Charles Flanagan (Laois-Offaly, Fine Gael)

I wish to declare an interest in the legislative measure before us. I am a member of the Law Society of Ireland. Notwithstanding that, I am pleased to have an opportunity to comment on this important legislation. It is a milestone in the development and regulation of members of the legal profession, both solicitors and barristers.

I accept that reform of the legal profession is somewhat overdue. I congratulate the Minister, Deputy Shatter, on this initiative as well as a number of other important initiatives he has undertaken since his appointment as Minister for Justice and Equality less than a year ago. I refer in particular to the Judicial Council Bill, which I expect to be debated later this year.

There have been several reports on the matter of structures and regulation, most of which have concluded that the current structures are somewhat restrictive and anti-competitive. The Competition Authority formed this view some years ago. In more recent times the troika has specifically adverted to the need to reform legal services. However, it is important that we consider the Bill in the context of the tangible benefits to society and the economy - the principal objects, the intended targets and the likely results. In December 2006 the Competition Authority issued its report. Of the 29 recommendations, a handful referred specifically to the Law Society. It is fair to say that all the recommendations for reform of the Law Society have been implemented.

As a public representative I have two major concerns about legal services, both of which have been mentioned by previous speakers and both of which go to the core of this legislation. They are the cost of going to court and the appropriate structures being in place when something goes wrong. On the latter point, I am particularly pleased to note a recent initiative on the part of the Law Society in the area of complaints and redress procedure. The Law Society has indicated in correspondence to the Minister for Justice and Equality that it has given up control of dealing with client complaints and has recommended in correspondence from the president of the Law Society that all such complaints should in future be made to, and dealt with by, an independent body. This represents a fundamental change in the position of the society. It is admitted by the society that this is to address a public perception, which has been echoed and re-echoed in this House for many years, that members of the legal profession should not adjudicate on client complaints against members of the society, as has been the case for upwards of 150 years. I welcome the society's ceasing to handle complaints.

While there has been a public perception that there has not been lay involvement, it is important to state that the Law Society of Ireland has been accustomed to oversight of an independent and lay nature. There is a perception, which I heard this afternoon, that self-regulation is a cosy closed arrangement operating against the public interest and to the detriment of the citizen. It is important that the House be reminded that the complaints and client relations committee of the society has, currently and for a number of years, a majority of lay members, involving representatives of IBEC, ICTU and the Director of Consumer Affairs. The appeal of a complaint decision is currently to an independent adjudicator that has been in operation for the past 14 years and is both independent and lay. That independent adjudicator has reported from time to time on the need for further reform. These reports and recommendations, by and large, have been acted upon to the benefit of the consumer and the public. There is a further appeal on the part of the consumer to the Solicitors Disciplinary Tribunal, which body is entirely independent of the Law Society of Ireland, wherein the society exercises nothing in terms of control and little in terms of influence. That entire process is subject to the authority and control of the President of the High Court.

While I accept the public perception, an examination of the reality is different. Notwithstanding that, I welcome the reform as outlined and communicated by the Minister. It is essential, in the context of these reforms, that there be open and constructive dialogue between the professional bodies and the Minister. I welcome the fact that there have been a number of meetings. It is essential that both arms of the legal profession buy into the current process.

It is widely recognised and accepted that the ECB-IMF-EU Commission deal recommends change to ensure the provision of legal services to the public at a reasonable cost. Law and justice must be accessible and available at all times. It is accepted that agreement reached with the troika will not, at this stage, be unravelled and the concept of the legal services authority will be introduced. I welcome that. I do not believe anyone, in the context of the current debate, is of the view that this proposal will be unravelled, or that the clock will be turned back.

There are a number of concerns with which I hope the Minister can deal during the debate on Committee Stage when amendments will be proposed. I do not have time to deal with them now in the detail I would like. For example, the legal difference between the definitions of misconduct and of professional negligence should be maintained. There are compelling reasons for doing so. The differences are substantive and are there for good reason.

Having been a member of such a body for a number of years, I accept that no professional body, and in particular the Law Society of Ireland, can act as regulator and representer at the same time. That situation represented an essential conflict. If I am a member of a professional body I may, from time to time, require that body to represent me. If that professional body, at the same time, regulates me that regulation must be always in the public interest. It is difficult to argue that a conflict does not exist in such a situation. I welcome the comments of the Minister, which views he has held for a number of years, and with which I agree.

I would like to see a greater level of debate on limited liability partnerships and limited companies being envisaged for the arms of the profession. I would welcome that but I am not so sure about multidisciplinary partnerships. They are not recommended by The Competition Authority. What has changed in the meantime to allow an acceleration of views that such multidisciplinary partnerships are in the best interest of the public? These issues must be dealt with in a detailed way on Committee Stage. The idea that barristers, solicitors and accountants, along with other commercial enterprises, are free to form companies and partnerships might seem, on the face of it, a good one. However, large firms can operate to the detriment of smaller firms when the best in the business can be hired to represent corporate entities in all their cases, to the exclusion of other members of the profession and, ultimately, to the detriment of the client. This can lead to a situation where an individual taking a personal injury action is unable to gain access to appropriate, or top drawer, legal representation because the cream of the profession is under exclusive contract to the opposing party. This would limit the rights of the citizen to have the best possible representation, which the Irish citizen, or consumer of services in this jurisdiction, is uniquely able to access, no matter how small the firm representing him or her. A plaintiff or defendant in this jurisdiction can have access to any barrister he or she wishes, as long as the barrister does not have a conflict of interest or other commitments. This ability is not reliant on the size or location of the firm. There are issues in this area that need to be addressed.

The matter of independence has been mentioned. An independent legal profession is an essential component of any democracy. Such independence and freedom from State control and interference is an important bulwark against abuse, be it State organised abuse or corruption. There is concern that an excessive degree of ministerial control may well be contained in the Bill. Whatever regulatory authority is constructed, it must be wholly independent. This independence is essential for those consuming the service. The process at all times must be free from State control. Having regard to the fact that 50% of litigation cases conducted in the Irish courts currently involve the State as a named party, there could well be grounds for a perception that the matter of independence could be compromised.

The proposed structure of the authority must be independent and seen to be so in every respect. On Committee Stage I hope to deal with certain issues in respect of sections 8,13 and 16 to 20, inclusive. I would not like the Government to exercise undue influence and control, as remarked upon by bodies such as the Irish Council for Civil Liberties. These issues can be dealt with to the satisfaction of the groups from which commentary has been forthcoming. Lawyers ensure the protection of fundamental rights and freedoms in society and to vindicate these rights of citizens, they must at all times be free to advise clients accordingly. The legal profession, therefore, must be independent of the State. Members of the new authority should be appointed in such a way as to ensure that independence.

We must also deal on Committee Stage with the concerns expressed about the costs of the new authority. Concern has been expressed about the levies that will fund the legal services regulatory authority. The expenses of the authority as broken down - 10% from the Bar Council, 10% from the Law Society and 80% pro rata between the society and the council - will impose a burden that ultimately will be placed on the shoulders of the consumers of the services. Measures must be introduced, therefore, to minimise costs, which is an important objective of the Bill in the first instance.

The fusion of the professions, a subject widely reported on in the Competition Authority report in 2006, appears to be inevitable. Why have we had such a rush towards this inevitability over a five year period? An unintended consequence might be an increase in costs which would drive many lawyers out of the profession and thereby restrict access to the law by members of the public.

Concern must be expressed about the rural general practice and the access of members of the public to specialist expertise when required. Society can only benefit from having a more transparent, streamlined and less costly system, as intended in the legislation. However, I must quote the oft-hackneyed phrase of the 19th century English judge Sir James Mathew who said, "Justice is open to all - like the Ritz Hotel." There are consumer concerns about costs which must be met.

I note that the Department of Finance paid €33 million for external legal advice in 2009. We have commented on all sides of the House about the extraordinary cost of legal services for tribunals. Today we read about the legal costs for NAMA in 2010 totalling €27.56 million, an extraordinary amount of money in any circumstances. The cash-strapped HSE is continuing to spend €20 million a year on external legal advisers. This is being done despite the fact that it has its own internal legal office which costs €500,000 a year. It created a national legal services department in March 2010 to provide professional advice for the organisation, yet that same organisation can spend up to €20 million a year on external legal services, even though we all know about trolleys and budgetary constraints in the health service. I call on the Minister for Health to provide a detailed report on the effectiveness of the HSE's legal advice procurement process. There are issues that need to be dealt with. I also ask the Minister for Justice and Equality to look at the tendering systems in place in local authorities, many of which have in-house legal departments, yet they are spending hundreds of thousands of euro on external legal services. I want to revisit the issue of the procurement and tendering processes for legal services for the HSE.

I congratulate the Minister on the many initiatives he has taken since he took over. Change must be progressive and inclusive. However, there are certain aspects of the Bill which give rise to concern. We must at all times be convinced in this House that we are going to reduce costs. We must ensure there is a complaints handling system that is transparent and in which people have trust. More than anything else, we need a legal profession that is independent of vested interests but also independent of undue State control and influence.

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