Ivana Bacik (Independent)

I welcome the Minister of State, Deputy Conor Lenihan, to the House and I welcome the introduction of the Bill. Like Senator McDonald, before commenting on the legislation I declare an interest as a practising barrister and a member of the Bar Council. This is an important time to debate the regulation of the legal profession, although currently the focus is on the regulation of a different group, namely, members of the banking community. Certain commentary in the newspapers have referred to bankers as "banksters" in recent times, which reflects the public disapproval at present of banking practices and of the lack of regulation of banking. We have seen all too clearly the results of a lack of regulation. I have said in the House and elsewhere that it is not simply a matter of a lack of regulation. In recent years we have introduced extensive regulation of financial services. However, it is the lack of enforcement of the regulations in place as much as anything which has led to the culture of non-compliance that has caused such problems in the financial services sphere. The lesson to be learned while we debate this welcome Bill is the need to ensure regulation exists and that it is seen to exist. The need for public trust and confidence is as important as anything else in the legal profession as it is in the banking and financial sectors.

I listened to the contribution of Senator McDonald who raised some very worthwhile points, especially the need to ensure we do not simply impose another layer of meaningless bureaucracy. There have been enough scandals and public concerns raised related to the legal profession throughout the years. There have also been enough thoughtful and considered proposals to ensure the need to introduce another layer of oversight or scrutiny, which is what the legal services ombudsman represents. This is a layer of oversight or scrutiny which is more than simply a layer of bureaucracy, it has an important function in ensuring not simply that legal services are properly regulated and that the concerns of clients and consumers are supported, but also that the people perceive that the legal profession is well regulated and trustworthy.

I refer to some of the context of the reform. The Minister of State outlined some of the various disciplinary procedures within the professions and the Bar Council and Law Society, both of which have lay person representation on their disciplinary boards, which is important. The new legislation involves another layer of oversight covering the existing procedures. There have been a number of recommendations for change. As far back as 1990, the Fair Trade Commission referred to a lack of public confidence in the complaints procedures in place at that time. The commission indicated the concerns could be remedied by lay representation, which has been introduced, and by the establishment of a legal ombudsman office. In 2005 and December 2006, the Competition Authority reports recommended the need for an independent legal services commission to replace the system of self-regulation, which represents a somewhat different recommendation.

I conducted research with colleagues in Trinity College Dublin in 2003, which was published as Gender InJustice and funded by the Department of Justice, Equality and Law Reform. We received funding for an important study into gender discrimination in the legal professions. One of the issues examined was the regulation of the professions. We examined the matter from a slightly different perspective, that is, discrimination experienced within the profession. However, I believe some of our findings are pertinent and provide a somewhat different perspective to the Bill. Rightly, most of the focus in the legislation is on the concerns of the public, who are clients of the legal profession. Some have complaints concerning the way their cases were handled by barristers or solicitors.

We examined complaints within the profession involving mainly women barristers and solicitors who experienced discrimination and stated how difficult it was for them to seek redress. Time and again the lawyers we surveyed responded that Ireland is too small a place in which to make complaints, that the law is not for lawyers, rather depressingly, and that the law is a lawless domain when discrimination is experienced within the profession. We found a disturbing level of harassment within the profession. We also found that the Chair of the Bar Council at that time stated no legal action had been taken to enforce codes relating to the conduct of its members within the previous ten years, and that the Society of Kings Inns stated that it had not disbarred any persons for disciplinary reasons in living memory.

That is the context in which we recommended, as others had previously done, the need for a legal ombudsperson to whom complaints could be made in confidence by those experiencing discrimination. This measure will go some way towards addressing the problems we identified as much as the problems identified by the other bodies mentioned.

I refer to the provisions of the Bill. The Bill provides in a most welcome fashion for the appointment of an independent ombudsman who would not be drawn from members of the practising professions, which is an important point that has been mentioned previously. The ombudsman would oversee the complaints procedures already in existence and provide for remedies where persons believe the complaints procedures have not adequately been carried out.

One complaint made concerning the Bill was put forward by the Consumers Association of Ireland. It complained that the proposed legislation reinforces existing self-regulated mechanisms and that the powers of the ombudsman are too restricted. I understand why the association made this complaint and the matter is worth reviewing. However, it is enough to say that the ombudsman is acting in an oversight capacity. I do not believe there is a need for the ombudsman to reinvestigate complaints. I accept the concerns of the association. It states the problem for consumers is that the ombudsman may simply direct the professional bodies to re-investigate original allegations. The ombudsman would have a supervisory role similar to that of the High Court in the case of a judicial review and would not examine the merits of the original case. Consumers may believe this is simply not enough.

I refer to the number of allegations of complaints made. The Minister of State referred to 1,700 complaints against solicitors in any given year and approximately 20 complaints against barristers, who clearly are not handling clients money and, therefore, in a practical way tend not to be the subject of complaints to the same extent. There is also a difference in the numbers as there is a greater number of solicitors and a good deal more contact by individuals with solicitors than with barristers.

It is enough to say the ombudsman would provide oversight rather than a reinvestigation procedure. One complaint of the Consumers Association of Ireland may deserve consideration. This is the complaint that it will be too long and drawn out a process because it requires individuals to have gone through the complaints procedures of representative bodies and only if they are dissatisfied will they have the option of pursuing the case with the ombudsman. Section 22 of the Bill meets some of these concerns in allowing a complaint to be made where complaints have not been investigated in an adequate time by the disciplinary bodies. A clearer direction in terms of time limits is important. The most specific ruling on time limits in the Bill is the six month time limit, although it may be extended in special circumstances, within which time someone may make a complaint to the ombudsman. There is a clear time restriction on the member of the public making the complaint and a good deal less clarity in terms of time limits related to the investigation of complaints by professional bodies and the ombudsman.

Section 23 requires a great deal of fleshing out. It provides that the ombudsman can establish procedures related to the investigation of complaints. There will be a great deal of importance attached to the detail in that section. The procedures for investigating complaints will be vital in terms of ensuring people are satisfied with the way in which complaints are handled.

I refer to other specific aspects of the Bill. Section 15 refers to the power of the ombudsman to prepare reports on the admissions policies of the legal bodies. That is very important and I am aware from my research that it is difficult to establish and to get figures from the professional bodies. This does not apply to admission levels which are easier to establish. However, the attrition rates from the legal professions are missing from the Bill and could be usefully inserted.

Senator Phelan referred to the change in the economic climate. The chill wind blowing through the economy generally has already affected the legal professions. There are an increasing number of redundancies from solicitors' firms and great difficulty in junior solicitors getting traineeships and in law graduates getting employment. It would be very useful in this context for the legal bodies to supply the ombudsman not only with figures on admissions, but also figures on departures from the profession, that is, numbers leaving the profession in any given year. I wish to see the legal services ombudsman empowered — the Minister of State may be interested in this point — to require the professional bodies to conduct exit surveys of those leaving the professions and to establish the reasons for leaving. We found anecdotal evidence that this is a matter of particular concern among lawyers surveyed in 2003. However, it was impossible to get data on the numbers who left and the reasons they left. I believe we will see increasing numbers leaving. It would be useful to see why they are leaving and what can be done to ensure people worth keeping in the legal profession are kept there and do not leave for the wrong reasons. Our study indicates people are leaving because they are experiencing discrimination which is a cause of concern to us all.

The Consumers Association of Ireland raised the question of the legal proceedings that may be taken against the legal services ombudsman. It argued there should be an explicit provision in the Bill for an appeal by consumers against decisions of the ombudsman. Section 34, providing for legal proceedings to be taken against the ombudsman, places a restriction that is becoming increasingly common in Bills including the Immigration Bill, such that proceedings may be taken only with the leave of the High Court and on 14 days' notice to the ombudsman. This restricts the usual power to apply for judicial review. While that is not a problem in itself it would be more worthwhile to place a specific right of appeal in the Bill because it is anticipated that those dissatisfied with the ombudsman's findings will take proceedings against him or her. It might be of benefit to consumers of legal services to see something more specific about appeals.

Senator McDonald raised the issue of representation. Many of us have heard people complain that they cannot get representation from solicitors where they believe they have a case against another solicitor. Undoubtedly some of those complaints are vexatious or frivolous and the ombudsman will have the power to make that finding. There remains, however, a real problem for people who believe they have a valid grievance against a solicitor or other member of the legal profession and cannot get legal representation. It is very important that they feel the procedures of the ombudsman are accessible to them. I am glad to see the ombudsman may accept an oral complaint. It is important that the complaint does not need to be presented in a particular written format. That is why the appeal right against the decision of the ombudsman or the right to review that decision should be stated more clearly in the Bill.

I welcome the Bill. There is an increased need for public confidence in the professions. Legal professionals who have brought the profession into disrepute have been highlighted recently. That is a matter of real concern for all of us in the profession and is of greater concern to the wider society. To provide for an ombudsman of this kind allows the public to see that greater levels of scrutiny will be applied in the legal professions. This entails more than creating the regulations. The recent banking scandals have shown that it is not enough to put financial services regulators in place but we need to ensure that they work, that they enforce the law and are seen to do so and that sanctions are imposed on people guilty of wrongdoing.