Eoghan Murphy (Dublin South East, Fine Gael)
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I congratulate the Minister on bringing this Bill before the House. We made a commitment to the people during the general election last year that this would be a reforming Government and that while restoring our country's fiscal sovereignty would be our prime objective, we would also take the opportunity to reform all aspects of society to better meet the needs and realities of Ireland in the 21st century. Our aim would be to find a new vision for the country and to build a better country in pursuit of that vision. No sector of our economy or society can claim it is incapable of performing better, including this Parliament. We have only just begun our work, but already some important steps have been taken. This Bill is another important step in the process of the reform we hope to bring about for the country.

The Minister has asked for constructive proposals on how the Legal Services Regulation Bill may be strengthened and I hope to offer some in this debate. I have spoken with and corresponded with the Minister on this matter previously and I appreciate the fact he took the time to engage with me in detail on the various issues. We also had an excellent briefing last week on the Bill with the Minister and his officials where we had the opportunity to go through each section of the Bill in detail. Again, I thank the Minister for his time and for answering my questions in detail.

Today, I would like to speak about some particular aspects of the Bill because although we have discussed these issues previously, it is important that as a member of one of the Government parties I come into the House and contribute to the debate. Much of the work of Government Deputy happens in the background, in parliamentary party meetings and in one-on-one meetings with Ministers and their officials. However, it is important to the process that we also come into the House and express our opinions. I feel that too much of the work of an elected representative to this House is confined to that of a constituency representative and that needs to change. It is changing, but slowly. We are elected both to represent our constituents and to attend Parliament and bring our judgment to bear on matters of national importance. That does not mean coming in here and pushing a button once or twice a week, or standing up and speaking to a half-empty Chamber and calling it debate. This is a criticism I level at all of us, myself included. The country wants us to do better. It wants reform in this Chamber and wants us to be better and we cannot let reform of this House slip off the agenda, even for a moment.

As for reform of the legal profession, an issue this Bill attempts to address, it is critical to the functioning of a true and proper democracy that operation and regulation of the legal profession and system is truly independent of the executive and legislative branches of government. To blur that separation of powers even slightly is to strike at the delicate balance underpinning our society.

In a democracy, an independent legal system is essential to protecting and vindicating the legal rights of citizens. Anything that seeks to alter the constitution of that system, even with a view to improving it, must be examined very carefully. Independence is not an absolute term or meaning. It has different connotations. It is varied in its practice and it is relative. As a general principle, we can agree that it is preferable that no body or profession would regulate itself. That is true for the legal profession as it is true for the other professions. However, it is also important to recognise that in a democracy, given the special position of the legal profession, neither can the operation and regulation of that system be vested in the Government alone.

The Legal Services Regulation Bill 2011 establishes a legal services regulatory authority to regulate and control the legal profession, something we all would welcome in this House. However, questions have been raised about its constitution and there is a concern about potential political interference from future administrations. When we address new Bills in this House, we must remember that the ensuing legislation will remain after we are gone. We must always keep in mind those who will follow us into this Chamber and those who may occupy the front benches. Questions have been raised and we should not be afraid of them. We should answer these questions and where they are ridiculous, let us say that they are ridiculous and where they merit consideration, let us consider them. The Government will not have all the answers and we will not get it perfect every time.

I am personally interested in those proposals which have been put forward to parliamentarians that would seek to constitute the regulatory authority in a slightly different manner to that which is proposed in the Bill. I am particularly interested in those elements that seek to give more of a role to Members of the Oireachtas as a pillar separate to that of the Executive. These give us more of a role as legislators and give more weight to what we do in our work in the Government. That is important as part of the reform that we need to seek in this House. We can achieve that without impinging on the independence principle that we are all seeking to promote as we go about reforming the legal profession and as is contained in this Bill.

It is important that the appointment of a new regulatory authority is transparent and is seen to be transparent, uninfluenced by day-to-day political concerns. I wonder if there might be a role for the Commission for Public Service Appointments, or a similar body or committee, to nominate members for the Government to appoint to the regulatory authority. I agree with the Minister that it is also important the authority has a lay majority. However, it might be a good idea for those lay members to be nominated from particular sectors of our society, such as the non-governmental sector or other professional bodies, which will add to the variety of the authority and will increase its expertise. I would also like to see the regulatory authority reporting to the Oireachtas and its committees. If anything, this will strengthen the role of the Oireachtas and its independence from the Executive.

We could decide that Members of the Oireachtas will be responsible for dealing with those matters that may arise in the work of the regulatory authority, such as whether a member should be removed from the authority. That may fall to the Oireachtas or one of its committees to decide, and then only for stated reasons. I raise these two points because it is important in the context of the future Governments and future Members of Parliament who may sit here after us.

We have also discussed the potential costs of the regulatory authority. It is important that it is funded appropriately, so that it can carry out its work. It will have a lot of work to do under this Bill and it is appropriate that it has the right number of staff and all the resources necessary so that it can effectively regulate the legal profession.

The Minister is looking at the ways in which we might cost or provide for the funding of this authority but it is preferable that the authority would be established in such a way that it would not increase costs for the consumer. That is an important principle and I look forward to any proposals that the Minister has on that issue. He has also indicated that amendments may be made to the consent provisions in the Bill, and I look forward to considering them on Committee Stage.

I appreciate that there is a compelling reason for reviewing the current structures of the legal profession. However, given how significant the changes will be - it is a big change to how legal services operate in this country and to how people access those services - it has been suggested that there may be room for further development of the part of the Bill dealing with multi-disciplinary practices in separate legislation. This merits some consideration given the huge amount of work that will be involved in it, and I know the Minister is committed to it.

I am interested to hear more about how it is intended the new disciplinary tribunals are to interact with the new authority. Will they come under it? Will they share membership or other structures? Will they be appointed by the authority or will they be strictly independent of it? If they are independent, how will they be constituted and to whom will they report? We have not had an opportunity to speak about that yet, and I would appreciate clarification on that matter.

I hope that those proposals may be constructive to the work the Minister is trying to do. As a backbench Member of the senior party in the Government, it is important that contribute to this debate and be as constructive as I can. There is a long way to go. It is a large, ambitious Bill and I congratulate the Minister for that. I look forward to participating in further debates as we move to Committee Stage.

John O'Mahony (Mayo, Fine Gael)
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The Minister for Justice and Equality is to be commended for introducing the Legal Services Regulation Bill 2011, which provides for the much anticipated and necessary changes to the manner in which legal services are provided and the legal profession is regulated in Ireland. For many years there has been resistance to legal change in this country, much of it within the legal profession itself. However, there is a realisation by now from all stakeholders that change is needed and can benefit both the legal profession and the public.

The regulation of the entire legal profession - barristers and solicitors - is of fundamental importance to the proper administration of justice in Ireland. Such regulation must be independent, transparent, accountable and above reproach. The vast majority of barristers and solicitors are above reproach but it is vital that any deviation from the highest standards is dealt with in a fair, independent and transparent way.

Until now, rightly or wrongly, the view among the general public is that barristers and solicitors have not been regulated in any meaningful way. They would say that very few barristers have been censored or suspended, although there has been some examples recently. Solicitors live in the real world. They are not immune from the current economic difficulties which exist for all who are living in Ireland. The costs of legal practice have escalated in recent years, particularly in the area of professional indemnity insurance, which is compulsory for all solicitors.

The provision of legal services, like other professional services, must be regulated in the public interest. There is existing regulation of legal professionals, but there have been many public examples of why the current system, whereby legal professionals are regulated and represented by the same body, is not effective and cannot be sustained. The best examples of the failure of the current system to regulate its members are almost certainly not in the public domain, having been sheltered by an ineffective, untransparent and self-regulatory regime. There is no doubt but that the interest of the public would be considerably better served by an independent and modern model of regulation. I welcome the Law Society's recent change of position on how clients make complaints. The society has acknowledged for the first time that the best interests of the public and the profession would be served when client complaints were made to an independent body and not to the society itself.

I have spoken many times of the challenges facing small and medium sized businesses in my constituency and beyond. One such challenge is the professional costs, including legal fees, associated with establishing and running a business in the current regulatory environment. The new legal costs regime proposed in the Bill, which will make it easier for businesses and members of the public to understand, account for and dispute legal costs arising, is to be welcomed. As legislators, we too have a duty to improve the quality and clarity of legislation and regulation emanating from this House in order that members of the public can understand and address their legal obligations without recourse in every case to solicitors or barristers.

The regulation of solicitors under the Solicitors Acts as administered by the Law Society has become the subject of serious scrutiny by members of the public and the majority of solicitors. We have the debacle of the Solicitors Mutual Defence Fund becoming insolvent to the tune of almost €170 million. The company sought to trade out of its difficulties and continued to take money in premiums from unsuspecting solicitors for professional indemnity insurance cover. The directors of the fund and Law Society should have known the company was insolvent. Solicitors are now burdened with the added problem of rescuing the Solicitors Mutual Defence Fund and covering the cost of funding its run-down and insolvency, notwithstanding that the majority of practising solicitors acted prudently in dealing with their professional indemnity insurance.

The regulation of solicitors has become bureaucratic and costly. It is simply not good enough that members of the public with genuine grievances against solicitors can wait up to two years to secure a decision from the Law Society. Solicitors can be the victims of unsubstantiated and unrealistic claims, particularly when the Law Society's investigating accountants incur substantial expense and difficulty in attempting to deal with a system that is not fit for purpose, as is the case at present.

I welcome the Minister's willingness to meet, consult and seek submissions from all the stakeholders. His confirmation that he is considering some relevant amendments for the Committee Stage debate, such as an amendment to remove the requirement to obtain the Minister's consent for any code of practice proposed by the regulatory authority and amendments to remove any doubt that may exist concerning the independence of the proposed legal services regulatory authority in the context of the appointment of members thereto, demonstrates his determination to get the legislation exactly right. I commend him on introducing a long overdue Bill which will be enacted as part of the Government's reform of the country's institutions and structures.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Is trua liom nach féidir liom fáiltiú roimh an mBille seo, in ainneoin go mbínn ag lorg, thar na blianta, go mbéadh Bille den sort seo curtha os comhair na Dála agus go mbéadh athraithe curtha i bhfeidhm ar an gcóras dlí agus ar an chaoi a dhéanann abhchóidí agus dlíodóirí a ngnó féin a reachtáil agus go mbéadh an gnó sin níos oscailte agus níos soiléire don phobal i gcoitinne.

Tá rudaí maithe ins an mBille seo, agus molaim an t-Aire as an chuid sin de a thabhairt chun cinn. Ach is trua liom go bhfuil dáinséir laistigh den mBille a dhéanfaidh sé deacair don chóras uilig a bheith neamhspleách ar an Rialtas. Má achtófar an Bille mar atá sé faoi láthair tá an dáinséar ann - agus níl mé ag rá go ndéanfadh an t-Aire é seo - go gcuirfeadh Aire a ladar isteach níos mó ná ba chóir i gcóras atá in ainm is a bheith neamhspleách.

I have concerns about the Bill before us. I would love to be in a position to welcome legislation that set out to address fully the costs of the legal profession and the vested interests aspect of that profession. Although the Bill attempts to do this, it also provides for a degree of ministerial control over the legal professions that is not healthy and does not have any place in legislation. I hope on Committee Stage the Minister will address this concern, which has been raised by the legal professions and others, including those with an interest in human rights around the world. The control exerted by the Minister through the proposed appointments mechanism is a retrograde step. The Bill should reflect best practice. I hope, therefore, that this power will be removed on Committee Stage and the other measures in the legislation result in our legal profession becoming the best and most transparent in the world in terms of costs and the way in which it regulates itself. The legal profession should not be dictated to by a Minister and it would set a dangerous precedent to go down the route proposed in the Bill.

As I indicated, the legislation has some welcome features, including provisions requiring transparency in the area of costs. While we have the benefit of the Taxing Master, we still do not have a full understanding of how decisions are reached on costs because the system lacks openness. The most welcome feature of the legislation is the proposal to establish a chief legal costs adjudicator to assume the role currently performed by the Taxing Master.

Legal costs are falling, which may be a consequence of the economic crisis or greater competition in the various grades of legal practitioners. The number of solicitors and barristers practising law appears to have increased significantly in recent years and this may have created a degree of competition in the legal profession. We need to be careful, therefore, to ensure that nothing in the Bill reverses the downward trend in legal costs or makes access to the law more expensive. If an amended Bill is passed, I hope the mechanism of a chief legal costs adjudicator will ensure we obtain value for money from the legal system.

The bodies representing solicitors and barristers have expressed concern about the fee the Minister has provided for in the Bill to cover the costs of establishing the new legal services regulatory authority. The Bar Council and Law Society impose their own fees, some of which probably inhibit access to the legal profession for those seeking to enter it. At what level will be the fee or levy demanded for the new authority be set? Will it be higher than the fees currently paid by legal practitioners? If so, will it drive away some of those in the legal profession who are not managing to roll in the money? As we know, there is a perception that practising solicitors and barristers are rolling in money. One need only attend the courts to see that quite a number of people in the legal profession are struggling to make ends meet and have invested a lot of money in their practices and the overheads which go with that. Any additional costs for this profession, or for any profession, over and above what it is already paying must be questioned. What is the overall estimate, because I presume the Minister and his adviser have come up with an estimate of the levy which will be imposed on practitioners? Will it be more than the annual fees he or she currently pay to his or her respective associations?

Three new offices will be set up and, in some ways, it might be a good thing for all three to be separate. The legal services regulatory authority, the legal practitioners disciplinary tribunal and the office of the legal costs adjudicator are welcome but the Minister has much more power in terms of appointments and nominations. If one looks at the equivalent situation in other professions, it seems odd the Minister has decided to go down this route. For many years, we, in this House, have argued that rather than the Minister being the nominating person, at the very least, a committee of the House should appoint people to the likes of the three new offices which will be established. Even if a committee was to deal with it, it would still be reflective of Government. However, if there was an external nominating body and a committee of this House appointed people from a panel, it would be a more independent process than what is suggested in this legislation.

It is not my area of expertise but I have concerns about the business structure suggested in the Bill, and not from any belief that solicitors and barristers should not work together or with other professions in a multi-disciplinary setting. In my family, there is quite a number of rural solicitors in Limerick. They set up a business and served the town of Newcastle West well for many years, as have other solicitors in that town. If we create large law firms with barristers, solicitors and other experts, is there a danger we might force business away from the small towns into the larger ones where all the expertise is in a one-stop-shop? It is a concern I have, although I have not fully worked it out. I will try to elaborate further on it on Committee Stage. I have been lobbied by a number of small practices which are concerned that in the event of this happening, they will be forced to close or to amalgamate, which was not their intention in the first instance. They wanted to be sole traders and independent solicitors operating in, and serving, a community.

The overheads of large firms will be less which means they will be able to drive down the fees they will charge the public which will make it more attractive for the public to go to them, especially in the current climate. In the future, it might only be loyalty which will keep people with some of the smaller rural practices, although there is a number of small practices in cities and small towns and villages. If the market starts to be dominated by these multi-disciplinary teams, it would be a bad day for the legal services in Ireland.

I hope the Minister will address some of the concerns raised by Deputies on Committee Stage which is the advantage of that Stage. If the heads of this Bill had been published much earlier than the Bill itself and if the Oireachtas Joint Committee on Justice, Defence and Equality had hearings on the heads, we might have been able to have a more acceptable Bill at this Stage rather than have to do much of the work on Committee Stage. Given that this is such a substantial change to the regulation of our legal services, it is vital we get it right. It is not something to which we can keep coming back. We have one chance to get it right.

This involves listening to the practitioners, whether barristers or solicitors, and to the users, those who have complaints. There have been quite a number of complaints over the years about solicitors and barristers. Anybody who deals with the public on a regular basis in clinics and so on will know that quite a substantial number of complaints involve solicitors who did not represent people properly, did not take their advice or gave no reason for a charge. These are all valid points which are being addressed in this Bill but if there had been a hearing at committee, the public would have had a greater understanding of where this Bill is going. If it needed to be tweaked, it could have been done at an earlier stage.

Not only that, but we could have invited in international experts to give their tuppence worth to see whether this is in line with best practice elsewhere and to see where the UN and other bodies such as that want legal services in a country to go. The more independent legal practitioners and the legal system are of government, the better. That is a major concern I have that this Bill seems to undermine some of the independence which has been there. Perhaps that independence was abused by having a closed shop and vested interests but that does not mean the services need to be under the full control of a Minister. There is a half way house which is that we set up the regulatory bodies and have an outside body appoint the lay members or other board members rather than it being dominated by ministerial appointees, as is proposed.

Alex White (Dublin South, Labour)
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I welcome the opportunity to contribute to this debate on the reform of legal services. This is important legislation and I share the concerns Deputy Ó Snodaigh expressed in regard to how the Bill was brought forward. I will come back to its contents in a moment but it is unfortunate - it is certainly not the Government's or the Minister's fault - that the Bill came before us rather quickly last October but there is a provision in the EU-IMF memorandum of understanding requiring reforms to be brought forward and the Bill had to be published by a particular date. That was probably the reason there was not the kind of advanced discussion, consultation and debate which Deputy Ó Snodaigh rightly said would be appropriate in the case of such fundamental reform as is contemplated, or proposed to be introduced, in this legislation. The necessity for reform and modernisation right across the board is well understood and the point is well taken. However, when one sets out to reform the provision of legal services there are many questions that enter into the equation and there are many issues on the agenda. The competition agenda is often canvassed as an important one, and I would not for a moment say that it is not relevant or important. The term "the public interest" is often bandied about and people sometimes have different interpretations of it. Very often people put a political spin on it - what they regard as being in the public interest politically. Nonetheless, we have a broad understanding of what we mean as politicians and legislators about what is right and appropriate in terms of providing, for example, legal services in the public interest. Reform and modernisation are therefore essential.

There must be proper debate and consultation, and not just with the professions. The professions are well represented and have opportunities to bring their views into the public arena and it is correct that they should do so. Consumers of legal services are citizens who depend on the legal profession and the courts to vindicate and defend their rights in disputes, and sometimes in highly controversial circumstances. In debating this legislation, we are principally directing our attention to the citizens. I know that is the perspective of the Minister and the Government also. We need to listen carefully to what the professions have to say but we must legislate in the public interest, which requires a broad view to be taken, rather than one in favour of a profession or vested interest.

I have believed for years that there was a need to reform legal services. I have worked in the legal profession for almost 20 years and have had a reasonable opportunity to view how it works, or does not. As a practising lawyer and a member of the Bar, I have been disappointed by the slowness of reform and an unwillingness on the part of the professions to embrace or promote change. This has led to a situation whereby people feel they are victims of change instead of taking the opportunity, when it is there, to advance proposals for change to the way things are done in their own professions. The Minister himself has been a practitioner. Practitioners are there on a daily basis and can understand the requirements and drawbacks, as well as seeing where the gaps are.

The profession I know best is the Bar because that is the area in which I have been involved. There has been a failure and a lamentable lethargy concerning the need for reform. We need to address the question of equity within the legal professions, and in particular the distribution of work at the Bar. So much work - I am not saying all - finds its way to a relatively small number of practitioners. They are excellent practitioners - there is no question about that - but the Bar itself has been slow in bringing forward proposals to better facilitate younger barristers coming into the profession, people who are willing and well able to work. That has not been done but it is an area that should have been addressed and still requires to be addressed. People have been slow to embrace that.

The tone of the debate in recent months has been unfortunate as there has been overstatement on the part of the professions as to the implications of some of the Bill's proposals. With respect, there has also been overreaction to that overstatement. A change of tone in the debate is required in the coming weeks and months when decisions will have to be made regarding the final content of the legislation. I can understand why the reaction may be rhetorical when barristers or solicitors make a certain point because they are trying to protect their vested interests. Many things are said, including that they are trying to stay in the 19th century and are a cabal. It is possible that when the profession's representatives come forward with ideas, even critical ones, they are doing so for reasons other than to protect their self interest. We must be careful about that and alive to the possibility that people are simply being defensive.

On the other side of the equation, we must not throw the baby out with the bath water by stating that because people might be motivated by self interest, we must completely reject what they say. I am not suggesting that is what the Minister proposes to do, but we need to lower the temperature of this tense debate. We should all sit down to look at these issues and come to the best possible outcome not for any one interest group, but for the citizens we represent.

The independence of the legal profession has been the most debated question in this regard. I do not need to dwell on it, however, because everybody agrees that it is important. Everybody accepts - how could they not - that the independence of the legal profession is vital in any democracy. It is actually a test of the strength of a democracy. Examples are sometimes given of the impecunious litigant who appears in court to challenge the State on a difficult area of law. The litigant requires to be represented by an absolutely fearless advocate, somebody who is never concerned by any attempt to trample on his or her independence. Such an advocate should be absolutely fearless before any court and should not have any concern about repercussions, either from the Government or elsewhere.

As well as being a test of democracy, it is also a big part of the rule of law. We talk a lot about the economic concerns and how the economy, and this country, are viewed abroad. This issue is also related to economic rights and the view of Ireland abroad. Prospective foreign investors need to understand and appreciate that we have a fully independent legal profession that is beholden to no one, be it the Government or others. It is therefore absolutely vital that this independence should be protected.

It is not a formalistic matter. I have heard people say: "Look, sure there's nothing in the Bill that, on the face of it, undermines the independence of an individual practitioner. Nowhere in the Bill will you find any provision that tramples in any way on his or her independence." It is a bigger issue than that, however. One must analyse the authority, for example. The method of appointing the authority is essential to ensure the independence of the profession. The question of how the membership of the authority is appointed is not an incidental issue and nor should it be taken as a criticism. I do not believe there is any place for criticism of the Minister or the Government in regard to it. It has to do with the manner in which people perceive that authority. They need to understand and appreciate that it is entirely at arm's length from the Government and that it is independent not just in the operation of its functions, which one would assume, but in every way. There should be no sense on the part of any authority members that it is beholden to the Government. There is no intention on the Government's part to make it so.

I am often struck by the analogy of the newspaper proprietor and the editor. How many times have we suspected that newspapers are following the diktats of a proprietor? One hears editors on television saying: "I've never spoken to the proprietor of this newspaper. He has never picked up the phone to me, and I've no idea what his views are. He's never sought to communicate his views to me." That does not answer the question, however, because if the newspaper editor and others working there believe their positions, even in remote circumstances, could be under threat - in this case, for example, authority members believing that their survival was dependent on the goodwill of the Minister of the day - that is not good. Those circumstances should not be allowed to obtain.

The Minister is open to amendments on the means of appointment to the authority. It is necessary to amend the provision. There are many ideas on how this can be achieved. Other professions, including the medical profession, have a good statutory regime for the appointment of the independent regulator in their cases. These are the parallels we should be looking at.