Feargal Quinn (Independent)

I welcome the Minister. When I came into this House 16 years ago, I wondered how I would handle Bills about which I did not know anything, as I was not a lawyer. I decided to look for the customer in each Bill, so I will speak on this Bill from the point of view of the customer.

I welcome the provision of an independent legal services ombudsman, and I particularly welcome section 5, which states the ombudsman should not be a practising member of the legal profession. It also excludes practising barristers and solicitors from appointment as ombudsman. While the Bill provides for the establishment of a legal services ombudsman, it could be argued the role of the ombudsman is restricted and limited in its powers.

One of the biggest flaws in this Bill is that it seems both the Law Society and Bar Council will continue to have primary responsibility for the adjudication of complaints against their members. The Minister of State speaks of giving consumers greater rights when it comes to the legal profession. However, the Bill only provides the possibility that the complainant can bring his or her case to the ombudsman if he or she is unhappy with the decisions made by either the Bar Council or Law Society. This means the complainant will be forced to go through the complaints board of these bodies before he or she brings the matter to the attention of the Ombudsman. Is this inevitably long and drawn-out process specifically designed to dissuade or even prevent consumers from lodging complaints, for example, due to the cost and complexity of the complaint? Will consumers think the process is still weighted unduly towards the legal profession?

Consumers need to have a direct link to the ombudsman and bypass these bodies which represent the interests of the legal profession, and which are there to protect them and not necessarily protect the consumer. It is surely not progress for the consumer to have a profession which continues to be more or less self regulating. We should try self regulation in every case, but not when it does not work. I believe it has not worked in this case. In summary, the Bill as drafted is not adequate in providing a fair and independent entity for consumers who are unhappy with the performance of their solicitors or barristers. It is also flawed in a number of other ways which are capable of improvement.

Another drawback in the Bill is the limited powers given to the ombudsman when it has to deal with a complaint from a consumer. Specifically, the Bill does not seem to provide for appeal against the decisions of the Law Society and Bar Council regarding complaints they received against solicitors and barristers. The Ombudsman can only deal with complaints relating to the actual process. The legal services ombudsman can only direct the Bar Council and the Law Society to begin an investigation and complete it within a reasonable time, or require them to re-investigate a complaint. The Chairman of the Consumers' Association of Ireland has written that this means that, even if the legal services ombudsman believed the Bar Council or the Law Society made an incorrect or inaccurate decision concerning a complaint, the ombudsman would not have the power to overturn it. In fact, all the legal services ombudsman can do is direct the Bar Council or the Law Society to reinvestigate the complaint. The Minister of State can correct me if I am wrong on this. Once the Bar Council or the Law Society have met the obligation to re-investigate, they can ignore the views of the ombudsman and uphold their original decision.

This seems like a very weak ombudsman. It is very strange that the legal services ombudsman cannot decide the merits of a complaint, especially from the consumer's point of view. This part of the Bill needs to be amended to make sure the legal services ombudsman has the power to decide the merits of a complaint.

I am also concerned about the provision in the bill which will allow the Bar Council and the Law Society to be able to appeal to the courts against the rulings of the legal services ombudsman on their procedures and processes. Consumers cannot appeal in a similar manner, which is a major drawback in the Bill. I am concerned by the provision in the legislation which requires the legal services ombudsman to report to the Minister for Justice, Equality and Law Reform on the numbers of solicitors and barristers and to make an evaluation on their competence. I do not think this is normal for a complaints-orientated agency. Could this be used to argue for more positions in the legal services profession, such as college places, or could it be used to limit entry into the legal profession on the whim of the legal services ombudsman? This part of the Bill needs to be properly examined.

I am afraid this body might just become another quango. How big is the bureaucracy of the ombudsman envisioned to be? To save costs, could the ombudsman be attached to the Office of the Ombudsman as a legal division of that office? We already have several ombudsman bodies, so do we need a totally new body? I welcome the fact that section 19 provides that the Law Society and the Bar Council will each be responsible for 10% of the costs of the legal services ombudsman. However, has the possibility of amalgamating the Legal Services Ombudsman into the Office of the Ombudsman been properly considered?

Section 23 provides that the ombudsman may establish and publish procedures on the receipt and investigation of complaints. This could go one step further by including a customer charter to make the whole process more explicitly directed at, and working for, the consumer.

The objective of this Bill is worthwhile. I have a concern about the creation of another quango, and I know that various efforts have been made to reduce the number of State agencies. We really should look carefully at this. I said earlier that I am not a legal professional, although I have learned much since I came in here. Many years ago, I had the experience of taking the only case to the Supreme Court based on article 44 of the Constitution. Having studied a bit of constitutional law in UCD, I remembered a little bit about article 44, which states that one cannot discriminate on the grounds of religion. Thirty seven cases were taken against me for selling meat after 6 p.m. in 1968. I defended myself and looked at the statutory instrument that dealt with this. It contained four parts, three of which outlined where in Dublin one could not sell meat, the definition of meat as beef, lamb and pork, and a prohibition on selling meat after 6 p.m. The fourth part stated that these provisions would not apply to meat sold following the kosher method of killing.

I realised there might be a flaw in the legislation, as the exclusion of kosher meat was allowed when two Jewish shops in Dublin requested the Minister not to pass the Bill in its original format, as they did not open until sundown on a Saturday. The Minister excluded the Jewish shops from the legislation through the use of the statutory instrument, but that instrument made the Bill illegal on the grounds of discrimination against everyone who was not Jewish. I won that case, and I have always had an interest in the law ever since. We appealed that case to the Supreme Court, and we won it on a four to one basis.

The objective of this Bill is certainly worthy, and is one I support. I have some concerns about the Bill, which I have voiced already.