Michael McNamara (Clare, Labour)

At the outset, I wish to state that I am a member of the Law Library and a barrister-at-law. However, I also wish to state categorically that I appear today on behalf of my constituents in Clare, not on behalf of the Bar Council or of barristers.

I commend much of what Deputy Creed said. There are undoubtedly many problems with legal services in this State, including problems with how the solicitor profession is run and problems down at the Law Library. These are problems which previous Governments for decades, generations and even perhaps centuries have shied away from dealing with. I commend the Minister for dealing with this issue head-on. However, there are elements in the Bill about which I have grave concerns as a representative of the constituents of Clare.

There was a report last week in the Irish Examiner which stated a price survey by the National Consumer Agency shows that some solicitors are charging up to six times more than others for the same basic services. That is a matter of great concern to me, as I am sure it is for my constituents and the Minister. At the end of the reform process which is envisaged in the Bill, will it be the solicitors who charge six times more or those who charge six times less who will still be operating? It is unclear from the Bill which it will be, and I fear it will be the solicitors who charge six times more.

As Deputy Creed said, there are many solicitors in small-town Ireland who operate with very low legal overheads. On the other hand, there are large solicitors' firms, predominantly in Dublin but also to a lesser extent in Cork, Limerick and Galway, which operate with far greater overheads, and which, by and large, charge a lot more per hour for the same work. That is why the great majority of people go to very small firms rather than the "big five" with their legal problems, such as conveyancing. I fear the proposal to allow multidisciplinary bodies will force those small firms out of operation because, when a complex case is brought to them in, say, Scarriff, Kilrush or Ennistymon, they will not have access to former Attorneys General at the Bar or to senior counsel. Instead, a person with a complex case will have to go to one of the big commercial firms and pay the large overheads. While I acknowledge something has to be urgently done about the fact some solicitors' firms charge six times more for the same work than others, I fear the Bill as it stands does not address the problem and does not make clear that small firms will be able to survive.

Undoubtedly, fees paid to counsel over the years, particularly counsel engaged in tribunal work, have cast the legal profession, in particular the Bar, in a very bad light. Nobody in this House, and very few even in the Law Library, other than of course those who receive those fees, could stand over them. That does not change the fact there are many barristers who do not earn as much and in fact earn very little.

Even in places like Clare, there are people who wish to become barristers. Even in places like Clare, there are people whose ancestors and family are not of the legal profession but who believe they can and would like to become barristers or lawyers, and who believe they have the right to do so. I fear the Bill, in introducing multidisciplinary teams, will actually privilege the children of privilege. What determines how one gets into one of these great multidisciplinary teams? I believe it is the same factors that determine who gets into chambers in the United Kingdom.

Do we wish to return to the days before the foundation of the State - in fact, up to very recently - where only persons of privilege could aspire to becoming barristers and senior counsel? I do not suggest for a moment that this is the Minister's intention. However, my former Labour Party colleague, who is also my colleague at the Law Library, Deputy Willie Penrose, spoke from these benches about his personal experience of becoming a barrister notwithstanding his, by his own proclamation, humble background. People like Deputy Penrose and me are quite rare at the Law Library. It is rare to sit in court in Limerick and hear a working class Limerick accent other than in the dock or giving evidence. It is certainly very rare to hear somebody with that accent addressing the court from the barrister's benches. The same is true in Clare and in Cork. This Bill does nothing to address that, even though it is an issue we would all agree should be addressed.

A recent report in The Irish Times noted that the number of barristers leaving the Law Library is increasing, with a further sharp increase expected this year. However, it is not the children of privilege who are departing. The people whose families can provide them with the independent means to survive the first five to ten years before they begin earning a decent income, and subsequently perhaps too great an income, are not leaving. Rather, it is those from ordinary families, who must make their own way in the world, who are being forced to leave the legal profession. That is not healthy for the profession, no more than it is healthy for society.

Contributors from both sides of the House spoke of the importance of the independent referral Bar. Members may not be aware that there is a group of lawyers who do not operate the taxi rank rule, namely, those lawyers who represent the Minister for Justice and Equality in immigration cases. They are not available to applicants because they represent the State and only the State. In fact, they must undertake not to take work from applicants in order to work for the State. I have grave problems with what that says about our immigration system. The membership of the authority that will govern the combined professions will be appointed by the Government, albeit from non-legal backgrounds. Moreover, the complaints committee, as proposed in section 50, will be appointed by the authority, the authority having been appointed by the Government, with the approval of the Minister.

If I or one of my constituents - there are barristers among my constituents, as there are among the Minister's - have the audacity to take a case against the Minister and fall foul of his chosen legal representatives, how will I or they achieve a fair hearing? This potentially offends the most basic principles of justice. Nemo iudex in causa sua, or let nobody be a judge in his own case. The Minister's appointees could end up adjudicating in a dispute between the Minister's chosen legal representatives and somebody who has the audacity to challenge them. No professional is perfect, as the Minister would acknowledge. That is a cause for concern.

We have been told that the reforms envisaged in this Bill are necessary because of the bailout agreement with the troika. That agreement states:

The Government will introduce legislative changes to remove restrictions to trade and competition in sheltered sections, including the legal profession, and establishing an independent regulator for the profession and implementing the recommendations of the legal costs working group and outstanding Competition Authority recommendations to reduce costs.

I have no problem with an independent regulator, but I have serious concerns about a regulator that is dependent on the Government. If the Minister wants to enhance competition in the profession, he could begin by looking closer to home. For example, to operate in the criminal legal aid scheme, barristers must inform the Bar Council that they are willing to accept instructions, which notice is then conveyed by the council to the Minister's officials. However, there are, both in this State and in the North, barristers who can practise without being members of the Law Library or being subject to the Bar Council. That is a small anomaly which could be worked out.

A similar scheme applies in regard to civil legal aid and is relevant even to competition law. For instance, in a case involving the Netherlands, the European Court of Justice recognised the importance of properly taking into account considerations relating to the sound administration of justice in any competition law analysis of rules relating to the organisation of advocates and those providing legal services. In Northern Ireland an independent referral Bar operates whereby any small town solicitor from Cookstown or elsewhere can go to the leading lights of the Bar Library in Belfast, just as any small town solicitor in this State can go to the leading lights of the inner Bar in Dublin. The Bain report in the North recommended that allowing barristers to form associations would, by bringing them together in larger units, be a move away from this competitive model. For example, barristers specialising in certain aspects of law in which there is a limited number of suppliers in the North could group together to form a local monopoly. The same could happen in this State.

The proposals in this legislation do not address the problems they seek to address and will instead create further problems. The measures are being presented to the House as though they are necessary because of the bailout deal with the troika. That is not the case. Pitt the Younger once said:

Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.

I do not mean to suggest that the Minister is set upon a reign of tyranny. However, this is not a personal matter and he will be succeeded in office by others. The law must be framed for more than one scenario. The legal profession should not be beholden to any Minister or enslaved to the meeting of targets, as larger legal firms are. It is primarily smaller legal firms and independent barristers who take the pro bono cases on which our justice system relies.

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