Catherine Murphy (Kildare North, Independent)

I welcome the opportunity to contribute to the debate on the Bill. One would expect to see positive provisions in a Bill of this size but I have very serious concerns that go to the core of what is proposed. My motivation for getting involved in politics in the 1980s remains the same reason I am still active today, which is that I am interested in reform. I see the potential to make significant reforms in the current political climate in particular. I see it as an opportunity and it is not something we should fear.

Much of the architecture of our built heritage is not uniquely Irish. This is equally so with institutions. Our health, education and local government systems were largely developed under British rule, as was our legal system. I am enthusiastic about reforming institutions for the better. However, we must go about it in a thoughtful, inclusive and methodical way where we anticipate outcomes and we plan for them.

Too much legislation has been enacted in an academic way which has let us down badly in practice. In recent years the only area where we have seen an attempt at radical institutional reform was the health services, and I refer to the HSE. The architecture of these institutional arrangements were doomed to fail from the beginning. It was quite easy to predict this from the outset. Not only have they been costly, they also have frustrated those working within them and those who relied on the body to provide quality health care.

What was introduced was a perception of change. Accountability passed exclusively to an unelected body. The structures or foundations underpinning the HSE remained largely intact, with a dozen or so independent administrations working differently depending on the region. Services were and are better or worse for clients or patients depending on one thing, which is their address. We all pay the price for this mistake and this most definitely includes those working in the system.

The Bill has flaws, including the absence of a regulatory impact assessment. This is the blueprint that should have underpinned the decisions of what was included in the Bill. Such an assessment was carried out in the UK and published with a Bill in 2007. It followed a lengthy consultation process. The necessity for a regulatory impact assessment when contemplating far-reaching and significant regulatory reform has been accepted and adopted in most OECD states. I doubt there is a Deputy in this House who does not want to see an end to the scandal of huge fees being paid to high profile members of the legal profession. That must be ended but what is being proposed may be equally as costly as what went previously. A rigorous regulatory impact assessment would have allowed us consider that, but that is not what the Minister intends to do. It is what this law, if it is passed without significant amendment, enables the Minister and the Government to do. I refer not just to this Minister and this Government but future Ministers. I refer in particular to the nomination to the boards and the regulatory framework. We can imagine a situation where a Government with an overall majority wanted to control the legal system in a very direct way. This Bill provides that opportunity. It enables that.

The Irish Council for Civil Liberties points out that the State is party to approximately 50% of litigation conducted in Irish courts and, therefore, independence of litigators from State control is a vital element to ensure effective and impartial administration of justice. It expresses concerns about Part 2 of the Bill which relates to the proposed legal services regulatory authority. More specifically, the proposed structure and functioning of the authority as currently proposed is not sufficiently independent of Government, the primary litigator in the State. It highlights some of the detail as to the reason the relationship being designed gives Government too much control. I will read those into the record.

Members of the Authority are appointed by the Government - section 8

Terms of office, remuneration and expenses of members of the Authority are determined by Government - section 8(11)

Members are dismissed by Government and the Minister - section 8(12)

Ministerial approval is required for the appointment of consultants or advisors in addition to approval of their fees - sections 12 and 13.

The Minister may direct the Authority as to the form and information contained in the annual report - section 17(2)

The Minister must approve strategic plans (section 16) and can request their amendment.

The Minister can request the preparation or approval of a professional code of practice (section 18) which would be subject to Ministerial approval and amendment.

The Minister appoints the CEO (section 19) and staff (section 20)

All estimates, financial information and accounts of the Authority are subject to Ministerial approval (section 22)

The Minister determines the amount of operating costs and administrative expenses of the Authority and the Disciplinary Tribunal (section 69)

The Minister also raises the annual "levy assessment notice" against the Law Society and the Bar Council (section 69)

It concludes by stating that many of these provisions considered in isolation would provide cause for concern and that taken in their entirety, the proposals in the Bill as listed grant the Government significant influence over the authority's function and constitute a potential interference with the independence of the legal profession. What is scary is not that the Irish Council for Civil Liberties is saying that but that these provisionsare contained in the Bill. We have lost our economic sovereignty. We had better be careful not to lose the independence of our legal system.

Peter Ward, chairperson of FLAC, in his contribution to the Dave Ellis memorial lecture, pointed out the obvious, namely, that there is no equal access to justice in this country. Most of us would not disagree with that. He should know because there are 650 volunteer solicitors and barristers in the FLAC centres who give of their time and expertise without any expectation of payment. Peter Ward stated that the proposals in the Bill will ultimately control the legal profession through a body whose majority are appointed directly by the Government. He further stated that that is an affront to the citizens of this country who are entitled to expect access to both a legal process and a legal profession that can be absolutely fearless and independent in pursuing their interests.

He stated also that the Government and the Minister for Justice and Equality cannot and ought not have the proposed roles in the control of the legal profession and that there is no such similar control of the medical profession which does not have a function of holding the authorities of the State to account. Others have made the same point on that. He also stated that it would be an absolute travesty of justice if the popular and understandable desire to impose greater accountability on the privileged profession were to act as a Trojan horse for the diminution of the rights of every person in this country. He said also that there is within the current Bill every possibility that new business models for the delivery of legal services will do just that: provide new business models while ignoring completely the needs of individuals to have their rights vindicated in the face of the State, the institutions of the State and those who have assumed positions of power, money and influence within the State.

The executive director of the International Bar Association expressed dismay to find a sophisticated, developed and democratic state like Ireland proposing to enact a law that resembled those in many countries with only a fragile attachment to democracy and was concerned about the message that would convey internationally.What if the International Bar Association is right? The Minister, Deputy Shatter, referred to this as scaremongering but what if it is right? What if it is not scaremongering?

The American Bar Association stated that such a law could have a chilling effect on international corporations prepared to invest in Ireland and needing assurance that they would have access to legal representation free from any hint of Government supervision. Again I ask the Minister, what if it is rightWhat if that is not scaremongering, as the Minister alleges?

The report of the Competition Authority in 2006 stressed that the body responsible for regulating the legal profession should be "independent of both Government and the profession". It was the recommendations of the Competition Authority and the legal costs working group to achieve the reductions in cost that the troika required to be implemented. This Bill goes way beyond what the troika sought. The recommendations of the Competition Authority were supposed to be the issue at hand.

The Bar Council made a detailed submission and while it is undoubtedly an interested party and may be considered to have a vested interest in maintaining the system, many of the points it makes are a cause for serious concerns. The Minister can be impartial and examine the concerns it raises. It points to the issue of ministerial control and the loss of independence. It points to restrictions on access to justice and the choice of practitioner and refers to the potential increase in costs.

Regarding the latter, the new regulatory bodies consist of the following: a legal services regulatory authority - 11 appointments plus staff; a complaints committee - 16 appointed members plus staff; and a legal practitioners disciplinary tribunal - 16 appointments plus staff. In addition, a new office of the legal costs adjudicator and advisory committee on the grant of patents of precedence may mean more appointments and more staff.

The concerns the Bar Council raises regarding the legal services regulatory authority is that the executive is effectively under ministerial control. Does the Bill provide for that? Any reading of it will indicate that it does. The costs involved in the establishment and operation of the authority, including its staff, committees, consultants, advisers and inspectors, will be borne by the profession but, ultimately, what is borne by the profession will be borne by the client. The Council has a fair point to make in that regard when we consider that 50% of legal cases involve the State, as I and others have said in this debate. We must pay attention to that. The Council states: "The proposed form of direct regulation of the legal professions by a body which is not independent of the Executive is not only contrary to the recommendations of the Competition Authority and unknown to any other comparable modern democratic State but also runs directly contrary to European and International norms which emphasise the central importance of an independent legal profession in a society which is governed by the rule of law." It goes on to state that the Council of Bars and Law Societies of Europe "considers the Bill to constitute a grave threat to the independence of the legal professions in Ireland and consequently a threat to the rule of law".

Section 97 proposes that the work of the legal cost adjudicator shall be in private. This office replaces that of the taxing master, the hearings of which have been held in public. Yet the Minister said in his opening speech that the new office will have an enhanced transparency of its functions. How can it have that when its hearings will be held in private when they were previously held in public? The needs to be changed.

The Minister in his speech made continuing references to the independence of the authority. It appears from he said that what is intended by independence is that the authority will be independent from the profession but not independent from Government. That is a serious flaw. The Minister said: "There is no hidden agenda in relation to ministerial functions or appointments under the Bill." The provisions of the Bill do not need a hidden agenda because they are set out. This is not about what the Minister intends to do; it is what this legislation will enable this and future Governments to do. There may be future Governments that are not to the liking of the Minister; the Government will not always be like this one. The Minister has to consider the legislation in terms of its longevity.

The Competition Authority report emphasises the importance of the body, which is to be responsible for regulating the legal profession, being independent of the Government and the profession. This is being said not only by people who have vested interest but by people across the spectrum.

Section 18 provides that the legal service regulatory authority has primary responsibility for preparing or approving a code of practice. The Minister must consent to the publication of any modification to the code or to any new code. He can reject or change the revised code after a consultation process. He can also order the legal services regulatory authority to publish a code or a revised code. How can one use the words "independent regulation" when this type of micromanagement by Government is provided for?

With regard to the section of the Minister's contribution on funding the new architecture, it is not enough for one to take a punt on this. The Minister needs to make it clear how this large institutional architecture will be funded, how it will play out in terms of clients and legal costs, and that it will not add to legal costs.

I checked the regulatory impact assessment that was done by UK authorities when they were preparing their legislation and noted that the issues involved were robustly examined in terms of what the result would be if nothing was done, what the result would be if a legal services authority or a legal services board were introduced and they also examined the issue of diversity, the social consequences of it and so on. That is what one would call a blueprint and that is what should have been done for this legislation. It is a disgrace that this type of a regulatory impact assessment was not done for such a large item of legislation.

On the new business models, it is essential that the operation of these are teased out. I thought the argument made by the Bar Council of a potential conflict of interest highlighted the inadequate thought that has gone into how these will play out. It is essential that is teased out and it might be possible to do so on Committee Stage.

The same all-knowing approach is being taken to this legislation as was advanced when the constitutional amendment dealing with the Oireachtas inquiries was debated. The Minister said in his opening remarks that he wanted "to put to bed the histrionics and scaremongering". The best way to do that would be to publish the regulatory impact assessment, which should deal with the issues in a thorough and professional manner without taking a cut at those who raise concerns. If there is a similar system elsewhere in the world to the one proposed, I ask the Minister to point to it.

The approach of the UK Government in this regard contrasts with the failure of the Minister to follow best practice and carry out a regulatory impact assessment followed by a meaningful debate based on the evidence disclosed by such a report. That report consisted of 86 pages and was published preceding the 2007 Act and it included estimates by PricewaterhouseCoopers on the economic and social costs of the various options.

The programme for Government 2011 refers to "Open Government" and under that heading it deals with waste and extravagance and states:

Where there is secrecy and unaccountability, there is waste and extravagance. We will pin down accountability for results at every level of the public service - from Ministers down - with clear consequences for success and failure. Ministers will be responsible for policy and procurement and public service managers for delivery.

It goes on to state: "We will require Departments to carry out and publish Regulatory Impact Assessments...before Government decisions are taken." Why was that approach abandoned in such fundamental legislation?

It seems the regulatory impact assessment is intended to be published before Committee Stage. It is at that Stage that we deal with the details of the Bill, not the broad framework. It is essential that we have a blueprint, which we do not have, before we start re-arranging the detail. We get one chance at this in terms of reform. I see the cup as being half full in terms of the report. I am enthusiastic about the opportunity for radical reform of many of our institutions. Good process is needed if we are to get good outcomes. We can point to where we have had very bad outcomes, where there has been a very inadequate process. There is serious reason for us to be concerned about this legislation.

See this speech in context