Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move amendment No. 1:

In page 10, to delete lines 9 and 10 and substitute the following:

“ “code of practice” means a code of practice issued under section 20*, and includes part of such a code;”.

The Government amendments being tabled relate to Parts 1 and 2 of the Bill. These will deal with key definitions and terminology, as well as the Legal Services Regulatory Authority’s oversight and review of codes of practice applicable to solicitors and barristers in the State.

It is my intention to bring forward further amendments to the Bill for the resumption of the Dáil Report Stage after the summer recess, and I would also anticipate that this will happen for the ensuing Seanad Stages. This will be done to provide Members with more ample opportunity to consider the amendments concerned.

It is the Government’s overall intention that the Bill should complete all Stages for enactment by the end of November so the new regulatory authority can become operational early in 2015.

Deputies will also wish to be aware that, along with officials of my Department, I will be availing of the period following today’s deliberations to progress further the ongoing consultation process with the Bill’s stakeholders, including the legal professional bodies, and to consider those submissions that continue to be received. This has been a very consultative process to date with various amendments being accepted on Committee Stage, as Deputies will be aware, and that will continue.

That process will also provide an opportunity to deal with the remaining key issues of concern some of which continue to be aired by Members of both Houses and by the interested parties concerned. I will, therefore, be coming back to the Houses on any key remaining issues such as the proposed new legal services models, including legal partnerships and multidisciplinary partnerships, as well the possible introduction of limited liability partnerships. This is a process I have undertaken since my taking up of the justice and equality ministerial portfolio as I am anxious to hear the various views on this important and reforming Bill. This is a working approach that can meet with the approval of all sides of the House. Detailed work on the Bill continues on that basis, including with the Offices of the Attorney General and of Parliamentary Counsel.

I want to turn specifically to our first amendment. This concerns the definition of a code of practice. This is part of a suite of amendments relating to codes of practice on which I will elaborate further when we reach the relevant provisions. This particular new definition, like others, for consideration sets the basis upon which the Bill will be applied. Deputies can be assured therefore that because these and other definitions have fundamental and cross-cutting implications for the entire Bill, they will be kept under review right up to the Bill's completion. As Deputies will appreciate, further amendments may arise as we work through the Bill and depending on the various amendments tabled it may well be necessary to return to some of these definitions.

I will be happy to consider any ongoing views the Deputies may have in this regard so that we can ensure that the relevant definitions mean what we want them to say and that the Bill does precisely what we want it to achieve.

The amendment provides for a change in terminology from code of conduct to code of practice. This is an outcome of further consideration of the Bill with the Parliamentary Counsel. There are various forms of code currently applied in regard to the legal professions, so we have to comprehend them in the Bill. For example, under the new and independent professional conduct regime of the Bill, reliance will be placed on such codes where they prove to be of relevance. In this first amendment the relevant definition is in the form of a simple and linked reference to section 20, that being one of the sections which we will later consider under a separate amendment.

It is intended that in adopting this particular amendment and the one to follow on the definition and application of codes, the Bill will distinguish between two types of codes governing the practices and behaviour of legal practitioners, namely, the "codes of practice" of this amendment which will be new codes published by the legal services regulatory authority under section 20 and the parallel "professional codes" which we will also define by amendment as those codes that are drawn up, for example, by the Law Society and the Bar Council, but which may be amended by the authority under section 21. This revised approach meets a number of concerns expressed previously by Deputies and some stakeholders about the clarity and application of this part of the Bill.

Splitting the provisions in this way between two distinct types of code is a mechanism that can help ensure there is no confusion between the codes that may be produced by the authority in the future and the codes that have already be drawn up or may be drawn up in the future by the legal professional bodies – the latter, it should be noted, are not being erased by the Bill.

Although for technical reasons it is part of the next grouping and we can speak about it again, Members will see we have also provided for a revised and expanded definition of a "professional code". This was found to be necessary when it was pointed out to us by the Law Society that there is a wide range of documents that currently govern and guide the behaviour of lawyers. As the legal professional bodies use a variety of titles and descriptions for these professional codes, the term has to be defined adequately in order to comprehend them as necessary for the purposes of the Bill and its regulatory functions. As the various forms of code govern how lawyers both conduct their business and are held to account, it is essential that they be in the frame of this provision.

It is proposed, under Government amendments Nos. 36 and 38, to delete the current section 20 of the Bill entitled "Codes of Practice" in its entirety and to replace it with two newly drafted sections on the same topic. Having read some of the Opposition amendments being proposed today, the main elements of this new and amended approach will be welcomed.

These main elements are as follows. As I have already highlighted, by way of clarifying the new codes regime under the Bill, the amendments to this section distinguish between "codes of practice" of the new legal services regulatory authority and the "professional codes" emanating from the legal professional bodies themselves.

Reflecting the Government's previous public undertaking in response to initial concerns expressed at the time of publication of the Bill about the independence of the new regulatory authority, there will no longer be any ministerial role under the amended provisions in the processing or approval of codes. This meets the previously iterated concerns of the professional bodies, Members and other stakeholders. It arose because in initially drafting the Bill under the very tight deadline of the troika programme a routine statutory formula for the ministerial approval of standards was used. However, I am glad to say that this amendment puts the independence of the oversight and application of codes, from any ministerial interference, beyond doubt.

It is important to note that the existing codes of the legal professions are not being wiped out by the new Bill but are being left in place subject to their being compliant with the objectives of the Bill when enacted.

Rather than create a cumbersome and costly approvals structure for each and every code already in place in the professional bodies, the amendments provide that the bodies will furnish the new authority with copies of all of their existing codes within one month of the authority's establishment – in any event, under section 12 of the Bill the authority has a general function of keeping these codes under review.

While leaving the existing codes of the professional bodies in place subject to the provisions of the Bill, the proposed new sections will provide that the legal services regulatory authority will have the power to issue new "codes of practice" for the purpose of setting or improving standards for the provision of legal services in the State and that the authority will have the power to amend or revoke such codes. New or amended codes will be published in Iris Oifigiúil.

Section 21, should it be accepted today, will allow the authority to issue a notice to a legal professional body to amend one of its own "professional codes", should it be of the opinion that it would operate to hinder a legal practitioner from complying with an obligation under the Act, that it would frustrate a key objective of the authority set out in section 12, or that the issuing of such a notice is otherwise necessary for the maintenance or improvement of standards in the provision of a legal service.

In its oversight of the codes applicable to legal practitioners, the Legal Services Regulatory Authority will be able to make distinctions between different classes of legal practitioner, such as solicitors, barristers who are members of the Law Library and other barristers who choose to base their practise outside of the Law Library.

While the underlying principle will be that the codes of practice issued by the legal services regulatory authority should take precedence, consultation with the legal professional bodies and other interested parties will be a prerequisite for the issuing of new codes and such parties will also have recourse to the High Court to seek an amendment to, or revocation of, a code in the event that the code under question is considered to be "oppressive, unreasonable or unnecessary". That provision for recourse to the High Court is there should it prove necessary.

It should also be noted that in our configuration of the regulatory regime on codes we are doing no more than that being done under the comparator legislation in England and Wales where the Legal Services Board has similar powers of intervention in relation to the compliance of codes with the objectives of the legal services legislation in that jurisdiction. That is an interesting point for us to note. The reach of the board in this regard extends right down into the authorised bodies for the regulation of solicitors and solicitors and includes resort to the High Court.

The original section 20 of the Bill has, therefore, been found wanting in a number of ways, not least of which has been the need to remove any ministerial consents, and that is now being met by the amendments being put forward today. The amendments I am tabling to section 20 today, in the form of the two new sections which will replace it, have been carefully crafted in the intervening period - I acknowledge the debate on this that took place on Committee Stage - since the publication of the Bill with the assistance of advisory and Parliamentary Counsel. The amendments take account of the various legal, policy and drafting concerns to achieve a workable balance in relation to the authority's functions as an independent legal services regulator to draft and amend codes on the one hand, and the legal professional bodies ongoing application of their own historical codes on the other. This represents a key intersection between the new authority and the legal professional bodies and I believe the right balance is now being struck in the proposed new language of these amendments.

I assure Members that the regime relating to the codes will not be arbitrary or indiscriminate in its application. The new provisions have firmly rooted this power of the authority to deal with professional codes by reference to the specified objectives of section 12 of the Bill in furtherance of the authority's obligations to regulate the provision of legal services and to ensure the maintenance and improvement of standards in the provision of such services.

As regards the remaining Opposition amendments Nos. 23 to 26, inclusive, and 37, in light of the comprehensive approach now being taken by the Bill on codes and the substantive amendments that have now been introduced to enhance this aspect of the Bill, and my belief that the issues that were raised on Committee Stage have been dealt with, I do not see the merit in or value of these amendments.

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