It is beginning to seem that deafness compensation claims represent a minefield in the legal, as well as the financial and military, areas. The breathing space gained by last week's adjournment of these actions until April is time which the Attorney General's office badly needs in order to research a number of arcane areas of law, which have suddenly acquired a cash value of £2 billion or £4 billion (according to whose estimates one takes).
It would nearly be possible to teach an entire constitutional law course centring on the difficulties thrown up by the present problem.
One of the issues yet to be resolved concerns the method by which the recommendations of the expert medical group, which is to report soon on a system for measuring hearing damage, can be introduced into law. Let us assume, as is likely, that its recommendations are not accepted by the plaintiff in a particular case so that they cannot be brought before the High Court on an agreed basis. On that assumption, unless the expert group's recommendation is first enacted in the form an Act of the Oireachtas, it would have no more status than any other medical evidence - for instance, the medical testimony which the Minister for Defence has been offering in the cases which have already been decided. Thus a court would be free either to prefer the experts' evidence to the plaintiff's medical testimony or to take the reverse view.
For this reason, it might seem the safest course would be to enact the expert recommendations in the form of an Act of the Oireachtas. But there is a constitutional difficulty with this, namely that if legislation is made in respect of a court case which has actually been started, then this may amount to an unconstitutional interference with the administration of justice by the court. This argument, which is by no means beyond controversy, plainly applies to those many plaintiffs who would have their writ in before any legislation could be passed.
By contrast, if at the time when the legislation is enacted, the writ had not been issued, so that the court is not (as lawyers like to say), actually "seized of the matter", probably no difficulty would arise. The second range of difficulties concerns the level of legal costs and the possibility these might be reduced by establishing a compensation tribunal. Given the Government has admitted liability for negligence, what is involved are the relatively narrow issues of whether deafness exists, whether it is due to Army service, and the evaluation of compensation. This might seem to be an inherently sensible suggestion (though this does not necessarily mean that it is constitutional).
We also have the experience of the Stardust and Hepatitis C compensation tribunals, which worked satisfactorily and certainly kept down legal fees to a reasonable level.
If such a statutory tribunal was set up in the present situation, and the claimants were prepared to use it, well and good. But could it be made compulsory? Probably yes, as regards claimants who had not already served a writ at the time the tribunal was established. But as to those who had already got their writ in, the same type of constitutional difficulties would arise as were considered earlier in the context of the experts' report.
In view of these constitutional uncertainties, it seems that if the Government wishes to take legal action to reduce (though by no means to eliminate, it should be emphasised), the huge cost of the deafness claims, a constitutional amendment would be necessary to put the matter beyond doubt.
The shape of the forces on either side contesting this amendment, which in the nature of things would have to come on in the next three to six months, or not at all, would seem to be as follows. First, in considering support for the amendment, one needs to make a slight digression. Immediately under yesterday's Sunday Tribune article on the hearing claims, there was a report to the effect that Irish women are significantly more likely than women elsewhere to die from breast cancer, the main reason being the lack of the timely expenditure of £25 million of public funds. There are a lot of areas like this, which might have to be neglected to pay for the deafness claims. Thus, in regard to the amendment, the central issue could plausibly be presented as being one of who is to choose which claims on the public purse should take priority: the judges or the Government?
On the other side, the people opposing the amendment which I am conjecturing would march under the banner headed "Independence of the Judiciary". They would portray the amendment (wrongly I believe), as not only being unfair on soldiers who have suffered hearing loss, but also and more significantly, as being an undermining of the independence and integrity of the judges, for a "political end". One of the great unconsidered themes of Irish political life in the last quarter of a century is the relative popularity of the judges and unpopularity of politicians. This factor would mean, that, in deciding whether to bring forward an amendment of the type suggested, the Government would ultimately have to choose between the lesser of two evils: the fighting of a damaging amendment campaign or the substantial cost to the taxpayer of the claims.
David Gwyn Morgan is professor of law at University College Cork