Wednesday, 4 October 2006
Civil Law (Miscellaneous Provisions) Bill 2006: Second Stage (Resumed)
Part 10 of the Bill amends the Succession Act 1965. Section 70 amends section 3(1) of the Act by deleting the words "in good faith". The amendment arises from a recommendation of the Law Reform Commission in its 2003 report on land law and conveyancing law. The report states that the requirement that a purchaser act in good faith in the context of the Succession Act contradicts many of the provisions of the Act and goes further than is necessary in placing an excessive burden on the purchaser. The amendment seeks to implement the recommendation of the report by deleting the term "in good faith" from the definition of "purchaser".
Section 71 of the Bill amends section 5 of the Succession Act, which deals with the situation where two persons die, or are presumed by law to die, simultaneously. The term to describe the deceased persons in these circumstances is "commorientes". There can be a difficulty where the commorientes, immediately before their death, held property as joint tenants. This would happen, for instance, where a husband and wife who owned their house as joint tenants were killed in the same car crash. Normally, where one of the joint tenants dies, the property goes directly to the other joint tenant or joint tenants and, crucially, does not form part of the estate of the deceased. Where both die simultaneously, however, that cannot happen. There is uncertainty at present in the law as to what then should happen to the joint property. The Bill solves this by adding a new subsection (2) to section 5 of the Succession Act to provide that, where two or more people immediately prior to their deaths held property as joint tenants and they died or were deemed to have died simultaneously, the joint tenancy will on their deaths be deemed to have become a tenancy in common in equal shares. Subsection (3) provides that the equal share will form part of the estate of the deceased in each case.
I can inform the House that provisions are also being developed on a range of other matters that include provisions for anonymity of certain participants in civil proceedings; the order of precedence of judges; a possible increase in the numbers of judges; visitation of wards of court; and banking arrangements for the collection of fines. It is the intention that these too will be included in the Bill on Committee Stage. Apart from those that I have specifically mentioned, there is also the possibility that other matters suitable for inclusion in this Bill will come on stream as it proceeds through the House, and l can assure Deputies that they will be kept informed as to what other material may be brought forward by way of appropriate amendments.
In conclusion, I remind the House of the Government's commitment to quality regulation. This Bill epitomises that commitment, tackling as it does a wide range of areas where change in the law is necessary or desirable in the interests of improving how the law operates and of removing unnecessary obstacles. I commend the Bill to the House.
In many ways, the Civil Law (Miscellaneous Provisions) Bill 2006 is more noteworthy for what is not in it than for what is in it. I say this in the context of the remark by the Tánaiste and Minister for Justice, Equality and Law Reform concerning his intentions to change the Bill he had just circulated. In particular, I am referring to his threat to include a provision to close casino clubs. While I should have known better, I found it extraordinary that the Tánaiste would carry on in this fashion, namely, to circulate a Bill but, in short order, shoot from the hip and indicate that he would close casino clubs apparently without consultation or due consideration.
I accept that the Gaming and Lotteries Act 1956, which is coincidentally 50 years old, needs a comprehensive review, but if the above is the type of review we can expect from the Government, particularly the Tánaiste, all I can say is "God help us". At the time, we investigated the Tánaiste's proposal to close casino clubs and I am unsure about whether he was ever in one. I did not have great knowledge of them, but I went to the trouble of going to one.
In light of the Tánaiste's prognostication, I was concerned by the iniquitous and awful proceedings I would find in the club, but to my great surprise, I found a well run establishment in which ordinary, decent people seemed to be having ordinary, decent fun. There was no drink and anyone who had notions of lap dancers or the like would have been disappointed. The people were not in the process of exposing themselves to significant losses of funds. On the other side of the coin, 800 people work in these casino clubs where thousands of people find enjoyment, but the Tánaiste did not seem to care a jot that his threat to close them would put those people out of work and on the dole.
In light of the Tánaiste's reputation on other issues, we should not have been concerned. He backed off as soon as public pressure emerged, sensible people started raising sensible points and a number of investors with a Fianna Fáil orientation brought the matter to the attention of their representatives. It was another U-turn. We saw the old characteristic in that the rottweiler of serious intent turned out to be the poodle of U-turns. This is not surprising as it is the Tánaiste's regular routine. For example, this week in the Dáil saw a rottweiler standing guard over the sleaze in Fianna Fáil turn out to be a poodle accepting the outcome.
This is a regular occurrence as far as the Tánaiste is concerned, which was highlighted in an excellent article by Fionnan Sheahan of the Irish Independent, who went to the trouble of rooting up some of the Tánaiste's more interesting U-turns. The article referred to the casino club U-turn and the current controversy, but it also referred to the Tánaiste's conduct in respect of the leadership of his party. The article mentions that at the time of the Supreme Court decision on the child sex issue, the Tánaiste, who saw no need to pass emergency legislation because there was no gaping black hole, put a Bill through the House in seven days with the co-operation of the Opposition. He needed to withdraw his outrageous and infamous remarks about my friend and colleague, Deputy Bruton, who he compared to the Nazi, Joseph Goebbels. He did something similar in the case of his constituency colleague, Deputy Gormley. The list goes on. I will not bother to refer to café bars and other such matters.
I am sick to death of dealing with off-the-cuff, top-of-the-head proposals for legislation, responding to them and then finding that they are ill considered, have not been consulted on and, in many instances, will undergo U-turns.
I wish to tentatively suggest a matter for consideration that should be touched on by this legislation. There are a number of references in the Bill to the Gaming and Lotteries Act, which is 50 years old. I have no problem with the proposals on the increases in respect of slot machines, which seem to make sense, but should we not examine the gaping hole that is the lack of regulation of on-line gambling in the process of examining the 1956 Act? I am not prescribing an immediate solution, but we should examine whether the issue of on-line gambling must be addressed. We should determine whether changes in the law are necessary.
I should declare an interest in that I go to Paddy Power and other bookmakers, racecourses and dog tracks, put a few euro on the animals of my choice and often lose. I am not an innocent in these matters, but neither am I a prude. Gambling within reason can be enjoyable, but I have considerable concerns about the significant growth of on-line gambling across the world. In recent days, the US closed its markets to non-US on-line gambling websites. I am not concerned that the decision of the US Congress caused shares in a number of the companies involved to fall by almost 60% as I do not hold any of those shares. Rather, my concern is that the US closure is likely to result in more aggressive marketing of those websites in other parts of the world, including Ireland.
I have no problem with gambling and betting if the market is properly regulated, but there is a gaping hole in the regulation of on-line gambling websites. Technically, one could say that on-line gambling is illegal under the 1956 Act because the Tánaiste has always said that what is not declared to be legal must be assumed to be illegal, but such is not the platform from which to deal with the issue. As far back as 2000, a Government report on gambling called for new legislation to ensure that gambling should be "enforceable in both on-line and off-line environments". It stated: "providers of such on-line services should be able to guarantee that national law in this area is capable of being complied with". However, this does not appear to be the case. On-line gambling is not illegal in many jurisdictions and services can be accessed in Ireland. The matter requires a cross-Border approach if it is to be dealt with.
Usually, I am concerned by the down side of the problem of addiction to gambling — in a recent Sunday Independent article, it was cited as a prime factor in marital breakdowns. If we are to examine the Gaming and Lotteries Act, we should not shoot from the hip like the Tánaiste or engage in U-turns. Let us examine issues of serious concern currently that will be of even greater concern in the years ahead.
In the main, I am happy with many of the provisions in the Bill. I am happy with the establishment of the legal services ombudsman. As somebody who practised for many years as a solicitor, I suppose I should declare an interest. When one thinks of professions that are thought to be somewhat disreputable, solicitors and politicians are sometimes included in the public mind in that regard and being in both professions, I am perhaps subject to a double whammy. I am declaring an interest.
Let me make a few points about the legal profession and the legal services ombudsman. In the main, the day of self-regulation is over for all professions. Self-regulation is largely not the case at this stage as far as the legal profession is concerned. The changes that have taken place have resulted in self-regulation not being the correct description of the way matters are managed any longer as far as lawyers are concerned. For instance, the disciplinary body is not answerable to the Law Society; it is answerable to the President of the High Court.
Not alone must there be independent regulation, but there also must be the perception of it so people have confidence that there is independent regulation of all professions, not just solicitors and, of course, barristers. That is the way forward in the case of all professions and, indeed, businesses for the future. Where independent regulation is possible, that is the approach we must follow.
I support the establishment of the legal services ombudsman. The fact it is not greatly different from the present independent adjudicator is not really the point, but it sounds more independent and some of the powers probably will make it more independent.
I want to raise two issues in this regard. There is a good provision in the Bill by which the ombudsman will be able to make a report to the Minister on the admissions policies of the respective legal professions. The admissions policy of the professions in the old days was quite restrictive but, as far as I can see, it is now very open. The numbers have ballooned. In my profession, the Law Society is spreading its wings and opening a new front shortly in the real capital of Ireland, Cork, to accommodate the training of solicitors. The numbers have grown enormously and I believe the same applies in the case of the Bar.
The ombudsman will also make a report on the performance of its functions in annual reports and these must be laid before each House of the Oireachtas. However, there is a difference here, which perhaps the Minister might explain in his closing remarks. One report, that is the annual report, must be laid before the Houses within two months of the Minister's receipt of it, whereas the other, the report on admission policies, must be laid before the Houses as soon as practicable. I wonder why there is a distinction. Bearing in mind the problems that the worthy Inspector of Prisons encountered in getting his reports published and the delays in getting them published, I would much prefer an obligation on the Minister to lay the reports before the Houses within a specified period. This is another change that should be made.
On regulation of the professions, as I stated there is much reference at present to the self-regulation of the Law Society. In fact, that is not correct and perhaps it is no harm that we use this occasion to highlight the fact that the old days of self-regulation are already to a large degree gone. This Bill will highlight that even further but, more importantly, will remove the perception of self-regulation.
A quite important issue is membership of the complaints committee, which from now on will have a majority of non-solicitors. I cannot understand why the Bill specifically provides that even though the majority will be non-solicitors, the chairman must be a solicitor. That provision should not be in the Bill. Why should the chairman of the complaints committee be a solicitor? As a solicitor, I contend there may be a case for having it so in that complex points may be argued before the complaints committee and it might be useful to have somebody there with legal knowledge, but I do not want the Bill to provide that the chairman must be a solicitor. That is not appropriate.
The High Court solicitors' disciplinary tribunal is already independent of the Law Society and it has been made clear in the Bill that it operates under the aegis of the President of the High Court.
One other issue I wish to raise about my profession was highlighted by the misconduct of some members of the profession in their charges in Residential Institutions Redress Board cases. At the time, I was greatly concerned to hear on "Prime Time", on Joe Duffy's radio show and elsewhere that some solicitors had let down the profession in that regard. I am glad the matter was tackled immediately by the Law Society. From the point of view of perspective, it is no harm to point out for the sake of balance that even though it turned out that 12 firms of solicitors had been referred by the Law Society to the disciplinary tribunal, 99.5% of the solicitors who represented Residential Institutions Redress Board clients were not so involved. It is no harm to point out that while there were some bad apples who are presently being dealt with, on which matter I will not comment further, 99.5% were not bad apples. That is also important to bear in mind.
The Bill contains a mishmash of various other measures, most of which I agree with. There is provision for the court to allow certain evidence to be given by video link in civil matters. That is a progression of which I am very much in favour. Currently, there is provision in the Prisons Bill for pre-trial video linking and giving of evidence in criminal matters. The Minister should take the bull by the horns on this issue at this stage and we should as far as possible provide for at least the availability in all cases, civil and criminal, of video links. Video linking will be of benefit in years to come. It has enormous advantages. Provided it can be done in a way where the accused is not disadvantaged, it should be used to the maximum possible extent. It is of particular relevance in the context of the continuing debate on child protection cases. It is particularly important in the light of the Criminal Law (Sexual Offences) Act 2006 because, as has been mentioned in the debates on that Act, there is the appalling spectre of alleged child abusers cross-examining their alleged victims. It is an issue on which much more attention must be focused in the future. I referred to the issues relating to the gaming and lotteries legislation and I will be interested if the Minister gives a considered response.
The Minister of State outlined a mish-mash of other issues covered by the legislation, which I can support in the main. For example, the proposed amendment to landlord and tenant law makes a great deal of sense. Once upon a time, lessors exploited lessees and various restrictions were put in place. In particular, if a business letting was in place for more than five years, it meant the lessee was entitled to an automatic renewal for 35 years. The inevitable consequence, however, was the law of the market applied and any solicitor worth his salt advised his business client to let his premises for no more than four years and 11 months. One could not contract out of it until the most recent change relating to office premises.
This demonstrates that when a Government interferes with the market allegedly for the benefit of lessees, damage is caused. The result was tenants could not obtain a lease for more than four years and 11 months and they were evicted, even though they could not contract out of it. The proposed amendment is sensible because it provides flexibility. People should be permitted to avail of independent legal advice, as provided for in the legislation.
When I studied law, rent restrictions legislation was in place and it was intended to favour tenants because rents could not be increased and so on. However, the consequence of the legislation was that nobody wanted to let to tenants. Whatever protections are put in place, we must always be cognisant of the law of the market. If restrictions upset the market, the consequence is the people who are supposed to be protected will end up losing and this is what happened in regard to business tenancies. I heartily approve of this amendment.
The amendments to the Juries Act 1976, bankruptcy law and succession legislation, as it relates to joint owners who are deemed to die simultaneously, make absolute sense. I have experience of the current legislation creating difficulties and problems.
This is a relatively unexceptional Bill, which I largely support. I have highlighted two issues outside the scope of the Bill: the U-turn of the Minister for Justice, Equality and Law Reform regarding casino clubs, which is par for the course for him, and the need for a serious examination of gaming and lotteries legislation given that it is 50 years old. I am very concerned about on-line gambling and constructive and sensible proposals should be brought forward at both domestic and EU level. Apart from that, I support the Bill.
I am happy to have an opportunity to contribute to the debate. I agree with my Fine Gael colleague that this is very much a McDowell Bill. I was asked by a colleague what the legislation is about and I replied it is about everything and anything. For good measure, the Minister of State said it is not only about everything and anything, it is about more than that. In the best tradition of the Minister for Justice, Equality and Law Reform, any Bill passing through the House is seen as a vehicle to which anything can be bolted virtually on any Stage. That is not a good way of making law but the double irony regarding this legislation is that its component parts make reasonable sense and it is not controversial, but the Statute Law (Restatement) Act is in place.
It was intended to consolidate legislation so that practitioners have ready access to current law but through e-government initiatives, every citizen should have similar access. However, as soon as the law is tidied up, the Minister adds bits and bobs in new legislation. It is difficult to know where anybody stands at any given moment because new provisions are being added to both civil and criminal legislation.
This is overarching legislation and a variety of provisions must be addressed, with more to be introduced. The main issue covered, which is important, is the reform of the process of overview of the legal profession, which I will deal with later. Deputy Jim O'Keeffe referred to the Gaming and Lotteries Act 1956. One of the characteristics of the Minister for Justice, Equality and Law Reform is good thoughts that occur to him can be expounded as legislation and, therefore, should be taken seriously on that basis. Unfortunately, he has probably surpassed the Minister for Communications, Marine and Natural Resources as a kite flyer who throws ideas in the air and checks how the wind blows. Those that crash crash and those that proceed proceed.
We had the tortuous experience recently of dealing with criminal justice legislation. One never felt that ideas were firmly thought out by the Minister. While I am a great believer in engaging with Members to test ideas, the Minister should have tested them rigorously before contacting the Parliamentary Counsel, bringing memoranda to Government and securing parliamentary time, which is a scarce resource. When his ideas were tested, they were clearly seen to be impractical. That is all too often a feature of legislation introduced by him. He is not great at taking advice and he believes his view should prevail. Occasionally, he is entirely outmanoeuvred, as we witnessed this week, when his own views are of no relevance at all. Perhaps his kite flying days are over because I cannot imagine anyone inside or outside the Cabinet taking his proposals with great seriousness because his moral authority has evaporated. That may not be a bad thing but important work must be done by the Minister for Justice, Equality and Law Reform of the day and he must have authority in this regard.
Deputy Jim O'Keeffe mentioned the fiasco that surrounded the recent sexual offences legislation. The Minister's view was clearly that no immediate legislation was required but the force of public opinion required him to do a volte-face. We discovered during the debate on the legislation he had no ideas because his view of the solution had been resoundingly rejected by his Cabinet colleagues. His Department was basically in the hands of others and a Cabinet sub-committee created legislation which was foisted on him. Uniquely, it was introduced with the suggestion that it was not good law and, also uniquely, immediately on enactment a committee was created to review it. That was certainly a first in my time in the House.
That is the attitude with which I approach the Bill. A strong case was made by Deputy Jim O'Keeffe with regard to the Gaming and Lotteries Act. I do not know how his attention was drawn to casinos because, unlike Deputy O'Keeffe, I do not have experience in this area as I have never set foot inside a casino. I do not enjoy gambling as I am not a gambler by nature.
We will see. As I said, I do not gamble but we must all reapply for our jobs so, to that extent, it is a gamble.
The net point is that we need a comprehensive review of the Gaming and Lotteries Act, given the minor amendments to a variety of Acts that are contained in the Bill. It is a modest proposal. We need to do some fundamental thinking in this regard. Rather than rush to legislation, we should have a dialogue within the Houses on these matters. I say this to engage the opinions of outside consultants, bodies and others.
We have established Oireachtas committees. While they are busy and will not thank me for suggesting that we increase the agenda of work in the coming months, they constitute a forum where fundamental issues of importance can be debated and ideas can be balanced in a way that is different from simply presenting cooked legislative proposals about which people have already made up their minds. I suggest the committees as a vehicle that might be used to examine important but dated legislation with regard to how gaming and lotteries are regulated in this jurisdiction.
A germane point was made by Deputy Jim O'Keeffe when he referred, in McDowell-esque fashion, to the United States Congress grafting a prohibition on on-line gambling on to a transport Bill or a ports Bill. I am not sure that even the Department of Justice, Equality and Law Reform would get away with that. It would run foul of the longest of Long Titles in terms of our proposals.
The effects in this area are somewhat invisible in that we do not have a high street shop for on-line gambling. A major chunk of gambling is done on-line and it is easy for those with an addiction to access the Internet 24 hours a day, seven days a week. Moreover, although I am not an expert in this regard, the credit facilities available on some of these schemes could pose real social threats, which merit examination, particularly if the competition is set to increase here on foot of the tightening or extinction of the regime in the United States, which was a very big market.
I knew it was a ports Bill of some description. I do not believe we would get away with adding justice amendments to a ports Bill in this jurisdiction, although some might try. I admit I have tried a few daring amendments in my time so I cannot be too critical.
I want to deal with the main proposal of the Bill, namely, the reform of the overview process of the legal profession, which is extremely important and timely. It is clear the legal profession is an important component in our democratic structure. Many people now seek the vindication of civil and social rights through the courts. Disputes that in the past were settled outside the precincts of courts of law are regularly dealt with by them. While I accept the point made by Deputy Jim O'Keeffe, there has been a large increase in the number of members of both branches of the legal profession, solicitors and barristers, operating and putting up their plaques for business.
I am genuinely concerned. I do not know whether colleagues in the House have the same experience as I have with regard to the volume of complaints about the legal profession and how citizens have been treated by individual lawyers. It seems to be a phenomenon throughout the country because I hear such complaints not only as a constituency Deputy but as a spokesman on justice for my party. There is real frustration not only at delays but concerning serious difficulties that accrue on foot of bad legal advice and inertia in regard to the processing of documentation, all of which can be very costly in a variety of situations. Although I make no judgment on it, I heard of a case at my Enniscorthy clinic just this week where people were crushed by what they perceived as a huge injustice done to them by the legal profession. As a Legislature, we must respond to this.
The wind of change has blown through public administration generally, which has caused us to have independent oversight of a variety of professions in recent times, not least our own. We have established the Standards in Public Office Commission to act as a port of call for those who feel that the conduct of Members of the Houses is not up to scratch. Similarly, that wind of change has eventually reached other institutions such as the Garda Síochána, and the Garda ombudsman commission will hopefully open for formal business and the receipt of formal complaints next year.
The accepted position is that it is no longer possible for any profession to regulate itself. Where it is not impossible, it is no longer acceptable because not only must one's case be weighed by somebody who does not have a vested interest, but that must be seen to be the reality. This is why we must move in the direction signalled by the Bill.
The proposal before us is for a legal services ombudsman, whose job it will be to oversee the handling by the two legal representative bodies, the Law Society and the Bar Council, of complaints by clients of solicitors and barristers. In particular, the job of the ombudsman will be to review cases where clients are not satisfied with the handling of their complaints by the professional bodies. Given my experience, I believe this will become a very busy body. The ombudsman will have a significant workload, if my representative's antennae are anything to judge by.
It is not a pure body that will independently consider complaints. Rather, it is an oversight body that will consider how the disciplinary boards of the two professional bodies deal with complaints. As such, it does not go as far as I would like. I realise there is major reluctance to take that extra step. Often, it takes some event to force us to do so. For example, a report of the Morris tribunal would push us the way of the Garda Ombudsman Commission. There was institutional resistance, particularly from the Department of Justice, Equality and Law Reform and the former Minister, when I proposed an independent ombudsman six years ago for the Garda. There is an institutional resistance to fundamental change, and we much prefer incremental change.
The two tasks of this new legal services ombudsman will be to see how complaints are handled by the professional bodies and their disciplinary committees, and to audit the review and selection of complaints by dipping into individual files annually. It will consider how these are handled, and this is a good proposal. We will see how it works. I do not think there is currently an accurate public measure of the level of discontent that exists among people who have been badly served by members of the legal profession. There is a well of discontent that must be noted and addressed.
The debate on whether professional bodies should be in the business of dealing with complaints concerning their members at all is fundamental. We would probably have a variety of different views within this House on the issue. I fully accept the point made by Deputy Jim O'Keeffe that although these are seen to be under the umbrella of the professional bodies, they are at arm's length in terms of disciplinary committees that are extant. Perception is reality, however, and there must be a clear difference.
Anybody who goes through a procedure and feels the decision or outcome is not suitable will look at who made the decision. Unless it is clear the decision was taken at arm's length from an institution, without any vested interest or interest at all, we lessen the confidence the public has in these institutions. I make a general point of asking whether professional bodies should be involved in these matters, or if there should be a stand-alone statutory legal services ombudsman that deals ab initio with complaints. An appeals system can exist thereafter, perhaps through the courts. I propose this for another day, and we will see how this works.
Another key job of a legal services ombudsman will be to report annually on the adequacy of the admissions policy of both professions. In historic terms this was a bone of contention. Like many professions, not least our own profession of politics, there seems to be a family tradition of people going into law. That has changed in recent times. It would be good to ensure that somebody examines the admissions policy to guarantee that not only are all strata and shades of society represented in the legal profession, as they should be in every profession, but that there are no direct or indirect barriers, either visible or invisible, to the full participation of all strata of society. This is particularly true in our changing society. I welcome the provision.
I will comment on how the power of this commission will be exercised. Section 27 of the Bill deals with the power to issue directions or make recommendations following investigation. According to the section:
the Legal Services Ombudsman may, by a statement in writing—
(a) if not satisfied that the Barristers' Professional Conduct Tribunal has adequately investigated the related complaint, direct it to re-investigate, in accordance with the Disciplinary Code.
I am not sure that is the best thing. I know it is not the only provision, as the next section provides that the ombudsman can recommend that the Bar Council can take any other action, which the ombudsman may specify. However, the first port of call is to send an issue back to the tribunal that the ombudsman believes did not handle it well in the first place. Maybe that is the best course of action, but I state that with some degree of concern. Once it has been dealt with and if it is adjudged to be dealt with inadequately, I am unsure as to whether it should be sent back to be considered by the same people. We will tease the issues out in more detail on Committee Stage. The solicitor's profession is dealt with in the same section.
Section 54 of the Bill enables the Law Society to direct a solicitor to pay a client up to €3,000 as compensation for loss suffered as a result of inadequate legal services. That is a low threshold. I know there is a provision in the Bill subsequently for the Minister to review that threshold biannually. The Minister could state that is without any prejudice to a person's legal rights to have remedies if that person was swindled. Clearly a citizen would go to the courts to have that put right.
Even where somebody is badly dealt with and has suffered delay or annoyance that may have gone on for years, a compensation of €3,000 strikes me as being a fairly modest threshold to be included in the Bill in current times. I have some experience of legal fees of late, having myself had occasion to traipse before a variety of courts, on the business of a representative rather than on personal business. I was exposed to the rather shocking level of moneys that lawyers of all shades——
I sincerely hope so. The order of the Supreme Court lends legitimacy to it. Legal fees are very high. Even with normal transactions, one of the big difficulties is that many people of regular income cannot vindicate rights in the courts. Access to the courts is now too expensive. In a civil matter, for example, people looking to vindicate their rights can often be bullied. I have dealt with cases where people of material rather than moral substance have bullied others of lesser financial wherewithal into accepting situations they should not, and would not if they had the financial wherewithal to resist. In a republic we should always be mindful of the right of the citizen to have access to legal vindication of rights. This should even be so in civil matters, where others can intimidate by delay, obfuscation and by using the courts as a battering ram against people. Where people are badly done by, the threshold provided for in section 54 is modest enough. It is an issue we might consider on Committee Stage.
The other miscellaneous provisions do a number of things that have been indicated in the Minister of State's speech. It would be a tour of virtually every civil statute if I was to go through them all. They are all listed in a variety of sections, and each section virtually deals with a different legal enactment. We were told in the final paragraph of the Minister of State's speech that more are to come. They will not only come on Committee Stage but there will undoubtedly be a few bright ideas to be grafted on Report Stage.
That is not a good thing. Perhaps the previous Minister for Justice, Equality and Law Reform was no different, but I do not like the notion that the Department or the current Minister, in seeing space on the parliamentary bandwagon, sees the clock ticking. In this case there are not really five Stages to a Bill, and not everything has to be debated on Second Stage. If the train is moving at all, an amendment can be thrown in right up to Report Stage that will change fundamental law.
As far as I can discern, there is nothing particularly controversial about this Bill, although I have asked for advice on it. We will have a chance to look in detail at particular points on Committee Stage. By and large I support this Bill.
Section 51 deals with video conferencing in civil proceedings. I am repeating this point because all of us serving on the child protection sub-committee are focused on the process of evidence taking and its presentation in cases involving violence, particularly sexual violence or the abuse of children. There is no simple solution to this. There is concern about how to balance the constitutional right of defendants to confront the accuser, confront the evidence and question those giving evidence, with the vulnerability of victims. There are concerns also about the number of assault, rape and sexual abuse cases that are never prosecuted or, in many cases, never even reported for fear of the process. We must get the process right or certainly improve it if we are going to attack that clear deficiency in our criminal law. We will have to examine that matter which largely refers to the criminal law, although section 51 deals with civil proceedings. It is sensible to provide for the possibility of taking evidence in civil matters by a video or television link.
There is, however, a downside to all of this. On the last occasion I was my party's spokesperson for justice, we had a great debate about the taking of evidence by way of questioning suspects in Garda stations and recording all such interviews. It has taken a decade subsequent to the enactment of legislation for that equipment to be made generally available. Quite often the physical infrastructure required to implement good ideas is slow to follow. The Courts Service has done a great job since it was instituted. It is one of the success stories among recent State agencies in that it has reformed the physical nature of most of our courts. I am sure Deputy Twomey will re-echo my call for a new courthouse in Wexford, which is desperately needed. The Courts Service, with which I am in regular contact, is currently looking for a site in that area. Perhaps the next time the Minister is in touch with the chief executive of the Courts Service he might mention the fact that Wexford has been a priority for a new courthouse for a little while. We could do with a new court building there as a matter of urgency. When these facilities are in place they should be equipped with all the capabilities, such as video-conferencing, that we expect in a modern court of law, as well as proper facilities for witnesses and the bereaved during inquests. In modern buildings such facilities are now provided as a matter of routine.
I will not go through every sub-clause of the proposals that deal with everything from inheritance and statutory declarations to amendments to the Gaming and Lotteries Act. Some of the proposals have been recommended by various notable people. Clearly, I will not go through them all now. By and large, I have no difficulty with these amendments. As regards miscellaneous Bills of this sort, we must have a consolidated law which is accessible. The process for doing so must be available so that we can see new amendments to statute law readily to hand, not only for lawyers but also the general citizenry.
The Green Party welcomes this Bill which is long overdue. It is about time that it saw the light of day. It is modernising legislation which, for the most part, empowers the consumer. Some of the most vulnerable in society feel they have not been adequately represented by the legal profession. I have met with victims of Irish solicitors. The tales they told me of their concerns about what legal professionals did with their land, moneys and lives make for harrowing listening. The appointment of a legal services ombudsman marks an important step forward because many of these individuals feel they did not receive satisfaction from the Law Society. They also feel the Bar Council was unable to deal with the substance of their concerns and, therefore, this Bill can only be a good thing.
In recent times, we have seen many examples of possible overcharging. There have been several high profile cases concerning victims of abuse whereby clients were concerned about the actions of their solicitors who sought compensation from the Residential Institutions Redress Board. These concerns about abuse survivors being doubly charged resulted in 12 firms of which I am aware being investigated by the tribunal appointed by the High Court. The amounts by which the survivors were allegedly overcharged may be as high as €10,000. It is not small change, as the Taoiseach and others know only too well. This despicable abuse of authority on the part of the solicitors involved must be severely sanctioned. Transparency and independent scrutiny are the keys to instilling public confidence in areas such as legal services, health services and the Garda Síochána. In the words of the Minister for Justice, Equality and Law Reform himself, legal services must achieve the highest standards of professional integrity for the protection of their clients.
In broad terms, the legislation goes along with what the legal costs working group recommended. The group's three main recommendations are dealt with in the substance of this legislation. I look forward to seeing the law operating in practice. Within a few short months we will know whether it is working as intended by getting to the heart of the malpractice that has been brought to my attention in several cases around the country.
I wish to dwell for a moment on section 55 which deals with amendments to section 14 of the Gaming and Lotteries Act 1956. Contained within the small print of this section is a massive hike in the stakes that can be gambled in slot machines. At one fell swoop it allows a sixpenny bet to go up to 50 cent, which is more than a 15-fold increase. It also allows a ten shilling maximum prize to rise to €30. It is a matter of real concern if we allow these stakes to be raised, whether by way of regulation or legislation. Slot machines and other gambling equipment that lie in the shadowy streets of Dublin and other towns around the country represent a dangerous draw, particularly for our young people. I am concerned about the age limit of 16 that will allow children to access gambling machines.
In the past, we have spoken about gateway drugs with regard to narcotics or types of alcohol but there is also such a thing as gateway gambling. I am worried that if we increase the stakes that can be gambled from a few pence to several euro, it will act as a greater draw to bring people into the shadowy world of gambling. It must be remembered these establishments operate in the shadows of our capital and elsewhere. Their owners are rarely in the public eye. Some of them live in the Isle of Man and some have been linked to some of the more shady land deals that occurred in County Dublin ten or 15 years ago. The victims of these slot machines are often children. Slot machines act as a gateway to bring people into gambling more serious sums on horses and card games at a later time. I am not convinced that enough safeguards are in place to make sure children are of an appropriate age to use these machines. I am not convinced we have enough transparency or visibility of what goes on in these places. Those who operate these companies and amusement arcades should publicly declare their income and their profit from these machines. It is crucial we see exactly what sums are being generated in the shadows. We should not allow, whether in this legislation or elsewhere, the sums that can be wagered to increase dramatically. I hope the Minister will look carefully at the changes he is proposing in this section and ensure children's vulnerabilities are not exposed through changes in the law.
In general I also welcome the Civil Law (Miscellaneous Provisions) Bill 2006. Sadly, whether the Garda, the medical or the legal professions, we all know only too well the dangers of leaving any profession to its own devices. The dangers of allowing professions to operate without independent and transparent systems to ensure the highest standards and accountability for the public are inherent. At the extreme, the absence of independent mechanisms to review, to receive and to rule on complaints can risk lives and ruin lives. For example, the Irish Medical Organisation should have struck Dr. Neary off the register much sooner. I will not comment on the ability of the IMO's assessors but the fact that Dr. Neary chose the three members of the IMO who assessed him speaks volumes for the need for complaints bodies to be independent of the sectoral organisation of which the subject of a complaint is a member.
The seeming inability of the Garda complaints board to find against members of the force and its frequent refusal to even investigate complaints never surprised me in the past because the board was never fully independent. As far as I am concerned the Garda Ombudsman Commission cannot take over quickly enough. However, if the Garda Ombudsman Commission is to be effective in rooting out Garda corruption and restoring community confidence in the Garda, the Minister must make legislative and resourcing provisions to give the Garda Ombudsman Commission powers at least equivalent to those of Nuala O'Loan, the PSNI ombudsman.
A recent and well known example specific to the legal profession, which illustrates the need for an effective complaints body, was the despicable double charging of victims of child sexual abuse by certain members of that profession. There are many other lesser known, yet equally grave, examples. Cosúil leis an Teachta Howlin, aithním go bhfuil níos mó gearán faoi dlíodóirí ag teacht chuig mo oifig. Tá siad ag teacht chun cinn, diaidh ar ndiaidh. Níl sé i gceist agam dul tríd gach uile gearán atá i mo oifig faoi láthair. Níl sé i gceist agam am a chaitheamh leo siúd atá ag déanamh gearán díreach toisc gur theip orthu. Tá daoine eile ann, áfach, a theip orthu toisc gur loic dlíodóir nó abhcóide orthu. Níl mé ag rá go bhfuil saineolas agam ar gach chuid den chóras dlí, nó ar an chóras dlí ina iomlán, ach cosúil lena lán daoine aithním nuair atá an córas tar éis loiceadh ar duine, nuair atá bob buailte ar duine, nuair nach bhfuil caite go maith nó go gairmiúil le duine, nó nuair nach bhfuil treoracha an chliant comhlíonta ag an dlíodóir nó an abhcóide.
My office is receiving an increasing number of complaints and requests for assistance regarding improper, unethical or incompetent conduct by members of the legal profession. This year alone I have received six major complaints from people who have run out of options in seeking justice and this is only the tip of the iceberg. Other Deputies will obviously also have received the same number if not more complaints from people who are looking for help and do not know where to turn or who are reluctant to seek help. Most of these complaints have involved a substantial loss of property or assets in questionable circumstances, sometimes to the benefit of the solicitors involved or an unfair imposition of financial penalties or exorbitant legal fees due to the incompetence or disregard of their legal representative. Some members of the legal profession are profiting from the trust and the vulnerability of people in need of assistance and this is creating great hardship and distress for the individuals involved. Some people have been pursuing justice and recompense for years at great financial and emotional cost. Many have been denied access to legal recourse to pursue complaints or to appeal against unethical solicitors due to an inability to find a solicitor willing to take on their case and an inability to get civil legal aid. FLAC is generally not in a position to handle this type of case due to under-resourcing or the means test.
I am directing my criticisms only at those solicitors and barristers who are abusing. The vast majority are upstanding and helpful in every way but there are those who give a bad name to the legal profession. Hopefully, through this Bill, the legal services ombudsman will be able to address and right the wrongs in terms of clients of solicitors and barristers. Many people have sought recourse through the Law Library or the Bar Council or whatever way to vindicate their rights. The introduction of an independent body to hold legal professionals accountable through this Bill, in the form of a legal services ombudsman, is welcome and overdue. I will table a number of small amendments with the aim of improving the relevant provisions of the Bill to ensure the effectiveness and crucially the independence of the proposed ombudsman.
Section 5 outlines the eligibility criteria for appointment to the position of ombudsman. Sinn Féin will table an amendment to ensure that not only will the current members of the Bar Council or the Law Society be ineligible for the position but also recent members of both bodies. Section 11 governs the appointment of the staff in the office of the legal services ombudsman. It provides that prior to seeking the consent of the Minister and the Minister for Finance to appoint new staff members, the legal services ombudsman must first consult the Bar Council and the Law Society. Ní thuigim in aon chur cén fáth go bhfuil sé sin ann. I find this provision bizarre. The Garda Ombudsman Commission established under Acht An Garda Síochána does not and should not have to consult with the Garda before appointing its own staff. I fail to see the reason the legal services ombudsman should be any different. Perhaps the Minister is only half-hearted in his desire to introduce this particular ombudsman which will monitor the activities of his former colleagues in his personal profession. Hopefully, I am incorrect in that.
Section 11, as drafted, can only serve to reduce the potential for public confidence in the ombudsman if allowed to stand. Section 14 makes provision for the legal services ombudsman to produce annual reports on the admission policies of the Law Society and Bar Council. These reports are to contain the numbers admitted to practise and how this matches for demand for services. Sinn Féin has long been of the opinion that the Judiciary and the legal profession are not representative of society. It has long been disproportionately made up of people from wealthy backgrounds. In the interest of justice it is imperative that this situation be reversed. Therefore, it is crucial that the legal professions begin to include a fair representation of people from working class backgrounds. With this in mind, Sinn Féin will table amendments to section 14 in order that the legal services ombudsman will report a breakdown of the numbers admitted under a number of headings, including socio-economic background, gender, ethnicity etc., with a view to establishing quotas if necessary. We will also seek a number of standard amendments in order to increase the democratic accountability of the ombudsman. These will apply to sections 9, 13 and 14.
On the question of gaming and lotteries, dealt with in sections 55 and 56, I do not see a need for these other than the practicalities. They are logical in that we have changed the monetary situation from pounds and pence to euros and cents. However, these changes will do nothing to address the multifaceted problems in society with regard to gambling. We need to address these problems in legislation and to be more severe on those abusing the situation. Everybody here knows of places which have abused the Gambling and Lotteries Acts over the years. While there is not supposed to be any payout, if somebody goes up to the hatch he will get his payout. This happens throughout the country and needs to be addressed if we intend to raise the stakes. Even though the payouts are few in number, some people spend 24 hours or longer in some of these centres pumping in their income for the week. This must be addressed.
The main part of this Bill deals with the legal services ombudsman. It is intended the ombudsman will address the issue of those members of the legal profession who have abused the privileged relationship between themselves and their clients. Sometimes they dress up straightforward cases in complexities to create a mystery, to make their profession a mystery or to make legal proceedings inaccessible to those taking cases. This creates uncertainty among clients and sometimes clouds the true intent of such barristers and solicitors.
Some of the cases I have come across in my office involve solicitors in Dublin advising clients not to make complaints against gardaí who have abused or assaulted them because that might hinder their cases. What type of advice is that from a solicitor? If the law is broken, solicitors should encourage their clients to take cases against the gardaí in question. Another case involved a farming family in Tipperary who were forced to sell off a large part of their land to pay legal costs having been improperly advised and following the mishandling of their case by the solicitor. The family was also forced to drop a case against the solicitor for fear of further losses and on account of their inability to access legal representation. They could not find anybody who would take a case against the solicitor, which smacks of the legal profession protecting itself.
Another member of the same family, who chose to continue to pursue justice, was forced to sell another portion of the land to pay legal costs and penalties after a serious breach of trust and the mishandling of that case by a solicitor. Most of his remaining land was taken by the same solicitor in a technically legal, but ethically questionable, land grab. The same individual tried unsuccessfully to get somebody to take a case against this solicitor, but was told he could represent himself in court. What type of advice is it when our system recommends someone who is not legally qualified or competent to take a case to the High Court?
The most common complaints I receive about solicitors have to do with conveyancing and with solicitors obtaining land or assets through unethical dealings. Often they cloud the issue or delay proceedings to such an extent that people lose the asset they set out to acquire. Another complaint is of funds being removed by solicitors with access to people's bank accounts. I could list many more examples and be specific, but I do not have the authority of the people who came to my office to name and shame.
This new ombudsman facility will, hopefully, address this type of case so that we can stand up proudly and say that through this House we have set up a mechanism which addresses the concerns of people such as those who come to my office, one which helps break down the mystique and mystery being created around legal proceedings so that all people will have access to the legal profession.
Den chuid is mó, fáiltím roimh an Bhille um an Dlí Sibhialta (Forálacha Ilghnéitheacha) 2006. Má ghlacann an tAire leis na leasuithe achuirfimid chun cinn ar Chéim an Choiste, ní bheidh aon fhadhb agam tacú leis an Bhille seo. Ritheann sé liom nach dtacaím go rialta le Billí ón Aire, Teachta McDowell — go fíorannamh, chun an fhírinne a rá. Caithfidh go raibh tionchar maith agam air sa chás seo. Is trua nach mbíonn an tionchar céanna agam ar an reachtaíocht a chuireann sé chun cinn de shíor. Den chuid is mó, bím go hiomlán ina coinne.
Tá súil agam go n-éireoidh linn an Bille seo a rith tríd an Dáil, go mbeidh sé ina Acht roimh i bhfad, agus gur féidir leo siúd atá thíos leis an chóras dlí agus cirt i gcás dlíodóirí, abhcóidí agus a leithéidí in ann teacht ar chúiteamh nó faoiseamh do na coireanna atá déanta orthu thar na blianta.
I welcome the opportunity to contribute on the Civil Law (Miscellaneous Provisions) Bill 2006. I note from the explanatory memorandum that the Bill covers a range of issues, including legal services, an ombudsman, the courts and court officers, solicitors, gaming and lotteries, landlords and tenants, statutory declarations, juries, bankruptcy and succession.
I have listened carefully to some of the contributions. It is a pity this debate has not received much attention. It is clearly a slow news day and the people who were in the Gallery in such numbers this morning, for whatever reason, are obviously exhausted. Normal business is resuming and perhaps that is good.
When I was reading through documents relating to this Bill I was trying to figure out how I could talk about issues in my constituency. I was heartened when I heard the Ceann Comhairle allow Deputy Howlin speak about the Wexford courthouse in which Deputy Twomey also had an interest. I presume that means I can talk for at least a minute about Tallaght and the need for a new courthouse there. We have a very good courthouse, but it needs to be developed. Many other issues also need attention.
The Minister of State, Deputy Fahey, mentioned that the Bill reflects the breadth of the functions of the Minister for Justice, Equality and Law Reform. In any debate I could talk for a long time about the functions of the Minister. I do not read cuttings on my activities but one was brought to my attention at the weekend. The Sunday Mail made the point that at a time when there was much other news, the only press releases I was issuing dealt with the need for a new Garda station and more gardaí in Tallaght. I am happy to emphasise that. The House has heard me speak previously about the need for a new Garda station in Tallaght west. Every time I see the Minister, not only do I talk to him about more gardaí being needed for Tallaght but I also raise the issue of more facilities for the Tallaght area.
I take this opportunity — this is relevant in the context of this Bill — to talk about the need for the Minister to respond to the issues being brought to the attention of all Members. Anti-social behaviour is an issue that crosses the desks of all Members. I listened to Deputy Ó Snodaigh refer to the many people who come to his office to talk about all sorts of issues. I hold eight clinics every week in my constituency and they are always packed with people who come to me about all sorts of issues, including justice issues which cross my desk on a regular basis. People want action on the issue of anti-social behaviour problems. I am a strong believer that it is time anti-social orders were used and some colleagues opposite are also in favour of them.
A former speaker referred to working class areas. I come from a working class background. I was born in the inner city, I lived in Crumlin and now I live in Tallaght in Dublin South-West. As Deputy Ó Snodaigh stated, certain professions are not well represented in some areas. That is the case in my constituency and in many other constituencies. I look forward to the time when the addresses of High Court judges and other professional people will reflect the new Ireland which is developing and growing. I am sensitive about referring to Tallaght in front of colleagues, but it is the third largest population centre in the country, second only to Dublin and Limerick. I represent not only Tallaght but also Greenhills, Templeogue, Firhouse and Brittas, and there are justice issues in all those areas.
I note that other speakers have referred to the legal services ombudsman. I listened carefully to the Minister of State's contribution. The legal services ombudsman 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 of cases of 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. I note there are very few barristers living in my constituency.
These changes include a requirement, in section 13 of the Bill, 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 also, under section 14 of the Bill, 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 practice. In section 18 of the Bill 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.
The ombudsman has power under section 27 of the Bill to direct the Law Society or the Bar Council to reinvestigate a complaint if not satisfied that the original complaint was adequately investigated, and under 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 those procedures.
It is important that the public is provided with adequate and transparent means for dealing with these issues. I recall a former Taoiseach, Garret FitzGerald, making a point about the work of public representatives at a function some time ago. He stated that many cases crossing the desks of TDs in particular would not need to be raised if the system was working. We must appreciate the need to support measures in that regard.
The provisions in Part 4 of the Bill amend the law in two further areas concerning the legal profession. Both of these changes arise out of recommendations in the June 2004 report of the regulatory review task force chaired by Mr. Joe Brosnan, a former Secretary 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; those that do are dealt with in the Bill.
I will be careful about using the word "cherry-pick" as it seems to be a phrase of the week. I do not have a legal background but I am a member of the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. Under the chairmanship of Deputy Ardagh and the strong all-party support from members such as Deputies Howlin and Jim O'Keeffe, this committee has undertaken a significant amount of work. It has impressed hugely in its work on some of the special tasks it has been delegated.
I had planned to avoid reading the newspapers this morning but I decided to have a quick read of them. I note that Deputy Ardagh, the Chairman of the committee, was in Brussels yesterday. He made what is acknowledged as a fine speech relating to issues of interest to many. Recent days have seen many other items in the news and I hope that what he said will not be lost. The newspapers may have returned to normal by tomorrow and will deal with normal issues, as they should. This should be the focus.
Part 5 of the Bill amends the Gaming and Lotteries Act 1956. Section 55 inserts new values of 50 cent as the maximum stake and €30 as the maximum prize for gaming machines. The current maximum stake and prize values are sixpence and ten shillings respectively in old money; the euro equivalents are three cent and 63 cent respectively. By any measure, these values are undoubtedly out of date.
Views differ with regard to gaming and lotteries. The Minister of State has been dealing with issues relating to new gaming clubs and there are mixed views on the subject. All Members were made aware through their constituency offices of the different views on that issue. One must be careful what one says about these matters. I note that Deputies Twomey and Deasy are in the Chamber and their presence reminds me that there are gaming places in counties Wexford and Waterford and elsewhere. There is a small one in the Square in Tallaght. There are differing views on how they should be regulated. The Government's approach in this regard is reasonable and this is acknowledged in the general acceptance of the Bill by colleagues.
The Minister of State, Deputy Brian Lenihan, has a particular understanding of many of these issues. One must always tread carefully and listen to people's views. I am a big fan of the Minister of State and if I wish to put on the record my appreciation of the Minister of State, I will do so.
Brian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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I will confine myself to official utterances.
Whether it is in Castleknock, Tallaght or elsewhere there will always be different views on gaming and lotteries and we should reflect that. What is being done in this case should satisfy people.
Other Deputies made reference to Part 7, which amends the Statutory Declarations Act 1938. More experienced colleagues might be able to give me advice on this matter. I am sure many Acts still exist that are rather dated. It is only when we go through business such as this that we understand that considerable work remains to be done to amend legislation. This does not even take into account the many changes that happen on a daily basis. If one were to listen to Dáil debates every day one would come up with all sorts of new ideas as to how to amend legislation.
I note section 59 takes account of the fact that increasingly foreign nationals who are here to do business or as workers need to transact legal or other business involving the making of statutory declarations. The current requirements of that Act are that the person making the declaration must either be personally known to the witness before whom the declaration is being made or is identified to the witness by someone personally known. This naturally creates difficulties where the person seeking to make the declaration is a foreign national who knows very few people in the State, and whose network of acquaintances here may be such that none of them is personally known to a peace commissioner or other person qualified under the Act to be a witness to a declaration. The solution is to amend section 2 of the Statutory Declarations Act to allow for additional means of identification of a person making a statutory declaration. I know most foreign nationals here carry a passport or other form of national identification from their country.
Unlike many of my colleagues I never sat at my school desk saying I wanted to become a Deputy. I was always quite normal and became involved in politics through community endeavour. However, I was made a peace commissioner in 1979 by a Deputy who, I suspect, never believed I wanted to be anything else, which was fair enough. Over the years I still get many calls, including this week. It does not just happen in Tallaght. When people leading a clean life and never brought to the attention of the Garda go to a station, they are not known to the gardaí and may need to find somebody else who can identify them and get a form signed. We need to reconsider such matters. Many local authority and college forms need to be authorised. I sometimes have difficulty trying to determine the best way to deal with a matter.
I know there is a debate on whether people need to be present, who should be responsible and how to identify people. I am known by a few people in my area and still I always carry my ID as a matter of routine. There will always be somebody who does not know me or will wonder who I am.
I am not asking Deputies to believe that, but that is what he said. I am making a serious point and do not mean to be flippant. There is an issue with identification and with who is entitled to make declarations. We should make it as easy as possible for people. I accept there should be a process, which needs to be right. There is always an issue about whether people are swearing a declaration or an affidavit. People wonder whether they can just go to their friendly local PC — I am not the only one in Tallaght — or whether they need to go to a commissioner for oaths or their local solicitor. It is good that the amendment in the Bill, especially in the case of non-Irish nationals, will allow the declarant to be identified by suitable documents, including a passport, etc. We need to reconsider the issue and make it easier for people to make declarations while at the same time ensuring they are who they say they are.
I always carry my ID. While I have not got the new Houses of the Oireachtas one, I presume it is coming. I tried to buy a new phone recently and produced my Houses of the Oireachtas ID, which was not acceptable as a normal form of ID. I want to let Deputies know there is no point in bringing their Houses of the Oireachtas ID to some places as they will not recognise it. While I will not name the company, it has a nice shop-front in Grafton Street.
It is important for us to take interest in this kind of legislation that will not get headlines or draw huge crowds into the Gallery. However, it concerns Government working. It is good that there is a certain consensus in the House, apart from the usual dotting of is and crossing of ts that we always get in political circles. It is good to see the level of support for the Bill and I wish the Minister of State well. I hope he can put it to bed as quickly as possible, so we can deal with the other issues, which come under the remit of the Tánaiste. I know he is working hard in this regard. I will keep tabling questions about Garda numbers in Tallaght and a new Garda station for Tallaght. I will keep the pressure on in that regard. If we have only 300 days to go, I will keep working for them.
I welcome Deputy Howlin's call for a new courthouse for County Wexford, because the facilities there are inappropriate. Considering that the Tánaiste has told us that millions of euro are sloshing around in the Government coffers, I hope that in his new role as Tánaiste he will be able to accelerate the building programme for Garda stations not only in County Wexford, but across the country. Since he has taken his 30 pieces of silver not to hang out the Taoiseach he might also be able to fill those Garda stations with real gardaí, which would be most welcome throughout the country and not just in County Wexford.
A constituent asked me to speak on one section of this Bill. However, some of the other topics raised here in the past hour have also intrigued and interested me greatly. I will first deal with the issue of self-regulation as opposed to having regulation by a body with a majority of lay people. The legal profession seems to favour having lay majority governance of its profession, which is quite interesting as the Department of Health and Children is making moves to having a lay majority on the medical council as opposed to allowing it to be self-regulated. During the course of this debate I have heard that a lay majority governing the legal profession has made no difference to the huge number of complaints about that small number of every profession who abuse their position. Many Deputies have told of how solicitors and barristers have abused their position in society to defraud their clients.
That goes to show there will be no difference between self-regulation and lay majorities on professional bodies unless there is effective enforcement and procedures are put in place which properly address complaints and correct wrongdoing. That is as important as the "self-regulation bad", "lay majority good" type of thinking. Responsibility for enforcement needs to be clearly assigned when, for example, a rogue solicitor or barrister is encountered. There is no point in trying to sue the solicitor or barrister in question because the people who are most often ripped off and deprived of justice are those who are least able to protect themselves.
This issue is particularly interesting to me in the context of the forthcoming medical practitioners Bill. Proper systems must be introduced for making and addressing complaints and for assigning responsibility. It will be useless for the legal system ombudsman to appear at the Committee on Justice, Equality, Defence and Women's Rights once a year and rehearse a litany of barristers and solicitors who have defrauded others or otherwise abused the trust put in them by society unless there is a means of correcting their wrongdoing. I would support proposals to give authority to the ombudsman in order to stop such abuse.
I have listened to discussions in other fora about the Medical Council and the concerns expressed about the medical profession. I realise that the role of the various medical organisations is not always well understood. People often refer to the Irish Medical Organisation, the Irish Hospitals Consultants Association, the Royal College of Surgeons in Ireland and the Medical Council as if all four bodies are exactly the same, whereas the Irish Medical Organisation and the Irish Hospitals Consultants Association are trade unions, the Medical Council is a regulatory body and the Royal College of Surgeons in Ireland sets standards in surgery. Unless one is a member of the profession, the differences between the bodies tend to be overlooked. For that reason, it is important that the ombudsman is readily identifiable to all the citizens of this country.
An earlier speaker claimed the Irish Medical Organisation sent three consultants to Our Lady of Lourdes Hospital in order to bail out Dr. Neary. In fact, the consultants were sent by the Irish Hospitals Consultants Association which, as a trade union, had no role to play in the regulation of doctors in this country. When a complaint was made to the Medical Council, it took the appropriate action, although an unfortunate delay occurred before it did so. That is why the impression was given that the response was not as effective as it should have been. In the case of health care patients and clients of legal professionals, similar problems will continue to arise unless identifiable representative organisations are available for people to contact when they have concerns. The argument about self-regulation versus lay majorities is a red herring until legislation is in place to protect those at risk. I am not my party's spokesman for justice, so I am not fully au fait with whether this Bill will provide the necessary protection but that should be its primary focus.
As a barrister and former Attorney General, the Minister for Justice, Equality and Law Reform should be absolutely certain he is protecting people from the small minority of rogues who operate within the legal profession. I hope that is crystal clear to him because it should not be a case of a complaint being acknowledged and then left to hang in the air. Like every other Deputy, I have been contacted by people who have had bad experiences with solicitors and, when I read their testimony, I begin to suspect that there may be a case to answer. However, I am not legally trained and, of course, there are two sides to every story. The reality of the case may differ from the version presented to me but, until an effective system is in place, the suspicion remains that the legal profession serves its own. It is up to the Minister to introduce clear rules, just as it is up to the Minister for Health and Children, if she ever brings the medical practitioners Bill before the House, to do the same.
The Minister of State, Deputy Brian Lenihan, also has responsibilities in the Department of Health and Children, so I want to remind him of my doubts in respect of whether the medical practitioners Bill in its current form will be of benefit to patients. The Minister for Health and Children has come out with all guns blazing, thinking she will do well by patients simply by ensuring a lay majority. As we can see in the case of the legal profession, a lay majority makes no difference to clients who receive a raw deal where there is no backup in terms of appropriate complaints legislation. The same issue will arise with the medical practitioners Bill. I have seen no proposals from the Department that would give me confidence in the ability of the Minister.
I will now turn to Part 6 of the Civil Law (Miscellaneous Provisions) Bill. I rarely get the opportunity to raise issues regarding individual constituents because I usually deal with issues pertaining to the health system at the national level. I refer to a letter sent to me by one of my constituents, which states:
We now have a thriving restaurant business that employs more than twenty-five full-time staff. Under current legislation for commercial retail lease agreements, if a tenant remains at a premises for over five years, they can then seek and be granted a longer thirty-year lease and the landlord has very little power to stop this. Hence, for this reason our landlord does not wish to renew our lease and our restaurant will close in early December of this year.
I ask the Minister of State whether he can ensure, on behalf of my constituent, that the Bill is enacted before Christmas recess or at least indicate if that is an achievable objective. The Members of these Houses may focus on issues of national importance but such issues are at their most relevant when they concern individuals. I am sure my constituent is not the only person to face this problem and the possibility arises, once people become aware of this legislation, that the safe option of terminating lease agreements will be taken, rather than seek other ways around restrictive legislation.
This is about balance between the tenant and the landlord. Tenants are ordinary, hard working people who are trying to do their best. Landlords are not always what they are perceived to be, somebody trying to squeeze the last euro out of the tenant. They are often simply families who own a premises and who wish to have a degree of autonomy over what happens with the premises. They do not want to lease the premises for 30 years. In this case, the tenant is running into difficulty because the lease will be enforced and the tenancy terminated by Christmas.
The Minister should do his best to put this legislation through Committee Stage and bring it back to the Dáil for Report Stage as quickly as possible so we can inform the people involved. One might wonder what difference this will make but this relates to the livelihoods of at least 25 people in a town in County Wexford. It is a successful business operating in a competitive environment. Perhaps the Minister will give us a timeframe for when he expects this legislation to be enacted.
What makes the Dáil relevant to our society is whether we act promptly when issues are raised and bring legislation through the House in an appropriate manner and timeframe. In his opening statement the Minister of State, Deputy Fahey, made it clear that the rule of law is universally regarded as one of the foundation elements of any properly organised society. He spoke about the importance of law and its role in society.
There appears to be serious problems throughout the legal profession in its interaction with clients and individuals. It is most important that the Minister for Justice, Equality and Law Reform, who understands the law and who should know what he is talking about given that he is a former Attorney General, puts the ordinary individual in society first. He must ensure, and not just give lip service to the concept, that the process that will be available to clients after this Bill is passed is one that will make a difference. It would be interesting to be able to come to the House and not have to listen to Deputies talk about how people were defrauded by a small minority of barristers and solicitors. It would be good if we could prove that this legislation made that difference and that the legal services ombudsman and the procedures available to people work.
There is no point talking about legal aid or getting a solicitor or barrister. It is next to impossible to get a barrister to sue another barrister and it is quite difficult to get a solicitor to take a case against another solicitor. People protect themselves within the profession and they do not like to be seen to sue another member of the same profession. The medical profession is the same, as is any other profession. They do not wish to be seen to be turning on other members.
If the passing of this legislation means that the Government must extend the State solicitor's services to provide a unit to implement the recommendations of the ombudsman, so be it. We must ensure it is useful. When the medical practitioners Bill is brought before the House, I will be seeking assurances that the provisions of the legislation are there to protect citizens and are not simply lip service to fulfil the spin of Ministers.
I thank my colleague, Deputy Gerard Murphy, for giving way to allow me speak on the Bill. I welcome the Bill. Most speakers have focused on the provisions to create a legal services ombudsman. I believe members of the legal profession will welcome this. They understand that self-regulation of their profession is damaging them and they need this new procedure.
Deputy Twomey mentioned the relevance of legislation. He referred to the Minister of State, Deputy Fahey's speech and his comment that the rule of law is universally regarded as one of the foundation elements of a properly organised society. What I will say in my contribution will go some way towards proving that what we do in this House is, in some cases, wasting society's time. Some of the legislation we pass is utterly useless and the time we spend putting it together is a complete waste.
I can offer an example. I have figures, which have not previously been published, to demonstrate what I mean. The first legislation taken on by the Minister for Justice, Equality and Law Reform on taking office was one he inherited from his predecessor, Deputy O'Donoghue, the Criminal Justice (Public Order) Act 2003. This Act essentially provided for two courses of action, closure orders and exemption orders. A closure order could be sought when an application was made by the Garda to a court asking that a premises be shut down if that premises was continually a source of trouble. The Act also permitted exclusion orders for where an individual was constantly causing trouble in a particular area. The order would exclude that person from the premises or location.
Three years after the Bill was enacted I secured the relevant numbers from the Department of Justice, Equality and Law Reform, after asking for them for about a year. Five closure orders have been made nationally. With regard to exclusion orders, the figure is the big goose egg of zero. It was absolutely worthless legislation. It was the first legislation from the current Minister and, frankly, it is not worth the paper on which it is written.
At the time I called it Mickey Mouse legislation, but in retrospect, I probably did a disservice to the memory of Mickey Mouse by characterising it in that way. Mr. Mouse would probably have written better legislation than the Bill we faced three years ago. I and other members of the Opposition, as well as some members of the Government parties, tried to tell Ministers that they had missed the point. The point was the use of alcohol and drugs. It was not about passing measures such as that Act but about dealing with the situation on the ground.
I am trying to tie this issue to the headlines we see in the newspapers every day. There was another headline in today's Irish Examiner. According to that newspaper the amount of cocaine, crack and ecstasy being used in Cork and Kerry has increased fourfold in the past eight years. The war on drugs is being lost. When the head of the Garda inspectorate, who is the former chief of the Boston police department, intimates, even though she qualified her statement, that there is a possibility the gardaí could be armed at some point in the future, it is an indication that the war has been badly lost in this area.
What can we do about it with regard to legislation? Time and again over the past four years we have heard Ministers talking about the action that would be taken, be it tightening up of the measures dealing with mandatory sentences for people carrying a certain amount of drugs or mandatory sentences for carrying a firearm.
They have all been fudges, particularly the last Criminal Justice Bill. It made out that it was providing for a mandatory minimum sentence for the carrying of an illegal firearm when judges would probably sidestep that very easily just as they have the Criminal Justice Act 1997 when it comes to mandatory sentencing for drugs.
Recently, I had a very interesting conversation with a senior garda. I asked him about the situation on the ground. He said it was fairly quiet apart from drugs. It was a very curious statement. He essentially said the situation in regard to drugs was completely off the scale, although generally he was able to deal with the levels of crime. It reminded me of a comment made by the former mayor of Washington DC, Marion Barry. He said the levels of crime in Washington DC were not that bad if one did not count the killings.
If this House is to be relevant — I have given an example of complete irrelevance — one must look at one area, namely, the Judiciary. In the past four years absolutely no attempt has been made to enforce a minimum sentence in the area of drugs and everything surrounding them. There have been fudges all the way. The problem is that our tolerance of the level of crime and drug use on the streets has increased. Our standards have dropped in regard to what we are able to take and are willing to put up with.
Brian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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I appreciate the Deputy's concern about the issues but this is an amending civil law Bill. There is no connection with crime.
Brian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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I am a Deputy and I am making a point. The Deputy's contribution has not yet touched on the Bill.
Deputy Twomey and others mentioned Garda numbers, on which I wish to touch. I am not sure why the Minister of State did not intervene when they were speaking. The Minister of State will be happy to know that, in the Dublin area, the number of people served by each garda is approximately 300. The figure is 370 in the Limerick area, 407 in the Cork area, 445 in the Galway area and 492 in the Waterford-Kilkenny division. There is a significant difference in the number of gardaí serving people. I have asked the Secretary General of the Department to respond to me in regard to this issue. I again ask the Department to come back to me with a response as to what it is going to do with the additional number of gardaí, if they ever come on stream.
I wish to raise one other issue, namely, the joint policing committees on which we are about to sit. I represent the city and county of Waterford. I have been told the first meeting of the city policing committee will take place next Monday and I will be a member of that committee. However, I will be precluded from sitting on the county Waterford policing committee because one cannot sit on both committees in a constituency. If that is the case, what is the reason for it? It is ridiculous if it is enforced.
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Before the dual mandate was abolished, there were instances of Deputies sitting on two councils.
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They sat on city and county borough councils and not just urban and county councils.
I welcome the legislation, although I would have preferred if its Title referred to the ombudsman rather miscellaneous provisions. It is difficult for somebody trying to research law if many different items are included in miscellaneous provisions Bills. I would not have expected to see bankruptcy and gaming included in this Bill, which is primarily concerned with the establishment of the legal services ombudsman. It does not make the Bill clear and coherent.
I have seen the work the Ombudsman has done in areas such as complaints about local authorities. It is an office which can be very effective if people's complaints have not been resolved by the relevant organisation, so I welcome the establishment of the legal services ombudsman from that point of view. Complaints must be made to the professional bodies before they can be considered by the legal services ombudsman. It will be widely welcomed that there will be some element of independence from the professional bodies because there was a feeling that the professions were judging themselves.
I note a levy will be applied on practising barristers and solicitors and I presume the introduction of the ombudsman will be financially neutral on the State. The levy will be paid to the Minister who must pursue those who do not pay. I am curious about how the Minister will pursue those debts. Will it be done through the State's legal offices? Will it place an additional obligation on them? The extent of the levy will be judged on the costs in the preceding year. The first year will be important from that point of view in that it does not tend to be a typical year as one is setting up an office and requires equipment and so on. One obviously would not have a typical case load with which to compare. There must be a little latitude in estimating the cost. If this office is successful, the case load will increase but one is likely not to have sufficient resources which will result in a backlog. It is important to allow a little latitude so that does not occur.
A timeframe for making complaints is listed, that is, within six months of the professional body concluding the case. I would like that six-month timeframe extended. There is no limit for deliberations such as those which apply to An Bord Pleanála. I accept there may be complex, legal issues but one criticism of the legal profession is the time it takes to do things, so I would like to see a time limit.
In the first year, publicising the office will be an issue as will acquiring an office, equipment and so on. It would be unfortunate if there was a backlog and an inadequate number of staff. As I said, an issue which is the cause of complaint is the unacceptably long time it takes to finalise matters. That is why I would like a time limit because it would give some certainty to people.
The publication of an annual report and the fact the ombudsman may be required to appear before the Committee of Public Accounts is useful in terms of increasing public awareness of the role of this office.
While the Bill covers complaints which have gone through the professional bodies without reaching a satisfactory conclusion, many of the complaints about the civil process relate to delays in the courts, which is not covered by this legislation. For example, there is a minimum 18-month delay in Naas Circuit Court in hearing matters of separation and divorce. That backlog is growing rather than declining. Naas is not an exception, although there is a serious problem there with delays. The number of judges and support staff, who are as important, is clearly deficient given that the cases which go to court for hearing tend to be those in which people cannot reach agreement. The result of protracted problems for the two parties and of unresolved disputes often damages the children involved. There is a human price which is often paid later in life by many people. It is becoming obvious that additional judges need to be appointed.
I would like to see judges being designated, in particular for civil matters which can understandably play second fiddle when criminal cases are involved and there might be a loss of liberty.
I welcome the fact that the ombudsman can review specific matters which are the subject of complaint. A good example of that is the issue of management companies. I have come across numerous people who have told me that when they have inquired of solicitors the implications of signing up with a management company, they have been told it is a fairly standard clause. They have been most dissatisfied with that kind of advice, and understandably so.
While the buyer should beware, there is a significant dependence, especially with first-time buyers, on solicitors to give the best advice. While in theory buyers have the option to choose a solicitor, I have met many people who have told me a solicitor was recommended by the developer. Sometimes there can be a cosy relationship there that may well end up as the subject of a complaint in the future.
It is only over time that we will see the value of this kind of work where particular issues are examined in a cohesive way rather than by means of individual complaints, although I would fully expect the complaints of individuals to get priority attention.
Sections 40 to 42, inclusive, deal with pension provisions for judges. I can see the value of that. However, this is an issue that requires some consideration when a judge has been appointed because clearly there are different implications if somebody is appointed who is in his or her mid-60s as opposed to somebody being appointed in his or her mid-40s.
Section 51 refers to evidence being given from a remote location by video-conferencing. That is a welcome provision in civil law. I am very much in favour of using whatever technology is available to become more efficient, use people's time better and possibly also reduce their need to travel. It would also make cases more efficient because one would not time them on the availability of people travelling.
Section 54 provides for €3,000 as the maximum sum allowed as compensation for a loss suffered as a result of providing inadequate legal services. I would consider €3,000 to be on the modest side and given that it is a maximum figure it is only likely to be increased in line with inflation. I question whether it is an adequate sum in the first instance. If somebody goes to the trouble of approaching professional bodies and proceeds from there to the ombudsman, clearly a great deal of effort is required and it is unlikely to be over a matter of little importance. This matter should be re-examined. I would not be surprised to see amendments being tabled on this issue.
Part 5 deals with the Gaming and Lotteries Act. While I was surprised to discover this was included, I do not have a problem with the changes proposed. In most cases the limits that are put in place are there to protect vulnerable people. The value of money has clearly changed over time.
The same is true for local authorities which can impose by-laws that can exclude, for example, gaming arcades from their areas. Very often that is done with the same purpose in mind. However, the nature of gaming and gambling has changed and it is no longer subject to geographical limits as people are connected to the Internet and everything from poker to horseracing, dog racing and everything one can conceivably think of is offered as a means of gambling, even elections. It goes right across the spectrum.
It is obvious that there are vulnerable people to whom we do not appear to offer significant protection. There is no doubt there is a need for some measure of regulation of this aspect of the industry. We hear about young people putting substantial sums through on-line gambling accounts and there is a danger that this practice will become compulsive for some people. We must ensure this danger is taken into account. I question why this aspect of the matter was picked out as one of the more important issues when there is something much more substantial that needs to be addressed.
The Civil Law (Miscellaneous Provisions) Bill is adequately named because we are dealing with many miscellaneous items in the Bill. The main section relates to the creation of a legal services ombudsman but we are also amending various Courts Acts, Courts Officers Acts, Solicitors Acts, the Gaming and Lotteries Act, the Statutory Declarations Act, the Juries Act, the Bankruptcy Act and the Succession Act. From past experience I am sure that before the Minister is finished with the Bill many additional topics will be dealt with and amendments made to it. It has been difficult for members of the Opposition to deal with this approach to Bills coming from the Department of Justice, Equality and Law Reform. Bills change constantly from the date of publication to the date of final report and, while we have to accept that is the style of the current Minister, it does not make for a good legislative process.
Having said that, I believe the central and most important element of the Bill is the creation of a legal services ombudsman. In a growing economy an effective and efficient solicitors service is absolutely essential. The tradition in this country has been the direct opposite. Businessmen and the public are fed up with the delays and inefficiencies in this sector. Their method of doing business is aloof and it would appear that, up to now, solicitors have had a vested interest in keeping it that way.
In a growing economy delays cost an enormous amount of money. Whether clients are businessmen or individuals they suffer and these delays add greatly to the cost of doing business. This is not acceptable in a country where it is absolutely vital that we keep our competitive edge. It is not acceptable if one profession is constantly adding to general business costs. This appears to be endemic in the profession because the legal profession in local authorities, State enterprises and State boards also appear to be the main reason public service transactions are continually delayed. In a modern society this antiquated attitude to dealing with clients is no longer acceptable and no matter what changes we make they will have little or no effect unless there is a fundamental change in attitude by the profession as a whole.
The entire system of training solicitors must be examined. They must be made to realise that the service they provide is slowing down the process of completing transactions. The ineffectiveness of the profession not only adds a cost to business and individuals but it also greatly adds to the stress of people's daily lives.
The Minister, Deputy McDowell, stated that the establishment of the ombudsman together with the new measures on legal costs will transform the provision of legal services. He stressed that it is essential to ensure that the legal system and the legal profession continue to meet the requirements of our modern dynamic society. While we welcome this change, the Tánaiste is starting from the wrong base. If he believes the legal profession has served society well, he is wrong. Its antiquated systems, arrogance and refusal to move with the modern world have cost our society dearly.
As with much of the legislation introduced by the Tánaiste, the intention of this Bill is correct, but the implementation leaves much to be desired. There must be a more fundamental shake-up of the legal system for the legal profession to realise that it is operating in the 21st century. There must be a fundamental change of attitude and the profession's members must realise that they are providing a service to the community.
They are servants of the community and their businesses must be geared towards a demanding public that regards customer care and transparency as the norm. It is no longer enough to have a good solicitor who knows his or her law well. The solicitor's knowledge must be transferred efficiently and quickly to the matter being dealt with, not left gathering dust on shelves until clients demand action. There is more to running a solicitor's business than the law element. Perhaps it should be a requirement that each solicitor's practice has a person who has the ability and qualifications to ensure that the administration of the office is effectively carried out.
In 2005, the Competition Authority called for an ombudsman. Its primary report highlighted the conflict of interest facing representatives of bodies of the legal profession in representing their members and the public's interest. The authority also emphasised that the current complex and opaque set of rules in the legal profession must be replaced by an independent, transparent and accountable system. Last year, only one complaint against a barrister was upheld by the Bar Council's disciplinary body and only two of the five solicitors referred to the High Court were struck off the roll of solicitors, while two people were ordered not to practice as sole solicitors.
No solicitor should be allowed to act in a solitary capacity unless he or she has the services of a professionally qualified administrator to deal with office administration. Many problems arise from the ineffective passing of advice through the administrative system rather than the advice of solicitors itself.
The whole affair is a joke as far as the public is concerned. Delays, mistakes and inefficiencies that cause clients strain and trauma and cost a great deal of money are only punishable by fines of between €250 and €5,000. Last year, the total amount paid by negligent solicitors was €22,600. I or any economist analysing the situation would be able to show that the inefficiencies in the legal system have cost individuals and the business community tens of millions of euro in that period.
A central demand of the Victims of the Legal Profession, an organisation formed in 2001, was the establishment of an ombudsman. The organisation helped to highlight the appalling levels of distress arising from unprofessional and, in certain cases, unethical conduct in the legal profession. The main complaints were about the processing of wills and property, which could be delayed by years. However, it is important to remember that the proposed ombudsman will only supervise bodies that examine their own members.
In this context, the English position is interesting. The Legal Services Ombudsman is independent of the legal profession and investigates the handling of complaints by the professional bodies. Recently, the English ombudsman spoke on this issue. While welcoming of the UK Government's White Paper on the Future of Legal Services: Putting the Customer First, the ombudsman declared her dissatisfaction with the fact that only 33% of the Law Society cases received by her and 12% of Bar Council cases were adequately dealt with in a way that would restore consumer confidence and relieve any perceived public concern about lawyers investigating complaints about fellow lawyers. Thus, there remains the possibility that, in Ireland as in England, an ombudsman alone might not suffice in resolving the major issue we are facing. Further reform will be required to remove complaints handling from the remit of the professional bodies.
It remains to be seen what effect the ombudsman's establishment will have, but it is only the beginning. If the law profession does not heed the wake-up call, more reforms must be urgently introduced. We cannot allow one profession to stifle progress. It must realise that the days of its privileged position are coming to an end. Its operations must become efficient and transparent, but it is obvious to the rest of the community that the profession has a long way to go to achieve this end. Its past dominance of this country's political life has allowed it to slow the reform process, but those days are gone. Politicians must respond to the consumer, who is demanding action. If the legal profession does not voluntarily respond, the Oireachtas must force it to reform in a consumer friendly way.
The central part of the Bill is the most important, but it does not go far enough. In general, law professionals do not realise how far behind they are and how the public regards them, namely, as problems and obstructions to people trying to do their daily business. Unless this situation changes, urgent action must be taken.
The Bill addresses other matters. Part 3 deals with courts and court officers, including a welcome amendment to section 65 of the Courts of Justice Act 1936 in respect of the setting of fees. Part 4 and its provision regarding the Solicitors Act 1954 is particularly welcome because it will allow lay people to get involved in the Law Society of Ireland. While a solicitor must be the chairperson of a committee, the Bill will abolish the requirement for two thirds of that committee to be composed of solicitors.
The portion of the Bill pertaining to gaming and lotteries is no longer contentious. Having seen the opposition to the issues tabled by the Tánaiste for public consideration, he has withdrawn the controversial aspects. From the Opposition's point of view, the other parts of the Bill are generally acceptable, but while the establishment of the ombudsman will be welcome, it will not do the job required of it.
When we are dealing with civil law or other justice-related matters, it is important that we get the balance right. Above all, competence, independence, quality and true public service must be important elements running through this legislation. We need a Bill and a vision for this country that is based on honesty and equality. These core principles in any democracy should be built into all pieces of legislation, and particularly into this Bill.
Once known as the land of saints and scholars, Ireland today is better known as the land of scandals and tribunals. Politics, banking, the church, business, the law, and the Garda have all suffered from an erosion of public confidence in the wake of astonishing scandals. Moreover, Ireland has undergone rapid social, economic and political change over the past decade, which has had a profound impact on our value system. For example, the decline in authority and influence experienced by the churches in recent years has forced many people to seek ethical or moral guidance from other sources.
Ireland at the beginning of the 21st century is a fairly prosperous country, which we all enjoy, yet this creates a dilemma of its own. Difficult decisions about the distribution of resources raise awkward questions for society. How is the tension between the rights of individuals and the overall good of society to be resolved? To whom do we look for guidance? The political elite, churches, medical and legal professions and business leaders have all had their credibility seriously tainted by damaging scandals. I mention these because it is an important part of the debate since we are dealing with justice issues and civil law.
This Bill makes provision for a number of changes to various elements of mainly non-criminal areas of law. Section 1 sets out the Short Title and provides that the Minister for Justice, Equality and Law Reform may make orders commencing its various provisions. Section 2 of the Bill provides for the collective citations of various provisions of the Bill with Acts already on the Statute Book.
The purpose of Part 2 is to establish on a statutory basis the office of the legal services ombudsman to oversee the handling of complaints by the Bar Council and Law Society, review the procedures for same and report annually on the adequacy of the admissions policies of both professions.
Section 4 provides for the establishment of the office of legal services ombudsman. Section 5 stipulates that the legal services ombudsman shall be appointed by the Government, the person appointed shall be suitably qualified and the classes of person not eligible for appointment as ombudsman. These are the details of the legislation.
Section 4 is an important element because we need people we can trust and respect. In today's world one cannot demand, buy or pay for trust or respect. If one wants the trust of the people, one must go out there and earn it. This applies to politicians, journalists, electricians and plasterers, and to any other person but particularly to those to whom this Bill refers, the legal profession. The debate yesterday was a wake-up call and a reality check for us all, and I relate this to the broader debate in today's legislation.
The primary functions and powers of the legal services ombudsman are provided in section 9. These are to ensure that complaints by clients of barristers and solicitors to the professional bodies are dealt with fairly, effectively and efficiently, to assess the adequacy of the admissions policies of the legal professions and to improve public understanding of issues relating to complaints. Section 10 stipulates that the ombudsman shall be independent in the performance of the functions of the office. It is important that the Bill stresses the independence of the ombudsman in dealing with these types of issues. I again use the words trust and integrity, which are relevant to the debate in this House over the past number of days. There must be independence and efficiency, and also recognition of the public's understanding on up-to-date situations.
When one digs further into the Bill, one sees that a complaint may be made to the ombudsman concerning the handling by the Bar Council or the Law Society of a complaint against a barrister or solicitor. A complaint may also be made to the legal services ombudsman about a decision of the Law Society to make or refuse a grant from the Law Society's compensation fund. Complaints to the legal services ombudsman must be made within six months of the determination of the related complaint by the relevant body. Provision is also made for the circumstances in which a person is not entitled to make a complaint.
Regarding due process for the Bar Council or the Law Society, I also challenge them on their integrity and objective professionalism. Recently, there have been leaks from these groups and they have now become an issue. Leaks from the legal profession or from any profession within the tribunals are not acceptable, particularly if they are directly connected with people in the legal profession.
It is also not acceptable for leaks to come from senior officials in the Department of Justice, Equality and Law Reform or from the Minister for Justice, Equality and Law Reform. I refer to the Frank Connolly case. There was much high moral ground reaction during the week regarding the leaks from the tribunal, but there was not a word about the family of Frank Connolly when he was totally discredited in the House last year by the Minister for Justice, Equality and Law Reform. I raise this matter because I am speaking about respect for the rights of individuals, justice and due process. These are fundamental matters on which we cannot sit on the fence. This is not acceptable practice in any democratic state. This is particularly relevant to section 24.
Before I go into that, I want to mention sections 22 and 23, which enable the ombudsman to establish procedures to be followed on the receipt, resolution and investigation of complaints. Such procedures shall be published. Section 24 provides that the ombudsman shall ensure that investigations are conducted in private. I urge Deputies to look carefully at section 24 and apply it to themselves, in their offices as Members of the Oireachtas or in other professions, whether as teachers, gardaí or lawyers. These are professional and ethical issues to which all Members of this House should pay attention. We need to protect privacy, but at the same time get the balance right so that it is not a matter of hiding behind privacy to cover up issues of public interest.
We must have these standards in politics. It is not acceptable that a Deputy and former Minister of State, when chairman of the then Eastern Health Board in 1991, gave a multi-million euro contract to a company and then got his house done up by the same company. There was a clear conflict of interest and a serious issue to be challenged. That particular contract was considerable and the issue involved more than a few cans of paint to which many referred in the past few days in the House. It is not acceptable and it is out of order.
Section 26 renders it an offence to obstruct the ombudsman in the performance of his or her functions. I welcome that provision because we cannot have a situation where any person in this State obstructs the ombudsman in the performance of his or her duties.
I commend the work of the existing Ombudsmen and also commend the work of the people who work directly in the interests of public service in this State, whether they are civil servants, gardaí, teachers, nurses or doctors. When we speak about them, it is important to note that there are people out there doing their jobs every day. They earn the respect and support of the public. We should commend them and thank them for their effort and for their service to the State. I particularly mention that in the context of section 26.
Section 28 provides that the ombudsman shall send a written statement on the results of the investigation, any direction given or recommendation made to the complainant, the relevant professional body and the barrister or solicitor concerned. Section 28 is strong because it involves a written statement, which gives it important teeth.
Section 32 provides that the Bar Council and Law Society keep complete records of matters related to their investigation of complaints and, on request, make them available to the ombudsman. It is essential that records are kept well. In the past, we have bad experiences of records not being kept. When I sit on the Joint Committee on Justice, Equality and Law Reform's Sub-Committee on the Barron Report, I find it appalling to hear the victims' families and the survivors of the Dublin and Monaghan bombings talking about missing files from different Departments and all sorts of documents going missing, and that we cannot get at the truth. Section 32 provides that complete records will be kept and the section will be used to strengthen the ombudsman's teeth during his or her investigations.
Sections 55 and 56 amend the Gaming and Lotteries Act 1956 to insert new values of 50 cent as the maximum stake and €30 as the maximum prize in gaming machines. Provision is also made for the Minister to vary the stake and prize amounts in future. It is important that the Minister should have such discretion. I call for professionalism, competence and decency in this regard. We should be cognisant of people who are addicted to gambling and this problem should be monitored closely. In addition, our young people must be protected when it comes to such outlets. A close eye must also be kept on gangsters who have indirect connections to casinos and clubs. A soft line should not be taken against organised crime. It is a fact of life which must be addressed.
It is unacceptable that housing estates and flat complexes in Dublin are controlled and run by gangs. For example, women in my constituency have the bottle and courage to clean their stairwells following constant attacks and intimidation but everybody turns a blind eye. It is unacceptable that women should have to put up with this nightmare. These working people deserve our support and our justice system must be strong enough to stand up and defend them. I raised this issue with the Minister for Justice, Equality and Law Reform on the ground in my constituency. It is also unacceptable that young men can get high on cocaine before murdering people such as Donna Cleary in Coolock. People involved in the importation of drugs should hang their heads in shame and they should all be locked up.
I challenge the Judiciary. What cloud cuckoo land are judges living in when it comes to handing out sentences to these people? They should wake up and smell the coffee. These people are dangerous and they should be put away for once and for all. They are ruining communities in Dublin and they are moving into other cities. We should stand in solidarity with the people of Cork and Limerick and give them our support, not turn our backs on them.
I wish everybody involved in the Northern Ireland peace talks well. Today was historic and there is absolutely no reason all the parties should fail to get their act together. The November deadline should be met and those involved should sit around the table and accept each other on an equal basis. They should treat each other with respect and address serious justice and human rights issues. I commend those involved in the talks because they are at a historic crossroads. They have an opportunity to work together on the island, whether they are Catholic, Protestant or non-religious.
Sections 40 to 42, inclusive, arise from the enactment of the Pensions (Amendment) Bill 2002, which reduced the qualifying period for pensions for public servants from five to two years with effect from 2 June 2002. The 2002 provisions were enacted on an administrative basis by the Department of Finance in respect of members of the Judiciary. Accordingly, the amendment will not lead to additional costs. I welcome this important development.
We must keep our eye on the ball when it comes to the justice system, which should always be based on truth, due process and human rights. It is essential that these core principles are observed and flow through every Bill introduced in the House. Sadly, in modern Ireland, this is no longer the case. We have good legislation but it must be implemented in a professional and objective way. It is also sad that there is a complete lack of respect for democracy, human rights and justice, examples of which I highlighted earlier.
This is important legislation, to which we should all pay close attention. I hope it will be a major step in the right direction in improving standards and the rights of our citizens. They submit their taxes to the Exchequer every week and they bear the costs of legislation. They deserve our support, and laws that do not look after or prioritise the needs of our citizens go nowhere.
I welcome the opportunity to contribute. When I first saw the Bill on the Government's legislative programme, I thought it had very little to do with me but then I recalled my own experiences and those of people who have attended my clinics. My experience of solicitors is generally positive. The Bill provides for the setting up of an office of legal services ombudsman, a development that is long overdue but welcome. The only recourse an individual has currently is to pursue a complaint through the Law Society or the Bar Council. Nobody I know who has taken a case to either body has won. Generally, the circle closes and Joe Bloggs is excluded even when he has a genuine complaint. It is sad that such a comment applies to one of the alleged noble professions.
I recollect one case involving a constituent who visited my clinic, which illustrates clearly why an ombudsman is needed. The individual and his wife were thrifty and they had decided to buy a site and build a house. When buying the site, they did more than most people do by ensuring the surveyor they employed was bonded so that if there was a problem with the work, they had a fall-back. They were able to take out an insurance policy to that effect. The house was eventually built and, following a short period, cracks began to appear in the block work. A number of the cracks were between two and three inches wide and one could place a closed fist in them. The house is dangerous and the walls are falling apart.
They contacted their surveyor and solicitor to establish who was at fault and against whom they could lodge a claim. It appeared that the surveyor was at fault because he had not adequately checked the laying of the foundation. He visited the site one day, dug his heel in the ground and said it looked okay. He left and presumed everything would be okay but that was not the case. The foundation was laid on a bog and if it had been dug 18 inches deeper, it would have been very solid. The building resembled a doll's house and it was built by a hard working, house proud couple. Other surveyors visited the house and the bonded surveyor put up his hands and accepted 100% liability.
There was no contest. The surveyor felt the project could go ahead and he offered an apology. It was not the builder's fault as he built the house immaculately. The foundation was faulty and everything went wrong from there on.
The insurance cover was for £250,000, which is a lot of money. In 1999 it was more than was needed to buy a site and build a house. However, there was a rider in the insurance policy which meant that the legal fees would have to be taken from the £250,000. One would presume, in an uncontested case where the surveyor accepted he was 100% to blame, that the legal fees would be low, perhaps £15,000 for both legal teams. In that event, the client would at worst be left with £235,000 to rebuild his dream house. However, the system in place at present left this man with £80,000 to rebuild his house because 68% of the claim was used to pay legal fees.
This result has had a serious psychological effect on the man, his wife and their young child. These effects pass through a family. One does not have a situation where a husband suffers while a wife does not, and vice versa; the consequences will pass on to a child to some extent. The man was left with just £80,000. He has tried to argue that this is not right but every sharp practice in the book has been used to fatten the claim. He has tried the Legal Aid Board and the Bar Council and he will next be referred to the Taxing Master, but the lawyers involved are so good at what they do, they can easily demonstrate that they carried out work on the case. When one has a milking cow, one can keep milking until the cow falls down, if one likes. That is what happened in this case.
The man was told he could reopen the case but the solicitor would have to retain junior and senior counsel to begin the process, and would then have to find experts in the area to ensure that one surveyor would agree with another surveyor, despite the straightforward nature of the case. It was this man's experience that prompted me to speak on the Bill.
The ombudsman's function will be to act in a supervisory or oversight capacity in regard to the response of the Law Society and Bar Council to complaints by clients of solicitors and barristers. The situation is a shambles. It is a self-governing system which is not working. All it takes is the occasional bad apple to tinge the whole barrel. Perhaps the entire system is wrong, which allows opportunities to arise. The legal affairs ombudsman will make a major contribution to the development of fair, effective, quality, user-friendly legal services.
I have no doubt this office will become a reality but when it does so, will the ombudsman have retrospective powers? If so, how far back will those powers go? Will there be a statute of limitations after a certain number of years or will it be an open book? Will the ombudsman have to wait for a file to build up? I have no doubt that as soon as the office is open, the ombudsman will be flooded with applications.
The legal professions are a major element in the proper functioning of our society. From time to time, we all find it necessary to avail of their services. However, if a poor person who has done nothing wrong tries to defend himself in court, the judge is generally dismissive of any attempt to explain. That is not good enough. Judges have come through the legal system, which they want to uphold and protect. I am not sure this is always of benefit to the individual. House conveyancing is another area where one does not necessarily need a solicitor as it can be dealt with by members of the public on a one-off basis.
The law plays a fundamental role in the way we structure our lives. Legal practitioners such as barristers and solicitors are the key players in this regard. We are in the midst of a type of global restructuring of both legal and professional services, which will have a major implication for the legal profession. Technology is pushing this trend. One can now sit in a law office in Dublin and instantaneously link with lawyers in Beijing and investment bankers in Singapore with regard to a project in Cape Town. That may not be the norm but such instances arise. New technology allows people to work easily across distances and develop different models. However, we live in a dangerous world, filled with opportunity. The world is becoming a smaller place — a global village — and the number of people doing deals in advertising, the purchase of property and the purchase of business across the globe is increasing.
The only time the ordinary Joe Soap deals with a solicitor is when he is at his most vulnerable, such as when buying a house, making a will or following a bad accident. These are generally one-off events, not of the type one would discuss with a neighbour. The solicitor is privileged in that it is old hat for him or her but it is a new, nerve-wracking experience for the Joe Soap. However, irrespective of the price of a house, the solicitor is in a privileged position and can charge a percentage of the house price with a minimum door-latch opener charge for starters. This is the type of sharp practice we are up against and which is rife in the legal profession. There is no shortage of sharks swimming in the water of legal malpractice and abuse.
A classic example of sharp practice came before us recently with regard to double charging by a solicitor during a redress board case. It was only because the media became aware of the case that the individual involved won. While my recollection may not be completely accurate, I understand a settlement was made without the solicitor admitting he had double-charged. This type of practice cannot be allowed to continue.
I agree with Deputy Cuffe that many people have been hard done by at the hands of unscrupulous members of the legal profession — I do not paint them all with the same brush — particularly in regard to the work of the Residential Institutions Redress Board. It was bad enough for those involved to have suffered what they did but when the State accepted it owed them compensation, the legal profession saw them as a soft target to be milked. The lawyers were paid once but that was not enough; they made sure they would be paid a second time. The representation of these individuals left much to be desired and the despicable abuse of their position has brought the legal profession into disrepute.
An aggrieved complainant to the Law Society or Bar Council, who may be dissatisfied with the way these bodies dealt with a matter, can resort to the ombudsman to investigate the grievance. This type of office has already been functioning in other jurisdictions. Experience has shown that an ombudsman and associated team has dealt efficiently and fairly with all complaints. It is reassuring that if it is working in other jurisdictions, I do not see why we cannot introduce the same template here and work with the same type of vigour.
Thus far the office has been fair, independent and proactive in providing a service to complainants, individual lawyers and professional bodies. In serving an increasingly diverse society, the ombudsman will be required to recognise, respect and value diversity in striving to serve the interests of people from all sections of society.
The legal services ombudsman would act in the manner of an advocate for the client's or consumer's interest in the regulatory framework attaching to the legal profession. Complaints about professional bodies would have to be investigated efficiently and effectively by the ombudsman's office. There has been talk here about an ombudsman and an ombudsman's team, but I have no doubt there will be no scarcity of work for the ombudsman and associated team.
The ombudsman's office will have to ensure impartial investigation and redress where appropriate. Its aim will have to be the application of best practice in the handling of complaints by the legal professional bodies, with a view to raising the standards of services for consumers.
The ombudsman's office effectively would be involved in the shaping of the future regulation of legal services in this country. Clients may be deeply frustrated or aggrieved because they may feel the professional body did not investigate a complaint properly, or perhaps at all. This is one of the difficulties.
On investigating a complaint, one is hit with the potential cost. It is almost a case of allowing sleeping dogs lie. The first action a solicitor will take in investigating a major complaint is to bring in barristers, perhaps a couple of senior counsels and a junior counsel.
If one is looking for a professional opinion, or to challenge a professional opinion, it may be that nobody will provide it in this country. A person may have to search across the world. This is not unusual. These are the types of obstacles put in people's way. The matter becomes a cost issue. Common sense is left out the back of a solicitor's door on the street. These are instances where if a complaint is to be made, an ombudsman will ensure that people are not robbed to take an action.
I believe the word ombudsman means a defender of humankind. I take it the proposed ombudsman will be a free service to people who have a legitimate complaint. My understanding is that it will be the last recourse for people who have paid their bills, etc.
Section 27 of the Bill indicates that if the ombudsman decides the client's complaint is justified, it will be able to direct the professional body to reconsider some or all aspects of it. The ombudsman may decide the professional body caused the client unnecessary distress or inconvenience due to the handling of the complaint, or perhaps that the client suffered some loss as a result.
Unnecessary distress is being caused to people, no less so than to the people I referred to earlier. They are going through this case for approximately six or seven years. That is a major amount of time from anybody's life. Not alone will these people be further pinned to the ground, but it is likely they will never receive a penny for the distress the legal system has caused them with regard to their home. Will there be any form of recompense for people who have been put through the wringer and whose lives have been destroyed? We should consider these issues. In such cases, the ombudsman should be empowered to direct the body to reconsider its decision.
Sections 55 and 56 of the Bill amend the Gaming and Lotteries Act 1956 to insert new values of 50 cent and €30 euro as maximum stakes for gaming machines. I do not know the situation or whether the people framing this legislation have gone out or undercover in some of these gaming arcades and seen that one can play for fun. Did they know that the 2p signs on the machines are 20 cent or 20 euro, and that one can go in nominally to win €2, but that amount could in reality be €200?
This is happening and there is no point in stating differently. Is there anybody to examine the issue, or perhaps have a chat with the people pumping the money into these machines? People pumping money into machines like this can often ill-afford it.
There are people who are highly addicted to this type of gaming. If limits are increased a hundred-fold, does that mean the shop will take the next step and bump limits up again? There is a culture of operating in an illegal manner. It could be viewed that this House is effectively stating that it will legalise what we know certain businesses have been doing illegally for a number of years. The culture of people who own these businesses is that they will continue to provide the services on an illegal basis.
The Chair is about to cut me off before I get started, which is very sad.
Updating legislation in the legal area is very important and must be undertaken on an ongoing basis. It is not uncommon to have to refer to Acts that are two centuries old. Incidentally, some of these Acts have stood the test of time well. When we go to amend them we find ourselves in slight difficulty. I do not propose to go into the minutiae of the particular Acts in question this evening. Nevertheless, I can think of one or two examples in my time in this House where Acts that were on the Statute Book for at least a century were amended, but subsequently they did not seem to stand the test of time as well. There are issues in that which we must deal with again.
In the short time available to me tonight I wish to indicate that the setting up of a legal services ombudsman is important. It is an important service and change in the legislation. It is significant in terms of protecting the public and the profession itself. The tendency to overly rely on self-regulation is beginning to wane and it is not as satisfactory as one would have liked. For some unknown reason, as time goes by, we have evidence of cases where the self-regulation system did not work to the benefit of the consumer.
The consumer is the person on whom all of us in this Parliament rely. They elect us to the House and are affected by the legislation we pass. If it comes to pass, as in the number of cases referred to by my colleague, that the legislation was not sufficiently watertight to ensure the protection of the individual, the issue should be examined. The provision is a good one. It updates legislation and will be of considerable benefit.
I do not know if I have sufficient time now to speak about what was once known as free legal aid, but I intend to speak about it when I have the opportunity. Free legal aid was a concept that came about when people who could not afford the cost of the legal system had an opportunity to avail of a free service. It was generally provided by law students. They learned much themselves and it was beneficial and educational to them. It was also very good for the community at large. That has been put on a statutory footing for several years now, and although it exists to some extent, it is not there to the extent that was originally intended.