Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I move amendment No. 64:

In page 26, before section 20, to insert the following new section:“20.—(1) The Authority may appoint persons to be the staff of the Authority and may determine their duties.

(2) The Authority, with the approval of the Minister for Public Expenditure and Reform, shall determine —

(a) the terms and conditions of employment (including terms and conditions relating to remuneration and allowances) of staff appointed under this section, and
(b) the grades of the staff of the Authority and the numbers of staff in each grade.

(3) The remuneration and allowances of the Authority’s staff are payable by the Authority to the staff out of funds at the Authority’s disposal.”.

The proposed amendment is a revision of section 20 and removes the Minister's role in the appointment of staff to the authority, while maintaining a role for the Minister for Public Expenditure and Reform in regard to the relevant conditions of employment and remuneration. This is consistent with the architecture we discussed.
It is only right that the new regulatory authority, as an independent entity, will appoint its own staff and not have its human resources determined or in any way fettered by a Minister. This further enhances and protects the independence of the body on an ongoing basis, while not compromising on the need to control regulatory costs. However, I will maintain continued consultation with the Minister for Public Expenditure and Reform on the HR and other aspects of the establishment of the new authority.
I am opposed to amendment No. 65. As the authority is being established as an independent body, it is not within my remit as a member of the Government to predetermine its decisions on the configuration and recruitment of staff in order to perform its statutory functions effectively.

It will be open to the existing staff of the legal professional bodies who possess the relevant skills to apply for positions advertised by the legal services regulatory authority. Of course it will be open to the existing staff, based on the Bill as it is currently framed, to apply for positions, but I wish to refer to concerns raised in this area. First, I recognise the substantial expertise within the Law Society among a group of individuals who have been dealing with conveyance in relation to misconduct. When these matters are ultimately taken over by the legal services regulatory authority, those individuals will cease to have a role. It has been suggested that they should be transferred from the Law Society to the legal services regulatory authority. However, provisions are not usually put in place to facilitate the transfer of staff from a private body to a public body. There are certain legal complications around that issue. As I said already, it is open to members of the Law Society who are working in these areas to apply to the legal services regulatory authority when it advertises positions. Quite clearly, such people would have an advantage in the context of the experience and expertise that they have. From a human perspective, I can appreciate that it would be very helpful to the individuals concerned if they could be recruited to the body without the matter being unduly complicated, not to mention the practical perspective of the body benefiting from their experience. However, there is an issue surrounding this which I am quite happy to air publicly and which should be publicly aired. It is not simply an issue of protecting the jobs of 16 individuals. There is the wider public issue relating to the independence of the regulatory authority. We have just gone through a range of amendments which seek to ensure that there can be no perception of any ministerial control over the authority. The purpose of the legislation is to provide for an independent authority which is not merely independent of the Minister of the day but also of the professional bodies. There are two or three issues at play here. If arrangements were to be put in place which facilitated this, by some legislative mechanism and with the agreement of the Minister for Public Expenditure and Reform, itself an uncertainty, would it create a risk that the public would perceive the body to be less than independent because a proportion of the existing staff of the Law Society have simply been transferred to the authority as opposed to going through a recruitment process open to many individuals who would be independently assessed and interviewed?

When the legislation was published, had I included a provision in it for the transfer of all of the existing Law Society staff who deal with these issues to the new body, I would have been open to the accusation that it would not be an independent body and that we were just recreating the Law Society's disciplinary process under a different name. Deputy McGrath would probably have been one of the first out of the hatches in suggesting that. People certainly did not lose any time in suggesting that because we reflected the structure of other similar bodies in requiring ministerial consents in certain areas, I was deliberately setting out to undermine the independence of those bodies. I am interested in the views of the Deputies on this. Would those present be supportive of an arrangement which would facilitate such a staff transfer? Would they not see it as undermining the independence of the authority? Would they be supportive of this and would they regard it as being within the objectives of the legislation to allow for such a transfer? Should members of the staff of the Law Society - I do not like talking about individuals publicly but there is no point in avoiding the complexity of this - not be in the same position as others, whereby if they wish to work for the authority, they apply for the positions available? I am very interested in the views of Members on this, taking into account the complexities of it as opposed to simply representing a concern, although it is a perfectly legitimate one which has been expressed to me very forcibly and understandably by the Law Society on behalf of its staff. However, I must ensure I do nothing that undermines the public perception that this is an independent body. Having said all of that, I am happy to listen to what Deputies have to say on the matter. This is not something that I can resolve as Minister for Justice and Equality because it also involves the Department of Public Expenditure and Reform. Furthermore, there are certain legal complexities around this that I do not want to publicly air that would be relevant to the staff members individually, to the Law Society and to the authority. There is also the fact that one cannot transfer staff from a private to a public body without all of the staff within the private body wanting to be so transferred. Whether all of them would wish to be so transferred is a matter for their individual decision. I am conscious of the fact that there are various issues involved here and am very interested in the views of the Deputies on this issue.