Clare Daly (Dublin North, Socialist Party)

The operation of the legal services and the manner in which they are regulated forms the basis of a critical debate. Many points have been made about the public interest, with suggestions that it is synonymous with the interests of barristers and solicitors. They are not necessarily one and the same. There also has been a great deal of reference to the Minister's motivation in this Bill. There are far more fundamental issues at stake in this debate. I would stand back and look at this very much from the standpoint of citizens' access to justice, an issue of huge and increasing concern to many people against the backdrop of economic austerity.

There is no doubt that most ordinary people are excluded from access to the legal system as it currently operates. One of the main reasons for this is the phenomenal level of costs. A system where justice is available at a particular cost is effectively a system where justice is denied. That reality must be addressed. It is indefensible that citizens in jeopardy of losing their homes are having to pay €15,000 upfront in respect of legal representation in the High Court. It is a joke. Many citizens are upskilling so as to provide legal advice and assistance to their neighbours who have been left behind by many in the legal profession. There are many who are a fine example in this regard, including those involved in New Beginnings and other solicitors and barristers who provide their services free of charge. However, there is only so much those people can do within the current system. It is a testament to the legal profession that there are 650 volunteers working in the free legal aid system. However, anyone dealing with residents or workers will know that system is stretched to exploding point and is totally and utterly under-resourced. Any meaningful reform of legal services in this State must include resourcing of the free legal aid system.

In one of its submissions on this legislation, the Bar Council states that a competitive environment already exists in this area and that legal fees have been driven down. I do not agree. As stated in today's edition of The Irish Times, €27.5 million in legal fees relating to NAMA has already been paid out. It is expected a further €2 billion in legal fees will be paid out in this regard. The issue of fees needs to be addressed.

The Bill contains some provisions which must be supported. Everyone is coming at this debate from the point of view that self-regulation has not worked and, therefore, something else is needed. Many people, in particular those in the legal profession, believe that while some oversight and regulation is needed, this legislation swings the pendulum too far. We must take on board their points. However, there is a thin line between self-regulation and defending self-interest, not alone in the legal profession but in all other areas. We must be honest.

During the Celtic tiger era there was corruption in the planning process, much of which was facilitated and defended by members of the legal profession, and billions of euro of untaxed revenue was channelled through tax evasion schemes and charitable trusts established in places such as the IFSC by top legal firms in this country, including Matheson Ormsby Prentice. Also, fraud in conveyancing and so on was at the very least facilitated by a minority of solicitors. The current system of regulation does not work. While I agree something else is required, this does not mean that what the Minister is proposing is the answer. However, these issues can be addressed by way of amendments on Committee Stage.

The main focus of this Bill is composition of the legal services regulation authority, in respect of which the Minister is given an undue role and influence in terms of his or her power to nominate seven people. This needs to be changed. I could not support this legislation based on that provision as currently drafted. The Minister has countered this argument by saying that judges are political appointees and asking what is the problem with his appointing seven of the 11 members of the authority. I do not agree with that argument which does not compare like with like. It is an unfair comparison. The Judiciary has an established role as defined in the Constitution. It was not even possible to reduce judges' pay without putting the matter to the people by way of referendum. Its powers are well delineated and defined in law. Although the Judiciary is politically appointed, the Oireachtas can, under Article 35.4.1° of the Constitution, impeach judges. There is in place a mechanism in this regard, which I believe is appropriate and is proper oversight of an independent Judiciary. I regret this mechanism has not been used more. This week and previously, I attempted to have discussed in this House the matter of judges who, prior to enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, unlawfully decided to hold family court cases relating to property disputes in camera, and to have the Minister intervene and impeach those involved, but it is not possible to have those issues discussed here. I believe judges should be answerable and accountable. In my opinion, they should be elected and subject to recall.

In its submission on this legislation, the Bar Council states that while it accepts the need for regulation, this legislation goes too far. Comparisons have been made with China and Vietnam, which in my view is, in terms of sense of proportion, well over the top. I do not believe that is a fair comparison. There is no evidence to back up the assertion in the presidential address of the Law Society Gazette that this legislation will end the independence of the legal profession and will not allow solicitors to function without external interference. There is no evidence to support this assertion and nothing that could be pointed to that would specifically prevent such independence. This does not mean I believe the Minister's composition is appropriate. The alternative suggested by the Bar Council, namely, that there be a 13 person committee which would comprise not alone members of the Bar Council and Law Society but an array of others such as a cost accountant nominated by the Legal Cost Accountants Association, a person nominated by the Chief Justice, a person nominated by both IBEC and ICTU and various other representatives, including one nomination by the Minister, FLAC and the consumers association, is better than the Minister's proposal. However, it is not enough. That type of regulation is far too reflective of the professional bodies and does not give enough protection to ordinary citizens or take on board their serious concerns in regard to the manner in which legal services bodies operate. We will be seeking to change this by way of amendment on Committee Stage. We want to provide for involvement of persons who work with NGOs, FLAC, the Northside Community Law Centre and other similar bodies, thus ensuring more representation of ordinary people than professional bodies. This needs to be done.

A regulatory impact assessment must be done. That the Minister is only considering this now when we are discussing the legislation is completely wrong. That exercise should have been completed prior to drafting the legislation. We are paying lip-service to reform unless we consider this legislation side by side with the resourcing of organisations such as FLAC and others. The reality is that many people looking for justice do not know where to go. They have no confidence in the current system. They fear the courts and do not believe they will get justice there. This is fuelled by measures such as the Government imposing massive fines on ordinary citizens who engage in campaigns of civil disobedience rather than on those at the top of society. We need to look holistically at this issue. The Bill as drafted must be amended, which we will seek to do on Committee Stage.

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