Michael McNamara (Clare, Labour)
Link to this: Individually | In context | Oireachtas source

At the outset I should state that I am a barrister, although I am on leave from the Law Library for the duration of this Dáil. While I welcome the Minister's amendment, I wish to express a reservation in respect of one part of it. I welcome the distinction and differentiation between barristers who are members of the Law Library and those who are not. The Minister discussed the fact that there are practising barristers who are not members of the Law Library. It is not as revolutionary as some will no doubt claim it is. The constitution of the General Council of the Bar of Ireland states that

The Council shall maintain a register of all practicing barristers and that register shall be maintained under the control of the Council by the Director of the Council and shall be in two parts consisting of respectively;
(a) All members of the Law Library; and
(b) All other persons who submit to the jurisdiction of the Council in accordance with the regulations in force from time to time.

Notwithstanding that and to use a legal term, the Bar Council has failed, refused or neglected to maintain a register of practising barristers who are not members of the Law Library. There has been a lot of discussion about the rule of law in the context of this Bill and potential damage to the rule of law, but one of the most basic tenets of the rule of law is that every organisation, even a ping-pong club, adheres to its own rules. Notwithstanding the fact that the Bar Council does not maintain a register of practising barristers who are not members of the Law Library, I am aware of a number of barristers who practise, particularly in the southern and south-western circuits, who are not registered. There is no mechanism by which they can be registered. While they are not doing anything unlawful in any way because there is no legal requirement for a barrister to have a practising certificate issued by anybody and the practice of issuing practising certificates is relatively new, they are not susceptible to any disciplinary mechanism or regulation by anybody. They could, of course, be subscribing members of the Law Library and it must be said there are two categories of subscribing members of the Law Library at present: those who are based in or near Dublin and those who are considered to be country members who are based further away from Dublin and would have less use for the Law Library. There are a number of barristers who, for whatever reason, do not see the Law Library as being of any benefit to them so they do not subscribe to it. The Law Library is undoubtedly of benefit to many barristers but that is a choice they make because there is a cost involved in subscribing to the Law Library. That cost, like all costs involved in the provision of any service, is eventually passed on to the consumer. One of the purposes of this Bill is to drive down legal costs and to bring at least a certain degree of transparency to them.
Notwithstanding all that, my concern is that there are three categories listed as being liable to pay a share, namely the Bar Council, the Law Society and barristers who are not members of the Law Library. However, barristers who are not members of the Law Library will still have to be on a roll of barristers somewhere.

That is not dealt with in the amendments.

Section 76 in Part 8 provides that the Bar Council shall maintain a roll. There is nothing wrong with that and it is not in conflict with what the Minister is introducing. My concern is that the Bar Council might seek to introduce a provision, whereby barristers who are not members of the Law Library may have to pay a contribution towards the regulatory costs as part of their practising fee or as a condition of the practising fee have to pay some of the cost of maintaining the Law Library, which would defeat the purpose of the Bill. I flag this as an issue which must be teased out in subsequent amendments. However, one of the great benefits of the Law Library is that it gives a fair degree of access to the profession of barrister and in theory at least, while the practice may be different, everybody gets an equal crack of the whip. There must be a system, similar to the solicitor's apprentice, whereby newly qualified barristers do a pupillage or devilling as it was referred to until quite recently. Clearly barristers will not be able to develop in their profession as in-house barristers with the banks or even as in-house counsel in the Houses of the Oireachtas.

In the Bar in Britain, there are sole practitioners who are on the roll of barristers held by the Bar Council of Britain but all barristers must undertake a pupillage and that is always done in chambers. I would like to see amendments to the Bill address the conditions that the Bar Council will be able to lay down to issue a practising certificate. For the first time in Irish law it will become unlawful for a barrister to practise without a practising certificate. We must consider the charges the Bar Council will be allowed to levy the practising barristers in Cork and the south west who are not members of the Law Library. Will they suddenly have to pay for the Law Library through the back door? Such a charge would defeat the purpose of the Bill.

This is an important issue. This is dealt with in section 51 of the UK Legal Services Act 2007 which provides that the payment of a fee which is a prerequisite to obtaining a practising certificate shall have to be approved by the regulatory body. That section sets out the permitted purposes for which the practising fee may be diverted towards and purposes for which the fee cannot be diverted towards. The fee can be diverted towards the promotion of the rule of law, human rights, interaction on behalf of the body and education. I have no doubt that some barristers will work in-house for banks, others will be sole practitioners and some will set up chambers. Some will frown on it. Some will say the Law Library is a bastion that must not change and that the profession must remain fossilised as it was in 1922, but there are others who will set up chambers. What is important is that all barristers contribute to the development of the profession and ensuring that there is equality of access to the profession and that one does not have a situation where 120 to 150 barristers come out of the King's Inns and only 30 of them get a pupillage. If one keeps the numbers very low, there are anti-competitive issues but there must be a degree of control over the practising fee and the purposes to which the practising fee can be diverted. We must ensure one of the purposes is to maintain access to the Bar and a training mechanism for the graduates of the King's Inns.