Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I dtús báire, ba mhaith liom mo bhuíochas a ghabháil leis an Seanadóir Ó Céidigh. Gabhaim comhghairdeas leis freisin. Tá súil agam go mbeidh an Bille an-tábhachtach seo sna rialacháin tar éis cúpla lá. I wish to congratulate Senator Ó Céidigh on this very important Bill and to acknowledge the instrumental role of Senators McDowell, Boyhan and Marshall, who sponsored it. The Minister, Deputy Flanagan, has spent a significant amount of time recently listening to Senators on criminal and general justice matters. I think he would agree that there is a lot of sense in Seanad Éireann and that if we had listened to Senators in respect of legislation such as the Judicial Appointments Commission Bill, we would probably be far more inspired than we are, having listened to other members of the Cabinet.

Yesterday, I went online to research the law of perjury in order to prepare for this debate. The manner in which perjury developed as a common law offence is of interest. As the Minister stated, it is now sought to put it on a statutory basis, which is a very important development. I came across an interesting, informative and amusing article while investigating the history of perjury. It was written by a senior counsel named Paul Anthony McDermott. My reading of the article was particularly poignant because yesterday was the day upon which he died. I wish to take a few moments to refer to him because he was a considerable person who merits recognition in the Chamber in light of his significant contribution to the justice and legal systems. He had a very distinguished academic career. Academic success is sometimes not recognised in the way it was many years ago.

Certainly, in the middle of the last century there were regular occasions when academic achievements in universities would be advertised and publicised in newspapers. That is not done often now, probably for reasons to do with modern life.

He excelled academically. He also wrote a number of important legal textbooks. One was on double jeopardy and res judicata. He wrote a book on prison law during his twenties, which was a considerable achievement. He then became a barrister and, as the Minister knows, he was a very distinguished barrister. He worked for many years as a junior counsel and only became a senior counsel in 2015. He was an extremely hard worker. Like many successful barristers, he did not take himself too seriously and had a great sense of self-deprecation. He was able to comment in the public sphere about issues of importance. He made complicated legal issues such as perjury digestible for the public. He was happy to contribute in the public sphere and share his learning and he did so in an understated, elegant and sophisticated way. On my behalf, and I am sure I speak on behalf of other Members, I offer my condolences to his wife, Annick, his sons, Harry and Andrew, his mother and his brother, James.

The article I read by Paul Anthony McDermott was published last June and dealt with perjury. That was when the Minister, Deputy Flanagan, announced that the Government was going to adopt Senator Ó Céidigh's Bill. In the article, which was published in The Sunday Times, Paul Anthony McDermott referred to the fact that the Perjury Act 1911 was never applied in Ireland. I do not know why it was not applied. It was not that the British Government at the time believed there was no issue with perjury in Ireland or that Irish people did not tell lies. Similarly, it was not applied in Scotland. We know from the Minister's speech and Paul Anthony McDermott's article that there was an earlier Act, the Perjury Act 1729. I will quote a short paragraph from the article written by Paul Anthony McDermott as it gives a good insight into both the archaic nature of the law of perjury and his distinctive style:

An earlier Irish Perjury Act of 1729 does still apply here, but it simply allows someone convicted of the common-law offence to be sent to a house of correction for hard labour or transported to one of "His Majesty's plantations beyond the seas". Sadly, hard labour has fallen out of fashion in almost every area of modern life, and US president Donald Trump’s immigration policy, combined with Ireland’s current lack of colonies, makes transporting felons logistically challenging these days.

That is a humorous and instructive account of the Perjury Act 1729 and how it applied historically.

When considering the common law offence of perjury, it is important to note that we do not criminalise lying. It is not a criminal offence to lie. Recently, and this was mentioned by Paul Anthony McDermott in his article, somebody sought to initiate a private prosecution against the current Prime Minister of the United Kingdom because of alleged lies he had told during the referendum campaign on Brexit. That was thrown out of court on the basis that there was no criminal offence to provide that somebody who does not tell truthful facts during a political campaign is committing a crime. There is no criminal act of telling lies.

The reason there has been a common law offence of perjury for hundreds of years is that it has been recognised that to tell a lie under oath in court is something the law should prohibit and criminalise. People sometimes forget that courts are formal, not casual, places. They are places where people should only go as a last resort. If one goes to court the evidence one gives can have dire consequences for other people. Historically, evidence could result in the death of another person. Today, evidence given in court can result in a person losing his or her liberty or, in the civil sphere, in a person having a significant award of damages made against him or her. There are significant consequences to evidence given under oath in court. That is why the law has always recognised that it is wrong of a person to tell lies under oath. For that reason it has been a common law offence.

It is surprising that we have not put this on the Statute Book to date. The word should not go from this House that perjury in Ireland was not prohibited or criminalised up to now. It is an offence, but the problem is that when an offence is a common law offence it depends upon the development of that offence through the written judgments of judges and the development of the common law before the courts. It is much more appropriate in a modern society that all criminal offences are codified in legislative Acts so the public is well aware of the type of behaviour that is criminalised and will result in punishment.

People regularly swear affidavits before the courts. They swear them in a casual way, without giving due attention to the content of the affidavits. Part of the problem is that lawyers draft affidavits for people. It is the obligation of the person swearing the affidavit to read it carefully and ensure that the draft prepared by the lawyer accurately reflects what the person is stating and the evidence the person wishes to put before the court. Unfortunately, people assume they will be happy with it because it is drafted by the lawyer. They speed read it and do not give it due attention. The single message that should be conveyed when this legislation is enacted is that if one is going to give evidence in court it is a very serious matter. One gives evidence in two ways - first, by way of affidavit and, second, by way of oral evidence given to the court by turning up in person. People need to be much more careful when swearing affidavits. Similarly, when somebody goes into a witness box to give evidence, he or she must recognise that he or she can only give evidence that is truthful. That emphasis is so strong that we require people to swear an oath or to make an affirmation before they give their evidence. When somebody is giving evidence we must ensure that the person understands that if he or she does not give truthful and accurate evidence there will be consequences for him or her.

This issue has developed in recent times as a result of the recognition by politicians that some people are going to court too easily and casually and some are going to court for the purpose of trying to obtain money wrongfully by giving false evidence to the court. However, other legislation has been in place for many years which makes it an offence to give false evidence on affidavit. Anybody who is taking a personal injuries action must swear an affidavit of verification. The affidavit must testify that the content of the civil bill or the personal injuries summons is true and accurate. It is an offence for it not to be true and accurate or for an affidavit that is untrue to be sworn. There is also such a requirement in other legislation. In the Defamation Acts there is a requirement for persons taking a defamation action to swear an affidavit testifying to the accuracy and truthfulness of the content of the civil bill or statement of claim.

It must be recognised, however, that it is not just people who take cases who may be committing perjury. There is an assumption that it is only the plaintiff taking the case who is likely to commit perjury. In many instances, a defendant will have a motive to commit perjury and give false evidence to a court, even if that defendant is indemnified by an insurance company. We need to recognise the balance in the legislation put forward by the Senators. It does not just apply to people taking claims but also to people defending claims, as it is equally serious for somebody untruthfully to put evidence before a court for the purpose of trying to prevent him or her being held liable in damages for the action brought by the plaintiff.

As the Minister of State, Deputy D'Arcy, said, we have made a number of statutory developments in this House in order to deal with what are referred to as fraudulent claims, exaggerated claims and claims which should never be brought before a court. As I said, the most important message we need to send out is that going to court is not a casual event but an extremely serious event. Most people in their lives will not go to court. It is an unfortunate consequence that sometimes people are forced to go to court because of what happens to them in traumatic events, whether it be a personal injury they suffer through no fault of their own but through the negligence of others, or a family law dispute or an employment dispute. Most of us, hopefully, can spend our lives away from courts. While there are circumstances in which people have to go to court, they should only go there as a last resort. The first message from this House should be that going to court is not casual. It is a serious event and if people go there, it should only be the last resort.

We need to consider what we have done. We have taken many steps, as an Oireachtas, to try to facilitate the detection of fraudulent claims. As the Minister of State, Deputy D'Arcy, said, we enacted speedily the Judicial Council Bill and currently the Chief Justice and the members of the superior courts are putting together the committee that is going to try to come up with a range of damages in respect of personal injuries. We also brought forward other legislation which has gone through the House and Senator Ó Céidigh's Bill is part of that toolbox of legislation. My colleague, Billy Kelleher, MEP, also has legislation to which the Minister should give ample consideration.

We also need to recognise that steps are being taken outside this House to reduce damages. The Court of Appeal since 2015 and 2016 has consistently given decisions which are reducing awards in personal injuries actions and they are coming down. We hear repeatedly people state that awards in Ireland are much higher than in the UK. They are for minor injuries such as whiplash, but what we do not hear in this debate is that for catastrophic, extremely serious injuries, awards are much higher in the UK. That is a part of the debate that needs to be spoken about in order to bring balance.

All of these steps are being taken for the purpose of trying to achieve one societal benefit, that is, the reduction of premiums that are being charged by insurance companies to persons who want to operate and get public liability insurance. That is a commendable societal objective and we want to achieve it. We have done considerable work in seeking to achieve that, when we look at the awards coming down, the work being done by the Judicial Council Bill, the enactment of other legislation and the establishment of PIAB, and I also include Senator Ó Céidigh's Bill. However, irrespective of any issues to do with insurance claims and the recent coverage they have received, this legislation should be enacted in any event because it covers far more than simply insurance claims, the issue that is attracting public attention currently.

The whole purpose of this action on the part of the political world and the Judiciary is to try to reduce premiums. We need to send the message out to the insurance industry that we are fully aware of what it is looking for, but it needs to be aware of what we are looking for. We are looking for a reduction in premiums so ordinary businesses can operate. We note that profits in the insurance industry in Ireland have rocketed in recent years. We are not introducing all of these reductions in damages for the purpose of ensuring that insurance companies' profits continue to rise. If their profits are rising so high, there must be a responsibility on them to use those profits in order to reduce the cost and price of premiums that ordinary people have to pay. We may need to get to a stage where, as a political system, we start looking at how we can ensure that insurance companies cannot continue to accumulate huge profits while, at the same time, identifying some fraudulent claims and then saying the system is not working and needs to be reformed. It does need to be reformed but the reason we are reforming it is not just because there are fraudulent claims which need to be thrown out and which are being thrown out. We are reforming it also for the societal objective of trying to get the insurance companies to reduce their premiums, which is something we need to examine continuously.

I welcome the Bill. It is a good contribution to what we have on the Statute Book currently. It has been pointed out that we have had very few prosecutions for perjury in this country, which is true and we need to see more. If somebody gives false evidence before a court and there is sufficient evidence indicating that was done deliberately, there should be prosecutions. We also need to be aware that the courts are not naively falling for exaggerated or fraudulent claims of people who come before them. Every day of the week, we read in our newspapers about cases and claims that are being thrown out by the courts because they are exaggerated or fraudulent, or because the judges simply do not believe the person taking the case. We do not read as much in our newspapers about cases where judges disbelieve defendants and find in favour of the plaintiff because the evidence of the defendant was not accepted. We do not read much about occasions when insurance companies may allege fraud against a person taking a claim but it is realised the company has no evidence for it and it is just put out there. If the company puts it out there, there is an entitlement for a court to consider whether aggravated damages should be awarded because of the making of a baseless allegation of fraud against a person who is taking a claim.

I commend the legislation. I hope we will be able to get it through promptly and get it onto the Statute Book. I conclude by urging the Minister again to listen to the good sense that comes from Seanad Éireann. I know he has spent a lot of time there recently. If he listened to Senators more than to colleagues in Cabinet who have ideas about how the justice system should be reformed, he would do far better.

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