Tuesday, 3 October 2006
Civil Law (Miscellaneous Provisions) Bill 2006: Second Stage
I move: "That the Bill be now read a Second Time."
The Civil Law (Miscellaneous Provisions) Bill, with its content covering a considerable spread of areas of the Statute Book, reflects to some extent the breadth of the functions of the Minister for Justice, Equality and Law Reform and the Department. Bringing forward this Bill gives the opportunity to propose changes to the law, each significant in its own way and some more substantial than others, which might not on their own always warrant the bringing forward of a stand-alone Bill but which are nonetheless necessary to improve the effectiveness of our legislation.
A major proportion of the Bill addresses an area of considerable importance to the proper functioning of society, namely, the legal professions. The rule of law is universally regarded as one of the foundation elements of any properly organised society. It is that rule that defines relationships between private individuals or entities in society and between the State and those individuals or entities. Because society, and relationships within society, have never been simple, the law has never been simple; but in today's increasingly complex society, the law too reflects that complexity. That being the case, there has always been and will continue to be a need for experts in the law to advise and assist those who seek to invoke the law to assert or protect a right or to defend themselves against claims which they consider are not well founded. The proper working of our society depends on there being a cohort of lawyers who make their services available to those involved, or potentially involved, in litigation.
The legal profession has traditionally been organised in Ireland in two branches, solicitors and barristers, each largely self-regulating. Part of that self-regulation has concerned itself with the maintenance of high professional standards and the investigation of allegations in particular cases that those high standards have not been met. The procedures put in place by both branches of the legal profession to address this issue have evolved over the years and on the whole, the self-regulating processes operate satisfactorily. There naturally remains, however, the possibility that a person who makes a complaint against a lawyer and gets a result from those processes that does not accord with his or her view of the matter will have a continuing sense of disgruntlement — a discontent not helped by the perception that the self-regulating process has favoured the professional over the complainant. This perception can arise whether there has been actual bias in a particular case, and arises simply because the process is self-regulatory.
That is where the proposals in Part 2 of this Bill come in. That part is designed to establish a legal services ombudsman who will oversee the handling by the Law Society and the Bar Council of complaints by clients of solicitors and barristers. The key functions of the legal services ombudsman include a form of review in particular cases for clients of solicitors and barristers who are dissatisfied with the handling of a complaint made to the Law Society or Bar Council, and a more general oversight role for those complaints procedures by examining a selection of complaints files each year taken on a random basis.
To be effective and have the confidence of its users, any complaints mechanism must not only be, like Caesar's wife, above suspicion, but also be seen to be so. The introduction of the legal services ombudsman as an extra overseeing layer to the present self-regulating mechanisms will provide the necessary independent scrutiny to assure the public of the effectiveness and trustworthiness of the complaints process as a whole.
This Bill is not just about legal complaints processes. As I have said, it gives an opportunity to make changes in a wide range of areas of the non-criminal law within the ambit of the Minister for Justice, Equality and Law Reform, not all of which would warrant the bringing forward of separate legislation, but where change is nonetheless desirable. As well as an extensive range of technical changes in courts legislation, the Bill provides for various other matters involving changes in the law on business tenancies, statutory declarations, juries, bankruptcy and succession, and changes in gaming and lotteries legislation.
Turning to the detail of the provisions of the Bill regarding the legal services ombudsman, both the Law Society of Ireland and the Bar Council have complaints mechanisms in place. The regulatory functions of the Law Society derive from the Solicitors Acts 1954 to 2002, while the Bar Council's regulatory functions have no statutory basis. The Law Society's complaints scheme is provided for under the Solicitors (Amendment) Act 1994 and essentially caters for three classes of complaint: inadequate services, excessive fees and misconduct. For example, following the controversy last year surrounding claims of overcharging by solicitors in respect of work before the Residential Institutions Redress Board, it is this complaints scheme that the Law Society has used in inviting persons to come forward with their claims. The scheme is subject to independent oversight by the independent adjudicator established in regulations by the Law Society in 1997. The legal services ombudsman will effectively subsume the existing office of independent adjudicator and carry out the same functions in respect of solicitors and barristers with changes.
These changes include a requirement under section 13 for the ombudsman to report to the Minister within two years of being appointed on the effectiveness of the office and the adequacy of functions. The ombudsman will under section 14 also oversee the admission policies of the legal professions and will be required to report annually to the Minister and the Oireachtas on the adequacy of numbers admitted to practise. Under section 18, the costs of the office of the ombudsman will be funded entirely by a levy on the Law Society and the Bar Council calculated pro rata based on the numbers of practising solicitors and barristers. In addition, the ombudsman has power at section 27 of the Bill to direct the Law Society or the Bar Council to re-investigate a complaint if not satisfied that the original complaint was adequately investigated, and by section 28 such directions are enforceable by the High Court. The ombudsman also has power under section 31 to review the procedures of the relevant professional bodies for dealing with complaints, to examine both random samples of complaints and complaints relating to specific matters as well as making recommendations for improvements to these procedures.
The Government's proposal for independent review of the operation of the legal professions complaints system by way of the legal services ombudsman is the way to proceed, consistent with the need for better regulation of the Irish system. Self-regulation must achieve the highest standards of professional integrity for the protection of clients. There is a public interest in ensuring a high level of confidence in the manner the professions regulate their affairs.
Provisions in Part 4 amend the law in two further areas concerning the legal profession. Both changes arise out of recommendations in the June 2004 report of the regulatory review task force chaired by Mr. Joe Brosnan, a former Secretary General of the Department of Justice, Equality and Law Reform. The task force conducted a thorough review of the Law Society's organisation and practices. Most of the recommendations of that report are being or have been implemented by the Law Society and do not need legislative change. However, the remainder are dealt with in the legislation. Both of the changes affect the complaints and disciplinary mechanisms of the Law Society. The first is provided under section 53, which amends section 73 of the Solicitors Act 1954. Section 73 deals with the committee structure of the society, which currently provides that a committee of the council of the Law Society may include solicitors who are not members of the council and also persons who are not solicitors; but two thirds of the membership of any committee to which powers of the council are delegated, or any quorum of the committee, must be members of the council. The amendment in the Bill will have the effect of removing the two-thirds requirement and it also provides a significant shift towards further lay involvement in the make-up of the society's complaints and client relations committee. The change will mean that a majority of that committee and any division or quorum of either must be non-solicitors. The committee or any division of it is to be chaired by a solicitor.
Section 54 amends section 8 of the Solicitors (Amendment) Act 1994. This will enable the Law Society to direct a solicitor to pay a client a sum not exceeding €3,000 as compensation for loss suffered as a result of providing inadequate legal services. Such a payment made in compliance with the direction will be without prejudice to any legal right of the client. The amendment also enables the Minister for Justice, Equality and Law Reform to vary the amount by order, no more frequently than at two-year intervals, to reflect the rate of inflation.
Part 3 deals with courts and court officers. Section 39 replaces section 65 of the Courts of Justice Act 1936, dealing with the setting of court fees. The Act provided that the Minister may prescribe court fees and the persons by whom and the occasions on which such fees are to be paid. This power remains with the Minister; but under the new provision, the minutiae of the manner in which such fees are to be collected are to be left to the Courts Service, the independent agency established in 1999 to take care of the running of the courts.
The Pensions (Amendment) Act 2002 reduced the qualifying age period for pensions for public servants from five to two years with effect from 2 June 2002 but that did not extend to judicial pensions. Sections 40, 41 and 42 reflect this change with regard to judges. These sections deal with pension provisions for judges of the superior courts, Circuit Court and District Court, respectively, who retire on age or infirmity grounds before having served long enough to gain entitlement to a full pension. Currently, no pension is available unless a judge has served a minimum of five years. Under the new provisions, a judge who retires on age grounds after a minimum of two years will be entitled to a pension based on the number of years served. The minimum period of service of five years will continue to apply where the retirement is on grounds of infirmity. I understand from the Department of Finance that the revised arrangements have been in place for judges on an administrative basis since 2002 and these provisions put the arrangements on a statutory footing.
Section 43 makes two amendments to the Eighth Schedule of the Courts (Supplemental Provisions) Act 1961. The first amendment aims at ensuring regulations made under the European Communities Act 1972 may confer functions on the Master of the High Court. Such powers may only be conferred by primary legislation or by rules of court. The Master of the High Court has an increasing role to play, at the preliminary stage, in a number of EU instruments in the civil and commercial areas. Such EU instruments are generally given effect in law by regulations made under the European Communities Act 1972. A recent High Court decision found that because of the present wording of the Eighth Schedule to the 1961 Act, a provision in regulations under the 1972 Act purporting to confer jurisdiction on the master was ineffective. The amendment will remedy this. An amendment to provide similarly in respect of county registrars is in preparation and will be brought forward at a suitable point in the Bill's progress.
The second amendment in section 43 alters the qualification requirements for appointment as registrar of wards of court. Currently, the appointee must be a barrister of either ten years practice or, if serving in the offices of the Supreme Court or High Court, 12 years' experience in those offices. A minimum of nine years' service in one of those offices for a serving officer of the Courts Service or such other service, as the Courts Service with the consent of the President of the High Court thinks fit, is the new requirement. Section 52 similarly proposes to alter the qualifications requirements for appointment as examiner and probate officer. These changes allow for appointment of persons to the positions concerned from within the Courts Service generally, as distinct from the more restricted areas of that service provided in each case. The changes arise out of, and reflect, the unified organisation and structure of the Courts Service under the Courts Service Act 1998. At the same time, the specification by the Courts Service of the qualifications for appointment to the posts of examiner and probate officer recognises the need for appropriate expertise on the part of appointees.
Section 44 amends section 5 of the Courts Service Act 1998, dealing with the functions of the Courts Service to encompass functions that may be created for the service by future statutes. Section 45 amends section 6 of that Act to cover the provision of support services to the rules committees of the superior courts, the Circuit Court and the District Court arising out of the changes made in sections 46, 47 and 48 of the legislation. Those sections draw together and restate the provisions of the various Courts Acts regarding the composition of the superior courts, Circuit Court and District Court rules committees. A feature of these provisions is that they provide for the possibility of the secretaryship of the committees to reside in a central support unit within the Courts Service. This follows a recommendation by the committee on court practice and procedure in its 28th interim report, that would enable the support unit to assist the committees more effectively.
Section 49 provides for the authentication of District Court orders by a District Court judge or District Court clerk other than the judge or clerk who was present when the order was made. The same provision is made with regard to warrants issue by a District Court judge, other than a warrant issued on foot of sworn information. The aim of the proposal is to allow greater flexibility in what can be an onerous and sometimes impossible task under the restrictions of the present law, particularly having regard to the large volumes of orders that can arise.
Section 50 repeals section 20(4) of the Petty Sessions (Ireland) Act 1851.