Ivana Bacik (Independent) | Oireachtas source

The amendment proposes the insertion of a new subsection (3) into section 2. It states: "In this Act and in the Act of 1961 ... "practising barrister"” has the same meaning as it has in section 2 of the Legal Services Regulation Act 2015 ... [and] “practising solicitor” has the same meaning as it has in section 2 of the Legal Services Regulation Act 2015." This amendment refers to the definition of particular terms. The reason we put forward this amendment is that the Bill uses the term "practising barrister" but, as far as we can see, it does not define what constitutes a practising barrister. The Legal Services Regulation Act 2015 contains the most up-to-date thinking on this and includes a comprehensive definition of "practising barrister" in order to bring all practitioners within an appropriate regulatory framework. Colleagues will recall that the previous Seanad engaged in a lengthy debate on that legislation previously. Section 2(1) of the 2015 Act provides that "practising barrister" means a person who is a qualified barrister and provides and provides, or holds himself or herself out as providing, legal services as a barrister which applies whether or not a fee is charged, whether or not services are provided under a contract of service or a contract for services, and whether or not he or she described himself or herself as a barrister or otherwise uses one of the titles of “barrister”, “barrister-at-law” or "counsel”.That is a very clear definition in section 2(1) of the 2015 Act. On the other hand, the Minister may have a much narrower definition in mind. Prior to the 2015 Act, one might well have said that a practising barrister was one who practised at the Bar and the definition was different and perhaps more global but less precise. If one had used the phrase "practice at the Bar" before 2015, it would have meant holding oneself out as being willing to advise a client on the instructions of a solicitor, in other words, through a solicitor, and to represent a client in litigation as an advocate before the court, again through a solicitor, although there are limited direct access schemes in place now as well.

One way or the other, it is clear that since 2015, the law has provided for at least two definitions of what it means to be a practising barrister. We have the 2015 definition in section 2(1), as I outlined, which is the more precise and detailed one, and also the older definition of someone practising at the Bar. The latter, which one could say was derived from common law, was endorsed by the Supreme Court in 1981 in the case of State (Walshe) v.Murphy [1981] Irish Reports 275. In that case, the Supreme Court held that a person appointed as a judge had been invalidly appointed because he had not in fact been a practising barrister. That case alone demonstrated, if it were necessary, that this is not just an academic, theoretical or hypothetical question and that having a definition within the legislation has a very specific purpose. It seems sensible to all the Senators who proposed this amendment that there should be a clear and unambiguous linkage between the definitions in this Bill and the definition in the 2015 Act, which is the most recent definition and the only one clearly set out in statute, so as to avoid any ambiguity and to ensure that the previously understood common law definition would not be the one that would apply in any interpretation or application of the Bill.

This is what the Minister may regard as a constructive amendment. It is seeking to draw a direct linkage with existing legislation, the Legal Services Regulation Act 2015, which had widespread support. It seems to be sensible to avoid any ambiguity as to what is meant by "practising barrister". I have searched the Bill for another definition and I do not believe there is one. This is a sensible amendment and I recommend it to the House.