity ought to be protected, that is not the wording nor is it an issue that exists within the current Bill. Where it is the case that a judge has been reprimanded and the threshold for such a fine has been adequately met by the functions of the council, then it is vital that this be included in any annual report for the important perception of transparency and accountability which is core to the spirit of the Bill. While I concede that I do not have the legal experience or capacity of other colleagues across the House, and while I do not want to get into hypothetical examples, there are examples where I believe this could become an issue if that information were not to be forthcoming and was not brought before the public in a way that was appropriate, respectful, transparent and in the public interest.
I do not think that we can have a blanket provision which mandates the disclosure of a judge in all circumstances. Non-publication will always be an exceptional step. In addition to the examples I gave previously, it is possible to imagine that there may be circumstances where the naming of a judge might have unintended consequences in terms of its impact on third parties. I am thinking here of cases held in camera where it is important that no information gets into the public domain that might inadvertently disclose the identity of a party to a relevant action.
It may be of interest to Senators to know that, on the issue of naming judges, there is no uniform practice which can be pointed to insofar as other jurisdictions are concerned. In England and Wales, the Lord Chief Justice and the Lord Chancellor have discretion not to publish a disciplinary statement where a formal disciplinary sanction has been imposed, based on the individual circumstances of a case. In New Zealand, where a complaint is not such as would warrant consideration as to removal from office, it is referred to the head of bench who is in charge of the court where the judge complained of sits. Any subsequent consideration of the complaint takes place on a confidential basis. In Canada, the only decisions published are those of an inquiry committee and some of the cases before that committee would relate to investigations which may result in the removal of the judge from office.
This is not an issue of transparency. It merely removes the blanket effect which may not be the correct structure. I have highlighted the other common law jurisdictions which are in line with our own.
- Burke, Paddy.
- Buttimer, Jerry.
- Coffey, Paudie.
- Conway, Martin.
- Hopkins, Maura.
- Lawlor, Anthony.
- McFadden, Gabrielle.
- Mulherin, Michelle.
- Noone, Catherine.
- O'Donnell, Kieran.
- O'Mahony, John.
- Reilly, James.
- Richmond, Neale.
- Bacik, Ivana.
- Clifford-Lee, Lorraine.
- Conway-Walsh, Rose.
- Daly, Mark.
- Daly, Paul.
- Davitt, Aidan.
- Gavan, Paul.
- Humphreys, Kevin.
- Leyden, Terry.
- Mac Lochlainn, Pádraig.
- McDowell, Michael.
- Nash, Gerald.
- Ó Donnghaile, Niall.
- Ó Ríordáin, Aodhán.
- Ruane, Lynn.
Members should take their seats if they are staying.
I want to touch on the insurance side of the Bill. I described the insurance section as a small corner of the Bill, which it is, but we cannot ignore the importance of that corner for businesses throughout the country. I thank the Seanad for its speed and flexibility on Committee and Report Stages. There are a few areas I want to touch upon but I do not have the time to highlight the good work done on this crucial aspect of the Bill. We have to get this through the Dáil before the summer recess so the Judiciary can form the judicial council and the committee to deal with personal injury damages and move on to the next stage. A lot of work has been done that has gone completely without comment. Senator Reilly has highlighted the fact that if a judge moves beyond the guidelines for something he or she has always requested, because it is now in legislation, there will have to be an explanation given to the court explaining the who, what, when, where and how it has been arrived at. This is very important.
On many occasions, people have stood up and said there has not been a Garda insurance fraud section, but that is incorrect. We considered the establishment of an industry-funded structure within the Garda National Economic Crime Bureau. The Garda Commissioner, Drew Harris, who is the man with knowledge and policing skill sets that I do not have, has decided to establish a divisional structure. On every occasion that we hear somebody state we are not going to have a Garda insurance fraud section, it is not correct. We will, but it will be on a divisional basis. It will be in every county, quarter and area of the country, which is very important.
A number of other things have been done. We had last year's Insurance (Amendment) Act, the Personal Injuries Assessment Board (Amendment) Act 2019, the Central Bank (National Claims Information Database) Act 2018 and this Bill. Deputy Michael McGrath has a Bill as does Deputy Pearse Doherty that we are hoping to improve. This Bill, of course, is crucial. One of the aspects added to the Central Bank (National Claims Information Database) Act last year was in sections 8 and 14 with regard to CCTV footage. Under data protection rules, if somebody does not state within a month, in line with the data protection period, that there is a potential case and that he or she is making a claim, so that any CCTV footage or video footage can be retained for a full and proper defence, at that point the court will make an inference for or against. This is a crucial aspect of legislation that has also been changed. On every occasion somebody is being political about insurance and stating we are doing nothing, they are aiding and abetting insurance fraud and exaggeration because we are doing a lot. The message must get out that we are doing a lot and we have done a lot. I thank Senators on this matter. I thank them for their speed and efficiency. I hope and anticipate the Judiciary will do its work a lot sooner than the periods set out in the Bill.
I congratulate the Minister of State on the Bill and on all of the hard work he has done quietly and assiduously over the past year and before. He has brought it all together in the end in a way that makes an impact. I reiterate the need for expeditious implementation of the Bill and the meeting of the council and that these matters are taken in hand early on.
I welcome the Minister of State's comments on what I will call the fraud squad in the Garda. I understand that in essence this is what it is but it will be in every division, so local knowledge will apply and local action can be taken, sometimes in an informal way. Sometimes, when people realise gardaí are looking at them, they can have a change of heart very quickly.
I want to praise in particular the Alliance for Insurance Reform. Peter Boland and his group have done us a great service. I was very much struck on Committee Stage by the fact that, unlike so many other groups, not alone did it come in and explain the problems but it suggested a suite of solutions. In fairness, the Minister of State has taken many of them on board in one form or another, and that is democracy in action. It is about listening to those on the front line suffering the brunt of this in terms of insurance hikes.
There are many aspects to the issue, as the Minister of State pointed out, and the Bill attacks only some of them. A perjury Bill will come to the House, which the Government will support. As the Minister of State said, a loud message needs to leave the House to those who would defraud people by grossly exaggerating, making false claims, or setting up accidents for the purpose of making a claim that there will be consequences, because there have not been to date. People think that if they try it on today and are found out, they can try again next month. This will no longer pertain and this message is very important.
The CCTV provisions are also very important. They send a loud message to people that this will impact on them. I believe this was used as a ruse by certain people who waited until the last minute when a lot of the evidence was gone and then made their claim.
I thank the Minister of State for doing all he has done to bring this together. I also want to mention the great work done by the Garda and I support it. We want to be in a position to support it.
With regard to the Judiciary, this is not remotely a witch hunt but an effort to help it improve its performance and have, as do all groups, an element of continuing professional development that allows it to oversee what is happening and help those who might be a little out of line for a host of reasons, which can be done in a friendly and supportive fashion. It takes a long time to become a judge and we do not want to lose people from the Judiciary. We want to support them. However, we have to demand an even justice system for all of our citizens.
I congratulate the Minister of State on what he has done. Since his appointment we have had the personal injuries commission report, various legislation, improvements in the Personal Injuries Assessment Board legislation, and this, which is another piece of the jigsaw to help citizens with their insurance payments and reduce the premiums paid by businesses, small enterprises and individuals. Even today, we see the cost of VHI insurance increasing.
I am a little concerned about a couple of issues. The Minister of State has said that he will push the timeframe for this as hard as possible. The legislation outlines periods of time within which reports must be done. If they can be done faster, that will be all the better. We do not want to wait for guidelines so that in two years we are still paying high premiums as a result of the awards being made in court. I am concerned that if the committee recommends leaving awards as they are at present, which is way in excess of what they are throughout Europe and the UK, we will then be looking at capping awards. This has been mentioned by the Minister of State. There could also be a referendum and we do not want to go there. I hope the Judiciary takes note of the sentiment of the Seanad and the Oireachtas because we are expressing what the people want.
I congratulate the Minister of State on having the Bill passed by the House. It is approximately 15 years since I attempted to bring this legislation into reality. During the period I was Minister with responsibility for justice, I did not receive the requisite co-operation from the Judiciary, as a result of which nothing happened.
I had to explain to the Dáil on a number of occasions that I was being left high and dry for want of response to my proposals.
It is also 15 years since the Civil Liability and Courts Act 2004 was passed. For a while, that legislation had the effect of driving down premia but it began to degrade and, to some extent, there was resentment in the legal profession and some areas of the Judiciary to the measures in the Act. They were designed to ensure litigants behaved with utmost good faith in this kind of litigation and they provided penalties, such as loss of the entire claim where any part of it was exaggerated deliberately. Unfortunately, some members of the Judiciary thought this was draconian but there is nothing draconian in asking people to behave in good faith when making a claim of this kind. There must be consequences for behaving other than in good faith as a plaintiff. Under the 2004 legislation, there was provision made for a register of personal injuries actions and this was designed to create a database so that people could be easily recognised as serial claimants. That has never been commenced and I ask the Minister to consider such a commencement.
The media probably misquoted the Minister of State on occasion by suggesting that somehow this House was holding up this legislation. Nothing could be further from the truth.
I congratulate the Minister of State and his officials on the passage of the Bill through the Seanad and I welcome the legislation. As others have said, it is long overdue for us to establish a judicial council for so many reasons. It is important and good that we are seeing this through. I am particularly pleased that we have seen within the Bill a framework for the structuring of discretion on sentencing and personal injury awards. We have had much debate on that matter. I am very grateful that the Minister of State accepted my point on Committee Stage and an amendment has been passed to ensure that guidance will be given to judges on the conduct of jury trials and criminal proceedings. I also welcome the passage of Senator Ruane's amendment providing for a review of mandatory minimum sentences. It is an important amendment that I hope is retained when the Bill goes through the Dáil.
Further amendment of the Bill may be required in the Dáil, particularly of section 79 and the provisions on the annual report of the judicial conduct committee, on which we have just voted. The text in section 79 may need to be streamlined. It may well be the case that the Bill will come before the Seanad again but I hope it will have a speedy passage. As Senator McDowell has said, we certainly have not delayed it in this House and we have been very anxious to see it go through. Any of us who have spoken on it in this House as it has gone through its Stages have expressed our strong support for it and our desire to see it passed without further delay.
I concur with my colleagues and commend the Minister of State, Deputy D'Arcy, on the work he has done in the area. It is always difficult to make changes. The Minister of State has created the structures here to enable amendment of the personal injury guidelines. The judicial council will be established and I hope that happens once the legislation passes through the Dáil. I hope the Chief Justice will then move to establish the personal injuries guidelines committee as quickly as possible. Most of the seven people appointed to that will be judges. The Chief Justice is a very capable man and I expect he will be able to make those appointments very quickly. I ask that the committee report on the matter as quickly as possible.
I am particularly pleased about amendment No. 39, which makes reference to personal injury guidelines under a new section 82(3). As a result of the amendment, the personal injuries committee will look at the level of damages awarded for personal injuries in courts in the State and in such places outside the State as the committee or board may consider relevant. It is a key provision. To date, reviews of awards have been limited to the existing courts system. Guidelines relating to the classification of personal injuries need a little more detail and I have the minor soft tissue injuries in mind in this respect. Where people have genuine and severe injuries, the court system exists to protect their rights. We should never lose sight of that. However, this is about cases where awards are above what is warranted because of a minor injury.
I commend the Minister of State on this body of work, much of which has been quietly and efficiently done. The structure is now in place and I call on our colleagues in the Lower House to put this legislation through quickly. I hope the judicial council will be established with immediate effect so we can quickly arrive at a position where there is a fair and reasonable system of people being given awards commensurate with their injuries, particularly with respect to serious injuries.
As I am in the Chair I can say very little but as Vice Chairman of the finance committee I note we have done much work on insurance. I know the Minister of State has worked very hard on it. I am usually the spokesperson on finance and I hope this Bill does what it is supposed to. It is a very good step on a journey and I commend the Minister of State on all he has done.
I concur with the comments made about the Judicial Council Bill 2017. I commend the Minister of State, Deputy D'Arcy, as I know it was a personal crusade to get this over the line as quickly as possible.