Jonathan O'Brien (Cork North Central, Sinn Fein)

I would like to record my appreciation of the useful briefing the Department of Justice and Equality made available to Opposition spokespersons last week. I hope we can replicate it when other complex Bills are being considered in the next few years. This is one of the Bills the IMF insisted be published as soon as possible. As a result of those time constraints, we did not have an opportunity to publish the heads of the Bill. It is unfortunate that the IMF diktat about the publication of this legislation meant the joint committee was unable to listen to the queries, complaints and questions that various organisations have raised in this respect. The consideration that has been given to the national vetting bureau Bill and the legislation dealing with the withholding of information on crimes against children and vulnerable adults has proven that this process is well thought-out and worthwhile. In the case of the vetting bureau Bill, the Minister has taken on board a number of recommendations that were made by the committee. We welcome that.

I understand that after we have considered this Bill on Second Stage, we will have an opportunity to examine the amendments to be tabled by the Minister in advance of Committee Stage. I am sure the Opposition parties will table amendments as well. I ask the Minister to consider the possibility of publishing the amendments in draft format so we can have a dialogue with the relevant groups and organisations. It would make for a better and more informed Committee Stage. If we can speak to the groups in advance of the full Committee Stage debate, the legislation will be much better.

This Bill has divided public opinion in many ways. It is a difficult challenge to strike a balance between safeguarding the independence of the Judiciary and the legal system, and upholding the democratic right of the people to access our legal system and get a fair hearing in an affordable manner. The Bill proposes the establishment of a legal services regulatory authority, a legal practitioners disciplinary tribunal and an office of legal costs adjudicator. The organisation of the legal profession and the costs associated with the legal profession have developed over many years. There has been a great deal of debate on such questions down through the years. This Bill is the culmination or fruition of the various reports that have been commissioned on these matters, including reports by the Fair Trade Commission, the Competition Authority and the advisory group on legal costs. This Bill proposes to deal with seven of the nine outstanding recommendations from the report of the Competition Authority.

This Minister said in his speech that there has been criticism of the Bill as drafted. Not all of it has come from solicitors and barristers. Many people in the media argue that solicitors and barristers have a vested interest in this process. Advocacy groups like the Free Legal Advice Centres have also raised concerns about this legislation. We need to take all such commentary on board, regardless of its source. We need to examine the concerns to see if there is merit in them and move forward from there. People are entitled to fairness and justice in the court rooms and from those who represent them in the legal system. I do not suggest - far from it - that everyone involved in the legal profession engages in unscrupulous behaviour. Like all sections of society, a small minority of those involved in this sector engage in such behaviour. The concern that the Bill, in its current format, may have a negative impact on the ability of some people to access fair justice needs to be examined more closely.

I firmly believe we must always take a rights-based approach to the reform of the legal system. I found it useful to read a research document that was produced by the Law Library. It examined the international human rights standards of relevance to the independence of the legal system in the context of the reforms that are proposed in this Bill. It set out the main democratic principles that underpin the role of legal practitioners in a democratic society. It covered issues like access to lawyers, legal services, qualifications, training, duties, responsibilities and freedom of expression.

The Bill proposes to establish a new authority. As the Minister said, the authority will ensure legal practitioners "act with independence and integrity", "act in the best interests of their clients", "maintain proper standards of work", "comply with the duties that are rightfully owed to the court" and "keep the affairs of their clients confidential". There is an overlap between what the Minister is proposing and the basic principles that have been set out by the UN. That is welcome. The UN principles are a little broader, however. Perhaps we can examine the possibility of dealing with certain areas that are not expressly stated in this Bill. It would be useful to come up with a form of words that could be included in the legislation. Many people in the legal profession would welcome that.

I would like to focus on two areas of concern - complaints procedures and legal costs. It is natural that more complaints are made against solicitors than against barristers because there are more solicitors than barristers. That is just the way it is. Ordinary people often find it difficult to navigate the legal system. They might not know how to make complaints, or to whom they should make them. Rightly or wrongly, the ordinary Joe Soap has a perception that a substantial proportion of solicitors and barristers run a closed shop. I am not saying that perception is right or wrong, but it exists among the general public. There is a perception that legal practitioners are an elite group of people who oppose outside regulation and want to regulate their own professions. Some people would argue that many legal practitioners feel they are untouchable. I will not comment on the reality of such a perception. While the actions of a small minority lend credence to such a view, in general it is not the case. Solicitors and barristers need to take responsibility for the perception that may exist. Many solicitors and barristers, it is fair to say, have a social conscience and social responsibility. One only has to look at the number of them who do voluntary work with FLAC, the free legal advice centres, to see they are not an elite group who are only in it to make money at the expense of the ordinary person.

When one considers the legal profession's self-regulation and procedures, it is not difficult to see how an ordinary person could arrive at the conclusion it is a closed shop. Some solicitors themselves are concerned about this perception and the damage it is doing to the profession. Sinn Féin has also raised concerns about other justice system complaints mechanisms such as how prison complaints are dealt with and the Garda Síochána Ombudsman Commission. The latter is meant to be independent but many perceive it as not, believing it is just gardaí investigating gardaí. A truly independent complaints procedure must be just that.

That is why we have similar concerns to Deputy Calleary's about the proposed legal services regulatory authority. Will this authority satisfy the public's demand for a truly independent process? At the same time, it is important we do not go to the other extreme in which solicitors and barristers believe they will not get a fair hearing from the authority.

As set out in the Bill, four nominations for the proposed authority will come from the Law Society and the Bar Council while seven will be appointed by the Government. In the case of the proposed disciplinary tribunal, a maximum of 16 nominees and a minimum of six can be appointed from the Law Society and the Bar Council with the rest nominated by the Minister. There is a perception that politics is all about jobs for the boys. It is important we deal with this head on. Some of the recent appointments made by the Minister for Justice and Equality have been focused on by the media as benefiting his personal friends and political donors. That takes away from the qualifications and abilities of the persons appointed. It neither does them or the board to which they have been appointed any justice. We must ensure this is not replicated with the proposed bodies in this legislation.

The legislation expressly states the Minister will be responsible for the appointment of laypeople to the disciplinary tribunal. Given the perception that these appointments are jobs for the boys, will the Minister examine putting these appointments before the Joint Oireachtas Committee on Justice, Defence and Equality or even another mechanism? It would not be a bad idea if we came up with some procedure that could take the Minister and the Department out of the appointments process. It would remove the potential for any aspersions to be cast on the individuals appointed. Sinn Féin is considering tabling an amendment to this section on Committee Stage to ensure those on the disciplinary tribunal will be seen to be appointed on merit and for no other reason.

This is not just important for the public but also for members of the legal profession. The current complaints resolution mechanism is seen as biased towards the legal profession. We cannot, however, go to the other extreme with the new disciplinary tribunal seen as biased against the legal profession. We as politicians should know there is a tendency to tar everyone with the same brush. Politicising the new authority and tribunal runs such risks.

All Members agree with the independence of the Judiciary and the need to ensure it is free from political interference which is vital to the public's confidence in it. Any disciplinary tribunal which sits in judgment over a member of the legal profession who has allegedly breached codes of conduct has to be seen as truly independent. On Committee Stage, will the Minister take into account his role in the appointment of a tribunal and the need to ensure full public confidence in the authority?

This Bill represents an opportunity to address the long-running controversial issue of legal costs. There is evidence to suggest legal costs are actually going down. While this may be a reflection of economic circumstances, it might not always be the case. Part 9 proposes the establishment of a chief legal costs adjudicator to take over the role of the Taxing Master. Any provision which will introduce an element of transparency as to how legal costs are formulated is welcome. From speaking to many in the legal profession, I know they are also open to this idea and welcome it. It is as much in their interest as it is in the public's to have a system that sets out legal costs exactly. It should have happened as a matter of course but it may be down to miscommunication or old practices. This provision will address this issue.

The Bill's proposal for a levy, a fee to be set in conjunction with the Minister for Public Expenditure and Reform, on the professional bodies to cover the expenses of the authority and the disciplinary tribunal needs to be reconsidered. The purpose behind the levy is to reduce the annual fees paid by solicitors and barristers to their respective organisations. It is expected that a portion of those fees will be transferred by these organisations to the new authority. I do not believe this will happen. For it to happen one is relying on the goodwill of the organisations involved to reduce their fees. There is no provision in the Bill preventing the levy being passed on to clients. This area needs to be examined closely on Committee Stage.

There is also a perception that barristers are milking it and much of that comes from the tribunals of inquiry.

I know people who paid their way through college. They qualified but they are saddled with huge debts and they do not earn huge money. Allowing this perception to exist does a disservice to them.

I am concerned about the provisions relating to business structures in the Bill. The Minister stated they will enhance competition but I have doubts about that. The arguments in regard to the proposals for forming multidisciplinary practices and legal partnerships will damage competition and accessibility to the legal system. There is no doubt there is room for improvement but the way the Government is approaching this seems like a knee-jerk reaction. The Government parties felt they had to tackle this and this was how to do that. I do not know how much thought went into the process. I am concerned that changing the current arrangements could prevent people from accessing specialists legal advice such as that relating to conveyancing and tax matters. While I acknowledge that the Bill does not compel a barrister or solicitor to form a partnership or be part of a multidiscplinary practice, anything that creates a situation where barristers, in particular, feel they are being herded into specialist areas is a retrograde step. If this happens, it will have knock-on consequences for solicitors.

The Government would do well to remember that this legislation is not about creating giant practices similar to supermarket chains. We have witnessed the damage that has done. I have no interest in supporting a Bill or a proposal that will create the legal services equivalent of a giant Tesco, Dunnes Stores or Sainsbury's a mile out of town which puts the local greengrocer out of business. This has to be the potential to do that. A person may not be able to engage the practitioner of his or her choice because the practitioner may be contractually obliged not to provide services for anyone outside the partnership.

I welcome some provisions in the Bill but there are others I cannot support. Sinn Féin will not support it in its current form. Many issues need clarification and amendment and other provisions need to be inserted in the legislation before we get to the stage where we feel comfortable giving it our support. We have an opportunity before Committee Stage to address many of these issues and I hope the Minister is sincere about being open to listening to concerns and taking on board constructive amendments to see if we can arrive at a position where we can all agree that what is proposed in the legislation to reduce legal costs and making the legal service authority more independent can be achieved by consensus.

I am only in the House nine months and up to 90% of the legislation put through the House has been guillotined. I have tabled amendments to Bills and when Committee Stage was taken, I did not have the opportunity to debate them in full. If I then tabled them on Report Stage, I did not have an opportunity to debate or vote on them. With a Bill of this nature, which will have far-reaching consequences and which is so important, will the Minister ensure no guillotine is applied to the Bill on any Stage of its passage through the Dáil or the Seanad? If a guillotine is put on it, it will only add credibility to the argument the Minister is on a personal crusade to pass the legislation for his own reasons, although I do not believe that to be the case. I ask him to ensure in his discussion with the Chief Whip that this legislation is not guillotined and that every Member who wants to contribute, or to table amendments and have them discussed, has the opportunity to do so. I look forward to Committee Stage.

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