Ivana Bacik (Independent) | Oireachtas source

I am told the section 2 definition from the 2015 Act has a broad definition of "practising barrister", to include employed barristers engaged in the provision of legal services. I understand the Act has now been commenced, but only very recently because the Legal Services Regulatory Authority has had to establish a roll of practising barristers. It is only as a result of this that the section 2 definition applies.

I understand barristers practising in-house will become legally recognised as practising their profession. Again, I apologise for not having all the detail. I can certainly check whether the provision has been commenced. The definition is the preferable one. The question is whether it applies specifically within sections 33 and 35 of this Bill.If we do not adopt the 2015 Act definition, it is arguable that only practising barristers within the meaning of the 1961 Act, as interpreted in the Walshe v. Murphy case would apply. The effect being that barristers working in-house would have less eligibility or would appear to be ineligible compared with solicitors doing exactly the same job in the same place. Clearly, that is not the intention of this Bill.

It may be dealt with elsewhere in the Bill but it has certainly been suggested to me that it is an oversight that could easily be fixed to ensure that the term "practising barrister" is simply defined consistently across the legislation. The issue raised with me by an individual certainly shows the difficulty with this Bill and this body of legislation, and the need to ensure consistency across them. Will the issue fix itself once the authority is fully operational and the role of practising barrister is up and running? Possibly but, in the interests of certainty, it would be preferable to have a clear consistency and a clear adoption of the 2015 Act definition.

In the interests of saving time, this point is also relevant when we will come to debate section 35. In particular, subsection (5), which is very much related to section 33, states: "the Commission shall have regard [...] to the nature and extent of the practice of the person concerned in so far as it relates to his or her personal conduct of proceedings in the Supreme Court, the Court of Appeal and the High Court whether as an advocate or as a solicitor instructing counsel in such proceedings or both". This section 35(5) provision appears firmly based on a traditional division of the professions. Again, the question is how does it affect in-house lawyers, whether originally barristers or solicitors, or either continuing with practising certificates as solicitors or continuing on the role of practising barristers. Again, we need to future-proof sections 33 and 35 to ensure that both provisions take account of in-house lawyers and to ensure there is not any disparity of treatment as between those in-house lawyers who are trained as barristers or who are trained as solicitors.

That is the specific issue that has been raised with me. I am conscious it has been a matter of concern for quite a number of people and that it may have an impact more particularly upon women. However, clearly it is a more general issue about in-house lawyers, both barristers and solicitors, the need to ensure that the legislation applies consistently to both and that there is consistency across this Bill, the 2015 Act and the earlier 1961 Act. I am grateful to the Minister for dealing with this point now. I will not have to repeat it when we come to deal with section 35 but, clearly, it is relevant to both sections.