Bernard Durkan (Kildare North, Fine Gael)

Absolutely. Hindsight usually gives us that entitlement. I think I would enjoy it and I am sure the Ceann Comhairle would as well.

When I was a very young, green and a raw recruit in this House I remember, on behalf of a constituent, engaging or locking horns with a famous legal firm. I was fairly trenchant in my attitude and was not the shrinking violet type, as befits a public representative. After some considerable time I received a written response from the legal firm concerned, which was very trenchant and challenging and was supposed to set me back and make me reconsider my position. However, enclosed with the letter, whether by way of mischief, omission or error, perhaps mischievousness on the part of the legal secretary who might not have been on good terms with the firm, was an opinion from senior counsel. Obviously the letter had been referred to the senior counsel for an opinion as to whether this was the right road to take in dealing with this upstart of a politician who dared to poke his nose into this particularly restricted area. I have to say — I know that the Ceann Comhairle would have had a good laugh — I had a really great laugh at that because I knew what to do next, having received the opinion of senior counsel.

We suffer in this country from what I would call post-colonial deference to professionals and professional opinion. It comes from our colonial past. Various speakers have referred to the legal, medical and teaching professions, among others. With all professionals, whether rightly or wrongly, we seem to take their opinion as read. As the public becomes more well versed at reading the English language and reading all languages, there is less of a tendency on their part to accept without question the opinion given, whether from a lawyer, doctor or any other profession. That is correct and is as it should be. Every human being has a certain amount of intelligence and has the right to ask a question. Even if the question appears to be frivolous or badly phrased, the individual still has the right to an answer.

Before relating another case from some years ago, I must say that the vast majority of lawyers and solicitors are decent people and do a lot of work pro bono, as Deputy Rabbitte said, which we hear very little about. However, there are some cute so-and-so's out there as well. I remember a case involving a young couple who bought a house. It was not a great house and it needed a lot of refurbishment. They were living in a mobile home at the time. We moved their case on by encouraging the local authority to grant them a loan. It was a little difficult but they could just about afford to buy the house — it is great that young people can aspire and be able to buy their own homes. However, between the time the deposit was paid, the contracts signed and the conclusion of repairs which had to be done before closure, house prices dramatically increased. The vendor took advice from his lawyers who told him he had the right to increase the price, notwithstanding the existence of a contract. They basically told him he should charge the couple more, which he duly did. As a public representative, I had to lock horns with that particular legal firm. I still remember the name of the firm, but we are precluded from naming such people on the record of the House. Previously in the House, perhaps ten or 12 years ago, I did not name the firm but gave its address and telephone number. At least I had that privilege. I consider the way the legal eagle advised the vendor to be sharp practice. The vendor could do what he did legally, but the fact that one can do something legally does not necessarily mean it is right.

One of the problems we have in society is secrecy. Family law has an in camera rule. If a Member of this House asks a question about it, we are told it is in camera and how dare one suggest one might offer assistance, advice or information. Whenever we surround ourselves with secrecy, we also tend to surround ourselves with an armoury to protect whatever it is we think we have. It does not make any difference how this affects the public and this is a mistake. It leaves itself open to all types of possibilities, none of which is in the interests of the public or, ultimately, the profession concerned. Deputy Pat Rabbitte made reference to another case.

With regard to the restitution payments in respect of those in institutions, if one inquired of a particular firm — I will not say in which profession — one was told it was a confidential matter and the information was covered by the Data Protection Commissioner. This is utter rubbish. It is not confidential and the Data Protection Commission has no function in the matter of any activity by the Members of this House in determining what is happening in respect of their constituents and whether their constituents are getting fair play. It is merely a fig leaf to hide behind when somebody does not want to give an answer.

The firm would write to the family of the individual concerned and ask whether permission had been granted to the public representative to inquire on their behalf. When we come to this type of situation, I ask myself whether it is really progress. All we are doing is allowing the creation of barriers around groups of people who do not want to be questioned and never intended that their activities would be questioned.

The question of discipline applies to all professionals. In this case, the ombudsman will be responsible. Deputy Ó Snodaigh was correct that, originally, an ombudsman triumvirate was to be established. Now, it will be one ombudsman which is an improvement. When one spreads authority and alleged responsibility, one does not get accountability. The more people with equal responsibility in an area, the less chance of ever getting anybody to be accountable for the operation of that show. It is sad but that is how it is. Everybody is responsible and nobody is responsible.

I do not know how the application of discipline will work in this situation. It should and could work but I do not know if it will. Other speakers referred to complaints against the Garda and I know gardaí are in the front line in the fight against crime. It is difficult to admit something has gone wrong and that it needs to be stopped. It tends to be seen by public representatives as a reflection on the entire profession, which it is not. If something goes wrong in any profession at any time and it comes to our attention, somebody's job is to raise the matter and see whether it can be attended to. They should ask what is the problem and say "Let us deal with it".

The next part is important. What happens with regard to discipline? What action is taken and who takes it? This is where many of the difficulties we have at present arise. The chain of command does not work. The reason is that if a whistleblower makes a report to his or her superior, the superior may have a weakness or an issue he or she does not want to be aired and may not be in a position to take any action. This moves it to the next level. At what level in the chain of command should action be taken?

The presumption is that whoever reports should report to his or her superior. What is happening is that nobody takes any action and nothing happens because if one does act, one's own position is weakened. The person thinks somebody will be waiting for him or her in the long grass at a later stage. What happens then? One must produce an ombudsman or somebody like an ombudsman at the top of the pyramid, who will state he or she is responsible for operations being run in the manner in which it was intended. It remains to be seen whether it will work.

At present in our society, to ensure the public gets some semblance of fair and honest representation, we must put in place structures such as the ombudsman to deal with situations nobody else is willing to deal with. Politicians cannot deal with these issues any more not because they are in an invidious position and are afraid to, but because nobody will take any notice. People consider it a personal affront. I do not want to discuss past cases from recent years. Other speakers referred to recent history. Nobody wants to accept that one has the right to make a complaint even on one's own behalf. This is a sad reflection on our society. It is the way we have gone and are going and we must do something about it.

All Members of the House deal with constituency queries and will know that fees have become a major issue in family law. I hope younger Members of the House will never have reason to have recourse to these areas. When we discussed these issues in the House a number of years ago, they were all supposed to be extremely simple, but they have become complicated and extremely expensive. They require references from professionals from all corners, all with an opinion. The sanctity and volumes of fees charged for what to the rest of us seem to be simple issues are truly amazing.

The legal services ombudsman has a major task ahead. Will the ombudsman be able to monitor the ongoing processes and procedures and to intervene without reference from a complainant? For example, Ireland has more regulators than Texas had following the US civil war. We have a regulator for everything. They are supposed to identify what needs to be regulated, ensure everything is running smoothly and make sure everything is done in accordance with their plans. They should have the foresight and insight to deal with an issue before it becomes an issue and, hopefully, that will happen.

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