Wednesday, 10 February 2021
Appointment of Member of the Legal Services Regulatory Authority: Motion
That Dáil Éireann, noting that the Government agreed on 12th January, 2021, to propose, for the approval of Dáil Éireann, the appointment of Deirdre Malone to be a member of the Legal Services Regulatory Authority, and pursuant to sections 9 and 10 of the Legal Services Regulation Act 2015, approves the appointment of Deirdre Malone, with effect from 1st October, 2020, by the Government to be a member of the Legal Services Regulatory Authority in accordance with that Act, such appointment being for a period not exceeding four years from the date of appointment, as the Government may determine.”
I am speaking on behalf of my colleague, the Minister, Deputy McEntee, who regrets that she cannot be present due to other official commitments. The motion concerns the nomination for appointment of one remaining member of the Legal Services Regulatory Authority, LRSA, for a four-year term. It seeks the approval of the House to appoint Deirdre Malone to that position as the statutory nominee of the Irish Human Rights and Equality Commission.
As Deputies will recall, the Legal Services Regulatory Authority was established on 1 October 2016 and came into substantial operational mode with the commencement of the relevant professional conduct, public complaints and legal costs provisions on 7 October 2019 under the 2015 Act. Its various reports and other information are available on its official website lsra.ie. The more recent of these reports on legal professional training and education and on the possible unification of the professions of barrister and solicitor were, as is generally the case with the Legal Services Regulatory Authority’s reports under the 2015 Act, laid before the Houses by the Minister, Deputy McEntee, on 19 November 2020.
Members may recall the recent appointment of five other members of the Legal Services Regulatory Authority, also with effect from 1 October 2020. The required motions of approval to appoint them were passed by both Houses on 10 November 2020. Today’s remaining nomination by the Irish Human Rights and Equality Commission had not been received at that time, the statutory membership of the Irish Human Rights and Equality Commission having also recently changed, and so is being dealt with separately under today’s motion.
The approval process for the nomination of members of the Legal Services Regulatory Authority is laid out within Part 2 of the Legal Services Regulation Act 2015. Under this process, resolutions have previously been passed by the Houses to approve new members of the authority in support of its establishment in October 2016, again in September 2019, and more recently, as I mentioned, in November 2020. As is now the practice, the resolutions of approval of appointment by the Houses are proposed so as to have effect from 1 October of the year concerned to maintain continuity of function. It is of note that the inaugural membership of the Legal Services Regulatory Authority had a mix of three and four-year terms under the Act to ensure continuity of expertise and function. The authority comprises a total of 11 members, of whom a majority of six, one of them the chair, are to be laypersons. The members of the authority are put forward by ten prescribed nominating bodies specified by the 2015 Act. Only then are they proposed by the Government for appointment, subject to approval by a motion of both Houses as required by section 9(2)(a) of the Act.
These bodies have been purposely set in the legislation to represent a balance between the interests of lawyers and those of consumers and other stakeholders in our regulation of legal services and costs. In addition to the Irish Human Rights and Equality Commission, whose nominee is the subject of today’s motion, the other prescribed nominating bodies are: the King's Inns; the Bar of Ireland; the Law Society of Ireland; the Consumers Association of Ireland; the Citizens Information Board; the Higher Education Authority; the Institute of Legal Costs Accountants; the Legal Aid Board; and the Competition and Consumer Protection Commission. The Law Society of Ireland has two nominees, reflecting the fact that solicitors outnumber barristers being regulated under the 2015 Act by over five to one.
Today’s nomination for the approval of the House was agreed by the Government on 12 January 2021. The nominee, Deirdre Malone, has been put forward by the Irish Human Rights and Equality Commission, as a prescribed nominating body under the terms laid out in the Legal Services Regulation Act 2015. Ms. Malone is legal manager of the Free Legal Advice Centres' Public Interest Law Alliance.
The key nomination and expertise criteria for membership of the Legal Services Regulatory Authority under the 2015 Act are therefore being met in this regard. This includes section 9(6) of the 2015 Act, which provides that in appointing members of the authority, the Government shall have regard to the objective of there being no fewer than four members who are women and no fewer than four who are men. As there are four serving members of the Legal Services Regulatory Authority who are men, subject to the approval of today’s motion, the Legal Services Regulatory Authority will comprise four men and seven women. I commend the motion to the House.
The Legal Services Regulatory Authority has been carrying out good work since it was established back in 2016. It is modelled on the core values of transparency; accountability; independence; protecting those who avail of legal services; protecting legal practitioners from frivolous complaints; and ensuring that justice is done and seen to be done. It has proven to be innovative, which is also among its core values. In November 2019, for example, it introduced regulations to allow partnerships of solicitors to apply to the LRSA for authorisation to operate as limited liability partnerships. This model of legal service delivery had been called for by people who are involved in legal services for many years and it allows legal practitioners in Ireland to avail of a model which is commonly found elsewhere. The limiting of personal liability by legal practitioners, however, comes with responsibilities. They must communicate effectively with clients and creditors and maintain appropriate professional indemnity insurance.
While legal practitioners are heavily regulated, a fair and open complaints system is also necessary and important. I note from one of the reports of the LRSA that in the six months from October 2019 to March 2020, there were 636 complaints. Of the complaints received, in the period to early December, 96 were inadmissible, 23 were withdrawn and a further 50 were resolved informally with the assistance of the authority's staff during what it calls the pre-admissibility stage. The LRSA must be adequately resourced and there seems to be a backlog, which should be cleared. The LRSA's work in reviewing the education and training of legal practitioners, which was mentioned by the Minister of State, Deputy James Browne, is also important, and we look forward to seeing that undergo pre-legislative scrutiny in the committee.
In any democracy, there must be strong advocates working to ensure that constitutional and statutory rights are respected and enforced. The Legal Services Regulatory Authority helps with this.
I refer here to solicitors and barristers who are willing to take on powerful forces, vested interests in government and the media and insurance companies that seem to have far too much influence for my liking in any republic. Article 40 of the Constitution, which relates to fundamental rights, is brilliant in its simplicity. It states: "All citizens shall, as human persons, be held equal before the law." That is something that has to be enforced at all times because if one is unfairly dismissed, injured at work or accused of an offence, rightly or wrongly, and if one's liberty is at stake, one will need to seek the advice of a solicitor or a barrister.
We will not be opposing this motion. I wish Ms Malone all the best in her work with the Legal Services Regulatory Authority, which, I hope, will continue with the work it has been doing.
I warmly welcome the nomination of Ms Deirdre Malone by the Irish Human Rights and Equality Commission as a member of the Legal Services Regulatory Authority. Quite clearly, Ms Malone is most qualified to fulfil that role.
I agree with Deputy Daly that the Legal Services Regulatory Authority was long overdue in being established. I am delighted to see it functioning. It still has a very demanding agenda of work to be completed. The structure of the authority is a balance between representatives of the legal profession and representatives of consumers of legal services. If one looks at the ten statutory nominating bodies, four are from the legal professions and six are from what might be broadly categorised as representing consumers of legal services. We will have to watch with great care how they function into the future because they have a number of important functions. One is education and training and the requirement for a statutory framework set out in various analyses of the legal profession. Once one embarks on a legal profession, or any profession, one needs to have in-service training of a standard and that needs to be regulated in some form.
The authority has a responsibility under statute to promote competition in the provision of legal services in the State. That is a requirement under the Act. It is an important requirement because there are many citizens who fear seeking to vindicate their rights through legal process because of the prohibitive costs of taking legal actions. For those who are well financed, there is no difficulty in ensuring that their legal rights are well protected but that is not the case for all. It is something of which we must be mindful.
I want to raise an issue that caused me some concern when I heard about it during the week. I refer to a spokesperson from the Law Society referring to the charging of negative interest rates in respect of moneys held in solicitors' clients' accounts. If the banks levy such charges on the solicitors where there is an accumulation of moneys, for example, mortgages - in one bank there is more than €2.5 million and more than €3 million in another - it is being suggested that solicitors will aggregate people's hard-earned money that they got from the sale of houses until the transactions are finalised and might charge negative interest on those accumulated accounts. I do not recall interest being paid in respect of those accounts when positive interest rates were available. Maybe some solicitors' practices paid interest on those accounts but I am not familiar with any that did. It would be unfair for them to do as has been outlined. A more fundamental issue that arises is the objective of promoting competition. How can a spokesperson for the Law Society make a blanket statement to the effect that solicitors will apply this on a uniform basis. Surely that is anti-competitive and I am sure it is not allowed. If individual solicitors want to do that, let them argue the matter with their clients but surely others who do not want to do it should be able to provide that service to their clients as well.
As I say, the regulation of legal professions is important work. We are dependent on legal practitioners in this country and sometimes people are in awe of dealing with the law. We need to have an oversight body that has teeth, power and capacity. The framework is there but we need, as Deputy Daly said, to ensure that the authority has the resources to do its job. We need to provide adequate oversight of their functioning. I hope there will be regular presentations to the Joint Committee on Justice of the ongoing work as this important body beds down and provides services to our citizens.
I welcome the appointment of Ms Deirdre Malone by the Irish Human Rights and Equality Commission. Her experience with the Free Legal Advice Centres will be valuable in the context of her work with the Legal Services Regulatory Authority.
The Legal Services Regulatory Authority was established in 2016 and plays an important role in the reform of our legal services. Indeed, one of the areas identified by the troika as urgently in need of fundamental reform was that of legal services, as has been raised already in this debate in the context of the fact that it is prohibitively expensive for people to take action when it needs to be taken. In 2019, the body became responsible for progressing allegations of wrongdoing against solicitors and barristers. Since taking over the complaints procedure, it has detailed in its biannual report the number of complaints it has received and the stages of resolution. In total, 1,241 complaints had been made and 55.4% related to misconduct. Three hundred and fifty-six cases have been closed and 234 deemed inadmissible, with 35 withdrawn. Eighty-six were resolved prior to the informal resolution process, which has already been said. No cases have completed the informal resolution process to date and, therefore, none has moved to the determination process. I suspect that is the area where most resources will be required to get to resolution. We must keep under review what resources are available to the board and whether they are sufficient to do that work on an ongoing basis.
Informal resolutions, with or without the assistance of the Legal Services Regulatory Authority, are the preferred option and it can take some time to mediate these disputes. As has been pointed out, the Legal Services Regulatory Authority reports both parties receiving correspondence. Once they receive that correspondence, it often prompts them to find a resolution. We must be sure that such resolutions are fair. People can often feel that there is inequality in a process. I would like to see some further work done on that in terms of surveying what the experience has been. It is too early to judge the process given that it was only put in place relatively recently. It will also take some time to deal with the volume of complaints. I presume that some of those complaints would have been historical in nature.
Shortly after it was established in 2016, the authority began to review barrister and solicitor education. It found evidence of a lack of clarity in respect of the competencies required for a solicitor or a barrister, indirect barriers to entry to the professions, unnecessary duplication in learning and assessment, a mismatch in terms of the skills taught with the needs of users of legal services, gaps in quality and a lack of independent oversight in the education system. It is useful that this has been documented because it obviously sets out an agenda.
The traditions relating to the education of barristers and solicitors have remained largely unchanged since the 19th century, with the Law Society and the Honourable Society of King's Inns holding a monopoly over the professional training.
The attitude towards professional and educational institutions has changed since both bodies were established. Institutions have become more transparent, accessible and diverse and less tolerant of privilege. The legal sector has largely been resistant to change, with a tendency to cling to tradition.
Last year, the Legal Services Regulatory Authority proposed a new statutory framework for the education of barristers and solicitors under which a new independent body, the legal practitioners education and training committee, would be responsible for setting and maintaining new standards. The Law Society and King's Inns would be required to meet those new standards. Crucially, this proposal would allow other educational institutions to provide professional training for barristers and solicitors.
While the board is new, it has seen hundreds of complaints from the public and others, more than 400 of which are still being addressed and investigated. The complaints seem to range across many issues, but one of the themes running through them is rudeness and a certain level of abuse by members of the legal profession. As such, it is welcome that there is some limited oversight of the profession's members. That is good for the public in general. However, there are wider issues to do with the power and influence that personnel in the legal profession can have over the lives of ordinary people. The poorer and more vulnerable and marginalised one is, the greater that power and the greater the calamitous impact the decisions of the law can have on one's life. Over the years, I have seen how judgments to do with workers' rights and trade union pickets can be used to browbeat trade unions and workers.
I will briefly deal with the impact of those in power and those with legal oversight on a particular vulnerable group, namely, asylum seekers and refugees. The workings and decisions of the International Protection Appeals Tribunal, IPAT, have often amazed and angered me, as does the entire process of how asylum seekers are dealt with. Many Deputies share this frustration. I have often had to listen to the far right and others who do not want asylum seekers to be given any right talking about "bogus asylum seekers". The evidence they use for this is the high level of rejections of applications for asylum status. When one examines some of the cases, though, it becomes clear that the criteria and bar used by the IPAT are ludicrous. A couple of years ago, we knew a doctor who had fled from Sudan. He was a socialist and political activist in his country and was under threat from the Sudanese regime. His case was recorded by the UN as requiring asylum from the conflict, in which he had been involved. In Ireland, however, his case was rejected. I am glad to say that, years later, he won his appeal, but this shows that our system is not fit for purpose.
For many, their experience at the hands of the IPAT is harrowing. This month, we found out that a member the IPAT panel, which makes life and death decisions over vulnerable asylum seekers, who was appointed by the State and remains in that position holds views that are on the extreme end of the political spectrum on matters that are vital to the running of this country. Apparently, she does not believe it is possible to be gay and live in a country or society in which that is socially disapproved of. The implications of this are astonishing. As a result of her view, she rejected the application of a bisexual man from Nigeria and stated that, if he was returned to his country, there would be no reason he would suffer persecution. The same woman believes Covid-19 is a hoax and has addressed rallies of the far right and fascist groups. She believes that we are using Covid-19 to hold power and sway over people. It is unacceptable that any holder of an office that dispenses any form of justice or legal authority should have reactionary and offensive views like that. Will the Minister remove this person immediately from the two boards she is appointed to and signal that we view the abuse by any member of the legal profession on any of the groups to which the Minister makes appointments as unacceptable in our society?
The Legal Services Regulatory Authority is the body responsible for processing allegations of wrongdoing against solicitors and barristers, but it should do more than that. It received an average of more than four complaints per day in its first six months of work. According to its annual report up to September 2020, the authority received 636 complaints concerning lawyers between 7 October 2019 and 6 March 2020. Of these, 633 related to solicitors while only three were about barristers, who typically do not deal directly with the public. There were 342 complaints concerning alleged misconduct, including 42 complaints alleging fraud or dishonesty. There were 238 complaints relating to allegedly inadequate services and 56 relating to overcharging. The authority expressed concerns about the number of allegations of solicitors failing to complete undertakings and stated that some complaints related to undertakings that were over a decade old.
These are the facts. I have plenty of constituents who have had tough times with solicitors and felt vulnerable in their hands. One lady who came to my office had bought a house that was structurally unsound. She had been pushed from one solicitor to another because there was a so-called conflict of interest. This went on for many years. To this day, she is still in a battle to keep her home. Another constituent went through a legal separation. The fees that person was charged would have gone a good part of the way to buying a house. I have also dealt with a case where a person was wronged by her solicitor concerning her house. My staff and I spent days trying to contact other solicitors the length and breadth of Ireland to take what was a legitimate case, but there was no way one solicitor would take a case against another.
There must be a full and transparent way for a client to see the charges before any work is carried out as opposed to the idea of sitting down with a solicitor who then simply charges whatever he or she wants. That is highly irregular in today's world and would not be accepted in any other business. More transparency is needed. The idea that solicitors can do what they want and get away with it needs to be done away with. I am not saying that all solicitors are like that, but there is a certain percentage in every profession who are disdainful. I welcome the Legal Services Regulatory Authority and I encourage it to help clients who have been hard done by solicitors.
In my life's experience, I have found the legal profession to be extremely professional to deal with and responsible. When people are at a vulnerable stage in their lives, be it at a time of death, purchasing or selling something or distress, they need someone they feel they can rely on and trust. As in all professions, we might know of a small minority of cases through our own experiences, having heard from people or having encountered them as public representatives where individuals had engaged in activity that was not above board. On the whole, however, those involved in the legal profession would only warmly welcome more regulatory stipulations that would ensure that the wrongdoing of others was penalised and stopped.
Anything that we could do to speed up delays in systems, be it the Land Registry or the legal profession, which is designed to grind very slowly at times, would be welcomed by the legal profession and the people whom we are here to represent. We constantly hear people saying that it is a fright that there is such a delay with this or that. I am not condemning the processing system for the Land Registry, but it is slow and cumbersome. Even if it takes more money, personnel or whatever, could we all work together to put something in place to deal with the delays?
The courts system is very cumbersome and, as with everything else in the country, it is being held up by Covid. Life is very short and anything we can do to speed up what I would call the mechanisms of the State would be most welcome and most appreciated by the customers and the legal professionals themselves.
I welcome the appointment of Deirdre Malone by the Irish Human Rights and Equality Commission to the Legal Services Regulatory Authority. She will make a significant positive contribution to the work of the authority, which plays an important role in ensuring confidence and trust in the legal profession.
I welcome the fact that the authority is ensuring gender equality in its membership with seven women and four men as members. It is also important that the majority of members on the board are what we call lay members. Five members represent the legal profession and six members represent consumers, legal education, legal costs, equality and access to justice and fair competition.
The authority is the independent regulator for legal service providers and its role is to work to ensure and improve standards in legal services and, crucially, to ensure value for money for consumers. The board is the first point of contact for any person who wishes to make a complaint about barristers or solicitors. The service is free and impartial. It investigates issues such as excessive fees, inadequate service and misconduct of any kind. Certain time limits apply so people need to be careful about this. Complaints can be made by letter or online.
With regard to excessive fees, it is clear the cost of legal services must be written in language the client can understand. The Legal Services Regulatory Authority also monitors advertising by solicitors and barristers. There are some restrictions, especially around advertisements for personal injury claims. The authority's annual report from March to September last year detailed the number and types of complaints and my colleague, Deputy Catherine Murphy, already outlined these.
I welcome some of the most recent recommendations from the authority, which deal with the monopoly role of the Law Society and the King's Inns in providing professional training so people may become solicitors and barristers. This monopoly must come to an end. The authority has proposed a new statutory framework for the education of lawyers. A single body would be responsible for the setting and maintaining of standards of legal education, and a new committee, the legal practitioners education and training committee, is proposed in the report. Its role would be to ensure existing and new providers adhere to the standards. One of the benefits of this would be to break down some of the barriers to entry to these professions that still exist.
Since 2016, a series of reports have recommended reform. The Minister for Justice, Deputy McEntee, welcomed the recommendations on breaking down this monopoly when she said we must address the administrative barriers that aspiring lawyers continue to face. This is important but we need to see it happen. Last year, we also saw an important change, whereby solicitors are now able to apply to become senior counsel, overturning a 300-year rule. There is no doubt that the authority is bringing the legal profession up to date and making it more accountable to citizens. Transparency is essential so that citizens can have trust in our judicial system. The authority is helping to ensure this. I wish the new member, Deirdre Malone, well in her work on this very important regulatory authority.
I thank my colleagues throughout the House for their contributions in support of today's motion to approve the appointment of Ms Deirdre Malone to the Legal Services Regulatory Authority. She has been put forward as a statutory nominee of the Irish Human Rights and Equality Commission. This will enable a similar motion to be brought before the Seanad for consideration and approval. As I have said, Ms Malone's appointment, if so approved, will complete the current membership of the authority while also bringing her recognised expertise and experience to bear on its important work of regulation and reform.
The Legal Services Regulatory Authority has now come into full operational mode as a key component of the ongoing reform of the legal services and legal costs in the State. This includes the commencement, with effect from 7 October 2019, of a range of measures under the Legal Services Regulation Act 2015. These include the new public complaints and professional conduct regime, which is now in operation. The authority has appointed its new complaints and review committees to deal with allegations received.
Complaints are now made to the authority rather than through the legal professional bodies, as happened previously. More than 1,800 such files were open during 2020. Separately, this work will feed into the new and independent legal practitioners disciplinary tribunal, for which a chair and members were recently appointed by the President of the High Court, on nomination by the Minister, Deputy McEntee, following a public competition under the 2015 Act.
The authority has managed the regulated roll-out of limited liability partnerships for solicitors' firms, making them more attractive for international legal business. The new and more consumer friendly legal costs transparency requirements for legal practitioners, whether solicitors or barristers, have also come into force. The separate establishment of the Office of the Legal Costs Adjudicators to modernise the old Taxing Masters regime has been completed by the Courts Service. This is supported for the first time in legislation by a transparent schedule of legal costs principles and a publicly accessible register of determinations, which is maintained by the new office.
The authority recently completed two further statutory reports under section 34 of the 2015 Act, which the Minister, Deputy McEntee, has also laid before the Houses. These deal respectively with the possible unification of the legal professions and the reform of the provision of legal professional training and education. The Minister has also asked the authority to examine further the conditions of apprenticeship and devilling undergone by aspiring lawyers to further augment the reforms in this area.
New and more consumer focused legal services advertising regulations for solicitors and barristers were introduced by the authority in December 2020 under section 218 of the 2015 Act. The legal bodies no longer carry out this function. The new Advisory Committee on the Grant of Patents of Precedence, which considers candidates for senior counsel, be they solicitors or barristers, has been established with the administrative support of the authority while chaired by the Chief Justice in its own right. The second round of applications for appointment through this committee has just closed. The Minister has sought to encourage a renewed focus on enhancing the gender balance and diversity of potential applicants. Clearly, there is much important work to be completed by the authority in the ongoing performance of its regulatory functions. Today's motion can augment this in progressing the appointment of Ms Deirdre Malone.