Michael McGrath (Cork South Central, Fianna Fail)
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59. To ask the Minister for Finance his plans to propose a referendum to enable the Houses of the Oireachtas to legislate on certain personal injury claims; the timeline in which he expects to put the proposal to a referendum; and if he will make a statement on the matter. [47645/18]

Billy Kelleher (Cork North Central, Fianna Fail)
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62. To ask the Minister for Finance if reports (details supplied) will be clarified regarding plans to hold a referendum in a bid to override the discretion of judges in the awarding of compensation claims should no reduction in damages occur within the next two years. [47660/18]

Paschal Donohoe (Dublin Central, Fine Gael)
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I propose to take Questions Nos. 59 and 62 together.

The Deputy should note that the Cost of Insurance Working Group considered the issue of capping the level of damages which could be awarded in personal injury cases as part of its second phase examining employer and public liability insurance. During its consideration, representatives from the Working Group engaged with the Office of the Attorney General to explore whether it was considered legally and constitutionally permissible for the Oireachtas to enact legislation to delimit or cap the amount of damages which a court may award in respect of personal injuries.

On foot of those engagements, the ultimate conclusion reached by the Working Group was that (i) introducing such a measure would constitute a significant development in the law, because any legislation which restricts the rights of citizens must be carefully considered and justified to ensure it would withstand constitutional challenge, (ii) that the main question for a court, if such a measure was challenged, would be whether an appropriate balance was struck having regard to the exigencies of the common good, and (iii) that the appropriate balance can only be struck once all appropriate factors have been taken into account by the Houses of the Oireachtas in considering the legislation.

Due to the complex legal nature of this subject, the Working Group concluded that it was not in a position to undertake the in-depth analysis of all of the issues that would be required to demonstrate to a court that the correct balance of constitutional rights and principles has been struck having regard to the exigencies of the common good. Consequently, the Working Group took the view that the appropriate forum to consider this matter would be the Law Reform Commission and made a recommendation addressed to the Department of Justice and Equality to that end (Recommendation 5) in the Working Group’s Report on the Cost of Employer and Public Liability Insurance, published in January 2018.

Pursuant to Recommendation 5, the Department of Justice and Equality provided a comprehensive submission to the Law Reform Commission requesting that research and analysis be carried out on the issue of whether it is (i) justifiable and in the common good and (ii) legally and constitutionally permissible for the Oireachtas to enact legislation to delimit or cap the amount of damages which a court may award in respect of personal injuries.

The Law Reform Commission has confirmed that their draft Fifth Programme of Law Reform contains a project aimed at examining whether it is appropriate to legislate for a cap to be placed on the levels of damages which a court may award in respect of some or all categories of personal injury claims. It is expected that the Programme will be finalised by the end of this year.

In conclusion, nothing will be decided on this issue, including in relation to a referendum, until the Law Reform Commission has reported on the matter, but all options remain open.