Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move amendment No. 2:

In page 10, between lines 25 and 26, to insert the following:“ “legal advice” means any oral or written advice—

(a) on the application of the law (whether the law of the State, another state or the European Union, international law, or a combination of these) to any particular circumstances that have arisen or may arise in relation to a person, and

(b) as to any actions that might appropriately be taken by or on behalf of a person (whether the person referred to in paragraph (a) or another person) having regard to the application of the law to those circumstances,

but does not include an opinion on the application of the law provided by a person to another person in the course of—

(i) lecturing in or teaching an area of the law, as part of a course of education or training,

(ii) writing or editing a book, report or article, or

(iii) carrying out research in an area of the law, for the purpose of enhancing the other person’s knowledge of the area concerned;”.

Government amendments Nos. 2 to 6, inclusive, provide for the definitions of "legal advice", "practising barrister" and "qualified barrister", which are, like most of the definitions under this Bill, inextricably linked in defining the scope of the new regulatory regime and should not be read in isolation. Together they converge by way of defining the scope of the Bill. This is an objective we must achieve in a manner that is not so broad as to bluntly implicate anyone who has a legal qualification or a barrister at law degree, or so narrow as to omit persons who are offering legal services and need to be regulated and held accountable for reasons of public interest, or those who might be qualified but seek to avoid regulation by passive or more creative means.

While this is the first time we are regulating barristers under statute in this jurisdiction, other common law countries have similarly sought to define the legal professions and the parameters of the provision of legal services for regulatory purposes. In the development of our definitions in a way that best suits the needs of regulation in this country, we have examined those similar measures that have emerged in jurisdictions such as those of the UK, Australia, New Zealand, the USA and Canada.

Amendment No. 2 is a new provision which sets out the parameters of what is to be considered “legal advice” for the purposes of the Bill. This is important in ensuring that there is clarity about what type of legal advice is covered by the Bill, whether it be provided by a solicitor or barrister or in a partnership setting. At the same time, the definition excludes certain ancillary areas of legal advice provided, for example, in the context of lecturing or teaching; writing or editing a book, report or article; or carrying out research for the enhancement of knowledge. This definition is among those, including "legal services" and "qualified barrister", contained in this Part of the Bill which have now been carefully crafted to ensure that any person who is a qualified legal practitioner, be that a solicitor or a barrister, or offers legal services such as the drafting of legal documents, advocacy or litigation will be subject to regulation under the Bill.

The proposed amendments relating to legal services clarify that these are services provided by a person, whether as a solicitor or a barrister. Again, this is an important baseline for the governance of the provision of legal services under the Bill which covers both professions. This is obviously one of those areas that we will have to ensure is carefully monitored in the progression of the Bill to enactment. For example, it would be an essential demarcation where lawyers are providing legal services alongside non-lawyers providing other services in a multidisciplinary partnership.

The amendment providing for a new definition of "practising barrister" again reminds us that the governance of the barristers' profession has not been the subject of legislation up to now, unlike the solicitors’ profession which has been subject to the Solicitors Acts. This amendment offers to replace the existing definition in the Bill. In so doing, it seeks to further clarify what constitutes a practising barrister under the Bill and is, understandably, predicated on the related definition of what is a qualified barrister. I will refer to that one in due course.

I have already outlined in the previous grouping the two types of code that will be comprehended by the Bill. For technical reasons, the definition of "professional code" sits with this grouping. Suffice it to say that the existing definition in the Bill is too narrow as it does not encompass everything that would normally be taken into account in deciding what might constitute appropriate or inappropriate behaviour by a lawyer. The revised definition seeks to remedy that shortcoming and, therefore, replaces the earlier definition of "professional code" with one that is sufficient to give the legal services regulatory authority the scope it requires to set and improve standards in the provision of legal services or to discipline a legal practitioner where this is found, under the relevant procedures, to be necessary.

Returning to barristers, currently there are a number of different types of practitioner who consider themselves to be providing the services of a barrister. Some of these are members of the Law Library, thereby coming under the aegis of the Bar Council, while others, even though they might be called to the Bar, do not choose to work from the Law Library. By means of this amendment and other related definitions, it is intended to comprehend those who are considered to be qualified barristers and who practise or hold themselves out to do so. Under the Bill, therefore, in addition to those barristers who operate under the Law Library-Bar Council framework, those who operate outside it and meet the requirements of the Bill will also be regulated. At the same time, this provides an alternative to the more traditional Law Library model which had been considered, in competition terms, to be restrictive and conducive to market concentration in the provision of legal services.

I should remind Deputies at this point that the Bill makes it an offence to practice as a barrister outside the stated parameters. This will place the profession of barrister on a similar footing to that which already applies to solicitors under the Solicitors Acts, where a statutory offence is similarly in place. Again, in the amendment providing for a definition of "qualified barrister", we are comprehending those duly qualified barristers who provide legal services to the public, whether that be within the traditional Law Library model or outside it. At the same time, the proposed text excludes certain persons from so acting - for example, a person who has been struck off or disbarred.

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