Sunday 22 September 2019

Shane Phelan: 'Government should get house in order before issuing threats'

Minister of State Michael D’Arcy. Photo: Tom Burke
Minister of State Michael D’Arcy. Photo: Tom Burke
Shane Phelan

Shane Phelan

A junior minister's threat that the Government will hold a referendum to override the discretion of judges if they don't act within two years to reduce awards for minor injuries such as whiplash is likely to produce a furious reaction from the judiciary.

Many judges have felt under siege from the Oireachtas in recent years.

Pay cuts, pension changes and sustained attacks from the Cabinet table, in the shape of Transport Minister Shane Ross, have all contributed to the siege mentality.

Whatever about these issues, the comments by Minister of State Michael D'Arcy will really be red rag to a bull, not least because judges will fight tooth and nail to defend their right to discretion.

Secondly, the junior minister's "carrot and stick" approach also seems hopelessly premature.

In an interview with this newspaper in September, the country's most senior judge, Chief Justice Frank Clarke, indicated the judiciary was willing to act. However, his hands are largely tied until the Government gets its own act together to provide judges with a mechanism for doing so.

Earlier this year, the Personal Injuries Commission provided a blueprint for how high awards for soft tissue injuries can be tackled.

The body, chaired by former High Court President Nicholas Kearns, recommended that judges recalibrate awards under a new Judicial Council.

Mr Justice Clarke signalled his agreement with this recommendation, saying he believed the report needed to be taken seriously.

He said that if damages are higher in Ireland, this has consequences for competitiveness and jobs.

He did not believe there should be "a race to the bottom" on minor injury awards where they were the same as in countries where damages levels are lowest, but Ireland needed at least be "in the ball park".

The problem is there is no Judicial Council, despite the fact the concept has been bandied about for the best part of two decades.

The Government does have a bill to set one up, but its progress has been glacial since it was presented to the Seanad in March of last year. The general principals of the bill were debated the following November and since then there has been nothing. The bill seems to have slipped off the radar.

This is a terrible pity, because, aside from providing a forum where judges can agree on reducing awards for minor injuries, there is a lot of merit in the bill's main provisions.

These include the setting up of a council to promote high standards in the exercise of judicial functions and conduct, continuing education for judges, and the introduction of a sentencing information committee.

The latter provision would be a most welcome development as it would help tackle inconsistent sentencing practices.

Irish Independent

Today's news headlines, directly to your inbox every morning.

Don't Miss