Brendan Kenneally (Waterford, Fianna Fail)

I am grateful for the opportunity to speak to the Legal Services Ombudsman Bill 2008. I welcome the legislation which is overdue. We have introduced legislation to impose independent regulatory supervision in many areas and it is only right that we do the same in the legal services sector.

The Bill provides for the appointment of a legal services ombudsman by the Government. I warmly welcome the stipulation that the person appointed may not be a practising barrister or solicitor. Similar provisions have been put in place in England and other jurisdictions. I am glad that the initial appointment will be made for a period of six years. While the appointment is renewable, it has to be reviewed at the end of six years. This stipulation which has been applied throughout the public sector helps to increase people's awareness of their responsibilities because they can and will be moved on if they do not perform adequately.

The functions of the ombudsman will be to receive and investigate the handling of complaints by the Law Society or the Bar Council, review the procedures of both bodies for dealing with complaints, assess the adequacy of the admission policies of the Law Society and the Bar Council to the professions of solicitor and barrister, respectively, and promote awareness among members of the public of matters pertaining to the procedures of these bodies for addressing complaints.

I will concentrate my comments on solicitors rather than barristers because, in my experience as a public representative, I have received more complaints about the former. People are more likely to engage a solicitor than a barrister.

Complaints can be made on grounds of inadequate service, excessive fees or misconduct. A claim must be made within five years of the occurrence of the problem. A complaint can be made directly to the Law Society or the solicitor's disciplinary tribunal. If the complainant is not satisfied with the way the complaint is addressed, he or she can bring the matter to the independent adjudicator who, while not connected to the legal profession, is appointed by the Law Society. This reveals a flaw in the current system in that there is a connection between the adjudicator and the Law Society. This legislation will remove that flaw by transferring these functions to the legal services ombudsman.

I have never accepted the way in which the profession is regulated because, in my experience, complaints have not been taken seriously enough. People have approached me about particular solicitors or cases after experiencing difficulties in finding alternative solicitors to pursue their grievances. The Law Society has stated it cannot deal with complaints of negligence but that if, for example, a solicitor has failed to process a case, draw up or serve documents or take out probate to a will in a timely manner with the result that the client has suffered a loss, a court action may be taken. It has further stated it maintains on its website a list of solicitors who are prepared to take on cases of negligence. However, it has been my experience that people have found it difficult to hire a solicitor to pursue such cases.

When an investigation was commenced by the Law Society, it was often of an innocuous nature or insufficiently robust. I acknowledge that matters may have changed in the light of the high profile cases involving solicitors being struck off the register. Allegations are being taken more seriously because of the damage wrought to the profession by these cases.

A good friend of mine was fond of asking the question: "Who guards the guardians?" That question was first put by Plato to Socrates and the answer was that they would guard themselves against themselves. That is the answer on which we have relied in this and many other areas but the situation is now changing in regard to the legal profession.

In the context of our discussions on amalgamating State agencies, I am concerned that we might be creating another layer of bureaucracy in the legal services ombudsman. Perhaps the functions could be placed within the remit of the Office of the Ombudsman through the establishment of a legal services division. However, section 19 of the Bill provides that the Law Society and the Bar Council will each be responsible for 10% of the costs, with the balance to be met by either body based on the caseload involved. This would seem to suggest the legislation is Exchequer-neutral. If that were the case I would not have a problem with the setting up of a separate office. That is something the Minister might clarify when he speaks later. The Minister might also clarify whether this legislation gives us the power to force these bodies to make payments and what we can do to make sure they pay.

I wonder how large the office of the legal services ombudsman will be. For example, the Office of the Legal Services Ombudsman for England and Wales consists of 25 people. How long will it have to deal with a particular complaint? Should we include an aspiration that, in the absence of certain difficulties or problems, a report should be furnished within four, six or eight months? I have no hang-up about the particular time, but a timescale should be specified. We have one, for instance, for An Bord Pleanála, which is supposed to make a decision within a four-month period, although we all know it never does. Perhaps something could be stitched into the legislation to tighten things up so we do not find ourselves waiting years for a report from this office.

Judges do not appear to be any part of this Bill. I am often concerned about the conduct of some judges. I am aware of the separation of powers of the Oireachtas and the Judiciary, which we must be careful to maintain. However, I wonder whether the legal services ombudsman could have a role to play in this regard. My biggest gripe is the inconsistency of sentencing. A District Court judge in Waterford could make a decision on a particular case, and the same case could be going on before another judge in Donegal, but the two sentences could be totally at variance with one another. This is part of the reason victims of crime are not happy with what is happening within our courts system. I wonder whether the legal services ombudsman could act as a vehicle for complaints they may have. There could be a role for this new office in the creation of a database of sentencing, which might let us see what different judges are doing in different parts of the country. I assume this is not something that is being done by anybody at present. This information would be useful to all of us. I remember a judge saying that at the end of the day judges must implement the will of the Oireachtas. I do not think this is happening at present. This might serve to make them a little more accountable.

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