“Conscience” and the marriage referendum

Each time an Irish government proposes to introduce new rights for gay citizens opponents call for the right of service providers to discriminate against those citizens. They call this a “conscience clause”, which is surely a misnomer but sounds better than a “permissible discrimination” exemption.

Strangely, this is an argument which it appears must be had repeatedly. I wrote about it at the time of the Civil Partnership Bill and that post applies equally to the marriage referendum. In short: the Equal Status Act prohibits discrimination against people on the basis of sexual orientation. It was introduced fifteen years ago and it does not include a “conscience clause” (there is a limited “ethos” exemption for schools run by religious organisations). A “conscience clause” was not permitted in the Equal Status Act or the Civil Partnership Act. Why should marriage be any different?

The religious beliefs of citizens also benefit from protections and the State should not offend against those rights. But the State is entitled to insist that businesses providing services to the public respect its equality laws. The difficulty with providing an exemption from equality legislation on the basis of religious beliefs is that it would allow the law of the State, applicable to all, to be subverted by the private beliefs and opinions of self-defining groups. Indeed, if a “conscience clause” were introduced, there is no reason why it shouldn’t protect political beliefs as well as religious beliefs.

Today William Binchy is concerned that gay couples might sue a church for refusing to perform a same sex religious marriage ceremony. This is a strange concern to have. I have yet to hear of divorced people suing churches for refusing to perform a marriage, for example, but the same principles apply. Even if Mr Binchy’s fear was realised, it would mean that civil marriages would have to be registered separately from religious ceremonies. This would not require churches to perform same sex marriages.

It is striking that calls for a “conscience clause” only seem to arise in the case of gay rights. One does not hear the Iona Institute and other groups opposing the marriage referendum advocating on behalf of bakers and stationers forced to provide services to single mothers, divorcees or atheists. If one were to introduce a “conscience clause” it would have to apply to all categories of persons who benefit from protection under the Equal Status Acts and would open the gates to a wide and unpredictable range of subjectively permissible discrimination that would entirely undermine the purpose of equality legislation. Any conscience clause limited to gay rights would, in itself, constitute discrimination.

Perils of learner permits: make sure you observe the conditions

RSATraditionally people have referred to green driving licences as “provisional licences” but in 2006 they were rebranded as “learner permits”. The change in name is, no doubt, intended to suggest a key difference between a driving licence and a learner permit: the latter “has effect in accordance with its terms and conditions“. This simple statement is important and has continually raised a question: if the terms and conditions of a learner permit are not observed, is the driver unlicensed?

There are a number of specific offences which a learner driver can commit, such as not displaying L plates or driving unaccompanied. These offences are frequently committed and drivers are often prosecuted for them. However, there is also an offence which anyone can commit of driving without a driving licence. Just as people have traditionally referred to the “provisional licence”, it has traditionally been thought that if one holds a learner permit one is licensed, whether or not one observes the terms and conditions applicable to it.

Gardaí and solicitors have argued this point repeatedly but it has recently been clarified in the High Court: if you hold a learner permit and drive in breach of its terms and conditions it is temporarily ineffective and you are guilty of driving without a driving licence.

The penalties for driving without a licence are not overly severe, in that you do not face automatic disqualification from driving for example, but a follow-on issue arises: if your policy of insurance requires that you are a licensed driver, and you drive in breach of the terms and conditions attaching to a learner permit, are you still insured? A conviction for driving without insurance is more serious than one for driving without a licence and carries a disqualification.

This was the second element to the case and, fortunately for learner drivers, the outcome was that the fact that a learner permit might be temporarily ineffective does not necessarily invalidate the insurance policy. The wording of the policy, as ever, is crucial. In this case, the policy certificate provided that the defendant’s driving was covered “provided that [he] holds a licence to drive such a vehicle or, having held such a licence, is not disqualified from holding such a licence.” The terms and conditions apply to the learner permit, not the driver, and so he held a licence entitling him to drive the vehicle. The insurance “was not made conditional in its terms on the accused complying with the terms of a learner permit licence.”

This settles a question which has been arising quite frequently in District Courts over the past few years. It is also a reminder that drivers should familiarise themselves both with the terms and conditions of a learner permit and an insurance certificate before driving.

The record holds

Another victory for Kerry yesterday. A few were in touch to say that Dad’s record was nearly broken. Paul Geaney came close, but not close enough. Ciarraí abú.

 2014: Paul Geaney scores 50 seconds after throw in

 

1962: Garry McMahon scores 34 seconds after throw in

 

Penalties for text driving

The new law on “text driving” that came into effect in May is unfortunately confusing. It’s a law that is probably intended to set a tone rather than result in significant prosecutions, but road traffic offences do tend to generate a lot of challenges.

I wrote to the Minister for Transport about the regulations and the new one (Paschal Donohue TD) wrote back.

You are quite right about penalties under the regulations. The Road Traffic Acts 1961-2014 contains in section 102 of the 1961 Act, as amended, a ‘general penalty’, which applies to all road traffic offences for which a specific penalty is not set out in the legislation. We had erroneously referred to the general penalty initially, in reference to the texting regulations. However, as you correctly pointed out, section 3(8) of the 2006 Act provides a penalty of a fine on summary conviction not exceeding €2,000. The Department has since clarified this to the media.

Initial media reports, relying on a note from the Department of Transport, said that the penalties included a jail term of up to 12 months. The clarification is welcome, but he did not address the drafting error in the regulations, which I mentioned in April:

The 2014 Regulations do not apply to “a person to whom section 3(1)” of the 2006 Act applies. Section 3(1) provides for the offence of driving while holding a mobile phone. Section 3(2) exempts Gardaí and emergency services personnel on duty from the prohibition, so I assume the 2014 Regulations are in error and intended to refer to section 3(2).

Plain packaging, conflicts of interest and the Law Society

Smoking GunThe controversy over plain packaging rumbles on and the campaign by the tobacco industry against new packaging laws has stepped up a gear now that the English Government has edged closer to introducing a law like the one proposed by the Irish Government. The industry has always threatened to challenge these laws and it appears likely they will. The last Minister for Health was adamant that the law be introduced. I do not know the attitude of Leo Varadkar, the new Minister for Health, to the Bill.

My specific interest, which I wrote about before, was the involvement of solicitors in opposing the proposed law. The law would, according to the Law Society, be an attack on intellectual property and would damage our international reputation. Both are questionable arguments but the Law Society is not alone in having these views: it is joined by the major tobacco companies, who made submissions to the Oireachtas in almost identical terms.

(As a sidenote, it is striking that most members of the profession who were happy to rubbish concerns raised about the submissions made by the Law Society to the Oireachtas were also very quick to acknowledge their lack of expertise in intellectual property law. I did not notice many intellectual property law practitioners publicly defending the submissions.)

While I am of the opinion that the plain packaging issue is not one of any significant importance to the legal profession or the Law Society, my main concern is that the submission document disclosed no relevant interests on the part of the Law Society Intellectual Property Law Committee that drafted them. In fact, it didn’t name the authors or the Committee members.

I had a number of communications with the President of the Law Society about the issue and he ultimately wrote to me, characterising my comments as amounting to a view that a member of the IP committee of the Law Society had engaged in “highly improper conduct of acting in a conflict of interest situation”. I made no such allegation.

On a preliminary, technical, note: the committee members were not, to my knowledge, “acting” for anyone when they were formulating their submissions. A solicitor’s involvement with a Law Society committee is an unpaid role and is not carried out on behalf of specific clients. It is a means by which the solicitor with expert knowledge shares that knowledge to benefit the Society and others.

My view is that where the Law Society and its committees engage in lobbying relevant interests should be disclosed, as should be the case when anyone engages in lobbying. In this particular instance, I would expect that a submission by the IP Committee would disclose in the document itself who its members are and what members act for tobacco companies, the Health Service Executive, the Irish Cancer Society or any other interested party.

Expecting the disclosure of interests is not a revolutionary idea: it should be the bare minimum standard the Law Society holds itself to.

By interpreting my concerns as he did, the President decided that he was of the view that I was, in fact, making “a serious complaint about the conduct of a solicitor.” Not correct: I was making a complaint about the apparent lack of procedures in Law Society committees when lobbying on proposed legislation. Plain packaging was a current example but the issue is much larger.

But by deciding that my concerns were a misconduct complaint the President could then conclude that it would be improper for him to become involved and instead deflect my comments to the Registrar of Solicitors. The President was telling me to make a regulatory complaint against another solicitor. I had no intention of doing so and I had not alleged a breach of conduct, the Solicitors Acts or anything of that nature.

The situation therefore appears to be that the Law Society, as an organisation of its members, is not willing to consider observations from those members about conflicts of interest policies for committees. Instead, issues which arise should be raised as misconduct complaints (which are, obviously, very serious). It is a bizarre attitude to take which muddies the waters between two separate spheres of the profession: client work and the activities of a representative professional organisation.

The Law Society has countered criticism of the plain packaging debacle by insisting that it is not a “front” for the tobacco industry. The President wrote that such ideas were “conspiracy theories” which were “without foundation”. I had not, however, suggested a conspiracy of tobacco companies and their solicitors.  That is not the issue: basic principles of transparency are what members of the Society, and the wider public affected by its actions, should require.

Solicitors represent the interests of their clients, whatever the activities of their clients may be. That is their job. But it is difficult to see why solicitors advocating a particular view on the law, under the banner of the entire profession, cannot include a footnote to disclose whether or not they might act for people or organisations with a direct interest in the outcome. Should the Society not hold itself to that standard?

The MIBI says it will not cover Setanta claims

I wrote in May about the problems which have arisen for third parties claiming against Setanta, which is now in liquidation. A strange series of events unfolded which involved the Minister for Finance, who is not responsible for the Motor Insurers’ Bureau of Ireland, stating in the Dáil that the MIBI had “indicated” that they would cover third party Setanta claims.

The Minister gave no detail and did not say who the MIBI had given this indication to. The Irish Brokers Association circulated a briefing paper to its members which, in 6 pages, said effectively the same thing as the Minister for Finance but which appears to have been based on the assurance given by him in the Dáil.

The Minister for Transport, who is responsible for the MIBI, was more cautious and directed queries to that organisation. I wrote to the Minister for Transport for clarity on the situation and he informed me last month that the MIBI was taking legal advice on its liability in this situation. However, it was clear that they did not believe they had a liability. The Minister said:

I understand that the MIBI considers that it has no liability in instances where an alleged offending vehicle was insured at the time of the accident and that it has never previously been involved when a valid policy of insurance was in place.

The MIBI has now obtained the legal advice which supports this position:

the MIBI Agreement (2009) does not require the MIBI to satisfy awards against drivers covered by a policy of insurance where the insurer is unable to pay all or part of an award due to insolvency.

That clarifies the MIBI’s position but it does not mean that the position is correct. Importantly, it leaves third party claimants pursing claims against a liquidator in the eventual hope of being paid in full, which is unlikely, or claiming against the Insurance Compensation Fund, which is subject to a cap of 65% of the value of the claim or €825,000 (whichever is lower). Of course, the MIBI’s position is based on its own opinion and legal advice and it remains to be seen whether any injured party will challenge that position.

In the meantime, three serious questions remain:

  1. What was the Minister for Finance talking about when he told the Dáil in May that the MIBI had indicated it would cover claims against Setanta?
  2. What does section 4.1.1 of the MIBI Agreement mean when it says that if a judgment is obtained for damages that should be covered by insurance but which isn’t paid within 28 days, the MIBI will pay it “whether or not [it is] in fact covered by an approved policy of insurance” and how does this accord with the MIBI’s legal advice? Does it not, along with clause 4.4, envisage paying out on claims such as those brought against an insolvent insurer or one who refuses to pay?
  3. What is the Government going to do to assist third parties who might now lose out on a significant portion of their compensation through no fault of their own and due to events entirely outside of their control?

The Setanta car crash: what about injured parties?

The collapse of Setanta Insurance is not just a shambles for policyholders. They, at least, could arrange new insurance and at worst lost only the unexpired value of their policy. But what about someone injured in a road traffic accident cause by a Setanta policyholder?

The situation remains murky. Information available from the Central Bank and other sources initially referred to the Irish Insurance Compensation Fund. Calling on the ICF for all claims involving Setanta would put further pressure on the Fund but also be significantly unfair to injured parties, as it only pays out 65% of a claim or €825,000 (whichever is lower). For example: a claimant for €1.5 million would only get €825,000 from the ICF; a claimant for €100,000 would only get €65,000.

In the aftermath of the news solicitors obviously reviewed their personal injury files for claims against Setanta and, in the case of such claims, look for another source of cover. The prospect of involving the Motor Insurers’ Bureau of Ireland immediately arose. The gut response is that MIBI was set up to cover claims against uninsured or untraced drivers, whereas the ICF was set up to cover insolvent insurers. Surely a claim against Setanta “belongs” with the ICF?

The MIBI agreement is poorly worded at the best of times but in this situation perhaps for the better. The agreement says that if an award which should be covered by an approved policy of insurance is not paid in full within 28 days then, whether or not insurance actually was in place, MIBI will pay it. This interpretation is supported by guidance from Insurance Ireland, the industry body, which says that awards not honoured by Setanta should be referred to MIBI who would pay out and seek to recoup funds in Malta, where Setanta is regulated.

On 1 May 2014, the Minister for Finance stated in the Dáil that

The Motor Insurance Bureau of Ireland [sic] (“MIBI”) have indicated that they intend to accept all third party claims in connection to Setanta policies.

The minister responsible for the agreement with MIBI is the Minister for Transport. The Department of Transport has not had much to say about Setanta to date but the Minister for Transport was asked in the Dáil on 8 May 2014 how MIBI would handle Setanta claims. He responded:

The arrangement MIBI puts in place for dealing with the Setanta claims is a matter for the MIBI itself under the terms of the Agreement. I will arrange for the Deputy’s question to be forwarded to the MIBI for them to respond directly to her.

This does not go so far as confirming that MIBI will, in fact, be covering Setanta claims. The question asked of him is important because when a claim arises from an uninsured driver MIBI is sued alongside the defendant (or as the sole defendant if the driver is untraced), whereas the obligation to pay out on foot of an award which has not been honoured by an insurance company is different. There are likely to be a number of cases where a claimant has already sued the other driver but might now be statute barred as against MIBI, if required to join them. However, in that situation one would assume that MIBI should not necessarily be sued as a co-defendant. But the Law Society advises that claims against Setanta be notified to MIBI in the same manner as uninsured/untraced driver cases. This would involve MIBI being sued alongside the driver.

The Irish Brokers Association got a legal opinion on the situation but really it goes no further than to summarise the ICF and MIBI regimes and state that “recent Dáil comments indicate the MIBI scheme may be available in the context of Setanta.”

What has been the response of MIBI to such notifications? I received my first this morning.

Paul Merceica has recently been appointed as liquidator of [Setanta Insurance] and will be responsible for the administration of the Company’s assets and liabilities … You may also wish to refer to the website of the Malta Financial Services Authority for further information …

This is an update about the liquidation of Setanta Insurance, not about how MIBI will deal with Setanta claims made against it. [As an aside: good luck trying to get a substantive response from the Setanta contact centre.] The only relevant response was as follows:

At this point we cannot confirm our position.

Accordingly, how can it be said with certainty that MIBI will voluntarily meet Setanta third party claims? And who is in charge?

In relation to the wider problem with Setanta, David Murphy has a great post on the RTÉ Business blog which highlights a significant fact:

The Central Bank became aware that there were problems in Setanta late last year, it was still permitted to sell insurance policies until it the end of 2013 and went bust last month.

While a customer of Setanta with the foresight to see the writing on the wall had the option of switching cover before the appointment of a liquidator and getting a refund of part of their policy, someone with a claim against Setanta had whether or not they got their money out largely depend on lucky timing.



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