Gov­ern­ment should get house in or­der be­fore is­su­ing threats

Irish Independent - - News - Shane Phe­lan

AJUNIOR 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.

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