James Browne (Wexford, Fianna Fail) | Oireachtas source

I move amendment No. 15:

In page 29, between lines 28 and 29, to insert the following: “Insertion of sections 95A to 95D in Act of 2015

50.The Act of 2015 is amended by the insertion of the following sections after section 95:

“Determination of levy

95A. (1) The amount of the levy payable in each financial year shall be the sum of—

(a) the expenses of the Authority, and the expenses of the Disciplinary Tribunal, in respect of the levy year, calculated in accordance with this section, and

(b) the amount determined by the Minister under subsection (2) in respect of the financial year.

(2) The Minister shall, as soon as practicable after the beginning of each financial year, and following consultation with the Authority, determine the amount that the Authority shall pay to him or her in the financial year in repayment of advances made by him or her to the Authority under section 32.

(3) The Authority shall, as soon as practicable after the beginning of each financial year, with the consent of the Minister and in accordance with this section, calculate, in respect of the levy year—

(a) the expenses of the Authority, and

(b) the expenses of the Disciplinary Tribunal.

(4) The Authority, for the purposes of subsection (3), shall—

(a) calculate in respect of each body—

(i) the income of the body in the levy year,

(ii) the operating costs and administrative expenses that were properly incurred by the body in the levy year in the performance by it of its functions under this Act, and

(iii) the surplus or deficit arising in relation to the body in the levy year,

and

(b) determine the budgeted net expenditure of each body in the financial year.

(5) Where the Authority calculates under subsection (4) that a surplus exists in respect of a body in the levy year, it may, with the consent of the Minister, do either or both of the following:

(a) retain the amount of the surplus, or a portion thereof, as a reserve;

(b) deduct under subsection (7) the amount of the surplus, or a portion thereof, from the amount calculated under subsection (4)(a)(ii) in relation to the body.

(6) Where the Authority calculates under subsection (4) that a deficit exists in respect of a body in the levy year, it may, with the consent of the Minister, do either or both of the following:

(a) use any reserves of the body, or any portion thereof, to meet or reduce the amount of the deficit;

(b) add under subsection (7) the amount of the deficit, or a portion thereof, to the amount calculated under subsection (4)(a)(ii) in relation to the body.

(7) For the purposes of this Part, the net expenditure of a body in a given year shall be the amount that is the sum of the operating costs and administrative expenses that were properly incurred by the body in the year in the performance by it of its functions under this Act and the amount (if any) to which subsection (6)(b), in relation to the year, applies, less the amount (if any) to which subsection (5)(b), in relation to the year, applies.

(8) For the purposes of this Part, the expenses of the Authority in respect of a levy year are the sum of—

(a) the net expenditure of the Authority in the levy year, calculated in accordance with subsection (7), and

(b) where applicable, the amount by which the budgeted net expenditure of the Authority in the financial year exceeds the amount, in respect of the levy year, calculated under subsection (4) (a)(ii) in relation to the Authority.

(9) For the purposes of this Part, the expenses of the Disciplinary Tribunal in respect of a levy year are the sum of—

(a) the net expenditure of the Disciplinary Tribunal in the levy year, calculated in accordance with subsection (7), and

(b) where applicable, the amount by which the budgeted net expenditure of the Disciplinary Tribunal in the financial year exceeds the amount, in respect of the levy year, calculated under subsection (4)(a)(ii) in relation to the Disciplinary Tribunal.

(10) A reference in this section to the budgeted net expenditure of a body in a year is a reference to the net expenditure that is reasonably expected to be incurred by the body in that year in the performance by it of its functions under this Act.

(11) In this Part—

‘body’ means one of the following:

(a) the Authority;

(b) the Disciplinary Tribunal;

‘deficit’ means, in relation to a body, the amount by which the operating costs and administrative expenses of the body in a year exceed the income of the body in the year;

‘expenses of the Authority’ shall be construed in accordance with subsection (8);

‘expenses of the Disciplinary Tribunal’ shall be construed in accordance with subsection (9);

‘financial year’ means the period of 12 months beginning on 1 January and ending on 31 December;

‘levy year’ means, in relation to a financial year, the year immediately preceding the financial year;

‘net expenditure’, in relation to a body, shall be construed in accordance with subsection (7);

‘operating costs and administrative expenses’—

(a) in relation to the Authority, includes the following:

(i) the remuneration (including allowances for expenses) of the members of the Authority;

(ii) the remuneration (including allowances for expenses and superannuation benefits) of inspectors and members of the staff of the Authority;

(iii) any superannuation contributions paid in respect of the members of the staff of the Authority out of moneys provided by the Oireachtas;

(iv) fees due to consultants and advisers appointed under section 17;

(v) the cost of office premises;

(vi) any capital expenditure incurred by the Authority or portion thereof;

(vii) any costs or expenses, not referred to in subparagraphs (i) to (vi), incurred by the Authority in the performance of its functions under this Act,

and

(b) in relation to the Disciplinary Tribunal, includes the following:

(i) the remuneration (including allowances for expenses) of the members of the Disciplinary Tribunal;

(ii) the remuneration (including allowances for expenses and superannuation benefits) of members of staff of the Disciplinary Tribunal;

(iii) any superannuation contributions paid in respect of the members of the staff of the Disciplinary Tribunal out of moneys provided by the Oireachtas;

(iv) the cost of office premises;

(v) any capital expenditure incurred by the Disciplinary Tribunal or portion thereof;

(vi) any costs or expenses, not referred to in subparagraphs (i) to (v), incurred by the Disciplinary Tribunal in the performance of its functions under this Act;

‘superannuation benefits’ means pensions, gratuities and other allowances payable on resignation, retirement or death;

‘surplus’ means, in relation to a body, the amount by which the income of the body in a year exceeds the operating costs and administrative expenses of the body in the year.

Apportionment of levy

95B.(1) The Authority shall, in relation to the net expenditure of the Authority calculated under section 95A(7) in respect of a levy year, determine—

(a) the proportion of the net expenditure that was incurred by the Authority in the performance of its functions—

(i) under Part 6, and

(ii) under this Act, other than Part 6,

and

(b) in relation to the net expenditure of the Authority to which paragraph (a)(i) applies, the proportion of that net expenditure that was incurred by the Authority in the consideration and investigation of each of the following:

(i) complaints in respect of solicitors;

(ii) complaints in respect of barristers who were members of the Law Library;

(iii) complaints in respect of barristers who were not members of the Law Library.

(2) This subsection applies to the amount that is the sum of—

(a) the amount to which section 95A(8)(b) applies in the levy year, and

(b) the amount determined by the Minister under section 95A(2) in respect of the financial year.

(3) The Authority shall, in relation to the amount to which subsection (2) applies, determine the proportion of the amount that—

(a) bears to the amount the same proportion as the proportion determined under subsection (1)(a)(i) bears to the net expenditure

of the Authority referred to in subsection (1), and

(b) bears to the amount the same proportion as the proportion determined under subsection (1)(a)(ii) bears to the net expenditure

of the Authority referred to in subsection (1).

(4) The Authority, in consultation with the Disciplinary Tribunal, shall, in relation to the net expenditure of the Disciplinary Tribunal, calculated under section 95A(7) in respect of a levy year, determine the proportion of that net expenditure that was incurred by the Disciplinary Tribunal in the consideration of applications brought before it that concerned each of the following:

(a) complaints in respect of solicitors;

(b) complaints in respect of barristers who were members of the Law Library;

(c) complaints in respect of barristers who were not members of the Law Library.

(5) The Authority shall calculate the following amounts:

(a) the amount that is the sum of—

(i) the amount that represents the proportion of the net expenditure of the Authority determined under paragraphs (a)(i) of subsection (1), and

(ii) the amount that represents the proportion of the amount to which subsection (2) applies, determined under paragraph (a) of subsection (3);

(b) the amount that is the sum of—

(i) the amount that represents the proportion of the net expenditure of the Authority determined under paragraph (a)(ii) of subsection (1), and

(ii) the amount that represents the proportion of the amount to which subsection (2) applies, determined under paragraph (b) of subsection (3);

(c) the amount that is the sum of—

(i) the net expenditure of the Disciplinary Tribunal in the levy year, and

(ii) the amount to which section 95A(9)(b) applies in the levy year.

(6) The liability for payment of the amount of the levy referred to in section 95A(1) shall be apportioned as follows:

(a) of the amount to which subsection (5)(a) applies—

(i) 10 per cent of that amount shall be apportioned pro ratabetween the Bar Council and the barristers who were not members of the Law Library in the levy year, according to the number of barristers whose names were on the roll as members of the Law Library and the number of barristers whose names were on that roll as barristers who were not such members, respectively, in the levy year,

(ii) 10 per cent of that amount shall be apportioned to the Law Society, and

(iii) the remaining 80 per cent of that amount shall be apportioned pro rataamong the Law Society, the Bar Council and the barristers who were not members of the Law Library in the levy year, respectively, according to the proportion, calculated under paragraph (b) of subsection (1), of the net expenditure referred to in that paragraph that was incurred by the Authority in the consideration and investigation of complaints in respect of each category of legal practitioner referred to in subparagraphs (i), (ii) and (iii) of that paragraph;

(b) the amount referred to in subsection (5)(b) shall be apportioned pro rataamong the Law Society, the Bar Council and the barristers who were not members of the Law Library in the levy year, respectively, according to the number of practising solicitors, the number of barristers whose names were on the roll as members of the Law Library and the number of barristers whose names were on the roll as barristers who were not such members, respectively, in the levy year;

(c) of the amount to which subsection (5)(c) applies—

(i) 10 per cent of that amount shall be apportioned pro ratabetween the Bar Council and the barristers who were not members of the Law Library in the levy year, according to the number of barristers whose names were on the roll as members of the Law Library and the number of barristers whose names were on the roll as barristers who were not such members, respectively, in the levy year,

(ii) 10 per cent of that amount shall be apportioned to the Law Society,

(iii) subject to subparagraph (iv), the remaining 80 per cent of that amount shall be apportioned pro rataamong the Law Society, the Bar Council and the barristers who were not members of the Law Library in the levy year, respectively, according to the proportion, calculated under subsection (4), of the net expenditure referred to in that subsection that was incurred in the consideration of applications brought before the Disciplinary Tribunal that concerned complaints in respect of each category of legal practitioner referred to in paragraphs (a), (b) and (c) of that subsection,

(iv) where no applications were brought before the Disciplinary Tribunal in the levy year concerned, the remaining 80 per cent of that amount shall be apportioned pro rataamong the Law Society, the Bar Council and the barristers who were not members of the Law Library in the levy year, respectively, according to the number of practising solicitors, the number of barristers whose names were on the roll as members of the Law Library and the number of barristers whose names were on the roll as barristers who were not such members, respectively, in the levy year.

(7) The Authority shall—

(a) calculate, in accordance with subsection (6), the proportion of the amount of the levy referred to in section 95A(1) that is payable by—

(i) the Law Society,

(ii) the Bar Council, and

(iii) the barristers who were not members of the Law Library in the levy year,

and

(b) apportion the amount calculated under paragraph (a)(iii) equally among all the barristers who were not members of the Law Library in the levy year.

(8) A reference in this section to a proportion is a reference to a reasonable and approximate proportion, calculated by the Authority using proxy measures and cost accounting methodologies provided for in regulations under section 98.

Provisions supplementary to section 95B

95C. (1) For the purposes of this Part, the name of a barrister shall be deemed to have been on the roll in a levy year where the barrister was not a barrister to whom section 97 applies and his or her name was—

(a) on the roll on the effective date in the levy year, or

(b) at any time during the levy year prior to the effective date, removed from the roll, other than where such removal was done—

(i) on the request of the person concerned, where he or she, in the levy year, acquired a solicitor’s practising certificate, or

(ii) under section 135(1)(d).

(2) For the purposes of this Part, a person shall be deemed to have been a practising solicitor in a levy year where he or she held a practising certificate during the levy year, other than where, during the levy year:

(a) his or her name was entered on the roll and was removed from the roll, other than in circumstances referred to in subparagraph (i) or

(ii) of subsection (1)(b),

(b) his or her name was entered on the roll, and was on the roll on the effective date, or

(c) he or she died.

(3) For the purposes of this Part, a person (other than a barrister to whom section 97 applies) shall be deemed to have been a barrister who was a member of the Law Library in a levy year where—

(a) on the effective date in that year, or

(b) in the case of a barrister to whom subsection (1)(b) applies, on the date immediately prior to the removal of his or her name from the roll,

his or her name was on the roll and the entry concerned specified that he or she was a member of the Law Library.

(4) For the purposes of this Part, a person (other than a barrister to whom section 97 applies) shall be deemed to have been a barrister who is not a member of the Law Library in a levy year where—

(a) on the effective date in that year, or

(b) in the case of a barrister to whom subsection (1)(b) applies, on the date immediately prior to the removal of his or her name from the roll,

his or her name was on the roll and the entry concerned specified that he or she was not a member of the Law Library.

(5) A reference in this Part—

(a) to the number of barristers whose names were on the roll in a levy year shall be construed as a reference to the number of barristers whose names are deemed under subsection (1) to have been on the roll,

(b) to the number of barristers whose names were on the roll as members of the Law Library in a levy year shall be construed as a reference to the number of barristers who are deemed under subsection (3) to have been a member of the Law Library in the levy year,

(c) to the number of barristers whose names were on the roll as barristers who were not members of the Law Library in a levy year shall be construed as a reference to the number of barristers who are deemed under subsection (4) to have been a barrister who was not a member of the Law Library in the levy year, and

(d) to the number of practising solicitors in a levy year shall be construed as a reference to the number of persons who are deemed under subsection (2) to have been practising solicitors in that levy year.

(6) For the purposes of this Part—

(a) a complaint shall be deemed to be a complaint in respect of a barrister who was a member of the Law Library where—

(i) at the time of the act or omission to which the complaint relates, the barrister was a barrister who was a member of the Law Library,

(ii) at the time of the act or omission to which the complaint relates, the name of the person who is the subject of the complaint was not on the roll but his or her name was entered on the roll as a barrister who was a member of the Law Library on or before the date that is 14 days after the date of receipt by the Authority of the complaint, or

(iii) the Authority decides, under subsection (7), that the complaint should be treated as a complaint in respect of a barrister who is a member of the Law Library,

and

(b) a complaint shall be deemed to be a complaint in respect of a barrister who was not a member of the Law Library where—

(i) at the time of the act or omission to which the complaint relates, the barrister was a barrister who was not a member of the Law Library,

(ii) at the time of the act or omission to which the complaint relates, the name of the person who is the subject of the complaint was not on the roll but his or her name was entered on the roll as a barrister who is not a member of the Law Library on or before the date that is 14 days after the date of receipt by the Authority of the complaint, or

(iii) the Authority decides, under subsection (7), that the complaint should be treated as a complaint in respect of a barrister who is not a member of the Law Library.

(7) Where—

(a) a complaint in respect of a barrister relates to more than one act or omission,

(b) at the time of the acts or omissions to which the complaint relates, the name of the barrister was on the roll, and

(c) during the period between the date of the earliest act or omission to which the complaint relates and the date of the latest such act or omission, the barrister—

(i) having been a barrister who was a member of the Law Library, became a barrister who is not a member of the Law Library, or

(ii) having been a barrister who was not a member of the Law Library, became a barrister who was a member of the Law Library,

the Authority shall, as it considers appropriate in the circumstances, decide whether the complaint is to be treated, for the purposes of this Part, as a complaint in respect of a barrister who is a member of the Law Library or a complaint in respect of a barrister who is not a member of the Law Library.

(8) For the purposes of the determination, apportionment and collection of the levy payable in the financial year in which section 50 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023comes into operation, a requirement under this Part on a person to do a thing as soon as practicable in a financial year shall be construed as a requirement on the person to do the thing as soon as practicable after the date on which that section comes into operation.

(9) In this Part—

‘effective date’ means, in relation to a levy year, 31 December in that year;

‘roll’ means the roll of practising barristers.

Levy Assessment Notice

95D.(1) As soon as practicable after the beginning of each financial year, following compliance with section 95A and 95B the Authority shall provide a notice (in this Act referred to as a ‘levy assessment notice’) to each of the bodies or persons referred to in paragraphs (a), (b) and (c) of section 95(1).

(2) A levy assessment notice shall specify—

(a) the net expenditure of the Authority, determined in accordance with section 95A(7), in respect of the levy year,

(b) the proportions of the net expenditure of the Authority determined under section 95B(1)(a),

(c) the proportion, determined under paragraph (b) of section 95B(1), of the net expenditure of the Authority to which section 95B(1)(a)(i) applies that was incurred in the consideration and investigation of complaints in respect of each category of legal practitioner referred to in subparagraphs (i), (ii) and (iii) of that paragraph,

(d) the amount to which section 95B(2) applies in respect of the levy year,

(e) the proportions of the amount referred to in paragraph (d), determined under section 95B(3),

(f) the net expenditure of the Disciplinary Tribunal, determined in accordance with section 95A(7), in respect of the levy year,

(g) the proportion, determined under subsection (4) of section 95B, of the net expenditure of the Disciplinary Tribunal referred to in paragraph (f) that was incurred in the consideration of applications brought before it concerning complaints in respect of each category of legal practitioner referred to in paragraph (a), (b) and (c) of that subsection,

(h) the amount to which section 95A(9)(b) applies in the levy year,

(i) the amounts calculated under section 95B(5),

(j) the apportionment, in accordance with section 95B(6), of liability for the payment of the amount of the levy referred to in section 95A(1),

(k) the amount payable by the professional body or person concerned, calculated in accordance with section 95B(7),

(l) the date by which the amount specified under paragraph (k) becomes payable,

(m) the rate of interest payable if all or part of the amount specified under paragraph (k) is not paid by the date referred to in paragraph (k), and

(n) such additional information as the Authority considers appropriate.”.”.

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