Alex White (Dublin South, Labour)

I welcome the opportunity to contribute to this debate on the reform of legal services. This is important legislation and I share the concerns Deputy Ó Snodaigh expressed in regard to how the Bill was brought forward. I will come back to its contents in a moment but it is unfortunate - it is certainly not the Government's or the Minister's fault - that the Bill came before us rather quickly last October but there is a provision in the EU-IMF memorandum of understanding requiring reforms to be brought forward and the Bill had to be published by a particular date. That was probably the reason there was not the kind of advanced discussion, consultation and debate which Deputy Ó Snodaigh rightly said would be appropriate in the case of such fundamental reform as is contemplated, or proposed to be introduced, in this legislation. The necessity for reform and modernisation right across the board is well understood and the point is well taken. However, when one sets out to reform the provision of legal services there are many questions that enter into the equation and there are many issues on the agenda. The competition agenda is often canvassed as an important one, and I would not for a moment say that it is not relevant or important. The term "the public interest" is often bandied about and people sometimes have different interpretations of it. Very often people put a political spin on it - what they regard as being in the public interest politically. Nonetheless, we have a broad understanding of what we mean as politicians and legislators about what is right and appropriate in terms of providing, for example, legal services in the public interest. Reform and modernisation are therefore essential.

There must be proper debate and consultation, and not just with the professions. The professions are well represented and have opportunities to bring their views into the public arena and it is correct that they should do so. Consumers of legal services are citizens who depend on the legal profession and the courts to vindicate and defend their rights in disputes, and sometimes in highly controversial circumstances. In debating this legislation, we are principally directing our attention to the citizens. I know that is the perspective of the Minister and the Government also. We need to listen carefully to what the professions have to say but we must legislate in the public interest, which requires a broad view to be taken, rather than one in favour of a profession or vested interest.

I have believed for years that there was a need to reform legal services. I have worked in the legal profession for almost 20 years and have had a reasonable opportunity to view how it works, or does not. As a practising lawyer and a member of the Bar, I have been disappointed by the slowness of reform and an unwillingness on the part of the professions to embrace or promote change. This has led to a situation whereby people feel they are victims of change instead of taking the opportunity, when it is there, to advance proposals for change to the way things are done in their own professions. The Minister himself has been a practitioner. Practitioners are there on a daily basis and can understand the requirements and drawbacks, as well as seeing where the gaps are.

The profession I know best is the Bar because that is the area in which I have been involved. There has been a failure and a lamentable lethargy concerning the need for reform. We need to address the question of equity within the legal professions, and in particular the distribution of work at the Bar. So much work - I am not saying all - finds its way to a relatively small number of practitioners. They are excellent practitioners - there is no question about that - but the Bar itself has been slow in bringing forward proposals to better facilitate younger barristers coming into the profession, people who are willing and well able to work. That has not been done but it is an area that should have been addressed and still requires to be addressed. People have been slow to embrace that.

The tone of the debate in recent months has been unfortunate as there has been overstatement on the part of the professions as to the implications of some of the Bill's proposals. With respect, there has also been overreaction to that overstatement. A change of tone in the debate is required in the coming weeks and months when decisions will have to be made regarding the final content of the legislation. I can understand why the reaction may be rhetorical when barristers or solicitors make a certain point because they are trying to protect their vested interests. Many things are said, including that they are trying to stay in the 19th century and are a cabal. It is possible that when the profession's representatives come forward with ideas, even critical ones, they are doing so for reasons other than to protect their self interest. We must be careful about that and alive to the possibility that people are simply being defensive.

On the other side of the equation, we must not throw the baby out with the bath water by stating that because people might be motivated by self interest, we must completely reject what they say. I am not suggesting that is what the Minister proposes to do, but we need to lower the temperature of this tense debate. We should all sit down to look at these issues and come to the best possible outcome not for any one interest group, but for the citizens we represent.

The independence of the legal profession has been the most debated question in this regard. I do not need to dwell on it, however, because everybody agrees that it is important. Everybody accepts - how could they not - that the independence of the legal profession is vital in any democracy. It is actually a test of the strength of a democracy. Examples are sometimes given of the impecunious litigant who appears in court to challenge the State on a difficult area of law. The litigant requires to be represented by an absolutely fearless advocate, somebody who is never concerned by any attempt to trample on his or her independence. Such an advocate should be absolutely fearless before any court and should not have any concern about repercussions, either from the Government or elsewhere.

As well as being a test of democracy, it is also a big part of the rule of law. We talk a lot about the economic concerns and how the economy, and this country, are viewed abroad. This issue is also related to economic rights and the view of Ireland abroad. Prospective foreign investors need to understand and appreciate that we have a fully independent legal profession that is beholden to no one, be it the Government or others. It is therefore absolutely vital that this independence should be protected.

It is not a formalistic matter. I have heard people say: "Look, sure there's nothing in the Bill that, on the face of it, undermines the independence of an individual practitioner. Nowhere in the Bill will you find any provision that tramples in any way on his or her independence." It is a bigger issue than that, however. One must analyse the authority, for example. The method of appointing the authority is essential to ensure the independence of the profession. The question of how the membership of the authority is appointed is not an incidental issue and nor should it be taken as a criticism. I do not believe there is any place for criticism of the Minister or the Government in regard to it. It has to do with the manner in which people perceive that authority. They need to understand and appreciate that it is entirely at arm's length from the Government and that it is independent not just in the operation of its functions, which one would assume, but in every way. There should be no sense on the part of any authority members that it is beholden to the Government. There is no intention on the Government's part to make it so.

I am often struck by the analogy of the newspaper proprietor and the editor. How many times have we suspected that newspapers are following the diktats of a proprietor? One hears editors on television saying: "I've never spoken to the proprietor of this newspaper. He has never picked up the phone to me, and I've no idea what his views are. He's never sought to communicate his views to me." That does not answer the question, however, because if the newspaper editor and others working there believe their positions, even in remote circumstances, could be under threat - in this case, for example, authority members believing that their survival was dependent on the goodwill of the Minister of the day - that is not good. Those circumstances should not be allowed to obtain.

The Minister is open to amendments on the means of appointment to the authority. It is necessary to amend the provision. There are many ideas on how this can be achieved. Other professions, including the medical profession, have a good statutory regime for the appointment of the independent regulator in their cases. These are the parallels we should be looking at.

See this speech in context