Ruairi Quinn (Dublin South East, Labour)

I wish to share time with Deputies Penrose and Kathleen Lynch.

I look forward to Committee Stage when we can engage in dialogue that was not characteristic of the publication and urgent debating of this Bill. I support the concept of the PIAB and argued for it when I was Minister with responsibility for enterprise and employment. I was persuaded of the necessity to reduce the costs of employment and insurance, both legal and premium costs, as they affected small business. I remain convinced of the prevailing argument and believe the PIAB has contributed significantly in the case of 35,000 people out of 40,000 who could access a quick and easy settlement with minimum cost. Some sections of the legal sector have had their personal injuries business significantly reduced and are hurting as a consequence. However, the weak insurance market has not been reformed to the extent that there is now more competition. As a result of changes in the marketplace, we have not seen the arrival of new elements that would drive down costs through competition. There is an urgent need to review the operation of the system in place.

For a short period I was a member of the Joint Committee on Enterprise and Small Business, chaired by Senator Cassidy. Representatives from the PIAB appeared before the committee and I am saddened that we have not had dialogue with them before passing all Stages today.

I refer to the legal opinion received from Mr. Gerard Hogan, Ireland's most esteemed constitutional lawyer on these matters. We tabled two amendments designed, in effect, to ensure this legislation would be constitutional and that there would be some residual discretion left to the courts in regard to these matters. For a technical reason which I understand but think is nonsense, they were ruled out of order by the Chair on the grounds that they constituted a charge on the Exchequer. If our amendment was passed, in some cases the court would be able to agree to award costs and that, consequently, would be a cost, ultimately, on the Exchequer. I take it that it is possible for the Minister to introduce such amendments, should he consider they are worthy. He might want to consider this as an option on Committee or Report Stage.

What I do not wish to happen is for this legislation to be found unconstitutional. It should be amended. Deputy Charles Flanagan raised concerns in regard to the revelations about an insurance company using retired members of the Garda Síochána to informally access accident records within the Garda Síochána, which is an absolute abuse of privilege, an abuse of former servants of the State as well as data belonging to the State concerning citizens. The matter should be vigorously investigated because it is one of concern. While the article in question was written sensationally and the claim has been denied by the principal insurance company named in it, I am not satisfied we, as Members of the Dáil, have been satisfied that an undertaking and inspection have been carried through that refutes the claim in the article in the first instance, if such a refutation can be made, and more to the point, if it cannot be refuted, that effective action is being taken to stop this practice.

We must examine the impact of the PIAB on how the insurance industry is working and how it is affecting our costs in terms of overall national competitiveness vis-À-vis other countries. As the Minister has rightly stated on numerous occasions, we have to compete in a most competitive world and take responsibility for those costs and charges over which we have direct control. This is a clear example of one of those costs. Sometimes the intentions and interventions, well intended though they are by politicians, the Civil Service or the Minister of the day, have outcomes that were unanticipated or do not necessarily achieve the objective intended in the first place.

I wish to read the conclusions of the opinion offered to the Minister and other Deputies in the House by Mr. Gerard Hogan. I invite the Minister to give the advice he received in return, as no doubt he has received a response. I will make this advice available. The conclusion of the eminent senior counsel was:

Summing up, therefore, I am of the opinion that:

A. Judged by reference to the decision of Finlay P. in Henehan, section 51B(2) of the 2007 Bill is unconstitutional insofar as it imposes a blanket and artificial prohibition in all circumstances of the recovery of costs in subsequent litigation done by a solicitor in respect of work during the course of the PIAB process.

B. Judged by reference to the decision of the Supreme Court in the Health (Amendment) Bill, section 51B(1) is unconstitutional insofar as it interferes retrospectively with the vested (albeit contingent) right of a claimant to recover the PIAB element of such costs in subsequent litigation.

This is a serious charge from someone who commands respect across the House. It would be rash and unwise of the House to rush through legislation which will, because there is no commencement date for it, upon signature by the President in three or four weeks time, take immediate effect and have an immediate effect on cases pending. My colleague, Deputy Penrose, might address this matter in a more professional way as he is a practising lawyer. There are legal difficulties associated with this issue. Irrespective of the merits of the case, as Members of this House, as a constituent part of the Oireachtas, in line with the President, we have to be vigilant in ensuring we do not pass laws, however well intended, that will turn out to be unconstitutional and which will, undoubtedly, be challenged on foot of this opinion and by the legal profession.

I thank the Minister for the copy of the opening statement he made available. However, I am not satisfied he has made a compelling case as to why we need to do this now and so quickly. It is not clear what are the additional costs. We have not received a briefing from the PIAB in regard to the Bill, although I received brief correspondence from its chairperson in response to a press release I issued. I am not satisfied this is the way we should be making this law. We have the experience of this House which the Minister will remember in his previous ministerial responsibility when his successor tried to rush through legislation to make the payment of nursing home charges retrospectively legal and it was deemed to be unconstitutional. We should learn from our collective experience. This is not about point-scoring. This is not a case of Fianna Fáil v. the rest. This is not the cut and thrust of party politics; this is the workshop of democracy where we try to get laws on the Statute Book that will enable our society to function well. We are not doing that job effectively.

I urge the Minister to respond fully to the points that have been made and give a reason as to why all Stages of the Bill have to be enacted today and rushed through the Seanad in the next week or so. What is the reason for this urgency if, as the Minister stated, 35,000 out 40,000 legal cases that previously went before the courts are happy to go to the PIAB? It was never the intention that the access route to the courts would be shut off for all 40,000. It was always the intention for those persons who felt they had a reasonable argument to go to court, should they want to have the complexities of their individual case argued in court, that that constitutional and legal door should be left open to them. However, it was intended for others for whom there was no dispute in regard to the damage done and no dispute as to liability or responsibility who simply wanted to make their application, receive compensation and get on with the rest of their lives and did not want to wait in a legal queue for two or three years and that as a consequence, the legal element of the costs of insurance would be reduced for them in a simple and straightforward way.

All of us welcomed that principle, in so far as we could see it functioning and it has functioned well for the 35,000. Why are we closing off this door in this way to such an extent and in such an absolute manner when we have an opinion from an eminent lawyer to the effect that it is unconstitutional? This is a reckless way to proceed. I urge the Minister to reconsider.

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