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

I move amendment No. 138:

In page 60, before section 69, but in Part 6, to insert the following new section:

"PART 6

Imposition of Levy on Professional Bodies and Certain Barristers to Cover Expenses of Authority and Disciplinary Tribunal
69.—(1) Subject to section 71, the following shall, in accordance with this Part, pay to the Authority in each financial year a levy in the amount determined in accordance with this section:

(a) the Law Society;
(b) the Bar Council;
(c) each barrister who is not a member of the Law Library.

(2) At the end of each financial year, the Authority shall, with the consent of the Minister for Public Expenditure and Reform, determine for the purposes of this section—

(a) the operating costs and administrative expenses that are properly incurred in that financial year by the Authority in the performance of its functions under this Act (in this section referred to as "approved expenses of the Authority"), and
(b) the operating costs and administrative expenses incurred in that financial year by the Disciplinary Tribunal in the performance of its functions under this Act (in this section referred to as "expenses of the Disciplinary Tribunal").

(3) The approved expenses of the Authority include—

(a) the remuneration (including allowances for expenses) of the members of the Authority,
(b) the remuneration (including allowances for expenses and superannuation benefits) of inspectors and members of the staff of the Authority,
(c) any superannuation contributions paid in respect of the members of the staff of the Authority out of moneys provided by the Oireachtas,
(d) fees due to consultants and advisers appointed under section 13,
(e) the cost of office premises, and
(f) any costs or expenses, not referred to in paragraphs (a)to (e), incurred by the Authority in the performance of its functions under Part 5.

(4) The Authority shall determine—

(a) the proportion of the approved expenses of the Authority that was incurred by the Authority in the performance of its functions—
(i) under Part 5, and
(ii) under this Act, other than Part 5,

and

(b) in relation to the approved expenses of the Authority referred to in paragraph (a)(i), the proportion of those expenses that was incurred by the Authority in the consideration and investigation of—
(i) complaints in respect of solicitors,
(ii) complaints in respect of barristers who are members of the Law Library, and
(iii) complaints in respect of barristers who are not members of the Law Library.

(5) The Authority, in consultation with the Disciplinary Tribunal, shall determine, in relation to the expenses of the Disciplinary Tribunal, the proportion of those expenses that was incurred by the Tribunal in the consideration of applications brought before it that concerned—

(a) complaints in respect of solicitors,
(b) complaints in respect of barristers who are members of the Law Library, and
(c) complaints in respect of barristers who are not members of the Law Library.

(6) The amount of the levy payable in each financial year shall be the sum of—

(a) the approved expenses of the Authority, and
(b) the expenses of the Disciplinary Tribunal,

in respect of the preceding financial year.
(7) The liability for payment of the amount referred to in subsection (6)shall be apportioned as follows:

(a) in the case of the proportion of the approved expenses of the Authority referred to in subsection (4)(a)(i)—
(i) 10 per cent of that amount shall be apportioned pro ratabetween the Bar Council and the barristers who are not members of the Law Library, according to the number of barristers whose names are on the roll of practising barristers who are members of the Law Library and the number of barristers whose names are on that roll who are not such members, respectively,
(ii) 10 per cent of that amount shall be apportioned to the Law Society, and
(iii) the remaining 80 per cent of that amount shall be apportioned pro rataamong the Law Society, the Bar Council and the barristers who are not members of the Law Library, respectively, according to the proportion, calculated under subsection (4)(b), of those expenses that was incurred by the Authority in the consideration and investigation of—

(I) complaints in respect of solicitors,
(II) complaints in respect of barristers who are members of the Law Library, and
(III) complaints in respect of barristers who are not members of the Law Library;

(b) the proportion of approved expenses referred to in subsection (4)(a)(ii)shall be apportioned pro rataamong the Law Society, the Bar Council and the barristers who are not members of the Law Library, respectively, according to the number of solicitors on the roll of solicitors, the number of barristers on the roll of practising barristers who are members of the Law Library and the number of barristers on that roll who are not such members;
(c) in the case of the expenses of the Disciplinary Tribunal—
(i) 10 per cent of that amount shall be apportioned pro ratabetween the Bar Council and the barristers who are not members of the Law Library, according to the number of barristers whose names are on the roll of practising barristers who are members of the Law Library and the number of barristers whose names are on that roll who are not such members, respectively,
(ii) 10 per cent of that amount shall be apportioned to the Law Society, and
(iii) the remaining 80 per cent of that amount shall be apportioned pro rataamong the Law Society, the Bar Council and the barristers who are not members of the Law Library, respectively, according to the proportion, calculated under subsection (5), of those expenses that was incurred in the consideration of applications brought before the Tribunal that concerned—

(I) complaints in respect of solicitors,
(II) complaints in respect of barristers who are members of the Law Library, and
(III) complaints in respect of barristers who are not members of the Law Library.

(8) The Authority shall—

(a) calculate, in accordance with subsection (7), the proportion of the amount referred to in subsection (6)that is payable by—
(i) the Law Society,
(ii) the Bar Council, and
(iii) the barristers who are not members of the Law Library,

and

(b) apportion the amount calculated under paragraph (a)(iii)equally among all barristers who are not members of the Law Library.

(9) As soon as practicable after the beginning of each financial year, the Authority shall provide a notice (in this Act referred to as a "levy assessment notice") to each of the bodies or persons referred to in subsection (1).
(10) A levy assessment notice shall specify—

(a) the approved expenses of the Authority in respect of the preceding financial year,
(b) the proportion of the approved expenses referred to in subparagraphs (i)and (ii)of subsection (4)(a),
(c) the proportion, calculated under subsection (4)(b), of the expenses referred to in subsection (4)(a)(i)that was incurred in the consideration and investigation of—
(i) complaints in respect of solicitors,
(ii) complaints in respect of barristers who are members of the Law Library, and
(iii) complaints in respect of barristers who are not members of the Law Library,
(d) the expenses of the Disciplinary Tribunal in respect of the preceding financial year,
(e) the proportion, calculated under subsection (5), of the expenses of the Disciplinary Tribunal that was incurred in the consideration of applications brought before it concerning—
(i) complaints in respect of solicitors,
(ii) complaints in respect of barristers who are members of the Law Library, and
(iii) complaints in respect of barristers who are not members of the Law Library,
(f) the amount of levy payable by the professional body or person concerned, calculated in accordance with subsection (7)and, where applicable, subsection (8)(b),
(g) the date by which the levy becomes payable, and
(h) the rate of interest payable if all or part of the amount specified under paragraph (f)is not paid by the date referred to in paragraph (g).

(11) The levy received under subsection (1)shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Public Expenditure and Reform directs.
(12) For the purposes of this section—

(a) a reference to the number of barristers whose names are on the roll of practising barristers shall be construed as a reference to the number of barristers whose names are on that roll during the financial year to which the expenses concerned relate, less the number of such barristers to whom section 71applies, and
(b) a reference to the number of solicitors on the roll of solicitors is a reference to the number of solicitors on that roll in the financial year to which the expenses concerned relate, less the number of such solicitors to whom section 71applies.

(13) In this Part—"barrister who is not a member of the Law Library" means a barrister whose name, in the financial year to which the expenses concerned relate, is on the roll of practising barristers, where the entry concerned specifies that he or she is not a member of the Law Library, and "barrister who is a member of the Law Library" shall be construed accordingly;
"superannuation benefits" means pensions, gratuities and other allowances payable on resignation, retirement or death.".

I should say at the outset of these amendments dealing with Part 6 of the Bill why I must oppose, just for the time being, Opposition amendments Nos. 144 and 145 which relate to a matter the Law Society very recently put to me in written correspondence. I assure the Deputy that I will consider a reference to a register rather than a roll of practising solicitors and I will table such an amendment on Report Stage if, or when, I am satisfied it would represent a fairer calculation of the levy in regard to solicitors. However, I am afraid I cannot support the Deputy's attempt to protect the Bar Council from suit in the event that it refuses to pay a due levy and so I must oppose Opposition amendment No. 149.
Turning to the remaining Government amendments Nos. 138 and 150 to 152, inclusive, Part 6 of the Bill, as published, consists of two sections, namely, sections 69 and 70. I propose the deletion of both sections and their substitution with four new sections to provide in detail for a fair and equitable calculation and payment of a levy on legal practitioners in order to fund the operational expenses of both the legal services regulatory authority and the legal practitioners disciplinary tribunal. The original provision sought to achieve the same goal. However, the need for certain amendments came to light in the intervening period of time since publication in 2011. The new configuration of this Part reflects certain representations made by the Law Society and the Bar Council, in particular, and I believe their concerns that the levy terms should be balanced and fair will be allayed.
I will take the committee through the proposed new sections in sequence. The first is new section 69. This reflects a broadening of the traditional model of the provision of legal services by barristers and comprehends those barristers who choose to practise outside the Law Library. While barristers may continue to operate from the Law Library as sole traders, other persons who have been called to the Bar should, therefore, be permitted to offer their services outside that structure, including as employees. That is why section 69 now makes a distinction that there will be, for the propose of calculating the levy, three categories of practising legal practitioners, namely, solicitors, barristers who are members of the Law Library and barristers who are not members of the Law Library.
Subsection (1) provides that the Law Society will be responsible for paying to the authority the levy amount on behalf of solicitors. The Bar Council will be responsible for paying the levy on behalf of its members. Those barristers who are not members of the Law Library will be individually responsible for paying the levy directly to the authority. I will refine the practising status of these categories of legal practitioners for Report Stage.
Subsections (2) and (3) are essentially carried over from the published Bill and provide that the authority shall determine its and the tribunal's operating costs and administrative expenses at the end of the financial year. These costs are standard remuneration and accommodation costs found in many instances throughout the Statute Book.
Subsection (4) provides that these expenses shall be divided equitably between the three categories of legal practitioners. It is important to note here that the levy calculations are based on the proportions of the expenses incurred by the authority in the consideration and investigation of complaints in regard to three categories of legal practitioner and not an accrued calculation based on the proportion of complaints received in regard to each. This is an important distinction which reflects the fact that some investigations would be more complex and lengthy than others and it would be unfair to burden one category of legal practitioner with costs associated with a different category of practitioner.
Subsection (5) sets out that the authority, in consultation with the tribunal, will every year calculate how the expenses of the tribunal will be apportioned between the Law Society, the Bar Council and non-Law Library member barristers. Subsection (6) simply provides that the sum total of the levy payable will constitute the expenses of both disciplinary bodies, that is, the authority and the tribunal.
Subsection (7) is a detailed and somewhat technically complex provision to provide for the method of calculation in regard to the levy to be imposed on legal practitioners. This has been worked out in conjunction with Parliamentary Counsel and it takes cognisance of written representations made to me by various interested parties that the levy calculation in the Bill, as published, was in need of some finessing. The subsection is subdivided into three paragraphs. Paragraph (a) deals with the authority's expenses incurred in fulfilling its remit as a complaints handling disciplinary body. Paragraph (b) deals with the authority's expenses incurred in fulfilling its other non-complaints related functions as set out in section 9, which deals with the authority's functions. Paragraph (c) deals with the tribunal's expenses.

The calculation ratio is that 10% of the expenses incurred by the authority and the tribunal in their disciplinary related functions will be apportioned to the Law Society, 10% to all practising barristers, where they are not members of the Law Library, while the remaining 80% will be apportioned in proportion to the expenses incurred in the consideration and investigation of complaints in respect of three categories of legal practitioner. The expenses incurred by the authority in fulfilling its functions other than those relating to complaints will be apportioned pro ratabetween the three groups.
Subsections (9) and (10) provide that a levy assessment notice shall be sent at the end of each financial year to the relevant professional bodies or individuals, as the case may be, specifying the total due to be paid and the detailed breakdown of the final tally. The initial set-up costs for the new bodies will be paid for by the Exchequer on a recoupable basis via the levy. Subsection (11) sets out that the levy is to be paid to the Exchequer. The remaining subsections (12) and (13) are standard provisions to clarify terminology and references in this part of the Bill.
Section 70 is a commonsense provision to ensure the authority has sufficient power to compel payment of the levy by the relevant persons within a reasonable three month timeframe. Failure to pay the levy may result in an individual legal practitioner being prevented from providing legal services or may result in the authority suing the Law Society or Bar Council until payment is made. Section 71 provides for an exemption from payment of the levy for legal practitioners who are in the full-time service of the State. I will return to this particular provision again on Report Stage as it is intrinsically linked to the definitions of practising solicitor and practising barrister to which, as I flagged during the July 2013 Committee Stage hearing, I will be returning. This is due to the fact that those definitions had not been settled to the satisfaction of Parliamentary Counsel. Section 72 is a standard regulation-making provision that is to be found in the original Bill as published.