Catherine Murphy (Kildare North, Independent) | Oireachtas source

I move amendment No. 91:

In page 118, to delete lines 26 to 39, to delete page 119 and in page 120, to delete lines 1 to 4 and substitute the following:"151. (1) The Authority may, with the consent of the Minister, make regulations in relation to commercial communications by providers of legal services in a regulated profession that relate to—

(a) the independence, dignity and integrity of the profession, and

(b) professional secrecy,

in a matter consistent with the specific nature of the profession.

(2) Without prejudice to the generality of subsection (1), regulations made under that subsection or any professional code—

(a) may not make rules in relation to commercial communications by providers of a legal service in a regulated profession unless the rules—

(i) are non-discriminatory, and

(ii) are justified by an overriding reason relating to the public interest, and

(iii) are proportionate,

(b) may not impose any total prohibitions on the use of any form of commercial communications by providers of a legal service in a regulated profession,

(c) may provide for the manner in which the Authority is to determine whether any particular commercial communication by a provider of a legal service in a regulated profession is in contravention of any provision of, or regulations under, this section.

(3) A provider of legal services in a regulated profession shall not publish or cause to be published commercial communications which do not comply with regulations under subsection (1).

(4) No professional code shall operate to prevent a group of practising barristers, who share a facility, premises or cost of practice, from advertising themselves as such a group."

This amendment proposes to remove the ban on making unsolicited approaches to people, as provided for in section 151(2)(d) of the original Bill. It is, in effect, a ban on advertising services in certain circumstances. The European Court of Justice found in the Grand Chamber hearing of case C-119/09 that such a ban is unlawful. The relevant extract from paragraph 38 of the judgment states:

It follows from those elements that canvassing constitutes a form of communication of information intended to seek new clients. However, as the Commission maintains, canvassing involves personal contact between the provider and a potential client, in order to offer the latter services. It can, therefore, be classified as direct marketing. Consequently, canvassing comes within the concept of 'commercial communication', within the meaning of Articles 4(12) and 24 of Directive 2006/123.

I understand the State is in violation of the EU services directive in this matter. I hope the Minister will be minded to accept this amendment for that reason. In light of the potential for legal cases, it is important for this amendment to be accepted to ensure we are indemnified into the future. If one looks at the relevant graph, one will see how many advertising infringements are being pursued at the moment and one will appreciate that this has become a much more urgent issue.

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