Paul Coghlan (Fine Gael)

I welcome the Minister to the House and thank him for his outline. Notwithstanding what he has said, the Opposition is not happy with the Bill. Fine Gael supported the setting up of the Personal Injuries Assessment Board but we cannot support the Bill. It was this party that first called for it to be set up and led a charge on the cost of insurance and the cost of living in general and forced the Government to act. However, a legal and possible constitutional principle is being trampled upon. The purpose of the Bill is to provide for a situation where a claimant rejects a PIAB assessment that has been offered and where he or she fails in the courts to win more than the amount offered by the board. I understand the logic behind this proposal; nobody wants to encourage frivolous claims and nobody wants to tie up the time of the courts unnecessarily nor add to the costs incurred by business and employers.

The Bill is a step too far, aiming as it does to restrict, through discouragement, the exercising of the legitimate, democratic and legal rights of citizens. I refer to statements from representatives of the Government at the time of the passing of the original legislation which set up the Personal Injuries Assessment Board in 2003. It is in the context of that debate and the undertakings of the Ministers in Government at the time that we raise these objections today.

The then Minister for Enterprise, Trade and Employment, Deputy Mary Harney, stated during the Second Stage debate in this House:

I am convinced the introduction of the PIAB, as well as the other reform initiatives being undertaken by the Government, will lead to a proper functioning market that will attract new entrants into the market and provide the much needed competition to drive premia down further.

Fine Gael believes this to be the case. While premia could always be lower, the Personal Injuries Assessment Board has done great work in helping reduce costs. Where is the evidence that people going to the courts are doing otherwise? Deputy Michael Ahern, the then Minister of State at the Department of Enterprise, Trade and Employment, stated at the end of that debate:

The PIAB is not designed to deny people's access to the courts, nor their entitlement to seek independent legal advice. The priority for the PIAB will be to implement fair procedures in accordance with the principles of natural justice as apply in this documents-only procedure. At the end of the Personal Injuries Assessment Board process, the parties are entitled to reject the award if they consider they would secure a more favourable outcome through the courts system.

Why is there to be a U-turn? At the time of the publication of this legislation, we were specifically informed that access to the courts would not be denied or discouraged. Those who feared legitimate claimants would be denied their day in court were placated time and again by the Government which said they would not be discouraged or forced out of the courts.

I wish to quote another Minister, the former Minister of State, Deputy Fahey, who stated in the Dáil:

It has also been alleged that respondents will consent to a case going to assessment with the full intention from the outset of rejecting the award and fighting liability in court. This makes no financial or tactical sense. Why would a respondent waste fees on the PIAB and then incur litigation costs? Delaying a case never operates to the advantage of the respondent but always enhances the value of the claim with the passage of time, which hampers rehabilitation. If potential defendants consider that they have good prospects of defending a case in full, they are anxious to do so at the earliest opportunity so that the reserve against potential liability can be taken off their books.

That is exactly what we are arguing today. There is no incentive to anyone who is simply trying to play the system to go to the PIAB with the full intention of frivolously going to the courts. Only where there is a legitimate concern at the decision reached by the board would a decision to proceed to the courts follow.

We supported the establishment of the PIAB but laid down some important markers. We made the point that Article 34 of the Constitution prescribes that justice must be administered in courts established by law, by judges appointed under the Constitution and, in general, must be administered in public.

There are in law very specific provisions which allow the exercise of limited functions and powers of a judicial nature by other than judges. Clearly, however, the exercise of such powers must be in accordance with the principles of natural justice and with fair procedures. Under the original legislation injured claimants are effectively obliged by law to present their claims to this board which will operate in secret and will effectively deny them the right of any independent advice, assistance or representation. Despite these concerns, we favoured the Bill. This debate is a step too far. We must draw a line and reconsider whether it is appropriate that the State seek to influence and discourage people exercising their legal rights. For that reason, we will oppose the relevant section of the Bill.

I was very taken by the statement issued today by a young barrister colleague of mine in the other House, Deputy Creighton, who believes rushing the Bill through both Houses without proper debate is not correct. She has argued well in that she states that the Bill will narrow the options available to members of the public seeking justice and proper recompense when they have been wronged. The Bill is being rushed without public consultation as though it was emergency legislation ensuring that no views, perhaps other than those of the Government and the limited offerings in this House, will be heard. Perhaps it is overboard in regard to the views of the insurance companies.

Deputy Creighton has made an earnest call, which I ask the Minister to take on board, to allow for consultation with the Attorney General and to give him breathing space to investigate the constitutional issues which arise in all of this.