Michael D'Arcy (Wexford, Fine Gael)

It is pleasure to speak on this Bill. It will be progressive legislation. While it may be difficult for some in the legal profession to welcome this legislation, it is long overdue.

I very much agree with what Deputy O'Rourke said about the language used by the legal profession. It is somewhat archaic. Joe and Josephine Soap on the street, in the pub or elsewhere truly do not understand what is being said in the context of legal language. A number of people, on leaving a solicitor's office, have come to me as their public representative to assist them decipher what is being said in a legal context. It is nearly an impossibility for any of us to decipher that. The legalese that is spoken for too long and too often needs to be brought down to much plainer language. Certainly, Deputy O'Rourke was very much correct on that point.

The legal profession needs this Bill as much as the public needs it. There has been much talk of a number of high profile cases. Prior to getting to the nub of that issue, I want to make the point that the vast majority of people who work within the legal services sector, whether barristers or solicitors, work on behalf of their clients and do a good job. I do not believe there are any greater or fewer members of that profession, whether barristers or solicitors, who are any more greedy or self-serving than in any other profession, be it politics, medicine or business. That said, I have some harsh things to say about those who stray offside and move way beyond their remit in terms of the service they provide for their clients.

The separation of powers in terms of the Legislature, the Executive and the Judiciary are clearly set out in the Constitution. A massive body of administration is formed by the Government, the Courts Service and other Government agencies. People are dissatisfied with that administrative body.

Other professions have ombudsmen and professional councils. A majority of the members of the Veterinary Council of Ireland and the Medical Council are not members of those professions. Deputy Flanagan referred to committees within the Law Society of Ireland. However, I believe the majority of the members of the Council of the Law Society are members of the legal profession. The only other council which has a majority of members from within its profession is the Press Council. However, that is a discussion for another day.

Access to the Law Society and its committees is not sufficient at present. That is why the Bill will be of major benefit to citizens. People are intimidated by having to go to the Law Society or the Bar Council. One hopes it is something very few people ever have to do. Unfortunately, that need seems to arise more and more often. The procedure is too slow, cumbersome and difficult. More often than not, people need some form of legal advice, whether professional or from the citizens information service or some other source. The Bill will go a long way towards benefiting the public in availing of the legal services ombudsman.

The history of ombudsmen goes back to 1984. Since then we have had a very beneficial experience of those people who have acted on behalf of the public. We now have the Ombudsman for Children, the Financial Services Ombudsman, the Press Ombudsman, the Garda Ombudsman as well as Ms Emily O'Reilly, the State Ombudsman. People's experience of the Ombudsman is good. The office is independent, strong and accountable. For too long, structures were established which were not answerable to elected representatives. The annual report of the legal services ombudsman will come before a committee of the Oireachtas where it will be scrutinised and analysed in detail.

One will not need a lawyer to access the legal services ombudsman. It may even be possible for members of the public to receive assistance by telephone. I was pleased to read that section 27 of the Bill will render it an offence to obstruct the ombudsman in the performance of his or her duties. Too often, structures are established without teeth. It is important that obstructing the legal services ombudsman will be an offence. This measure will give the office the power to provide a truly independent advocacy on behalf of clients.

In recent years groups like the Victims of the Legal Profession Society and the Rate My Solicitor website have sprouted up in response to the public's concern about sharp practice, overcharging and other abuses in the legal profession. A profession that was once considered noble is now viewed by many with suspicion. It is, perhaps, the only profession for which the public have less respect than our own.

Programmes like "Prime Time" on RTE, which reported on overcharging and professional misconduct by solicitors, have added to the perception that the legal profession, generally, is engaged in such practices. Very good investigative media work by RTE exposed overcharging in Army deafness claims. In a number of cases clients were not only overcharged but double charged. Solicitors who had been paid by the State also took funds from awards.

This is extremely damaging to those who provide a good and important service to their clients. They are tainted by the small minority who have engaged in malpractice. This has led to a considerable lack of trust in the legal profession generally. Before I became a Member of this House I studied for Law Society of Ireland examinations. I got the opportunity to watch at close hand how the profession works. Not being a fully fledged member of the profession, I was able to watch and be objective in my views. I saw how things work and how sharp practice operates. It was an enlightening experience.

The high profile cases of recent rogue solicitors like Mr. Michael Lynn and Mr. Thomas Byrne give rise to a view in the public consciousness of solicitors and barristers getting away with serious wrongdoing. Anything which can improve on accountability and add to the protection of clients is desirable for them and for the profession generally.

That said, many of those working in the legal profession are strongly of the view that it is the form and structure of the legal profession which needs to be looked at. They believe that the form and structures currently in place are at the root of the problem. They also believe that the changes needed cannot be brought about by the Law Society. Indeed, the view is that the Law Society itself is part of this form and structure which needs to change. Solicitors have to work with the system that is there. They argue that it is this very system that is flawed. They believe that if the form and structure of the legal system was amended it would have a hugely beneficial effect on such areas as family law and litigation, to name but two.

It is, therefore, imperative that the proposed ombudsman be given the powers to look at the very form and structure of the legal profession. As currently proposed, the office of the legal services ombudsman would not have such powers. This is a missed opportunity. The legal profession is undergoing a period of fundamental change. Now is the opportunity to direct these changes. It would be a great shame and a squandered opportunity to go ahead and appoint a legal services ombudsman and not equip that person with sufficient powers to get to the very root of the problems that have brought the legal profession into disrepute.

I would like to see more detail on section 27. I hope this section will be amended on Committee Stage to ensure that sanctions for the offences listed in the section are significant. It must be made clear that the risk of obstructing the ombudsman will be a great one.

I must touch on the under-representation of the smaller legal firms. I speak as a representative of a rural constituency. The majority of legal firms in Ireland are small and made up of two or three solicitors. Yet, committees of the Law Society are, to a large extent, made up of solicitors from the big law firms in the country. This leaves the smaller firms without a voice and without a means of effecting change themselves. This is something which should be addressed and the time to do it is now, in the Bill.

Up to now the legal profession has been self-regulated and it is obvious that this has not worked. What is needed is the appointment of a person with real powers to take up cases which have not been resolved by the Law Society or the Bar Council. This effectively provides another form of redress to disaffected clients.

Another forum for the resolution of complaints is also a benefit to the profession. Any process that improves transparency and accountability in the system will help restore trust and faith in it. Currently, the only redress for anyone dissatisfied with an adjudication by the Law Society or the Bar Council is the courts. This poses certain difficulties such as getting a solicitor to act against another solicitor and a court hearing takes time. The number of people willing to follow that route, let alone fund it, is small.

Regarding the operation of the ombudsman's office, it is good procedure to allow complaints to be made by any person on behalf of another. Sometimes a complainant may be unable, through ill health, infirmity or other reasons, to do so themselves. It is also correct to have a six-month deadline for complaints to be taken to the ombudsman, following the matter being adjudicated upon by the Bar Council or the Law Society. This ensures complaints are expedited in a timely manner instead of dragging on for years.

Another positive provision is that if the ombudsman decides not to proceed with a complaint that a person is making, the person or body against whom it is being made will be notified of the decision and the reason for it. It is important that such decisions are written in a comprehensive form.

It is proposed that the ombudsman will take submissions from the complainant and investigate them in private. Any person with information may be requested to produce it and may be required to attend, if necessary, the office for that purpose. It is correct that all avenues would be opened to allow full and proper investigation of complaints. Section 27 needs to be expanded to outline what offences can be considered.

It is right that the ombudsman will be wholly independent, with the required qualifications, experience, training and expertise. Deputy Mary O'Rourke questioned whether the appointee should be from the legal profession. That can be explored on Committee Stage. If the ombudsman comes from the legal profession, an argument could be made that it is a closed shop. I believe there are many possible candidates from other professions capable of making objective decisions. There is a need to demonstrate the office's complete separateness from the legal profession.

The ombudsman will be charged with issuing an annual report and a report on the effectiveness of his or her office and the adequacy of its functions with recommendations for improving its effectiveness. However, this could be reliant on such recommendations being subsequently implemented if improvements are to be made. There are plenty of examples of agencies using up much money and man hours to issue recommendations in reports that are never implemented.

Another function of the office will be to issue an annual report on the number of persons admitted to practise as barristers and solicitors during the year and to assess, given demand, the need to ensure an adequate standard of education and training for people admitted to practise and that the number of persons admitted is consistent with the public interest in ensuring the availability of such services at a reasonable cost. Up to 90%, an enormous rate, fail the first three of the four barrister examinations. Many of these students are recent law graduates. That raises the question of whether there is a quota system in place to restrict the numbers entering the profession.

With positive amendments on Committee Stage, the Bill can be improved. I hope the Minister will take on board the positive recommendations made in the House.

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