Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister and the opportunity to speak on Second Stage of the Bill. As we know, the Bill has been a long period in genesis and commenced Second Stage in the Dáil three and a half years ago in December 2011. None the less, it has been improved and enhanced greatly during the process and I am very glad to hear the Minister say further amendments will be made in the Seanad and that she will be taking those amendments. It makes our debate much better in the Seanad generally when there is that concession at the beginning. I also welcome the visitors to the Visitors Gallery, as I know they have a particular interest in the Bill.

I should declare my own interest as a former practising barrister and former member of the Bar Council. However, I should say that I also have an interest in terms of reform generally of legal practice and of the legal professions and as the co-author of a 2003 report into gender discrimination in the legal professions in Ireland, which was entitled, Gender InJustice. In that report, which was the first of its kind and an update of which is currently being worked on by the Irish Women Lawyers Association, we made some 50 recommendations on how different aspects of legal practice could be improved upon and reformed in terms of encouraging greater gender balance. Since then, we have seen quite a number of women in very prominent positions in legal practice and, indeed, in the Courts Service and in the Government but none the less, many of the reforms we recommended still remain relevant.

This Bill will see some improvement in terms of gender balance, in particular in Part 12, which deals with the provisions around senior counsel. One of the points we made in our report was in regard to the very low number of women who had become senior counsel but again, things have improved a little. One of our key findings in regard to both the solicitor and barrister professions was the need for transparent criteria for promotion to senior counsel or to partnerships in solicitors firms. I am very glad that in Part 12, we see a much clearer statement of the way in which people can become senior counsel as I believe this will help to increase gender balance, apart from being a good thing in itself.

I am also conscious, from what others have said, of the huge imperative to ensure more transparency in the costs process. It is in Part 10 and Schedule 1 that we see clear criteria listed on legal costs principles, which is welcome. As others have said, however, it is also true to say there are very many solicitors and barristers at the lower end who earn very little and who are not perhaps reflected in the high level of fees that has often been publicised. There is also a great number of legal practitioners who work pro bono, as we are all aware. Just last week, we initiated a new research project across Trinity College and DIT called CICL, or Changing Ireland, Changing Law, where we are looking at the impact of public interest litigation on social change. At our first seminar last week on women and legal change, we heard about some very important cases that were taken on a pro bono basis by the legal teams concerned and it is important to acknowledge this.

Turning to the content of the Bill, we had a hearing at the Joint Committee on Justice, Defence and Equality in March 2012 at which stakeholders like the Law Society and Bar Council made submissions, so we were very well briefed on the Bill at that stage. Of course, the Bill has since been changed and very welcome amendments have been made.

The Minister spoke of four main levers of change across the 158 sections of the Bill and I want to address the first two of those levers. She mentioned amendments would be needed to Part 1 on interpretation. I note there may need to be some technical changes to the definition of “Complaints Committee”, which is described as being "established pursuant to section 51", whereas I understand it is now section 58. The definition of "complainant" is also referred to in Part 5, so perhaps that should also be reflected in the definitions section. I accept these are minor technical points.

Looking at the first of the Minister's levers for change, the Bill provides for a new, independent legal services regulatory authority to be established under Part 2. This is extremely welcome and, as the Minister said, all of us in the House would agree on the need for robust independence and on the greatly improved provisions in the Bill.

I very much welcome section 8, which provides for gender balance among the members on the authority.Moreover, of the 11 members, a majority must be lay members, which we welcome. I also welcome the fact one of the practitioners is to be nominated from the Legal Aid Board as it is important the board is represented on this authority. On the reporting mechanism, as a member of the Joint Committee on Justice, Defence and Equality, I am delighted to see the committee has a specific role in section 19 in that reports are made not just to the Minister but to the committee.

Section 21 deals with the powers of the authority in regard to professional codes. The Minister pointed out there is no longer any ministerial role in that regard, which again is very welcome. Section 21 refers to what the authority is to have regard to in drawing up codes. I wonder whether reference should be made to section 12(5) and the criteria therein as well as to section 12(4). Section 12(5) refers to professional principles to which legal professionals should adhere. It seems to me those are important and should be referenced specifically in the code.

The Minister has pointed out there will be amendments to the powers and role of the inspector. I wonder whether in section 30 more criteria should be specified as to who should become an inspector of the authority. However, I know we will hear more from the Minister on that.

On section 32, it is very important that admissions policies will be spelled out and that there is oversight of them. Again, something we found in our 2003 report is that admissions policies are critical in terms of both professional bodies.

On section 33, I very much welcome the provisions for public consultation and the issues of education and training and on the very thorny issue of unification of the two professions. I note the Minister has changed the time limits and we will now see a report on education and training two years from the establishment day. Again, I know from my role as an academic, there is a great deal of interest among academic institutions across the State as to how that will transpire. It will be very important that the institutions have a role in the consultation, which I know they will. Similarly, with regard to the unification of the professions, I welcome the fact that has a four-year timeframe.

Turning to the second lever of change in the Bill, the independent complaints system, I believe we would all very much welcome this and the fact there is direct access by members of the public. I also welcome the idea of the minor complaints process in Part 5 of the Bill, as it is important that we see complaints being demarcated between the more minor and the more serious.

Having looked at the definition of inadequate services at sections 40 and 47, I believe it is a very difficult measure for anyone to make between what is a substantially inadequate service and what is just reasonably inadequate. I can imagine there will be a lot of wrestling with that question. I speak as one who practised at the criminal Bar. Will there be any specific provision for the criminal Bar? I am conscious that our professional indemnity insurance as criminal practitioners was much less than for barristers who conducted practice on the civil side.There is an issue around what is inadequate performance at the criminal Bar. If one's client is convicted, does that warrant the making of a complaint? I imagine there may be issues to be teased out a little further in this regard.

Section 58 specifies that there will be 27 people on the complaints committee. Should that section contain more detail on the appointment of lay persons? It seems to be much less specific than the very detailed provisions pertaining to the proposed legal services regulatory authority in Part 2. The same thing applies to the disciplinary tribunal. Should the more serious complaints sections in Part 6 contain more detail on who should be appointed? I note that ministerial nominations will be made in the case of the disciplinary tribunal. It is interesting to note that section 64 provides that the chair of the tribunal may be a lawyer, but the chairs of the divisional tribunals must be laypersons. I wonder about that.

I would like to speak briefly on the points made by the Minister about the other two key headings. I welcome the decision to provide for more transparent criteria around costs. The question of the costs following the event, which is addressed in section 142, came up during our work on public interest litigation. I appreciate that the Bill simply enshrines current practice, but that practice has a hugely chilling impact on public interest litigation in this country. I wonder whether we can look at that. If someone is genuinely taking litigation in the public interest, the courts currently have the discretion not to award costs against the litigant. In some cases, the litigant is awarded costs even though the litigation was not successful. I know there is a difficulty for practitioners in terms of the criteria the courts apply to that. I am speaking from experience when I say it is very difficult to advise a client on whether a costs order will ultimately be made against him or her if he or she loses in a public interest case. That is a key issue.

I would like to make a point about section 123, which imposes an obligation on legal practitioners to address clients as to what their bill of costs is likely to be. That obligation may be straightforward in some areas of practice, but I wonder how it is to be addressed in criminal practice, where the majority of clients are on legal aid. There are particular issues in this regard in public interest litigation as well.

I suppose I could speak about a range of other issues. I agree with the points made by Senator van Turnhout about advertising. I think we need to look at section 158 in more detail. We need to be careful to ensure these provisions make for greater diversity and greater public access to legal practitioners. We might look at some provisions again on Committee Stage. I refer, for example, to section 106, which relates to barristers. Perhaps we should consider giving recognition to barristers who are working part-time or are on maternity leave. The Bar Council has introduced much better provisions in this regard, as indeed the Law Society has done since we made our report.

I expect we will be able to tease out these points on Committee Stage. I know the Minister, Deputy Fitzgerald, will provide adequate time for Committee Stage in order that we can table and discuss amendments. I am sure adequate time will also be provided for between Committee and Report Stages. We need co-operation and support from all stakeholders to ensure we get a strong and effective Bill that provides us with effective and robust regulation of legal practice in the interests of clients and the administration of justice.