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

I would like to start off by saying I am delighted that the Bill is back in the Dáil from the Seanad. I want to say that a large number of amendments being incorporated in the Bill were envisaged in my time as Minister. I am delighted they are in it. A vast amount of work was undertaken on the Bill during my time and has been undertaken during the current Minister's time to get to the spot we are in now.

This Bill was published with enormous haste in early autumn 2011 because of the pressures the Government was under from the troika to publish legislation to address the need for reform in the area of legal services and to address issues and anti-competitive practices. It was always intended and understood that there would be a detailed engagement and consultative process and that the Bill would be developed. There was substantial development during my time and there has been further development during the time of the current Minister, Deputy Fitzgerald. I want to be absolutely clear that I welcome the very many amendments to the Bill which will ensure that it should work properly. The objectives set out for the legislation should be substantially fulfilled.

I am conscious that the amendments before the House deal with a broad range of parts of the Bill and I have no wish to speak at undue length. However, I believe it is important to note where we were in 2011. We were in a place where none of the reforms contained in this Bill were on the agenda. We were in a place where the two representative bodies of the legal profession were going to retain powers to deal with complaints and disciplinary matters. There was to be no legal services regulatory authority and no oversight of the nature provided here. There was to be no new legal costs adjudicatory process. Moreover, there were none of the other reforms contained in the Bill. The legislation then under consideration simply provided for the creation of a legal services ombudsman to deal with complaints that arose from clients of the legal profession if the professions were not properly dealing internally with issues.

It is noteworthy that during the course of Committee Stage, which I have detailed memory of, the Deputies opposite substantially tabled amendments so as to retain the 2011 status quo. That was the main objective. I believe this is an important reform in our legal system. To a great extent it is dragging the legal professions and our legal system out of the 19th century into the 21st century. It should be of great assistance and benefit to the individuals that we must focus on, in particular, the public and those who need legal services. However, I also believe it will ultimately prove to be to the benefit of both solicitors and barristers in ensuring greater transparency in the addressing of issues and by removing some of the blockages that exist in the provision of legal services by them.

I wish to focus in particular on one set of amendments before the House today. One of the objectives of the legislation was to end anti-competitive practices that had built up over the years in the manner in which our legal professions on this island developed. The anti-competitive practices applied to both wings of the profession, but to a greater extent to the Bar than solicitors. The objective of the legislation was not, as some within the legal profession perceived it, to do anyone down. The objective was to enact legislation that was in the public interest and which would ensure that qualified lawyers could provide legal services through myriad business models. That was the objective. The business models we have at present allow for solicitors to operate as sole traders or as partners, while barristers essentially operate as sole traders. However, what barristers do is a little more complicated, because if anyone wishes to be represented in the higher courts by a senior counsel, the senior counsel will always require a junior counsel. Frequently, a senior counsel will ask for a second senior counsel. It is not as if barristers do not act in co-operation with other members of the Bar. In fact, they do. Depending on the complexity of litigation or advice sought, it can be very much in the interests of a client that he is represented by more than one lawyer. Of course we know that in the advocacy area a more frequent approach is for a solicitor to deal with many of the behind the scenes and background work while one or more barristers will represent the client in court and engage in advocacy, cross examination, questioning of witnesses and the making of legal submissions.

At present solicitors can do everything barristers can do. They do all of the administrative and background work - the usual work that solicitors do. In addition, thanks to the former Deputy, Dessie O'Malley, who was Minister for Justice in 1971, solicitors can act as advocates in every branch of our courts. A solicitor who is a sole trader or a partner in a firm can be an advocate in the High Court, Supreme Court or the European Court of Justice if he chooses.

I have a distinct recollection in 1971 that the Bar library predicted that the heavens would fall in if solicitors were allowed to act as advocates in the higher courts. Over the years, some solicitors have done so - I happen to be one of those who did. However, many who choose to be solicitors do so because they do not want to act as advocates, or, if they do, then only in the lower courts.

Then in 1994 or 1995 there was a Courts Act in this Chamber brought in by the then Minister, Ms Nora Owen. I sought to amend that legislation to allow solicitors to be appointed as judges in the higher courts. The Bar Council predicted that if solicitors were appointed in the higher courts, the heavens would fall in and justice would collapse. Moreover, because those involved thought the Law Society had put me up to proposing that - it had not - they then fell out with the Law Society for two years and would not talk to them. That particular political dilemma was dealt with by a committee being formed. Four years later, the committee recommended that solicitors should be appointed to the higher courts. Since then, legislation was enacted and the heavens have not fallen in.

In 1989, the Judicial Separation and Family Law Reform Act was passed. It allowed or permitted barristers not to wear wigs in family cases. Some members of the Bar library thought the heavens would fall in if they were not wearing wigs. Surprisingly, that worked out okay. Then we had legislation which gave it as an option to all members of the Bar, regardless of what cases they were dealing with, not to wear wigs. Happily, by then the move created less excitement than previous reforms.

I appreciate the position the Minister finds herself in. Again, I have no wish to be misunderstood. Outside this House people are making a federal case of this. Fully 85% of the reforms I set out to achieve are going to be achieved in this Bill.

My only objective in seeking to achieve them as Minister was to benefit the public interest and consumers and provide better consumer protection, but also to provide other job opportunities for members of the legal profession who are well qualified to provide assistance to the general public when they require it. I am delighted 85% of what I set out to do is being achieved. My concern is that we are in trouble with the alternative business models for delivering legal services. I followed closely the amendments made in the Seanad. The Minister is correct in saying that the Bill still retains a possibility of legal partnerships. Legal partnerships between solicitors have been possible for donkeys' years; that is not the issue. Under the Bill, a legal partnership is a partnership between barristers and solicitors or between barristers. In England there is a chambers operation, whereby barristers operate out of chambers. In other parts of the world there is no particular difficulty with lawyers acting as partners. The Bill envisages the possibility of partnerships between solicitors and barristers. Why would that benefit a client? It would mean that a client who seeks legal assistance may be able to access a barrister more quickly. There would be less duplication of work. He or she would deal with one entity, a particular partnership firm that can deal with all aspects of his or her legal case. It will be speedier. The client will not be waiting, having met with his or her solicitor, for the solicitor to send written instructions to the Bar library and then waiting for weeks for some opinion to come back before he or she can go on to have a meeting with a barrister in which everything that was told to the solicitor must be repeated. It will avoid duplication. That type of legal partnership should reduce legal costs for consumers as well as allowing for a more efficient means of providing legal services.

I refer to barrister partnerships. At the moment, barristers substantially operate out of the Law Library. As the Minister rightly said, about 100 barristers are not members of the Bar. Some of them operate out of offices around the country. The restrictive practices of the Bar mean that barristers who are not members of the Bar are not even allowed to advertise the fact that they are operating out of offices somewhere outside Dublin. They cannot pool their income. They can certainly share the payment of rent, but they cannot actually operate as partners at the current time because they would be in trouble with the Bar Council. The legislation sought to ensure that there would be no barrier to the creation of legal partnerships between barristers or between barristers and solicitors. This would offer alternative business models through which legal services could be delivered. In doing so, the Bill contained the provision the Minister mentioned which, to put it in simple terms, would effectively outlaw any code of practice within either profession that would prevent the creation of these new legal partnerships and their operation. The same provisions are relevant to multidisciplinary practices.

Before I get on to multidisciplinary practices, I welcome the fact that the Minister, having amended the Bill in the Seanad, is now amending it again. It is quite clear in the Bill that there is a reasonable prospect, once it is enacted, of legal partnerships between barristers or between barristers and solicitors coming into operation within 12 months. That is only a possibility. It may be that some barristers who are not members of the Bar library may enter into those arrangements, but the overwhelming majority of barristers are members of the Bar library, and the code of practice that is in place prevents them from entering into these sorts of partnership. The original legislation sought to outlaw a code of practice which inhibited the creation of these legal partnerships. This is a genuine and real problem. The idea was to ensure that the approach of the Bar or the solicitors' profession did not act as a barrier to these new business models.

The Minister has received certain advices, on which I am going to comment in the moment, but they are of equal relevance to multidisciplinary practices. In the area of multidisciplinary practices, I am particularly disappointed that the provisions contained in the Bill that sought to guarantee that within a specified time - I recollect it was approximately 12 months after enactment - multidisciplinary practices would become a possibility have been removed. The 12-month period was intended to allow for the making of relevant codes of practice and for addressing any issues that arise uniquely in regard to multidisciplinary practices. The reason for the provision of such a period was that in the Solicitors (Amendment) Act 1994 there was a section that envisaged the creation of multidisciplinary practices, which was to be brought into force by way of a ministerial order, but it never was.

Multidisciplinary practices exist in some other jurisdictions. They are not that complex an animal. A group of lawyers who want to practice in the business area can operate with solicitors alone or with solicitors and barristers together, and can include within their business model, for example, an accountant or somebody who is experienced in forensic accountancy. This is not a thing of great complexity and it genuinely should not be. It is being made to look more complex than it is.

In so far as people are shouting that this could interfere with the independence of the legal profession, of course it does not, because under this Bill lawyers have an express obligation, from day one, to act independently and properly advise their clients. Of course in major cases of a commercial nature or of a family law nature in our courts, lawyers have absolutely no difficulty in the world in working with accountants, forensic accountants and others. Indeed, the model in particular firms often means that they regularly consult with the same firm of accountants. A particular accountant can almost become an unofficial leg of a particular firm.

There is no logical reason for not having multidisciplinary practices, which provide a sort of one-stop shop for the benefit of consumers and for the provision of a comprehensive service. It is not just relevant in the business area; it would also be relevant in an area that I am very familiar with - that is, family law. A family law practice might have within it an experienced mediator and a family counsellor, and could provide assistance to a client who is very stressed in the course of dealing with a family difficulty. These are not big, threatening legal entities. This is about allowing people to provide legal services through a different model, to the benefit of whom? The public and the consumer. That is what all of this is about.

I do regret that the timeframe stated in the Bill for the existence of multidisciplinary practices has been removed. I do not think, frankly, it would have mattered if the 12-month period became 18 months or even, if the Minister felt it required more time, two years. There needs to be an inevitability that it will happen, because this model is working elsewhere. Contrary to the perception that has been given, there was an amount of research and consultation that I personally engaged in, as well as some of my officials, in the context of what we originally proposed.

In regard to multidisciplinary practices, the same provision is in the Bill as originally published - that is, it prohibited any body such as the Law Society or the Bar Council from doing anything that would act as a barrier to individuals' participation in such a practice. In so far as a code of conduct outlawed, in some shape or form, a barrister from participating in a multidisciplinary practice, that would cease to have any effect.

What is the effect of these codes of practice? The effect of the code of practice in the context of the Bar is that a barrister who is a member of the Bar library can be excluded from it or effectively excommunicated from the Bar library. The problem with the Bill is that we are going to have the possibility of legal partnerships, but only a small minority of barristers will be free to enter into them. Every other member of the Bar who is also a member of the Bar library will be under the threat of excommunication from the Bar library if they dare to participate in a legal partnership.

We have a possibility that some Minister, at some stage in the future, might bring into force multidisciplinary practices and allow for them to occur. Again, the same pertains. Any member of the Bar library who wants to enter into a multidisciplinary practice is at risk of being excluded from the Bar library under its code of practice. I think this is a huge problem. It is allowing restrictive practices that inhibit people from earning a livelihood and providing a service through a different business model.

I want to ask the Minister a specific question in regard to barrister employees. There are a large number of barristers, particularly young barristers, who can barely earn a crust. They are well qualified and very bright. Some of them do not get work because they do not have relations in the legal profession. Much of the work they get is dependent on the goodwill of their seniors in the Bar library or whomever they can connect with.

I am pleased the Minister has retained in the Bill a provision that allows barristers who are employed in firms to represent their clients in court, but it may well be that the barrister who wants to do this is employed in a firm involved in a very complex legal action, and that barrister may have a great deal of expertise in that area, but what will be the position if that barrister wants to appear in court and is of the view that this is a particularly complex case that requires the assistance of some other member of the Bar library? The barrister might want to bring in a senior counsel who has some particular expertise. Will the Bar code of practice prevent a situation being created in which the barrister employee acts jointly as advocate with a barrister from the Bar library?

I appreciate in relation to legal partnerships and multidisciplinary practices that there is a provision in the legislation that says, and I am paraphrasing, that codes of practice cannot prevent - I think this is the intention - a member of the Bar from taking instructions to represent someone who is initially represented by a legal partnership or a multidisciplinary practice. I am not clear, and perhaps the Minister will clarify this amidst all the amendments we have, what the position will be should a barrister employee who wants to act as advocate want the assistance of another barrister from the Bar library in so acting?

Among the Bar's restrictive practices that are going to be allowed to continue for its members is that while we could have as many barristers acting as advocates on behalf of a client in a court as was deemed necessary, there was a Bar perspective that disapproved of what is known as "mixed doubles", which is a solicitor and barrister jointly acting as an advocate in a court. At a time when there is a great deal of legal expertise in niche areas, there is often a discrete number of lawyers with expertise in a particular area and there may well be a case in which a solicitor and barrister should jointly act as advocates. They may not want to form partnerships. It might be a once off. It seemed to me that the legislation as originally drafted prevented difficulties being created around that. I do not know where that stands at the moment.

I have an abiding memory from a number of years ago. There is this perspective on the part of some members of the Law Library that I have some hostility towards them, which is completely insane because my own law firm for donkey's years has worked with, and instructed, a multitude of barristers and I have worked with many barristers. We have some fantastic lawyers in the Bar library who do a phenomenal job. I know they get criticised for various reasons, but I am not one of those who has a negative view. We have extraordinarily good solicitors and extraordinarily good barristers. We are very lucky as a country to have a group of very good and talented lawyers, but some of the rules under which they operate are antiquated and peculiar, and I have a distinct recollection of being in a circumstance in a very complex case in which I was the solicitor and we brought in counsel. There was an area relevant to the case in which I had greater expertise than counsel and because it was not the done thing that counsel would make submissions jointly with a solicitor, we contrived a circumstance many years ago. The very erudite and well respected counsel made submissions to the court on areas of the case in which he had the expertise, knowing the case would follow into the following day. The next day he advised the judge he was not available and I had to complete submissions in the area in which I had expertise. He could not get into trouble with the Bar Council for just sitting down in court while a mere solicitor made submissions. This is crazy stuff. Are we still going to be in this space after this reform has been enacted?

I want to come back briefly to a couple of additional things I want to say to the Minister. It is a mistake to have removed the provision in the legislation which allows the professional bodies to maintain a code of practice which especially will enable the Bar Council to penalise any member who dares participate in a legal partnership or who dares participate in a multidisciplinary practice. The legal advice is based on the Article of the Constitution which deals with freedom of association. The Article is very clear on the right of citizens to form associations and unions. It recognises the right of citizens to form associations and unions so I presume the Bar Council is saying it has the right of association, which of course it has and why should it not?

This right, however, is limited. It is delimited in the following way: "laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right". Article 40.6.2° of the Constitution goes on to say, "laws regulating the manner in which the right of forming associations and unions and the right of free assembly may be exercised shall contain no political, religious or class discrimination". There is no political, religious or class discrimination in simply saying the codes of practice should not act as a barrier to individuals providing legal services through different legal models. These legal models exist in other countries. There are advocates, people who are solely advocates in courts, in a myriad of other countries where we do not have the division of the profession between solicitors and barristers, who work in partnerships, who do so in the interests of their clients, who act independently and who properly represent their clients.

The public interest is such in the area of removing anti-competitive practices that there may well be a case to be made under this Article, but there is no certainty of any description that case would succeed. Indeed, if the legislation were to be challenged in the context of this issue, well so be it, it would be challenging two or three particular sections in the Act. It would not be to the detriment of the entirety of the legislation. It has to be remembered one of the undeclared rights in the Constitution, articulated by the courts, is the right to earn a livelihood. I believe members of the legal profession, be they solicitors or barristers, have a right to earn a livelihood through alternative business models to provide legal services to consumers in circumstances that benefit consumers, provide greater competition and reduce legal costs. My concern is that this change is unwarranted.

I have been reading in the media that it is not simply the advice of the Attorney General but that a threat was uttered by at least one of the representative bodies that if the legislation went through in the form it was in, which would set aside its code of practice, constitutional proceedings would be brought. During my time as Minister, a range of were threats uttered with regard to the processing of all this legislation. During my time as Minister, threats of other natures were uttered with regard to issues we were dealing with that affected either the Judiciary or the legal profession, because people were unhappy with change and reform. The Minister should tell the House which of the representative bodies threatened court proceedings. I do not think the threat of court proceedings should inhibit this reform. I think it is unfortunate we are in that space.

I have a simple view. When there is a conflict between public interest and vested interest, I favour the public interest. When there is a conflict between the rights of consumers and anti-competitive practices, I favour the rights of consumers. When there is a conflict between trying to contain legal costs or maintaining systems which ensure legal costs are maximised, I favour containing legal costs. There are judgments to be made in these areas when vested interest bodies flex their muscles, and I believe, unfortunately, we will have to return to this issue.

It is quite possible there might be some revolution within the professional bodies, particularly within the Bar where members demand the code of practice be changed, but the difficulty with that, especially for junior counsel, is that I am very conscious that members of the Bar library, particularly junior counsel, are very anxious not to upset their seniors. I received a myriad of communications from individuals who are members of the Bar, who are junior counsel, who were urging that this particular reform be implemented unchanged. They saw it as a possibility of ensuring not only that they could better provide legal services but also that some of them who are on the breadline would earn a reasonable living in doing so. It is very regrettable that this issue is being, to a degree, sidelined. I appreciate the position the Minister is in. She has received advice from the Attorney General. I do not want to be unsympathetic of that. I understand that.

However, the advice, as I understand it, is that these provisions may be challenged. To be clear, the advice is not that such a challenge will be successful but simply that there will be a challenge. When we began drawing up this legislation, we were told that if we established a legal services regulatory authority, it would be challenged. We were told there was no question of independent disciplinary tribunals, that such would impact on the independence of the legal profession and the latter should be self-regulating. There was an insinuation that the whole thing would be challenged. Most of the challenges have now fallen away.

There was a constructive and helpful engagement with both of the representative bodies in the development of this Bill during my time. I am sure that has continued under the Minister, Deputy Fitzgerald. However, one gets to a point where a choice must be made between the public interest and the vested interest in particular areas and where the consultative process will not take one any further. The problem with this legislation is that the general public does not necessarily see the detail of it and the benefits for citizens in some of the changes we are trying to introduce. It is the vested interests who most vigorously focus on the changes being made.

I very much welcome the progress of this legislation through the Oireachtas and look forward to its enactment before the end of the year. I hope much of what is contained in it comes into force rapidly. However, in the context of providing for the delivery of legal services through alternative business models, leaving codes of practice in place that inhibit practising lawyers from engaging in those legal models will leave reform stillborn in the area of multidisciplinary practices. In the area of legal partnerships, the only way we will see any substantial difference in the provision of legal services is if there is a rebellion within the Bar whereby its members insist their code of practice is changed or if we come back into this House with legislation at a later date to restore the provision which inhibits any representative body from engaging in efforts to prevent an individual from participating. Unfortunately, the Minister is incorrect when she says no under-the-radar action by professional bodies to prevent legal partnerships or multidisciplinary practices will be allowed. The fact is the inhibiting factors are not under the radar but clearly visible. It is the code of practice that will inhibit many barristers from participating in these models because they will be uncertain of the impact on their access to clients and on their relationships with colleagues.

The final problem is that there is, in fact, an under-the-radar barrier built into the legislation itself in the context of the make-up of the legal services regulatory authority, the disciplinary bodies and, indeed, the body that is being put in place to facilitate in the future, in a different way, the appointment of senior counsel, eligibility for which is being extended from barristers alone to solicitors and barristers. Some of the individuals on those bodies are lay people and represent a range of other bodies. When it comes to the legal profession, it is only the Law Society and the Bar Council that will be represented. King's Inns will have a representative on one of the bodies. The barrister who leaves the Bar library to enter into a new legal partnership will find he or she is not represented on the legal services regulatory authority, as I understand it. However, if there are disciplinary or complaints issues relating to that barrister, they will be dealt with by a mixture of lay people and representatives of a professional body which disapproves of what the barrister is doing. In the case of judicial appointments, the body that makes recommendations to Ministers is substantially composed of judges and representatives of the Bar Council and the Law Society, as well as three lay people. If a person who left the Bar library to participate in a legal partnership applies to be on the list of recommended individuals to be made a judge, will that person be ruled out simply because he or she has defied a code of practice? These are serious, under-the-radar factors that will inhibit well-qualified lawyers from participating in the new legal models. It is in the public interest that they participate. I understand from reports I have been reading that the Competition and Consumer Protection Commission is critical of these particular changes, which I welcome.

I very much welcome the fact that 85% of what I set out to achieve in this legislation will be achieved. I take this opportunity to thank the officials who worked with me when I was Minister, and who, no doubt, are working with the Minister, Deputy Fitzgerald, to fine tune the legislation. I agree with the Minister on the issue of limited liability practices. That was a piece of work I asked my officials to engage in because it is very important not just to lawyers, but in the context of enabling our major legal practices to compete with legal firms abroad. However, it is unfortunate that the provisions in the Bill that envisage either solicitors, solicitor partnerships or barrister partnerships being able to operate on a public limited company or limited liability company basis will exclude multidisciplinary practices. It was my intention that they be included. Moreover, I have no optimism that we will see a provision to allow for multidisciplinary practices brought into force in the near future. Provisions that are beneficial and necessary to provide for incorporated legal practices should have been extended to include multidisciplinary practices. Equally, that could have been subject to being brought into force by ministerial order.

See this speech in context