Wednesday, 9 December 2015
Legal Services Regulation Bill 2011: From the Seanad (Resumed)
I want to make a small contribution, although I was not part of the overall debate. The point has been made that the amendments do not cover the cost for ordinary people of accessing the courts, which is one of the key issues the troika instructed the Government to deal with. In 2013, I took a case against the Minister for Finance and was advised that a stenographer was required for the days we were sitting in court, and that the State would pay half the cost. The cost for the stenographer for four days was €11,194.80, approximately €3,000 per day. Such a cost is a major restriction on people taking cases they feel have a constitutional basis. We should examine it. I was asked to pay half the cost of the stenographer, €5,597, which is a lot of money to pay up front and restricts people who do not have money from challenging the courts.
A constituent of mine is raising an issue with the legislation. He found himself in a particular adverse situation through the courts. Earlier, Deputy Shatter mentioned citizens' trust and ability to find justice through the courts or, if they do not find justice in the courts, how it is dealt with. I support Deputy Mac Lochlainn's point on the need for a Bill to implement some sort of mediation and provide somebody who is professionally skilled and qualified to be able to assist people through adverse situations in which they find themselves. My constituent has raised the issue asking the Minister to take into account in the new Bill something he feels is not taken account of, namely, some abuse in the legal system. He feels ombudsmen and gardaí are not fit for the purpose of dealing with all the corruption that is part of the culture in the justice system, and he feels the public is aware of it. My constituent was a victim of insider dealing in the courts whereby a case was staged without being put on the day's list.
He attended the case with a barrister. I am not going to mention any names. A famous name in the courts was appointed for the court in an appeal that was then in the master's court. It was the master himself who asked my constituent to leave the courtroom. I remind the House that he was the appellant. My constituent left the courtroom thinking that all the scandal involved in the case was being put to his opponent - a court insider who never had to attend any of the previous Circuit Court or master's hearings. He feels that crucial decisions were hatched behind his client's back in the courtroom. He feels that the Courts Service official or registrar had to turn a blind eye and ear and that this entirely favoured his opponent and the attempted evictor. This is still going on today.
This is important because it relates to the question of how people access the courts. The judge in this case went on to the Supreme Court. Both the judge and the barrister are retired from the courts now. As a consequence of what happened, my constituent's client is facing the prospect of having his home, where he has lived for 70 years, taken from him. The Property Registration Authority has stonewalled the release of a document that is putting this man's residence of 70 years at risk. He has applied four times to see that document. I have made two such applications, but I have received no response whatsoever. The man in question feels that the document is a fraud because it is based on an obsolete out-of-time will that was made before the Succession Act came into force and has been struck down, in effect, by the option that gives the spouse one third of the estate. The claim that was made in the Circuit Court was blunted and not reflected in the 2003 hearing, of which no record exists. It is very strange that this all happened in a court, but there is no actual record of it.
My constituent finally found the DPP file when an assault was made on his house. There was a break-in. It was not handed over to the DPP. The gardaí were thwarted in their efforts to bring the case. My constituent feels there was a hand behind that action. My constituent finally found that the DPP file never arrived. He feels that all of this corruption reached a new high when his client agreed property tax terms before the deadline in 2013. Before he could pay, he was told that the relative in question had paid it in her own name as the registered owner. The sole purpose of this was to blunt the client's plea of adverse possession after 70 years in the house. At least half of that time was spent as the owner of the house. He thought he had pleaded his case successfully through the courts and the master's court at the time.
All of this was dissolved by the court case in 2003. How would any of the Minister's reforms address such a debacle and make it impossible for it to occur in the courts and in the justice system again? There is another scandal of loopholes. It seems that in some circumstances, solicitors can put registrations through the Property Registration Authority. My constituent believes that some of these registrations are bogus because they did not go through the courts system properly. He feels that this legislation does not even attempt to deal with anything like this. A mediation Bill would possibly be a good step forward in actually dealing with some of these issues in which people find themselves adversely involved.
I will make a couple of points in response to the various issues that have emerged today. I would say firstly that there is a public interest in having an independent regulator. This Bill provides for better control of costs. It provides for public complaints to be dealt with in an independent fashion. It provides a roadmap for the opening up of our legal services market. All of that is delivered in this Bill. It is very much about the public interest. Obviously, I have been very concerned to ensure the public interest is served by enabling these legislative proposals to become law.
Multidisciplinary partnerships are in their infancy in other countries. There has been very little coverage of their impact to date. They seem to be operating happily alongside traditional models, but they have raised regulatory issues. Risk will need to be properly managed by the regulatory system. I am not stopping multidisciplinary partnerships. I expect to see them happening in Ireland. However, I believe we should do proper research project first.
I agree with the points that have been made about mediation and costs. I would like to make an important point about this Bill in that context. I think Deputies Mac Lochlainn and Collins will be particularly interested in this. The Bill provides for informal resolution and mediation on several fronts: in resolving complaints, in settling legal cost disputes, in settling consumer issues such as inadequate service and in settling misconduct issues. It is important that the model provided for in the Bill mirrors and anticipates the mediation Bill and creates a culture of informal resolution. I would say that the mediation Bill is very important. We have not been able to get to it due to the heavy legislative workload of the Department of Justice and Equality. It is almost ready for publication.
It is very important that we move ahead in establishing this Bill because it provides for significant independent regulation of legal services and includes a full suite of modern regulatory inspection powers that will stand up to constitutional scrutiny. We are giving the new regulatory authority full powers to oversee all the new business models, which is very important. The Bill has been restructured to give effect to the agreement that the former Minister, Deputy Shatter, made with the Law Society in 2012 concerning the retention by the society of its supervisory powers in relation to solicitors' accounts and compensation funds. The Bill designs and brings forward measures to introduce limited liability partnerships for legal firms. As I said this morning, I have proposed an array of amendments to the Bill. A huge amount is being done.
I assure the House that I was not threatened by anyone. As the Minister with responsibility for this legislation, I had three options open to me. First, I had the option of leaving things exactly as they were in the area of legal services. Deputies can see from the major changes introduced in the Bill that I am not taking that route. Second, I had the option of disregarding the legal advice that certain elements of the Bill posed constitutional risks. Some people would have liked me to disregard that advice so that I would be tied up in lengthy and costly litigation and none of these reforms would be implemented in the near future. Third, I had the option of getting this Bill enacted, thereby creating a direct path to the opening of the market to new legal partnerships as early as next year, laying the groundwork for further reforms and creating an authority with the teeth to ensure the reforms get going and get embedded. That is what I have chosen to do.
The troika came and went, but we continued to work on structural reform to open up the way legal services are provided in this State. We did so in a way that offers choice to legal practitioners and those who avail of their services. It also addresses the cost of doing legal business or enforcing contracts, which was set to become a deepening competitive issue of disadvantage for our economy. There is more work to be done, but a more transparent legal cost structure, involving a legal costs adjudicator, is now embedded in the Bill. Solicitors and barristers will have to lay out what their costs are, while other changes relate to advertising. The various processes in the Bill will ensure we are on the right path in terms of supporting consumers. I have accepted several of the suggestions that came from the Competition and Consumer Protection Commission by proposing changes to Schedule 1 to the Bill. I have been able to incorporate those very good suggestions in the legislation. In addition, the commission will be given an opportunity in 18 months to review how the Bill is working. The new regulatory authority will take careful note of any attempt by any professional body to subvert what is intended in this Bill.
I am getting to them. This legislation has been on a long journey. As Deputy Shatter said earlier, it was published in late 2011. The real test of whether the Bill will pass muster is whether consumers will see reductions in legal fees. We need to be conscious that outside the big law houses in Dublin, many of the small and medium-sized practitioners throughout the country and across Dublin have, like many other small businesses, been significantly affected by the recession of recent years. Many solicitors have gone out of business following a downturn in business caused by forces in the economy. Many people who were employed in law firms and solicitors' practices throughout the country have lost their jobs. It is not right to say they are all living high on the hog and that this is an entire gravy train. Having said that, studies that have been produced have shown that some of the larger legal services providers charge excessively high fees. Many of them often charge such fees to the State. We have seen huge reportage of that. It has played out time and again below in the Committee of Public Accounts.
I reiterate that we need to be mindful of the needs of small and medium-sized legal practitioners.
An example of this is a solicitor in Kerry who recently told me used to have a practice of 2.5 solicitors, with the necessary administrative support staff of up to eight, but as a result of the recession he is on his own, working from his house. Many legal practices are now operating from a virtual office, using a shared services call centre to deal with post, administration and answering the phones. There has been a sea change in this regard but fees will be the big one.
I know the Minister has to leave so her colleague beside her might take notes on this matter. Will the new authority deal with a case to which my attention has been drawn recently? That person took an action against the State. It went through the process and came to court but was ultimately settled on the steps of the court, with the State agreeing to pay damages in the order of €100,000 plus legal fees. When he went to conclude his business with his solicitor, his solicitor endeavoured to retain €10,000 of the €100,000 in addition to the fees the State had agreed to pay. In other words, the solicitor was engaged in double charging, something we have seen over the years. He made the Law Society aware of the issue in correspondence but got no satisfaction from the Law Society. The Law Society pointed out that there was no written agreement but the solicitor said there was a verbal agreement and this is now in dispute. The person who brought the case now finds himself in the situation where it is his word as against the solicitor's word and they are left to argue it out between themselves. What does a citizen do in such a situation? They cannot get their hands on an award given by way of settlement because their solicitor is paid fees on one side by the State, through the Taxing Master, while at the same time looking for a slice of the action on the other side.
The Minister made a couple of points on mediation. I know it is not particularly relevant to the passing of this Bill but free legal aid is related to the provision of legal services and this needs to be looked at in the context of mediation. We have free legal aid in criminal cases but we need to have a look at the civil side of things. The criminal legal aid demand uses up the entire amount of the budget but people are coming into our clinics, day in, day out and week in, week out, looking for civil free legal aid.
I welcome the passage of the Bill, whether it is today or tomorrow, and the fact that we will have a new regime. The engagement with both the Bar Council and the Law Society was very detailed and they were right to lobby us. That is what democracy is all about and stakeholder groups should be able to engage with their politicians. Some people mentioned the media reporting of it. It has to be done in an open and transparent fashion. They came and stated their case, as did the association representing legal executives who may not have got entirely what they wanted but who made some progress. We are all happy to engage with stakeholders in the passage of legislation.
I thank Deputy Collins for his support in the passing of this Bill. In answer to his question, the kind of case he describes can be referred if it involves fraud, as can excessive costs, and complaints may be made by a client against a practitioner. Legal adjudication is there to assess costs and, arising from the Bill, far more transparency about costs is intended. A retrospective complaint, such as the one the Deputy described, could go to the legal costs adjudicator. The public will make their complaints about alleged misconduct on the part of solicitors and barristers to the new legal services regulatory authority instead of the Law Society or the Bar Council, as they do at present. That will include the handling of consumer-type complaints about excessive costs, which the regulatory authority will seek to resolve by informal means. This will provide ordinary consumers with an alternative solution to the more expensive process of going through the Taxing Master. However, the charging of grossly excessive fees by a legal practitioner will be dealt with under the conduct regime of the Bill as a matter of misconduct.
The Bill strengthens the position of consumers and there is greater transparency on costs by replacing the Taxing Master with the legal costs adjudicator. There will be independent procedures for complaints, discipline and general complaints and these will now go to an independent body where previously they had been dealt with under the Solicitors Acts within the Law Society while barristers dealt with these cases and published a report once a year. Now there is an independent body for complaints or discipline and this is a major change and a significant step forward.
This group of amendments deals with the transition from the old regulatory system to the new regulatory system provided by the Bill. A decision made by my predecessor, post publication of the Bill, that the society would retain the financial and accounting oversight of solicitors and the associated solicitors' compensation fund has led to a great many amendments to date. The key policy consideration, with which I agree, has been for the new authority and, by extension, the State, not to be responsible or held liable for the solicitors' compensation fund. This change is that the Law Society, subject to the oversight mechanisms of the new regulatory authority, will retain its existing investigative, protective and disciplinary powers regarding the financial regulation of solicitors. This, in essence, represents a co-regulatory split between the Law Society and the authority in respect of solicitors. There will be no equivalent regulatory split in regard to barristers, who will be exclusively and entirely regulated by the authority.
The Law Society already has extensive powers in the Solicitors Acts 1954 to 2011 relating to the financial and accounting oversight of solicitors and within this regulatory framework the solicitors' compensation fund, a multimillion euro fund financed by solicitors themselves from which compensation is paid to clients who have, in effect, been defrauded by solicitors holding their moneys, operates. It makes sense to keep the infrastructure and potential liability associated with the compensation fund in place but with the Law Society subject to the oversight of the LRSA. The credibility and effectiveness of this system and maintaining a visible threat to solicitors depend on the Law Society being able to pursue disciplinary action, including High Court emergency measures, on its own initiative. These are critical factors both in managing the risk of financial misbehaviour by solicitors and in moving quickly to investigation and enforcement. The Law Society has a wealth of experience in the management of these issues. However, the Law Society's activities will be overseen by, and held accountable to, the new authority through a range of mechanisms, namely, a monitor, a monitoring presence, an officer of the authority on the Law Society 's regulation of practice committee, the power to obtain reports from the Law Society, provisions to allow for the flow of information between the Law Society and the new authority, and the authority's general power to make recommendations to the Minister for legislative change including where the authority might conclude from its monitoring of the Law Society that these arrangements need to be adjusted legislatively.
The authority will be the approving authority for regulations made by the Law Society. It is important to note that the authority will operate a new, independent, public complaints handling system for general professional misconduct by both solicitors and barristers.
As a corollary to the regulatory division of labour between the Law Society and the legal services regulatory authority, several repeals and amendments will be necessary to the Solicitors Acts and these are provided for in this group of amendments.
As I said, we had to wait until the structure of the Bill was absolutely clear before we could deal with all the amendments to the Solicitors Acts. The amendments to those Acts reflect the changes we are introducing in the regulatory system, which must be reflected in the Solicitors Acts.
Amendments Nos. 4 to 21, inclusive, 24, 25, 27, 30, 45, 54, 58, 148 to 150, inclusive, 152 to 158, inclusive, 160, 161, 166, 175 to 180, inclusive, 184 to 186, inclusive, 190 to 194, inclusive, and the amendment proposed to amendment No. 193, 207 to 210, inclusive, 212, 215 to 221, inclusive, 223, 224, 230 and 267 are related and may be discussed together.
This is a large group of amendments. It concerns a range of corrections to wording, spelling, cross-references, section numbers and updates to legislative references and collective citations. While I accept that there is an extent to which these types of amendment must be taken in good faith as a group, that will not prevent or disrupt us from discussing them and those substantial matters of amendment that are before us today. I assure the House that the Department has carefully ensured that all amendments that touch upon substantive policy issues are grouped separately from these.
As one can see from a perusal of this cluster of amendments, they fall into the tidying-up category in respect of the Bill. It is hoped it will be appreciated how difficult it is to maintain correct numbering as we go through the numerous amendments a Bill of this complexity will generate by way of realising its statutory and reform objectives from a whole-of-Bill perspective. While I can explain what each amendment does, I assure the House that the amendments are necessary to ensure coherence and congruity across the Bill and are of no policy import. However, I can provide the details on each amendment if required.
Seanad amendment No. 22, the proposed amendment to Seanad amendment No. 22, and Seanad amendments Nos. 23, 26, 28, 29, 31 to 34, inclusive, 38 to 42, inclusive, 66, 83, 145, 195 and 270 are related and may be discussed together.
I move amendment No. 1 to Seanad amendment No. 22:
To insert the following new subsection after subsection (3)"(4) The Minister shall publish a new Regulatory Impact Analysis of this Act prior to its commencement.".
Given that it is so long since the Bill was published, the Minister of State might not recall that a regulatory impact assessment was published at the time of its publication. The purpose of this amendment is to seek the publication of a new regulatory impact assessment, given the number of amendments that have been processed since the Bill was published, to assess how the final product will work vis-à-visthe first draft of the Bill. Perhaps the Minister of State would comment on that.
The publication of a regulatory impact analysis is part of the preparatory process for a Bill being put before the Houses. A 52-page regulatory impact analysis of the Legal Services Regulation Bill was published in November 2013. This document, which ranks among the more substantial regulatory impact analyses prepared on the Bill, sets out the costs, benefits and impacts of three policy options. The third of these options was the establishment of a lean and independent legal services regulator. That was preferred and agreed by the Government.
The development of the Legal Services Regulation Bill has held to this preferred option. The Bill has been developed with relevant Cabinet approvals on that basis and in detailed consultation with relevant stakeholders, where necessary or appropriate. Under the legislative process, the Bill has been further developed and amendments duly made in detailed debate before both Houses and in the Oireachtas Committee on Justice, Defence and Equality, of which the Deputy is a member. The Bill provides for a series of review mechanisms under which remaining key issues will be subjected to public consultations. These consultations will shape and determine how those issues may be dealt with or regulated in the future, including, if necessary, under primary legislation. Multidisciplinary practices are a case in point. The new authority will also have the power to carry out such consultations on relevant matters on its own initiative.
Under an amendment introduced by the Government in the Seanad, the operation of the Legal Services Regulation Bill will be subject to periodic review. The first such review will be held 18 months after the establishment of the new regulatory authority. It will include a review of the levy on legal practitioners and the participation of the Competition and Consumer Protection Commission. These public consultation and periodic review mechanisms built into the Bill, as amended, enable the Bill's objectives, functions and impacts to be analysed on an ongoing basis. They will review and consider the real issues arising in real time under the Bill from when it is enacted. In fact, these new reviews and consultations are among some of the distinguishing features of the Bill.
That covers amendment No. 22. If the Deputy wishes to discuss the other amendments in the group, I will be happy to do so.
These amendments relate to the issue of the powers of the authority to inspect legal practices. Sections 30 and 31 have been remodelled into a new Part to better specify the inspection powers of the legal services regulatory authority. The grouping also includes the safeguard protections in relation to legal privilege, which is an essential and long-standing legal right which must be protected, especially with respect to clients. If necessary, I can go through each amendment in detail. Deputies will want to know at the outset, of course, that the legal services regulatory authority will have a full suite of powers to carry out inspections either on foot of a complaint or by way of ensuring compliance with the new Bill, its regulations or any code of practice.
Parts 5 and 6 as passed by the Dáil have been remodelled into a new single Part 6. The amendments in the grouping represent a core policy change since the Bill's inception whereby the Law Society, under the oversight of the new legal services regulatory authority, will retain its existing investigative, protective and disciplinary powers regarding the financial regulation of solicitors under the Solicitors Acts. The Law Society will therefore continue to oversee the implementation of the solicitors' accounts regulations, carry out routine financial inspections of solicitors and investigate any financial infringements and prosecute them before the legal practitioners disciplinary tribunal. In a complaint against a solicitor, the authority, complaints committee or disciplinary tribunal will be able to request the Law Society to carry out an investigation under the Solicitors Acts into the matter relevant to the complaint. The Law Society will have to comply with the request and, within a reasonable time, submit a report on the matter which will be admissible in any disciplinary proceedings. It should be noted that the authority will be solely responsible for the handling of all complaints against legal practitioners.
The three grounds on which a person may make a complaint to the authority are that an act or omission of the legal practitioner constitutes misconduct, that the legal services provided by the legal practitioner were inadequate or that the amount of costs sought by the legal practitioner were excessive. The authority will have the power to seek resolutions to complaints and may invite the complainant and the legal practitioner to make efforts to resolve the issue in an informal manner. Where both parties agree to such an approach, the authority may facilitate efforts to resolve matters either directly or by referring parties to other persons willing to assist with information resolution.
The final important provision of the new Part is one which specifies what is meant by misconduct by a legal practitioner in the context of the legislation.
I move amendment No. 1 to Seanad amendment No. 76:
To delete the section 56 proposed to be inserted by Seanad amendment number 76 and substitute the following:“56. An agreement by a legal practitioner, who is the subject of a complaint, to attempt to resolve the complaint in the manner referred to in section 5, 52or 54shall not be taken as an admission--(a) of any allegation contained in a complaint made under paragraph (a) or (b) of section 42(1)regarding the legal practitioner, or
(b) of any allegation of misconduct referred to in section 42(2).”.
I move amendment No. 1 to Seanad amendment No. 89:
To delete subsection (2) of the section 69 proposed to be inserted by Seanad amendment number 89 and substitute the following:“(2) Regulations made under subsection (1) may make provision for--(a) the procedures to be followed in relation to the matters referred to in subsection (1), and
(b) the parties, other than the Authority, the complainant and the legal practitioner concerned, who may make submissions to the Disciplinary Tribunal.”.
I move amendment No. 1 to Seanad amendment No. 90:
In subsection (4) of the section 70 proposed to be inserted by Seanad amendment number 90, in the third line of that subsection, after “Authority” to insert “or the legal practitioner concerned”.
These amendments deal with the levy that will be imposed on all legal practitioners in order to fund the annual operating costs and administrative expenses of the new legal services regulatory authority and the new legal practitioners disciplinary tribunal. The process is very well advanced so these amendments today are only minor tidying-up amendments in order to perfect the relevant Part of the Bill. The Part provides that the Law Society will be responsible for paying to the authority an annual levy on behalf of solicitors. The Bar Council will be responsible for paying the levy on behalf of its members, and those barristers who are not members of that body will be individually responsible for paying the levy directly to the authority. The levy will be divided fairly and proportionately between the three categories of legal practitioner.
How it is proposed that the Law Society and Bar Council will levy a solicitors' or barristers' practice? Will it be per registered solicitor or barrister practising or based on turnover? What will the rationale be?
The calculation ratio is that 10% of the expenses incurred by the authority and the tribunal in their disciplinary-related functions will be apportioned to the Law Society and 10% to all practising barristers, whether or not they are members of the Law Library, while the remaining 80% will be apportioned in proportion to the expenses incurred in the consideration and investigation of complaints in respect of the three categories of legal practitioner. The expenses incurred by the authority in fulfilling its functions other than those relating to complaints will be apportioned pro ratabetween the three groups.
A levy assessment notice shall be sent at the end of each financial year to the relevant professional bodies or individuals, as the case may be, specifying the total due to be paid and the breakdown of the final tally and how it is achieved. The initial set-up costs for the new bodies will be paid by the Exchequer on a recoupable basis.
The Minister of State will no doubt correct me if I misunderstood the position. My principal concern is as to whether there is an obligation on the legal practitioner to register with the authority as opposed to the authority having to police those who are involved in legal practice. What is the position?
The amendment relates to limited liability practices. Subject to appropriate fees, the legal services regulation authority will operate a system of authorisation and registration of partnerships which wish to become limited liability practices. The authority will also maintain a publicly available register of these practices. Protection will be provided for the consumer in the form of an obligation on firms to have substantial professional indemnity insurance cover. The authorisation to operate as a limited liability practice will be subject to the existence and maintenance of such insurance. Where the correct insurance is not in place, the liability will fall. This is provided for in section 109(4) and (5) and inserted by amendment No. 199, which is the amendment the Deputy had in mind.
While I agree in principle with the Minister of State on this matter, I do not know how an ordinary layperson will understand much of the language used in the amendments and the text of the Bill. While the Minister of State will not agree with me, from reading through the Bill and listening to the very good debate in the Seanad last week, specifically the salient points made by the Minister and Senator Sean Barrett, with whom I sometimes disagree, I am concerned that the Oireachtas always encounters serious difficulties when it tries to regulate the professional classes. The Minister and Minister of State both referred to the Bill as being balanced and favouring the consumer, rather than being simply a draft by the legal professions. That is my principal concern. I thank the Minister of State for the explanation provided.
The consumer has been at the centre of the thinking of the Minister and Department. The Law Society will maintain the roll of solicitors, while the legal services regulatory authority will maintain the roll of practising barristers.
Part 10 dealing with legal costs has been well developed for some time. As such, the amendments proposed today are, in the main, only technical enhancements to what is already in place, rather than substantive policy changes to the Part. While I can discuss in detail each amendment, if necessary, Deputies may appreciate a brief overview. The purpose of Part 10 is to introduce an enhanced legal costs regime that will bring greater transparency to how legal costs are charged by legal practitioners along with a better balance between the interests of legal practitioners and those of their clients. A key reform under this Bill is that the current functions of the Taxing Master will be assumed by the new office of the legal costs adjudicators when adjudicating a disputed bill of costs. In all, the House will find this Part to be a significant reforming measure that is in the interests of consumers, transparency and competition. I ask Deputies to support this group of amendments.
I move amendment No. 1 to Seanad amendment No. 257:
To delete the section 177 proposed to be inserted by Seanad amendment number 257 and substitute the following:
“Amendment of section 38 of Act of 1994
177. Section 38 of the Act of 1994 is amended—(a) in subsection (1)—(i) by the substitution of “the Solicitors Acts 1954 to 2015 or the Legal Services Regulation Act 2015,” for “the Solicitors Acts, 1954 to 1994,”, and(b) in subsection (2) by the substitution of “the Solicitors Acts 1954 to 2015 or the Legal Services Regulation Act 2015,” for “the Solicitors Acts, 1954 to 1994,”.
(ii) by the insertion of “or the Authority” after “Society”,
These amendments delete the existing sections 155 and 156 along with the existing Schedule 2 relating to whistleblowers and protected disclosures. This follows advices received and detailed consultation with the Department of Public Expenditure and Reform, which has policy responsibility for this area.
The reason for proceeding in this way is that these matters were dealt with centrally under the Protected Disclosures Bill 2014, which has been enacted since it was envisaged these measures would be in this Bill. The Protected Disclosures Act was not in place when the Legal Services Regulation Bill was originally published in 2011. It has been decided to rely on the new and comprehensive whistleblower protections in line with the Government decision to discontinue a sector-by-sector approach to whistleblowing as well as the need to ensure no confusion or crosscutting between parallel regimes. The 2014 Act is understood to be comprehensive for these purposes.
Amendments Nos. 271 and 273 insert an important new Part 15. They deal with pre-action protocols in medical negligence cases. I am pleased that it has been possible to include this part in the Bill. It provides the statutory basis for the introduction of what is termed "pre-action protocol", which will take the form of ministerial regulations. The pre-action protocol will set out the steps to be followed and the obligations on all relevant parties in respect of the handling of inquiries into and allegations of clinical medical negligence.
As Deputies will be aware, this legislative step has been called for from a wide variety of interested parties, including patient advocacy groups. This is good for the consumer. There have been many sad and difficult cases. It has also been called for by medical professionals and the Judiciary for many years.
The expert working group on medical negligence litigation and periodic payments was established by the President of the High Court with terms of reference that included the examination of the current system within the courts for the management of claims for damages arising out of alleged medical negligence, to identify any shortcomings within the system and the making of such recommendations as may be necessary to improve the system and eliminate shortcomings. The group published its report in March 2012. I am pleased that, without further delay, the implementation of many of the working group reforms and key recommendations are taking a major step forward today. The insertion of a ministerial regulation with powers in a primary statute, such as the Legal Services Regulation Bill, means the scope and purpose of the regulations as well as any legal technical matters are set out, while the detail of what is to be done is left to the regulator.
Much groundwork has been done in terms of consultation with interested parties. This has come about because we recognise that medical or clinical negligence claims are placing a major burden on patients who believe they are victims of medical negligence. It also places a major burden on the medical professionals, who must handle such claims almost exclusively within the adversarial context of legal proceedings with all the attendant shortcomings. It also places a major burden on the courts, which have to hear the claims, some of which are discovered at a late stage to have been unsupported by the necessary evidence thus leading to delays and inefficiencies. It was against this background that a pre-action protocol was called for in the interests of all parties. The pre-action protocol will set out in a step-by-step manner the procedures to be followed for the aggrieved recipients of health services as well as the medical practitioners concerned, starting from the inquiry stage and featuring all the way to court proceedings, where necessary.
I call on Members to support this pre-action protocol to encourage the early resolution of inquiries of allegations relating to possible clinical negligence and to promote good non-adversarial communication between the parties with a view to reducing the need to go to court.
Of course, access to the courts will still be available to parties where it is warranted. However, the pre-action protocol will ensure that a full disclosure of all relevant information, grounds of complaint and supporting evidence will be made clear at an early stage, thus reducing significantly the likelihood of court adjournments, which are a key factor in the high cost of litigation in this country. I believe this will have knock-on effects for the efficiencies of courts, a point many Senators and Deputies have raised. Many have referred to the need for greater efficiencies in our courts and the various initiatives that would make a difference in this regard. It could also lead to the possible lowering of insurance costs in the medical sphere to the benefit of all consumers. Therefore, from a consumer point of view, this new section will be helpful for some people in very difficult situations. It has been sought for a long period.
Agreement of Seanad amendments, other than amendments Nos. 61, 76, 89, 90, 95, 98, 193 and 257, are reported to the House. A message will be sent to Seanad Éireann acquainting it that, first, Dáil Éireann has agreed to amendments Nos. 1 to 60, inclusive, 62 to 75, inclusive, 77 to 88, inclusive, 91 to 94, inclusive, 96, 97 and 99 to 192, inclusive, 194 to 256, inclusive, and 258 to 280, inclusive, made by Seanad Éireann to the Legal Services Regulation Bill 2011, and, second, Dáil Éireann has agreed to amendments Nos. 61, 76, 89, 90, 95, 98, 193 and 257, with amendments thereto, to which the agreement of Seanad Éireann is desired in each case. Is that agreed? Agreed.
The amendments are mostly technical amendments and one full section is repeated, but in fact a particular sentence needs to be inserted into the amendments.
I thank the Acting Chairman for taking us through all of the amendments and my colleague, the Minister of State, Deputy Murphy, for supporting me in the passage of the Bill today. I take this opportunity to express my thanks to Members of the House, the Seanad and the joint committee, which did a lot of work on the Bill. They have all helped to bring it to its final stage. I want to pay particular thanks to my predecessor, Deputy Alan Shatter, who, as Minister, launched the Bill and steered it through Committee Stage in the Dáil. Many people have put in a significant amount of work into this very complex and comprehensive Bill over a long period of time, as we heard during the course of the debate today.
I thank in particular the staff of the Department of Justice and Equality who have done Trojan work on this Bill, with all its complexities. Conan McKenna, Richard Fallon and Clare Dowling, who have joined me here today, worked in a painstaking and detailed way over months and years. I also thank the many drafters in the Office of the Attorney General who did likewise and the Attorney General for her support throughout the developments in the Bill and the very complex issues we had to deal with in the transition the Bill represents to an independent regulatory authority.
This is a major transition. It moves us into a system of independent regulation of legal services in this country for the first time and it also introduces independent opportunities to examine complaints and disciplinary issues within legal services, which is extremely important.
Many people were involved in the development of the Bill. The parliamentary draftsmen were very patient in working with the detailed amendments we had to bring forward. Sometimes there were amendments to amendments because so many technical elements needed to be worked through in the Seanad and Dáil. I thank the Bills Office for its support in getting this complex Bill through the Houses.
Today, we discussed why we are enacting the Bill. Its purpose is to create a statutory regulator of all legal practitioners for the first time in the history of the State. The existing regime has no statutory regulation of barristers and there is nowhere other than professional bodies to which the public and clients can go with complaints. The professional bodies provided a large amount of detail to us, which was necessary because there will be a transition from the work they are doing. We needed a large amount of detail from them on the work they had been doing for decades. As I said, this is a major transition.
The Bill provides for complaints about legal practitioners, from whatever source, including clients, to be dealt with by an independent statutory body for the first time. I repeat what I said earlier, that is, that this Bill introduces new business models to increase competition in legal services. There are a series of measures to deal with the costs in the legal services market. The Bill will benefit consumers because there will now be an independent body. There will be an independent pathway, greater clarity regarding costs and pre-action protocols for medical negligence cases. There will shortly be a choice of various business models for the provision of legal services. The market will open up in a way which it has not to date because of the availability of new business models.
There is an outline of the work programme which the legal services regulatory authority will have to undertake in the years ahead. There are provisions to examine legal training. There will be further opportunities through new competitive practices and a greater range of partnerships once research has been done. For the first time limited liability partnerships will be available, which will be helpful in terms of competition. Once the Bill is enacted and the authority established, consumers will be provided with greater clarity about costs. They will be able to go into a practice where a solicitor and barrister or barrister and barrister work together.
I have no doubt that, given the changes in the market we have seen internationally, this is the beginning of new models in this country. It is inevitable that we will see a range of adaptation around those models in the years ahead.
I again point to the important provisions we have introduced regarding barristers who are employees representing their employers.There is a very strong provision in regard to professional associations. There can be no interference in the establishment of these new models. The legal services regulatory authority will have a very strong oversight role when it comes to the development of new models. As I have already outlined, it will be involved in the general oversight of legal services, but also oversight when it comes to discipline and complaints.
I again thank all those involved in the development of the Bill. I look forward to it coming into law and being implemented. We will now move on to the appointment of the CEO and board, which will have a lay majority, another important point. The Bill will benefit consumers.
I thank the Competition and Consumer Protection Commission for its recommendations. We are fulfilling the vast majority of the recommendations in its report. We made some recent changes to the Bill to improve the schedule of costs, something it recommended. I look forward to the coming into being next year of the legal services regulatory authority.