Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I welcome the amendments the Minister has proposed and I note what she has said in her opening comments. It is important to put on the record of the House that there has been substantial engagement with the two professional bodies as well as with others in the context of this Bill and this has led to a substantial number of amendments being made on Committee Stage. This is an important point because I note that many of the contributions of Members opposite tend to be based on their briefings by the Bar Council and the Law Society. There is nothing wrong with that. It is perfectly correct that the views of the two professional bodies be taken account of. It is perfectly correct for them to have an input into ensuring that we have, at the end of the day, effective and good legislation which achieves its objectives. However, there is a risk of our focusing too much on the vested interests and ignoring the public interest. The public interest requires substantial reforms in this area. The public interest is on occasion not in accord with the cases made by the vested interest groups. As a practising lawyer I have been well aware of this over the years. There have been suggestions made in some quarters that I have some animus, in some shape or form, to the Bar Council, for example. Of course I do not; that is nonsense. The Bar Council operates under the motto nolumus mutari, that is, no change or nothing should ever change. I can recall in this House the considerable resistance to the possible appointment of solicitors to the High Court and Supreme Court. It was predicted that civilisation as we know it would collapse. A rearguard action was fought against that reform. Yet, it has been in place for many years and the administration of justice has continued.

Following the Minister's opening comments I wish to make the point that there must be consultation. It is a difficult issue. However, in the context of the public interest, reducing legal costs, providing greater competition, providing for the public greater access to legal assistance and providing new business mechanisms to allow Irish legal practitioners to compete internally and externally, there are vital reforms in this legislation to which there is resilient opposition, in particular from the Bar Council.

I note that following recent changes there has been some suggestion that we are now in a new era of relationships with the Bar Council. I and my officials had an amount of engagement with the Bar and with great regularity we briefed the Bar Council on the reforms.

However, if these reforms are to be implemented, backbone is required to stand up to vested interests. I have a concern - I do not expect we will reach it today - about the first sign of the Bar Council contaminating the provisions of the Bill and undermining reforms or amendments, in particular amendment No. 48. One could debate whether amendment No. 47 was required also but particularly amendment No. 48 which deals with a public interest issue. We will come to it at a later stage.

Before the Leas-Cheann Comhairle rules me out of order, I wish to deal specifically with the code of practice and code of conduct issues. There are, as the Minister properly said, different provisions in place that apply both to the solicitors' profession and the Bar in respect of codes of practice and codes of conduct, or whatever one may wish to refer to them as. It is clear from my work in this area that the codes are deficient. I do not want to take up the time of the House today by going into areas the legal services regulatory authority may address when it is put in place in the context of codes of practice, but it is important to draw attention to some provisions - I am using this as an example - in the code of conduct for the Bar Council of Ireland which was adopted on 25 July 2011 and contains a number of key provisions. I want to illustrate briefly some of the numbers and then the gap. That is why the amendments the Minister is tabling are important.

It is important that, where codes of conduct or codes of practice of the professional bodies are deficient, this issue can be addressed by the legal services regulatory authority. For example, in the context of the code of conduct I have mentioned - I do not want to go on at great length about this - it effectively provides for barristers a code of conduct largely focused on their engagement in court proceedings, their representing of individuals before the courts and giving advice. In that context, there are a number of key provisions, one of which - I intend only to refer to about four - is the duty to be independent and free from influence, especially such as may arise from their personal interests, or external pressure in the discharge of professional duties. They have a duty to ensure that, in the context of their legal practice, barristers shall at all times uphold the standards set out in the code of conduct and the dignity and high standing of the profession and their standing as members. That is all of what I describe as general application.

There is also a particular provision in the code of conduct that applies particularly to court cases which states barristers may be justified in refusing to accept instructions where a conflict of interest arises or is likely to arise or where they possess relevant or confidential information or where there are other special circumstances. The only point I want to make and the reason for raising it is that the code of conduct, as one goes through it - I do not want to detain Members of the House - is, as I said, primarily about court proceedings and court actions and giving individuals, as appropriate, advice about their individual circumstances, but curiously it does not deal with something else, or, if it does, I have not been able to identify where. Whereas the code of conduct elaborately deals with court issues, it does not deal with, although I presume it is implicit in it, the conduct of barristers when they are asked to conduct inquiries into matters where court proceedings are not involved. I expect it is implicit that, where there is a conflict of interest, a barrister should not take instructions to conduct an inquiry into a particular matter. I presume this is understood. Where there is a conflict of interest, there are elaborate laws that state anyone who cannot just be subjectively unbiased, but also where there could be the appearance of bias should not adjudicate on matters. That applies, of course, to members of the Judiciary and administrative tribunals. It is my understanding that it applies to statutory and non-statutory inquiries conducted by judges and barristers.

Why am I raising this issue? Because of the number of occasions on which people are requested to engage in the conduct of inquiries, it is important that the code of conduct set out very clearly what the obligations are in that context. I am very conscious that, in the context of representations received during my time in the Department on the legal services Bill, one of the most active groups within the Bar in making representations on the Bill, through the chairman of the Bar Council - I recall one member of this committee being present at meetings I held in the Department - was the professional practice committee. It was absolutely clear that members of the professional practice committee were resolutely opposed to practically all of the reforms contained in the Bill that would impact on the Bar. They were not happy with the idea that disciplinary matters would be dealt with by an independent legal services authority. They are certainly not happy with multidisciplinary practices. They are not happy with the idea that one might have barrister partnerships. There is a specific provision in the code of conduct relating to the Bar that, for example, prohibits a barrister from operating out of an office within a firm of solicitors. The vision of the Bill of providing alternative business structures for delivering legal services is one to which members of the professional practice committee are opposed.

My concern about all of this derives from the fact that I find it extraordinary that a member of the professional practice committee should have taken it upon himself to pronounce judgment in the Guerin report, something that has affected me personally. It is something I am concerned should not happen in the future because I do not think it is compatible with an objective review or inquiry into any matter that an individual who is opposed to legislation that a Minister is processing through the House be placed in a position in which he effectively make a pronouncement. Even if there is no subjective bias - I am not suggesting there is - there is the appearance of it and a conflict of interest of a nature that should have resulted in Mr. Guerin concluding it was inappropriate for him to take that position.

It is important in the context of the codes of conduct that the codes that apply cover all issues where there could be conflicts of interest and where, in the context of members of either profession, there are provisions in place which could act as a barrier to the objectives of the Bill being complied with. This is a public interest issue and it is important, given all of the lobbying that takes place behind the scenes and some of the commentary engaged in by some of those with a vested interest, which diverges substantially from dealing with the technicality of the Bill and heads towards being of a personalised nature, that Members of the House stand back from it and look at the public interest. The public interest lies in greater competition for legal services, alternative business structures through which they can be provided and which are being developed in various other countries and ensuring, regarding those who have a vested interest in maintaining the legal profession in the architecture we inherited in 1922 and who resist any reform or change, it is always remembered. It is not. I appreciate that there is a desire to avoid controversy and that there may be a desire to ensure criticisms are not publicly voiced.

I am well aware that in the past six weeks or so the Bar Council, in particular, has gone into overdrive to turn the clock back to 2011 and to try to effectively oppose every substantial reforming measure that could change the manner in which barristers undertake their work.

I know there are senior members of the Bar who go to any length to achieve that objective. I also know that among the junior members of the Bar there are many individuals supportive of this reform, but because of the nature of the Bar and the fact that they do not want to be on the wrong side of their seniors, they will not put their head above the parapet and say so. However, they would say this is a public interest issue, and if it comes to a question of vested interests or the public interest, it is of crucial importance that we stand by the public interest.

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