Thursday, 19 November 2015
Legal Services Regulation Bill 2011: Committee Stage
I am very pleased to bring the Bill before the House on Committee Stage. The Bill is a working recipe for the coexistence of the old and the new, which can ensure our legal services sector does not end up at a permanent competitive disadvantage and provide people who use legal services with better and more competitive choice. The Legal Services Regulation Bill will deliver on the programme for Government commitment to establish independent regulation of the legal profession, improve access and competition, make legal costs more transparent and ensure adequate procedures for addressing consumer complaints.
After 30 years of reports and recommendations, the Bill, with the enhancements we will make to it in the Seanad, will provide for the independent regulation of the provision of legal services in the State and a far more transparent legal costs regime. It contains substantial provisions, which will promote competition, help reduce legal costs in Ireland and support Ireland's economic competitiveness. These very important reforms, which are good news for customers and small business enterprises, will improve equity of access to the justice system for all. All of this will be achieved by balancing in law, in the stated objectives of the Bill and by amendment where necessary, legal professional principles and the interests of those who avail of legal services, this time in a more modern way under an independent regulator.
Let there be no doubt that while the Bill does not obstruct the traditional form of legal practice, it demands that legal practitioners do not obstruct the Bill's reforms. While some observations have been critical of the proposed new regulatory regime and some aspects of today's anticipated amendments, they have missed the point. The new regime is being built by specific statutory provision on the foundation of an independently nominated regulatory authority, an independent complaints committee, an independent practitioners' disciplinary tribunal and a full suite of High Court powers and safeguards.
As passed by the Dáil, the Bill already comprises 158 sections spread over 13 Parts. During its passage through the Dáil, more than 235 amendments were made, and I will lay out for the Seanad very briefly the amendments I am about to propose. They will see the replacement and reconfiguration of two Parts of the Bill to reflect the co-regulatory framework now in place between the new legal services regulatory authority and the Law Society. This was foreseen in some of the amendments in the Dáil, but the Bill was skeletal in some areas with a great amount of work to be done, which is what I am bringing forward today.
Provision will be made for the possible transfer of the complaints handling staff of the Law Society and the Bar Council into the new body, to ensure adequate working capacity and expertise as we move from the old system to the new. I am glad to say such a transfer has received support from all parties in the Dáil and, I am led to believe, the Seanad has the same view. It makes sense to ensure the ability of the new complaints facility to hit the ground running and gain early public confidence. The societies have been doing this for decades. There has never been independent regulation. This is a serious transfer of function and we must take account of procedures and practices, history and expertise in the transfer to the new body of certain obligations. We must ensure the new body works in tandem with the established bodies and nothing is lost in translation so the consumers and practitioners do not lose out on the expertise in handling issues, such as the financial compensation fund, which has been built up so painstakingly over a long period.
On foot of the amendments proposed, all public complaints, no matter what their subject matter, will be made to and remain in the hands of legal services regulatory authority to be prosecuted to a conclusion. The authority will have the power to go back to the relevant body, such as the Law Society, and I will go into detail in this regard.
The provisions on inspections and search and entry will be strengthened, legal services advertising will be brought in line with EU directives and there will be a strengthening of existing provisions on cost, including the chief legal costs adjudicator replacing the Taxing Master. There will be more transparency on fees, and there is quite an amount of detail on this point. A two year review clause is built in, at the end of which note will be taken of how consumer and competitiveness issues have been addressed over the two year period.
This is a quick summary of the approach, and I will now discuss the amendments. This group of amendments relates to consequential amendments to the Solicitors Acts which, I note, are from 1954 to 2008. We are speaking about Acts from over a long period, all of which had to be looked at and various amendments made to arrive at the point where we have a new independent authority. This issue may also arise on Report Stage.
Amendment No. 1 is a technical amendment with regard to a collective citation. Amendment No. 154 is with regard to section 3 of the Solicitors (Amendment) Act 1960 and substitutes a new definition of "misconduct" which will refer to the definition of "misconduct" provided for in the legal services regulation Act. This is to ensure there is equivalence between the two pieces of legislation in investigations. It is very straightforward and technical. Amendment No. 155 amends section 2 of the Solicitors (Amendment) Act 1994 with regard to the definition of "authority" to mean the legal services regulatory authority under the Act.
Amendment No. 156 is important and substitutes a new section 14A into the Solicitors (Amendment) Act 1994. It deals with the powers of the Law Society to investigate alleged misconduct by solicitors. With the new arrangements on complaints and procedures, it is necessary to clarify what powers the Law Society will have to investigate complaints. Subsection (1) of the new section 14A sets out what the Law Society may investigate where it receives a complaint about a solicitor or where the authority requests it to carry out an investigation. Subsection (2) provides that the society should conduct an investigation in compliance with a request from the authority, because the authority can request the Law Society to conduct an investigation under section 50 of the legal services regulation Act. Subsection (3) permits the Law Society to issue a direction or more than one direction to a solicitor where it considers that the act or omission of the solicitor warrants a sanction.This will apply except where the Law Society considers that due to the gravity of the concerns raised, the matter should be referred to the disciplinary tribunal I mentioned in the context of subsection (6). Subsection (5) provides that where a solicitor takes the measure or measures specified in the direction of the Law Society, the matter shall be considered as determined. Subsection (7) relates to notifications to be made to a solicitor on the determination of a complaint.
These follow on from the major changes we have made on the role of the LSRA handling disciplinary issues. Amendment No. 157 amends section 26 of the Solicitors Act, which relates to the provision of professional indemnity cover. New provisions on it will be provided in the Legal Services Regulation Act 2015. The amendments are designed to ensure continuity with these provisions. Accordingly, the amendment ensures that the Law Society may make regulations in this matter but only with the consent of the authority. The amendments also provide that the regulation may extend to solicitors in legal partnerships, multidisciplinary practices or limited liability partnerships.
I welcome the Minister to the House. We had some brief discussion on this matter this morning during the Order of Business. If we are being totally honest, the Bill that we see before the House now has changed from that presented by Deputy Shatter four years ago. Then it was like a two year old male tiger, full of teeth, steam and gusto and now we end up with a little lamb with little teeth that one would find in the mountains of West Cork. There has been a total change. I am a member of the Law Society and it appears to me that the two big legal professions have coerced the Government to water down this Bill from what it was originally supposed to be. I make that observation at the very outset.
There is no doubt that we need to have independent regulation. That is something I advocate. As Senator Barrett mentioned on the Order of Business this morning, it seems that the existing staff of both the Law Society and the Bar Council will be subsumed into the new authority. That creates a doubt in my mind about how independent the new authority will be.
The Minister mentioned the issue of cost. One of the catalysts of this legislation was the coming of the troika to this country which pointed a finger at the matter of legal costs. I wish to place on record the fact that approximately 25% of the solicitors in this country, while they do not have a monopoly, are in a very strong position. There are solicitors in Dublin charging the Government, Departments, and commercial people €455 per hour. In other places, such as Bantry, Castlebar, Castleblayney or any rural town in Ireland where there are solicitors, a solicitor would be very lucky to get €75 an hour. The huge costs charged by a small number of major companies are a problem. They advise the Government and NAMA. I say this as someone who practised in a small town and made a living there. A huge proportion of these costs revolves around ten or 15 big firms. I always make the point that there are qualified young solicitors and barristers who cannot even get onto the payroll because they cannot find jobs. The idea is that this Bill will resolve the matter of costs through regulation and the trust. It will not and cannot resolve the whole area of costs and transparency unless there is some sort of parity. If one seeks advice from a solicitor on a will, for example, in Castlemaine in Kerry or Tullamore, the charge is €100 or €150. There has to be some balance because the costs to solicitors are the same. The licence fee that I pay to the Law Society is no different than the fee paid by a principal in a main firm in Dublin that employs 100 solicitors. If we do not grasp the nettle that is the regulation of costs, this Bill will fail on many issues. I can tell the Minister that 75% of practising solicitors in Ireland would concur with what I am saying. Some of them are struggling to survive. They have mortgages like everyone else. Not long ago, I was driven into the city from the airport by a young taxi driver who is a qualified barrister but who had no work. If the perception in Europe is that we are all creaming it, they are wrong and are going down the wrong road.
We are on Committee Stage and I do not want to labour the point. I am concerned about the new regulatory authority. Is it another quango? Will it be efficient? One can say it is not relevant to this particular section. The troika said that Ireland should sort out its legal services - the Bar association and solicitors. If that is done and the same monopoly is retained in which 25% control the major income and major fee per hour and the other 75% suffer, we will not have solved the issue to which the troika referred. I am talking about solicitors in particular. I cannot say strongly enough that the version of the Bill introduced in the House four years ago is so different from that now before us that if a law student studied it, he or she would say it is completely new legislation. I have great respect for the Minister and I do not say this in a derogatory way towards her or her officials but perhaps they should have gone back to the drawing board, produced a new Bill with the changes incorporated in it and started afresh rather than moving from a big ship to a small boat. That is the impression I get. We are dealing with a totally different Bill. However it is dressed up, those are the facts. I put that on record.
I wish to express my complete disappointment with this Bill. It does nothing about the conveyancing monopoly which imposes a cost on every person who buys a house in this country. The costs are way in excess of those which obtain in the United Kingdom. That damages our competitiveness. The Bill does nothing about the right of audience to a barrister without having a solicitor present. It seriously disappoints the Competition and Consumer Protection Commission which, in one of its former guises as the Competition Authority, has been advocating what I have been saying for the past ten years. The amendments arrived late on Tuesday after the deadline for our own amendments. As Senator O'Donovan said, this is a completely new Bill and the Minister has shown scant regard to the House by the way she has proceeded. We asked to have a new Second Stage today and to have the weekend to discuss it. At the last count, there were 220 amendments over 77 pages - 159 from the Minister, 37 from me, and 24 from Sinn Féin and others. The Minister has changed the emphasis completely. She has ignored Stephen Kinsella in today's edition of The Irish Times, the Competition and Consumer Protection Commission and the troika. This is a Bill written by the legal profession for the legal profession. That is why its members are allowed to transfer over to the new body.
On the Order of Business, I asked what is next if the people from the Bar Council and the Law Society who are involved in structuring reform transfer to the new body with their pensions topped up. What is next? Will the tobacco industry have a right to have people employed in the Department of Health? Will speeding motorists get jobs in the Road Safety Authority? This is total capture of Government by a vested interest. The Minister has ignored both what the National Competitiveness Council has said and the burden put on people trying to buy houses. It is totally producer based and that is why it is so disappointing. I refer here to both the content of the Bill and the way it is being pushed through the House today. I have heard several Members of the Lower House saying "What a pity we did not run with the Bill four years ago." This Bill is a travesty. It is a huge victory for the incumbents. I see no representation from MABS, FLAC, university law departments or the Competition and Consumer Protection Commission. It is totally producer based, setting up a quango which will do much the same job as the Bar Council and Law Society have been doing up to now. We have a problem in respect of excess legal costs that will have to be addressed some time. This Bill will set up a quango to address some of those issues in four years' time but we have known about the issues, as the Minister said in her press release, for 38 years. Why not tackle the conveyancing monopoly now? That is the basis on which the super normal profits are made and which has built up our bloated legal structure.The Minister will also have to look at what is happening to insurance costs because of legal costs in this country. She need only look at the banking inquiry. One of the major reasons Anglo-Irish Bank was worth far less when it was transferred to NAMA was that the legal papers were not adequate in respect of the title of the properties, and we lost €30 billion as a result.
I am really disappointed that the Minister who led reform on the same-sex marriage issue, with the support of the House, has become so traditional and conservative in what is before the House today. We will be going through the amendments one by one, but this Bill shows a Government reversing from what the troika wanted and from what every citizen in Ireland wanted, that is to say, a more efficient and lower-cost legal system than what we have now. There must be great happiness in the Law Society of Ireland and the Bar Council of Ireland with the version of the Bill before the House today. Everyone else is distinctly unhappy about it.
I am obliged to communicate that to the Minister.
One of the problems that Senator O'Donovan raised related to how, as in accountancy, three or four firms now dominate legal services. That will increase under this Bill. There is no mention in the Bill of how to deal with an oligopoly. The authors of the Bill have obviously discounted everything that the Competition and Consumer Protection Commission has said about the need for a competitive sector. It will become less competitive when we implement this legislation.
Before I call Senator Bradford, I wish to make one point. While I appreciate that colleagues have a difficulty in respect of the time lag between Second and Committee Stages - that point was made on the Order of Business by some Senators - my hands are tied. We are dealing with Committee Stage as per the Order of the House. I call on colleagues to address the amendments before the House. I appreciate that it has been some time since Second Stage, but my hands are tied. We are on Committee Stage and I have to deal with Committee Stage and the particular amendments to be dealt with at this point. Senator Bradford is next. I am not adverting to you, Senator Bradford. It is a general comment.
Thank you very much, Acting Chairman. I wish you had not said that because it is unhelpful from my perspective. The Minister is welcome and I am sure we will have a substantive debate this afternoon and beyond. I concur with what was said previously to the effect that this is really a new or fresh start. To use the awful phrase, we are where we are.
I am unsure whether it was Peter Mandelson, when working for Tony Blair, or Mr. Emanuel, when working for President Obama, who coined the phrase that we should never waste a good crisis. I am mindful of that phrase because of the crisis that resulted in the economic meltdown of the country a few short years ago and the subsequent arrival into town of the IMF and the troika with their list of proposals, suggestions and demands, most of which have been enacted.
This brings me to reflect on the fact that one of the big-ticket issues as far as the troika was concerned, as recently as a fortnight ago, was the way law is practised in this country and the way it impinges on the cost of the legal provision for every citizen. Of course, it is not simply a question of every citizen or taxpayer in the country. Anyway, I heard Professor Kinsella being interviewed yesterday afternoon. He made a pertinent observation about the vast cost to the taxpayer of the legal bills for every Department and virtually every agency of State. If we fail or refuse to challenge legal costs, it is not only the so-called private citizen or householder who is affected. The taxpayer who is footing the legal bills for every Department and Government agency is being affected as well. Certainly, there was an expectation four short - or long - years ago when this Bill was introduced. I served briefly on the Joint Committee on Justice, Defence and Equality at that stage. There was an expectation that when the Bill was passed we would see a new regime in place and that the cost of the provision of legal services would be reduced. There appears to be no indication that we are going in that direction.
The Minister made certain remarks in her opening statement. It was useful that the Minister prefaced the debate with the remarks to the effect that she sees this as good news for consumers. I imagine the Minister believes that. Yet the only response of consumer champions or consumer associations to date has been one of regret and disappointment. They believe what they believe and the Minister believes what she believes. I call on the Minister to clarify why she believes it is good news for consumers.
The Minister also made what I deem to be a very honest statement, if she was quoted correctly. Of course, the Minister is not always quoted correctly. Anyway, yesterday a newspaper reported the Minister describing the Bill as a pragmatic solution in response to some of the criticisms. I did not hear the Minister say it, but she was quoted as pronouncing that this was a pragmatic solution. We experience great difficulties in the way we try to do political business and carry out reform in this State and in respect of the law. One of the reasons we often fail is that pragmatism wins. It is a neat, handy and short-term solution, but pragmatic solutions to big issues are not required in this case.
I agree with what Senator O'Donovan has said about the major variance in legal costs throughout the country. Let no one be in doubt: there are many barristers who are failing to eke out a living in this country and many solicitors likewise. Not every legal practice has a lottery machine in the back room of the premises. However, the general cost of legal services in this country is still extraordinarily high by European and world standards. When this almost new Bill is passed and these sections and amendments are all pushed through, we should ask ourselves honestly what will have changed and whether law be more accessible from a financial perspective to the citizen on the street. The answer is clearly going to be "No". We have substantial issues to take up with the Minister as we peruse this legislation. They relate to the concept of regulation, the independence of regulation and the new practices required. All these questions will have to be at the centre of the debate. It is difficult to accept that what is now before the House is in any way related to what was published in 2011. One particular route was taken at that stage but it appears to have been reversed.
The Minister rightly referred to legislation going back to the 1950s. Obviously there is a need for major updating. However, I believe we are in danger, following the changes proposed in recent weeks or months by the current Government, having waited for four years, of putting through changes to a reform Bill which will negate its entire purpose.
I look forward to the Minister's defence of her amendments. In fairness, the Minister had to present this legislation to her Cabinet colleagues. They now seem to be at one on the matter. The heavy hand of forces outside Government appears to have worked on this occasion. The consumer and the economy are the losers. So often the Taoiseach refers to building a modern, dynamic, creative and inventive economy. If we are to be the famous best small country in the world to do business, then issues such as the practice of law and the cost of same need to be dramatically reformed. They will not be fundamentally reformed arising from these amendments. I look forward to the Minister's observations on the amendments.
I do not believe it would be the end of the world, from a reform or a political perspective, if it were not possible to push this legislation through the Dáil and Seanad before the term of this Government ends, because we need to get it right. Maybe it is a question of only parliamentary days rather than weeks left. After all the waiting, consultation and submissions, there is a danger that we could pass legislation which, while bringing many improvements - in fairness, all legislation does - does not really push the buttons required of us and demanded of us, rightly, not only by the troika but by consumer champions in this country as well.
I welcome the Minister to the House. Without prolonging things at this point - I am mindful that we have many amendments to get through - I wish to refer to some key issues. Clearly, colleagues believe in the need to make Second Stage speeches at this point. I remind colleagues that we had a full Second Stage on 13 May on the Bill that is before the House now. It was substantially amended in the Dáil, as Minister has said. My note indicates that only eight of us spoke. I was one of those eight. Certainly, I made a full speech in which I spoke about the need, as I saw it, for certain amendments and so on. I speak as a former member of the Bar and a practising barrister.I can say for sure, and Senator O'Donovan will acknowledge, that there are many members of both legal professions who are most unhappy about the reforms in this Bill. I refer to substantial reforms, particularly in the area of costs. I urge colleagues to examine the provisions on costs that are not being amended in any substantive way and that will provide for much greater transparency and provide for a duty to give advance notice on costs to clients. This is extremely significant for consumers.
To speak in broad terms, the other great change is the one to bring about an independent system of regulation for practitioners in both professions. Again, this is a significant change about which many practising lawyers are unhappy but, nonetheless, it is an important and welcome one that will provide for significant lay supervision.
Senator Barrett, in particular, spoke about who should be on the legal services regulatory authority. Section 8 of the Bill provides that lay members should be nominated by FLAC, the Irish Congress of Trade Unions and others. There will be a really important input from those bodies with human rights expertise and so on. That is important.
People have been making issue about the transfer of staff but I believe there was general support for it in the Dáil. Senator Conway will remember that when the justice committee had hearings on this Bill some years ago, staff transfers comprised a significant issue. Reference was made to the need to ensure continuity of expertise and adequate competence in the new regulatory authority. If one examines the provision, one sees it is only giving the authority the option to transfer staff. It strikes the right balance.
I have two other points. On section 33, Senator Barrett mentioned university law schools. That is a subject close to my heart, of course, and I know that university law schools are looking at this with great interest. Section 33 will empower the authority, once it is established, to take soundings and examine the evidence basis for extending the provision of legal education to the universities and other entities, in addition to considering the unification of the legal profession, which I believe would be a welcome reform but for which we need to see the case. A good balance is struck between the necessary reforms that need to be carried out now on costs and independent regulation and setting up a basis for further reforms. This is the start of a reform of the legal profession that is long overdue.
Among the reforms that have been in place for many years now are those to allow solicitors rights of audience before all courts. Senator Barrett should note that solicitors do have rights of audience before all the courts, but very few solicitors choose to exercise them. In fact, the Minister's predecessor, Deputy Shatter, was one of the few practising solicitors who appeared quite regularly in the superior court. This is a matter that requires cultural shift. However, the sorts of changes being brought about in this Bill will certainly help to expedite the cultural shift that is needed urgently in the legal profession.
It is a contradiction to say we urgently need reform of the legal profession and then object to this Bill coming before us now, a few months after Second Stage. We need to get this Bill through. I am glad there is to be a review clause in it. There is a two-year review clause. It will ensure that we keep our eye on the ball in terms of the reform of the legal profession.
I concur with Senator Bacik and welcome the Minister to the House. We in this House, having had Second Stage on 13 May, had an advantage in the sense that the Bill had done the rounds of both Dáil Éireann and the justice committee. The latter did substantial work on it. In this regard, Senators Bacik and O'Donovan, other colleagues and I were quite active. Many of these issues were ironed out at the time. When we took Second Stage here on 13 May, it was the end of one journey and the beginning of another. I very much regard this legislation as groundbreaking in what will probably be a ten to 15-year process to deal with a profession that has not really been dealt with properly in 50 to 100 years.
Once Chapter 1 is operational under the authority, the two-year review will determine how that chapter has worked. Some future Government can bring in further legislation to deal with the issues this legislation will not have dealt with and its provisions that will not have worked.
This House has a responsibility to ensure this Bill passes as a matter of urgency. We are in the twilight of the political life of this Government and there could be an election any time. Therefore, the House has a responsibility to the citizens and consumers to ensure it does not delay the passage of the Bill in any way.
I hope that as we go through the amendments and as the Bill progresses today, Senators will have an opportunity to see the substantive changes that are to be brought about. It is obviously a continuation of the work in the Dáil, as is right. In some instances, there was a framework laid out for the approach, as in respect of inspections and discipline. That has all been filled out in great detail and we will have an opportunity to go through it today.
Some of the comments made by Senators, which I appreciate were summary, do a disservice to the scope and scale of this legislation. Independent regulation is to be achieved for the first time, along with independent means of dealing with complaints. This is important. There is to be an independent statutory framework set up for the first time. I could comment on the various points. The cost regime is quite significant, as Senator Barrett should note. His point on conveyancing is addressed in the Bill, as recommended by the Competition Authority. We have taken it on board, along with any of the points the authority has made in several memoranda to the Government and several detailed responses on the way the Bill has been drafted.
The troika welcomes the Bill. It was briefed last week. We will have legal partnerships once we enact and implement this Bill. We will have legal partnerships up and running next year. That is a significant change in terms of access. Transparency and accountability are the hallmark of this Bill.
I hope that as we go through the various sections, Senators will understand what I am saying. I reject completely the idea that this is a completely new Bill. It represents detailed work on significant changes to the legal profession. Significant changes are being introduced for the first time and there is to be important new regulation, representing the right way to go. The nominating bodies for the board are the Citizens Information Board, the Higher Education Authority, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, the Institute of Legal Costs Accountants, the Consumer Association of Ireland, the Bar Council, the Legal Aid Board, the Honourable Society of King's Inns and the Law Society of Ireland. There is a mix of lay and legal representation. It is an excellent mix and will lead to the right kinds of decisions. The board is carefully balanced, with 11 members in total. There are five legal members and six lay members.
I appreciate that we need to move on to the detail of each amendment. I mentioned that there is a very detailed cost regime. A new office of legal costs adjudicators is to replace the Taxing Master.
It is to be significantly more difficult for excessive charges by lawyers to stand. The legislation makes it quicker and easier for clients to have their bills assessed and reduced, where applicable, efficiently and effectively. These are all major changes, as evident in comments by many. Let us not underestimate the scale of the change in this Bill overall, its range of sections, the range of issues it deals with in terms of the legal profession, and the groundwork it lays and framework it establishes to make progress in the years ahead.
It is hard to be brief on a very long Bill. The first grouping encapsulates amendments Nos. 154 to 157, inclusive. Amendment No. 1 is fairly technical and I do not have a problem with it. There are 80 pages of amendments and the original Bill is 130 pages. To say the legislation before us is not close to being a new Bill is not exactly correct. Amendment No. 156 is to substitute a new section, amounting to nearly two pages of change.I have some concerns about it. First, it refers to the new legal services regulatory authority. In reading this new section contained in amendment No. 156, I am a little confused. As I understand it, it can deal with a complaint from the public without it going through the Law Society or, I presume, the Bar Council, but this refers in particular to the Law Society. It is a little difficult to fathom.
The Law Society also has a twin-track role in investigating a complaint against its member. I say that, and I am a little confused, because if we are talking about independence of the new regulatory authority, subsection (7)(a) of amendment No. 156 states:
Where the Society considers that the measure specified in section 61(6)(a)of the Legal Services Regulation Act 2015is the appropriate measure to be taken as respects the finalisation of its investigation, it shall notify the solicitor concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be placed on the practising certificate of the solicitor, the precise restriction or condition).
As I understand this, at all stages it seems that the Law Society has a twin-track role in the investigation of a complaint, either directly by a member of the public independent of the Law Society or by a group of people against a solicitor or a firm of solicitors. Subsection (7)(c) of the same amendment states:
Where the Society issues a notification pursuant to paragraph (b) and does not receive the written consent of the solicitor concerned within 21 days to the imposition of the specified measures [I presume it will be some sort of constraint on how they practice], it shall apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015 by it into the matter, in so far as the Society has not found that the concerns giving rise to its investigation of the matter are unfounded or that the act or omission concerned does not warrant the imposition of a sanction under this section.
If this new regulatory authority makes a decision, the Law Society, on my reading of it, must accept it. There can also be an application to the legal practitioners disciplinary tribunal for a further hearing.
In the case of some of the big guys who held us all to ransom as members of the Law Society and who went off with €50 million and €70 million and never came home, this gives significant scope where there is an initial investigation which can go on subsequently to the legal practitioners disciplinary tribunal. Therefore, there is investigation after investigation. If there is a judicial review of the matter in the High Court and Supreme Court, the investigation, particularly of a serious complaint, could extend to two or three years.
Debate on amendment No. 1, even though it is technical, also takes in amendments Nos. 154 to 157, inclusive. We have agreed to debate them together. Amendment No. 156 in particular is a lengthy new amendment that needs more explanation, as far as I am concerned. It certainly is not simple.
In changing this Bill for solicitors, I make the point, while not trying to go outside the remit of the section, that a small fisherman in the Beara Peninsula or a small farmer in Connemara should have the same right and access as a multi-millionaire. If this is as difficult as it seems, the person living in a remote part of Ireland will find it difficult to jump all the hurdles required under this new section. It certainly is not making it simple, which it should be.
Let us say a complaint is made and this new regulatory authority states the solicitor should not be allowed practice if it is a serious issue, should only practice under the supervision of somebody else or should be fined or reprimanded in some way. There seems to be another tranche of proceedings which that person could instigate, I presume through the Law Society, or the Law Society could say that the legal practitioners disciplinary tribunal would kick in, and that is another tier of investigation. It is certainly far from simple and it is certainly something the troika did not envisage.
I do not know whether this is something that has been recommended by the Law Society or agreed to, but it is a lengthy section. The Minister might clear the air on amendment No. 156, which is part of the first tranche of amendments. Maybe I am confused or I misunderstand it. Reading it through, it does not make the area of complaints and discipline simple. If anything, it makes it more convoluted.
I thank Senator O'Donovan. I was conscious, by using the word "brief", that I was witness to the Senator speaking for four and a half hours on one amendment during the Harbours (Amendment) Bill 2008 in a previous Seanad.
I understand in part the point Senator O'Donovan is making. Amendment No. 156, which comes early here because it has been grouped, is a technical amendment to the Solicitors (Amendment) Act 1994. Primarily, the body of this issue is dealt with in section 5. We will be going into considerable detail on that because that is about how the complaints and discipline are dealt with. It sets up the entire framework for the new authority dealing with all complaints. It will be very straightforward. If anyone else has a complaint, it goes to the legal services regulatory authority, LSRA. It can then seek the help of and, if necessary, get inspections and reports from the Law Society's financial experts because, as Senator O'Donovan will be aware, the solicitor's financial affairs will continue to be overseen by the Law Society but under the supervision of the LSRA. Amendment No. 156 is the technical amendment to the Solicitors (Amendment) Act 1994, but we are getting into the debate that is substantially dealt with under section 5. I will be going into a lot of detail about how the complaints and discipline issues are to be dealt with, the new structure that will be set up and the replacement of the current two disciplinary bodies with a new body. That is merely a preliminary explanation for the Senator. It is the whole of section 5 and we will be looking in detail at how this will work.
It is difficult for us to say we agree to this and to pass this amendment, which is technical, only for an issue to arise in the discussion on section 5 and we cannot go back to amendment No. 156 on Committee Stage. I am not being difficult, but this is a most important Bill. It has changed substantially since it was first published. It is important for us, as Members of the Seanad, to tease out the pros and cons and to look at all aspects.
I will reluctantly hold back until the amendments are reached and we have the substantial debate on section 5. At the same time, my unhappiness with amendment No. 156 gives me the urge to call a vote on it and I will not have that opportunity then if we pass it. That is my problem. It is lumped in here with amendment No. 1, which is technical. Should amendment No. 156 be more appropriately dealt with in the amendments concerning section 5.
I wish to make a quick correction to the record. I apologise, as I was looking at the wrong piece of paper regarding the lay membership and the nominators to the LSRA in section 8. I thank the Minister for putting it correctly on the record. In fact, the nominating bodies for lay members include the Citizens Information Board, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission and the Consumers' Association. That is welcome. I apologise that I had put the wrong nomination bodies on record.
I am introducing these technical amendments to better clarify what is meant by certain terms used throughout the Bill. I refer to the definitions of "Compensation Fund", "legal partnership", "limited liability partnership", "multi-disciplinary practice", "prescribed" and "Solicitors Accounts Regulations". These are the definitions that we will go on to discuss in other sections.
I hope I am not confusing the issue, but amendment No. 3 proposes to delete the following:
"admissible complaint" means a complaint which---(a) is received by the Authority not later than 3 years after the occurrence of the act or omission which it is alleged constitutes misconduct (unless the complaint relates to fraud or dishonesty by a legal practitioner), or
(b) is not a complaint to which subsection(2), (3)or (4)of section 50 applies;
Will the Minister clarify what happens to complaints if that section is deleted? Would the three-year rule be retained or dropped elsewhere, and why is it proposed to remove the definition now?
This group of amendments relate to the powers of the authority to inspect legal practices. Sections 30 and 31 of the Bill as published are being remodelled again into the new Bill, Part 3, to better specify the inspection powers of the legal services regulatory authority in line with any modern inspection regime. Part 3 of the Bill outlines all the expected powers that one would assume a strong independent regulator would have. This section defines the role of inspector within the meaning of the Bill, with amendments Nos. 39 to 46 inserting the new Part of the Bill. Amendment No. 39 inserts a new section that provides for the appointment of inspectors and is all about the inspectors. It is very similar in nature to the provisions in the Property Services (Regulation) Act 2011. Under the provision the authority can appoint either members of its staff or other persons whom it thinks fit to act as inspectors. The section makes it clear that a person appointed as an inspector will be furnished with a warrant of appointment by the authority. Amendment No. 40 inserts a new section 37, an important provision which sets out that the purpose for which an inspection can be carried out can be defined in general. It is intended that the legal services regulatory authority will have inspection powers and investigation powers in relation to compliance and general compliance practices.
While the authority will exercise these powers in relation to solicitors and barristers, it will not overlap with the separate inspection powers of the Law Society of Ireland, which will be retained under the Act. In regard to complaints made to the authority, section 37 provides that an inspector may carry out an inspection where a complaint is being made or is deemed to have been made to the authority under the Act regarding inadequate service. Where a complaint regarding excessive legal fees has been made or is deemed to have been made to the authority, it can appoint an inspector to bring the information together and do the necessary work. An inspector can also be appointed where a complaint has been made to the authority regarding an act or omission on the part of a legal practitioner which may be considered as constituting misconduct. If any of these complaints are made there is a straight route to the authority. Complaints can be made, inspectors can be appointed and an investigation carried out into the compliant by an independent body, with an inspector appointed. As I said previously, this is a consumer-friendly process.
In addition, the section provides that the authority may carry out an inspection in order to ensure compliance by a legal practitioner in relation to any requirement imposed on the practitioner by this Act, in relation to any regulations made under the Act which are applicable to the practitioner and in relation to any code of practice issued or amended under section 20. Amendment No. 41 inserts a new section 38 into the Bill, which is a key provision that specifies the powers of an inspector under section 36 with regard to the inspections carried out.
I will summarise what the inspector can do in response to any of these complaints. The inspector can enter, inspect, examine and search any place where he or she believes an activity is being carried out in connection with the business of a legal practitioner. For example, the inspector can enter a premises where it is suspected, or where there are reasonable grounds for believing, that books, records or accounts are being kept or other documents stored in various forms which relate to the business of a legal practitioner. The inspector may require a legal practitioner, or any other person in the place, to produce the books, records and documents for the inspector. Senators can see what the general approach is. It is to have a robust inspection regime that can follow up and have the necessary authority and powers to get the information together to make a determination on it. The inspectors can also require any legal practitioner, or any other person present at the place concerned, to give the inspector such information and assistance as the inspector may reasonably require or to answer relevant questions. On foot of a court order obtained from the High Court, the inspector can also carry out certain actions where necessary, including seizing and retaining books, securing data equipment or any associated apparatus for later inspection, and, for the purpose of preserving records for later inspection, the securing of the place or any such place where that may reasonably be necessary.
This section and these amendments are all about the powers of the inspectors who will be operating under the legal services regulatory authority and who will have quite robust and stringent powers of inspection. It is an inspection regime which will operate under the legal services regulatory authority with all the powers that I have outlined.
I understand that all these powers are necessary, but will the Minister indicate whether there is any mechanism within the authority that could conduct preliminary investigations? Sometimes vexatious or frivolous complaints can be made for inappropriate reasons with the motive of targeting a particular solicitor or office. A sledgehammer does not have to be used to crack a nut. Is there a way that those complaints could be filtered out, set aside and dealt with quickly rather than having to go through the whole process?
Senator O'Donovan makes an extremely good point. We are speaking now about the powers of inspection, because the discussion is around Part 5, and this is where I go into the detail of how the complaints will be handled. In answer to the Senator's query, yes, there is a mechanism to deal with that type of situation. It is quite clear that there has to be an assessment in the first instance. The complaints can vary from anonymous complaints to those that are very serious and those that have other motivations. We know that this can happen in any walk of life. The authority will have a triage system, and the complaints process will include triage for admissibility types, attempts at informal resolution or mediation where appropriate, referral to the complaints committee of the authority, and, where necessary, referral for determination of misconduct by a legal practitioners' disciplinary tribunal. Like any complaints process, it is a system that in the first instance can assess what is the level of complaint and make a reasonable judgment on that. Depending on that judgment, it can then go to the most serious level of inspection, which I have just described, or, after the triage, it may be decided that the complaint does not warrant further investigation. This type of process is followed all the time by other bodies. The legal services regulatory authority will be in a position to do exactly that. Senator O'Donovan asks a fair and relevant question because there does have to be an assessment of the complaints as they come in and an assessment of the way in which they should be dealt with depending on their seriousness and so on.
This deals with the issue of professional indemnity insurance, PII, for legal practitioners. A definition of PII is inserted and there are two sections to clarify the issue of professional indemnity insurance for legal practitioners. It is proposed that section 38 is to be replaced by a new section 38, which is reworked in order to better clarify the obligation on solicitors and barristers to have adequate professional indemnity insurance, including when they are providing services through the new business models being created by the Bill, such as legal partnerships, multidisciplinary practices and limited liability partnerships. This is necessary for the consumer and in the interests of clients, they will not be permitted to practice unless insurance cover is in place. All legal practitioners will be under an obligation to comply with the relevant regulations and the authority is being given the power to approve any existing group schemes, as long as they are already compliant with regulations.
Section 39 sets out the regulatory authority's professional indemnity insurance regulation-making powers in addition to making new regulations, including where none exists, such as the case with the new business models. The authority will have the power to set monetary amounts regarding the minimum level of cover and maximum excess amount that the authority considers appropriate to each type of legal practice. The objectives of the regulations are set out and these include elements that are important to the consumer. They are to protect the client's money and interests, encouraging high standards at a reasonable cost, proper consideration of any different levels of risk that might apply to different types of legal practices and ensuring that adequate cover is in place in all cases. These provisions are similar to what was contained in the previous section 38 but they are more robust and detailed. In some ways, what we had was a more skeletal approach to the issues but as the Bill has developed, we have filled them out, as we have done with the inspection regime.
Senator Barrett's amendment suggests the use of the world "shall". That is part of the section being proposed. We are effectively dealing with the amendment in that way.
I have an observation. I agree there should be compulsory insurance cover for professional indemnity. I remember when I returned from England in 1981 that I opened my little practice and was probably one of the first to volunteer for professional indemnity. It cost me £750 at the time and it was a lot of money then. My concern is whether the professional indemnity cover would take into account turnover in cover. I am subject to correction but there seems to be no more than two firms in the State offering professional indemnity insurance. Normally, 95% or 97% of professionally practising solicitors may have to carry the burden for the rogue solicitors or those who are negligent in one way or another. In ensuring that we have professional negligence insurance, is there sufficient competition in the market to guarantee fair play across the board? I have a feeling that we are tending towards a monopoly, with just one or two big players providing insurance and holding the gun to solicitors' heads. That affects the small guy rather than the big guy, who can afford to carry that level of cover. Professional negligence insurance is now probably several thousand euro per year. A person from a firm with six or seven solicitors told me recently that before it starts on 1 January each year, it must set aside €50,000 for professional negligence insurance, despite not having a claim in the past ten years. Perhaps this may be the wrong time to raise the issue but I will say it anyway.
I thought the Senator was going to ask about the business of the solicitors and the cost. The PII provider evaluates risk and turnover of the practice. We have consulted the market and we understand it is open, although I take the Senator's point. If there is any further information that the Senator can give us, I can certainly see if there are any implications. I understand the concerns.
Issues have been raised regarding major legal firms. One of the hopes we have with respect to limited liability is that it will support those solicitors who wish to merge smaller practices. Very often it is because of worries about liabilities that mergers do not go ahead, etc.
I mentioned this in my introductory remarks and it is about a review of the Act. It is a standard legislative review clause, like others in the Statute Book, to provide that consideration will be given by the new regulatory authority as to how well the Act is functioning. It gives the new regulatory authority scope for recommendations to the Minister for Justice and Equality for future legislative amendments to both this Act and the Solicitors Acts if they prove necessary. The authority will be expected to consult with all relevant bodies, as appropriate, when conducting its reviews. That will be discussed later. We have put in a two-year review, with some specific terms of reference that would capture some of the concerns spoken about by Senators earlier. That is just to make sure the new regulatory authority is functioning in the interests of everybody, including consumers. It should make for a competitive regime and people should comply with the provisions. The legislation specifically states that professional bodies are obliged to comply with the changes.
I have concerns about the amendment as proposed by the Minister. Not later than two years after the establishment, the review starts and then within 12 months there is a report. We are extending the conveyancing monopoly for approximately four years. There is no need for any review as it has been done in 200 pages by the Competition Authority. It can be done by comparing conveyancing charges on property in Ireland and the adjoining island, which has a flat fee of £250. Our fee is 1.5% of the cost of the building. There is no need for a review as the research is known. If we pass this amendment, we will condone for another four years the overcharging of everybody who buys a house in this country.
I take the Senator's point but this provision is in the Bill and it is very important. There will be much work in the first year for the authority to do and although there is some flexibility, a timeframe is laid down. The point was raised earlier about the size of this authority. We are not establishing an enormous new body because we want a small but efficient authority. We are talking about it having approximately 30 or 40 staff, although that may change.
The Competition Authority agreed with the idea that the Law Society would keep the financial compensation fund.If we were to move all the functions across, we would be talking about a completely different type of body. I want to make the point that this would have enormous resource implications. I remind Senator Barrett that there was absolute cross-party agreement on the transfer of the staff who are coming across. There is a need to recognise the expertise of the staff in the establishment of a new body. I emphasise that this is being done under independent management. That is the key point. Less than half of the staff - approximately 18 people - are transferring across. We often talk about the need for expertise and skill in the handling of complaints. While that is the reality of what has happened in the past, there is now completely independent management. We have a timeframe for the various pieces of work to be done by the legal services regulatory authority. We cannot ask it to do absolutely everything in the first year. We have to be realistic about the various tasks given to any new body. However, we have said that the legal partnerships need to be up and running within six months. By allowing these new partnerships, we will introduce competition into the market and change the way legal services are provided. We are also putting those barristers who are currently operating outside the Bar Council on a statutory basis.
I thank the Minister. I have seen a reference to the timetable under which the new authority will work. As far as I can recall - of course I am liable to error - it will be talking about education and will be addressing the conveyancing issue. People want that issue to be addressed because it is the one that really hurts the consumers of legal services. I am afraid, with the best will in the world, that a delaying mechanism is being used. There is no need for it because the research has already been done. It is quite easy to compare the cost of conveyancing in this jurisdiction with the cost of conveyancing in the United Kingdom. I do not see a case for delays in a matter of serious public concern. I remind the House that during the boom period, house prices went from two and a half times the average income to 12 times the average income and the legal profession made an absolute fortune from being linked to house prices. That is the anti-competitive aspect of the legal sector about which the troika and the competition commission are concerned. I do not see the case for delaying yet again a reform that has been overdue for so long.
I ask the Minister to take on board a suggestion of mine in advance of Report Stage. I think it is fair enough that the first review will take place not later than two years after the establishment day. Obviously, there will be teething problems. Everybody takes time to settle in. It is proposed that the possible subsequent reviews will take place after three-year periods. I suggest that after matters have bedded in, it should be possible to have those subsequent reviews every two years rather than every three years. I would grant some grace to allow the first review to take place after two years, in acceptance that matters will be new, but I ask the Minister to consider making a change to this Bill on Report Stage to make subsequent reports two-year reports rather than three-year reports. I believe this is necessary to ensure matters do not get kicked to touch indefinitely.
I emphasise that there will be annual reports to the Dáil and the Seanad. That will give Members of the Oireachtas an opportunity to evaluate and debate the progress of the new authority. They will be able to bring people into the committee structure as well. I do not doubt that they will avail of such an opportunity. I will have a look at the timeframes again in advance of Report Stage. We have considered them carefully. As I have said, this is not a independent regulatory body with hundreds of staff. It is a small and efficient body that will be charged with dealing with significant issues. We have to be careful not to overwhelm it in its initial stages.
I remind Senator Barrett that the evidence from the research into the new approach to conveyancing in England is that the new approach has not taken off to any significant degree. I think that is an interesting point for us to contemplate. There seems to be a reluctance among the general public to make the kind of move that has been allowed for in England. We want the consultation to be done here. We want to move on it. The experience in England is an interesting marker because it shows that after the change was made, the take-up was apparently very small. There may be different reasons pertaining in the UK compared to here. I am just putting this point into the debate, for what it is worth.
I thank the Minister. She is quite right when she says that the share of the independent conveyancers is quite small. However, they have put manners on the established soliciting firms, to use a colloquial term. Their costs for conveyancing are much lower. I do not care how many new conveyancers there are. We have to get away from the system that involves 1.5% of the price of a house, or approximately €5,000 in the case of a semi-detached house in Dublin. The work in question can be done for £250 across the water. That is totally uncompetitive. Perhaps it will take a handful of conveyancers to induce that competition, as the Minister has said. Previous evidence from the Prices Commission and other bodies has suggested that conveyancing is used in solicitors' firms, particularly in the bigger firms, to cross-subsidise many of their other activities. The house purchasers about whom we were concerned when we introduced the residential tenancies Bill and other legislation get a bad deal from the present way Ireland organises the conveyancing monopoly held by solicitors. We know that they would do far better in the UK. We also know that it does not take many of the new conveyancers to secure a more competitive outcome. I do not see the need to keep waiting around on this issue, which has been an urgent one for well over 30 years.
I do not want to cross swords with my learned colleague and good friend, Senator Barrett, but I am speaking from knowledge in my own area when I say that the days when a solicitor would charge 1.5% for conveyancing are well gone. According to the most recent information I have received from my own area of west Cork, the average charge is approximately one third of that 1.5% charge. I was the secretary of the West Cork Barristers Association in my younger days. What happens now is that people ring around from one solicitor to another to find a fellow who can do it €100 cheaper. It is extremely competitive. Maybe there was a monopoly during the boom, when bigger firms controlled much of this activity, but I think that has gone.
I would like to put a final point to the Minister before I conclude. I welcome the new regulatory authority on principle. The efficiency of that body will be critical for Joe Citizen, Josephine Citizen and the general public. I know the Minister cannot guarantee this, but I am laying down a marker that it has to be efficient for the members of the Law Society and the general public. Both groups deserve fairness. They deserve to have complaints or other matters dealt with quickly and efficiently. If the regulatory authority is to be a success, it is critical for it to be absolutely efficient and professional and to deal with complaints quickly. I appreciate that the Minister does not have a crystal ball and cannot look down the road, but I remind her that justice delayed is justice denied. If the new authority is not efficient, it will do no good for the complainant or for the person who is complained against.
I welcomed the amendment providing for a review earlier because it is important. I think we have strayed into talking about the specific issues on which the authority will have to report to the Minister. Perhaps this relates to section 33 of the Bill. I am aware that Senator Barrett has tabled amendments to that section. All of us agree absolutely with the comments that have been made by others on the high cost of conveyancing. I will make two quick points in that respect. First, e-conveyancing, about which we have heard a great deal at the Joint Committee on Justice, Defence and Equality, will undoubtedly provide for a streamlined and less expensive procedure. This important initiative, which is in train at the moment and will not need legislation, is being driven by a number of bodies. Second, section 33 as it stands does not make provision for a specific timeframe within which the legal services regulatory authority must make its report to the Minister on the creation of the profession of conveyancer. It might be worth putting in a specified timeframe, as Senator Bradford has suggested. I remind the House that clear timeframes of two years and four years, respectively, have been set for the reports on changes to legal education and on the potential unification of the profession. I think it might provide some comfort if we were to include a timeframe in this instance.
My point is almost redundant as I was going to refer to the issue of e-conveyancing. Senator O'Donovan is correct to state that the world has moved on and the 1.5% book price is no longer an issue. When e-conveyancing is introduced it will be 90% cheaper than that. I would like to see a situation where people could self-convey. This will happen with e-conveyancing because computers and technology can ensure that adequate protections are included to ensure everything is done correctly.The Joint Committee on Justice, Defence and Equality has done a lot of work on the matter and it is progressing. Perhaps the Minister will comment.
Yes. The Senator has made a relevant point. The matter has also been discussed by Ministers at meetings of the Justice and Home Affairs Council. There is a real need Europe-wide to do more on e-conveyancing. The Law Society of Ireland has done a lot on the subject. Also, I have spoken to Minister Noonan about financial institutions because the banks need to do more on this matter. If they can do more, and work in co-operation with solicitors and law firms, then I think we will begin to see a change.
I say to Senator Barrett that I would be happy, when the LSRA is established, to take up the points that he made on conveyancing. I shall ask the authority if it is feasible for it to do this study that we would like it to do, as well as the ones that have been legislated for within a given period. We do not want to ask the authority to do too much in its first year.
I thank the Minister for her reply. The figure of 1.5% came from a returning emigrants' website which stated that the difference between the United Kingdom and Ireland is that one pays 1.5%. I know that is a quote that is dear to this Minister's heart and that of the Minister for Finance.
In the context of trying to attract the people who left during the recession to come back here, it is important that they face a conveyancing charge that is comparable with the one that they had in the United Kingdom.
Please explain where the charge arises. The amendment seeks to increase the number of members on the board from 11 to 13 people. Therefore, it seems quite strange that the amendment has been deemed to bring a charge on the Exchequer.
I understand that a letter was issued to the Senator or his colleagues this morning on the matter. For the benefit of the House, I shall read into the record the note that the Cathaoirleach has left for me, if that is okay, on the amendment tabled by Senators Ó Clochartaigh and his colleagues that sought to increase the membership of the authority from 11 to 13 members. It reads:
This will increase the remuneration and expenses of the Authority. The Bill provides that these costs must first be paid out of the Exchequer before these costs may be recouped from levy funding. As this increase in membership could increase a charge on the Exchequer the amendment must be ruled out of order in accordance with Standing Order 41.
I wish to note our huge disappointment at that decision. We have tabled similar amendments at different times for different legislation that were not ruled out of order and I know that the Government has tabled similar amendments. I shall speak on the section to outline why my party made the suggestion.
This is a straightforward amendment to reflect the merging of various statutory bodies to create the Irish Human Rights and Equality Commission and the Competition and Consumer Protection Commission. There has been no shift away from policy. In the meantime we have had a merger and the amendment reflects the changed names of the bodies involved.
Níor labhair mé é fós ach ba mhaith liom fáilte a chur roimh an Aire. I thank the Minister for bringing the Bill forward. In a general sense, we concur with most of what has been brought forward in the Bill but we will raise a number of issues later on. I thank the Minister's backroom team for its briefing on amendments yesterday. I wish to put on record that we did not think it was right, fitting or correct that so many substantial amendments were brought forward with so little time left to parse them. I note and concur with the points made by Senators previously but shall comment on the amendments and the section.
Sinn Féin is conscious of the fact that the amendment is on the composition of the authority and I think Senator Bacik has made a Freudian slip because she agreed with me on this matter earlier. Sinn Féin would prefer if the Minister would bring forward, and we ask her to consider doing so before Report Stage, an amendment proposing that the authority should consist of 13 members and of the following persons: three persons nominated by the Law Society of Ireland; two persons nominated by the Bar Council of Ireland; one judge of the Superior Courts nominated by the Chief Justice; one person nominated by the Irish Business and Employers Confederation; one person nominated by the Irish Congress of Trade Unions; one person nominated by the National Consumer Council; one person nominated by the Free Legal Advice Centres; and one person selected by the Chief Justice from such persons as are nominated by non-profit legal advocacy groups, as defined in subsection (6), operating in the State. For such purpose each such group shall be entitled to nominate one person for selection as follows: one legal cost accountant nominated by the Institute of Legal Cost Accountants; and one person selected by the Chief Justice from such persons as are nominated by legal education institutions, as defined in subsection (7), operating in the State. For such purposes each such legal education institution shall be entitled to nominate one such person for selection. I note the points made by Senators previously that they concur on this issue. The rest of the suggestions were on the running of the authority, how the authority could elect its members, how it would select a chair, etc. and we also outlined the roles of the authority.
I disagree with the ruling out of order of amendment No. 15 on a technicality because there is merit in the changes we sought. The purpose of the amendment was to increase the membership of the authority from the 11 members proposed by the Government up to 13 members. We did not seek a huge increase. We simply wanted to ensure that the authority was broad enough, fit for purpose and covered all of the different stakeholders that need to be covered.
We are very positive about most of the provisions in the legislation. It is important to emphasise that no provision has been made to afford free legal aid organisations a position on the board of the authority. We feel there should also be representation by an employers' organisation and the trade union movement in order to represent workers' interests based on the social partnership model. The present Government proposal lacks such a provision. Our suggestion would improve what has been put forward.
On another note, there have been issues recently concerning competency in the Irish language. On particular State boards there have been no individuals with competency in the Irish language, which is something that we should look at as well. A number of legal issues have arisen recently which pertain to language and people exerting their rights to have their cases, for example, heard through the medium of Irish. I ask the Minister to clarify if the legislation provides that the board would comprise a number of people who are proficient in the Irish language, which we feel is important in this type of scenario. We shall consider tabling such an amendment on Report Stage.
I wish to make an observation on the appointments process. There has been much reference here to the work of the Joint Committee on Justice, Defence and Equality. Oireachtas committees in the main have been quite effective over the past decade or so since the committee structure was improved and enhanced. What has been proposed here is that the members shall be appointed by the Government using a resolution of the Dáil and Seanad.Over the years, such resolutions have generally been passed without debate, although a row sometimes takes place on the floor of the Dáil or Seanad about whether to vote on them. Will the Minister consider introducing an amendment on Report Stage to provide that the appointees be nominated by the Government and that the appropriate committee - in this case, I presume it would be the Joint Committee on Justice, Defence and Equality - would engage with the nominees. It is practically the norm nowadays that chairpersons-designate of State boards appear before the appropriate committee for debate and dialogue. I am not aware of any case in which a committee expressed dissatisfaction with a nominee. From the point of view of political reform and the work of the average Oireachtas Member, as opposed to Ministers who sit around the Cabinet table, it would be useful to keep the Joint Committee on Justice, Defence and Equality engaged in this process through dialogue and discussion with the nominees before their formal appointment. I ask the Minister to consider my proposal before Report Stage.
Having listened to Senator Ó Clochartaigh's contribution, I am concerned by the structure he proposes for nominees, under which ten of the 13 members of the board would be from the legal profession. We have been trying to move away from this concept to ensure laypersons have greater influence. Under the proposal in the Bill, laypersons would make up the majority of board members of the new authority. If Senator Ó Clochartaigh's proposal were implemented, a substantial majority of board members would be members of the legal profession. I agree with the Senator's analysis on the Irish language and cognisance should be taken of his argument in this regard. However, I urge him to reflect on the structure he has proposed because it runs counter to the ethos of what we are trying to achieve in the legislation.
I am satisfied with the proposal in the Bill, which provides for a good balance on the board. The lay majority on the board is important. I remind the House that persons are to be nominated by independent bodies and must have a set of skills, as laid down in the Bill. While the Legal Services Regulatory Authority will be independent of Parliament, I have no doubt its representatives will appear before the Joint Committee on Justice, Defence and Equality to discuss the authority's work when the annual reports are produced. I have no doubt this will be possible in the early days to ensure the joint committee familiarises itself with the persons nominated by independent bodies.
To respond to Senator Conway, the suggestion we are making is that the authority includes members from employer and employee representative organisations. This is important because in addition to dealing with legal issues, the authority will also manage people. For this reason, it is important that employers and workers are represented in equal measure on the board.
I would welcome clarification of the reason free legal aid organisations are being excluded from the authority's membership. It is important to have these organisations represented on the authority.
I referred to the 11 members of the authority, five of whom will be from the legal professions and six of whom will be laypersons. There are always other bodies that people would like to have represented on boards and that is an understandable view. I have no doubt that many skilled non-governmental organisations with a significant interest in this area will closely follow the work of the Legal Services Regulatory Authority.
On the proposal to include on the authority representatives of the Legal Aid Board, Irish Human Rights and Equality Commission and Competition and Consumer Protection Commission, the Bill catches many of the issues with which these organisations engage. We do not want to increase the size of the board because in my experience doing so can make boards unwieldy. We need a technical, talented group that includes people who take account of consumer interests and have the range of skills prescribed in the Bill. The selection provided for is carefully balanced and I am happy to stand over it.
This issue was discussed in great detail in previous debates and I referred to it on Second Stage, both here and in the Dáil. The Government amendments that were made in 2013 with the insertion of sections 8 to 10, inclusive, were broadly welcomed at the time. There is no reason to revisit or reconsider these sections as they are still understood to be a great improvement on the original provisions because they address the issue of independence. This was widely debated before my time as Minister and important changes were made in the Dáil. The changes put to rest, as it were, the concerns that had been expressed regarding the actual and perceived independence of the authority from the Government. A significant number of amendments were tabled on this matter. We do not want to have any absentee members, although I accept Senator Barrett's point, which I assume refers to international expertise. However, I am sure international expertise can be accessed by the Legal Services Regulatory Authority in a variety of ways. For this reason, I cannot accept the Senator's amendment.
A person is disqualified from being a member of the authority when he or she ceases to be resident in the State. Last week, the Oireachtas elected Senator Máiría Cahill who is not resident in the State. An incredible record of service has been given to the Seanad by persons from Northern Ireland. No one has ever stated that they should not be here because they are not resident in the State. There is no point in making our points in Stormont or extending hands across the Border in friendship if we choose to preclude citizens of Northern Ireland from membership of the proposed new authority on the basis that it may cost too much if a member lived in Newry or elsewhere in Northern Ireland.
There are many capable individuals in the law in Northern Ireland and the various reforms introduced there could be of great value to us. Since the Anglo-Irish Agreement was signed, the State is supposed to be on good working terms with Northern Ireland and that is mainly the case. I believe this proposal is an oversight. When I think of Gordon Wilson, Martin McAleese, Seamus Mallon and John Robb, all of whom served in the Seanad, and Senator Cahill, a current Member, I wonder how on earth this section was included in the Bill. I also wonder if it is compatible with European law, given that Ireland is part of a common market in services. I accept the Minister's point that we want international expertise. However, we are no longer a 26-county State that should require people to resign if they move elsewhere to live.
I ask that more consideration be given to amendment No. 19 in my name, particularly as we have a legal system that is substantially unreformed, even when compared to other common law countries. We need expertise but the Bill, as it stands, discriminates against people from Northern Ireland. I am sure that is not the intention of the Minister or Cabinet. I also wonder if the proposal is compatible with European Union rules given that we subscribed to the principle of the free movement of people a long time ago.
Most important, the change I propose would bring a dimension that would be of use to us. We all value greater international context. One of the problems with law is that it has been an excessively national as opposed to broadly-based activity. I ask the Minister to reconsider the matter before Report Stage. It is not necessary to leave this provision in place as it could send out the wrong message, which I am sure is not the intention of anyone in the House.
I support the position set out by Senator Barrett. Given that the legal and judicial systems are, by and large, closely connected to the common law system, including the British system, perhaps the Minister will reflect on the provision that excludes persons from England, Northern Ireland or Wales from membership of the authority before Report Stage.While I will not push it any further, there is merit in what Senator Barrett has said. It is only an academic point really, but section 10(2) provides that a person who is appointed to the authority as a lay member shall cease to hold office where he or she ceases to be a layperson. Does that include a person who has an honorary doctorate in law or does it refer to a person who has entered one or other of the legal professions? How does one cease to be a layperson for the purposes of the legislation?
I support my colleagues on the residency-in-the-State clause. If we wound back the clock two decades or so, the lady from County Down who was eligible and elected to become President of Ireland would not have been eligible to be a member of this authority. We have debated this in the context of such clauses in other Bills. It is worthy of examination. The concept of some outside eyes looking at things and helping should not be dismissed. Perhaps the Minister will reflect on that exemption on Report Stage.
On Senator O'Donovan's point, it would not apply in that situation. It is only if a person actually practises as a solicitor or barrister.
I am satisfied at the changes to the Bill. When it was discussed on Second Stage in the Dáil and here, the issues of the independence of the authority and the role of the Minister were raised. Substantial changes have been made in that regard by way of amendments. I am satisfied with the overall approach in the section, but I will revert on Report Stage. I take the points that have been made here. It is a routine provision in some legislation, but I will have a further look at it.
I thank the Minister. It is the generosity of spirit which we recognise. It could be misinterpreted and it would be silly to allow that to happen. I speak on behalf of a constituency with a substantial number of people from Northern Ireland in it. I would not like to see them disbarred from anything cross-Border because I value their presence so hugely. Every Department and House of the Oireachtas should have hands across the Border. On the Order of Business, we expressed admiration and wished Mr. Robinson the best of luck on his retirement. The progress made has been admirable. People from Northern Ireland are very worthwhile people to have about and I am delighted the Minister intends to consider the matter on Report Stage.
I move amendment No. 20:
In page 21, line 10, to delete “in each period of three months” and substitute “per month”.
Section 13 deals with the frequency of meetings. As drafted, the section provides that the authority shall hold such and so many meetings as may be necessary for the due performance of its functions but in each year shall hold not less than one meeting in each period of three months. Given the magnitude of the task the Minister has outlined to the House and the sheer volume of the legislation dealing with it, the normal practice of boards should be followed of having a meeting once a month. This is a major task and there is a very demanding timetable. Four meetings a year do not seem adequate to the task before the authority. That is why I have asked for the work agenda to be more demanding.
Section 13(1)(b) provides:
In addition to a meeting with all participants physically present, the Authority may hold or continue a meeting by the use of any means of communication by which all the participants can hear and be heard at the same time.
If that is a reference to incorporeal meetings, I note - and I do not want to let secrets out - that this practice is one of the things the banking inquiry was most unhappy about. Those should be meetings where people are present. Like this afternoon, it is about the flow and ebb of ideas back and forth. Arising from the banking inquiry, we will likely recommend that incorporeal meetings should not be a feature of Government going forward. I will leave it to Deputy Ciarán Lynch to say. Given the experience we have spent ten or 11 months talking about down in the dungeons, there is an unhappy precedent in this regard. There is no substitute for people being at a meeting, putting forward propositions, and listening to others in the context of good decision-making.
In summary, more meetings are, unfortunately, needed due to the gravity of the task. They should be real meetings rather than incorporeal ones.
The section provides that a quorum shall be five, of whom not fewer than two shall be lay members and not fewer than two shall be members other than lay members. If one looks at the breakdown of the membership, the lay members will be in the ascendant from a numerical perspective. I hope I do not come across as entirely conspiratorial, but a situation might arise some day where there could be a clash at such an inquiry between lay and non-lay members where an item of particular contention was up for debate. It would be possible for one side of the equation to ensure that a meeting would not go ahead simply by using the provisions we are putting in place for a quorum. The quorum should be five, but its make-up should not be prescribed. Perhaps I am being too conspiratorial, but if a non-lay member was very unhappy with the holding of a certain meeting, he or she could simply not turn up thereby preventing the meeting from going ahead. It should be possible for the authority to meet with a quorum of five but there should be no prescription as to the five being made up of lay and non-lay members. Hopefully, the situation would not occur, but it will be possible for one side to veto the holding of a meeting by not sending its representatives.
That issue is carefully formulated in terms of ensuring the independence of the body. While I take the point the Senator makes, it is very carefully formulated as drafted.
On Senator Barrett's points, I note that the provision is a basic three-month benchmark. Of course, the authority will be able to call extra meetings when it gets up and running and deals with the scale of work involved and considers that necessary. It is not obligatory that the meetings only be held every three months. I have no doubt that sub-committees will be formed as well. There will be a great deal of ongoing work, but I do not want an obligation regarding meetings which has people tied up with those as opposed to getting on with the work. The board will determine its way of working and number of meetings. The three-month benchmark is important, but I would not want to prescribe monthly meetings. There is a great deal of work to do and I will leave it to the board to decide how best to approach it.
In this day of modern communications and meetings technology, the Senator's second amendment in the grouping would remove the new authority's ability to meet by teleconferencing or video conferencing where it was considered appropriate. I would not want to remove that and I will not accept the amendments.
I thank the Minister. My concern is about whether, under modern corporate governance, the idea that one could meet only every three months would have any acceptability. I hope it is read in conjunction with what the Minister has just said. The other finding of the banking inquiry is that the executives had far too much power and the boards did not, and it cost us the €64 billion. While I will not push these two amendments, before Report Stage, could the Minister reflect on what is good corporate governance and how frequently boards must meet in order to monitor what executives are doing? Maybe, the Cabinet meeting on the night of the bank guarantee was not conducted with the kind of technology the Minister has in mind. It was a series of sequential phone calls, such that Minister X did not know what Ministers A to H said.
While I respect what the Minister said about the balance being provided for in a very careful fashion, the way we have it written here allows for the deliberate vetoing of a meeting between the lay and non-lay side - and we hate marking this distinction - by virtue of the way the quorum provisions are put in place. The Minister might reflect on it. Although it would almost certainly never occur, it is better to ensure people could not even have those bad thoughts.
I move amendment No. 22:
In page 25, lines 35 and 36, to delete “in such manner as it considers appropriate” and substitute “following public advertisement”.
The amendment deals with consultation. The Bill specifies "in such manner as it considers appropriate". There are two parties to a consultation, the other party being the public. This is why my amendment provides that it should be by public advertisement. We have concerns about the insider-outsider model. What the insiders say to each other is one thing. The purpose of the amendment is to involve the wider public.
Amendment No. 23 is on the same lines, and I will deal with amendment No. 24 later, if I may.
The purpose of the amendment is to ensure it complies with an obligation to consult, particularly as part of the background. As people said earlier, there was a feeling that insiders got the jump regarding the legislation, although the Minister will disagree. Why not have public advertisement?
Amendment No. 24 seeks to insert the words "or any other person" after "practitioner". Perhaps I should address it. I will not, because I have confused myself.
The point of the other two amendments was to use public advertisement to extend participation, ensure the majority of people are involved and deal with some of the criticism by people who felt they were left out of the bringing of the Bill to this Stage.
The provisions relate to the new authority’s issuing its own codes of practice as opposed to the codes of the legal professional bodies. In this regard, it is right that the relevant powers be exercised as the independent regulatory authority considers appropriate and that a legal professional affected by a code of the authority, which may be considered to be oppressive, unreasonable or unnecessary, can seek the protection of the High Court. These measures enable the independent discretion of the new authority to act as appropriate to its independent regulatory functions while also protecting the independence of the legal profession from being undermined by the provisions of a code of practice. They are necessary.
I apologise for the confusion. The purpose of amendment No. 24 is to insert "or any other person" after "practitioner" on page 26, line 8 such that it states:
The High Court, on application to it by a legal practitioner or any other person who is affected by a code of practice, made within 28 days of the issuing by the Authority of that code, may, where it considers that the code of conduct is oppressive, unreasonable or unnecessary, revoke or vary the code.
Do people other than legal practitioners who feel, in the words of the Bill, that it is "oppressive, unreasonable or unnecessary" have the right of access? I apologise for running it with the public advertisement issue in the two earlier amendments. Perhaps there is another route in the Bill whereby a person who feels his or her treatment has been "oppressive, unreasonable or unnecessary" may seek to revoke or vary the code.
I move amendment No. 25:
In page 29, line 10, after “may” where it firstly occurs to insert “, after consultation with the professional bodies,”.
Sinn Féin is concerned that the staff employed by the Law Society and Bar Council to handle and investigate complaints will lose their jobs and be replaced by staff in the new authority carrying out the same role. The trade unions have called for the staff to be employed by the new authority, and we support this call.Amendment No. 27 likewise proposes in line 12, after "Authority", to insert "after consultation with the professional bodies". That is the logic behind these amendments.
We are not as far apart on this matter as the Senator might think. This section relates to the staffing of the new legal services regulatory authority. My amendment No. 28 inserts a new subsection (4) which is intended to clarify the status of the staff of the new body as public servants. This means they will not be working as civil servants for any Department or office, thereby reflecting the independent nature of the new authority. My amendment No. 29 inserts a new section relating to the transfer of the staff of the Law Society or Bar Council. As I said, there has been wide political support, including from the Senator's party and, indeed, all parties on Committee Stage, for finding a suitable way to deal with the very expert and suitably qualified staff of the Law Society and the Bar Council whose public complaints functions are being taken over by the new authority. We are talking about 18 full-time equivalent posts or thereabouts.
Under the proposed new section, staff who opt to become staff of the new regulatory authority, under designation by the Minister for Justice and Equality, will enjoy terms and tenure no less favourable than those they currently enjoy, will retain their existing and accumulated pension entitlements, will become public servants and will become, from the date of their appointment, members of the single public servant pension scheme. The proposed transfer of a discrete number of such staff makes good sense. The complaints function of the new authority will be at front line of the new body in dealing with the public. It is essential that the new authority's complaints regime has the capacity to operate effectively from day one while also having its own corporate identity. Any staff who transfer in accordance with the provisions of this section will work under the independent regulatory authority, to which they will be answerable, and will be made amenable to its ethos as an independent statutory regulator of the legal professions.
Senator Ó Clochartaigh is proposing in his amendments Nos. 25 and 27 that staff should be brought in subject to consultation with the professional bodies. However, it is very important that the new authority, as an independent regulator of the legal professions, would be able to configure its staff to meet its statutory functions and objectives. On that basis, I cannot accept the amendments. In any event, members of the professional bodies will be included among the membership of the regulatory authority. In regard to amendment No. 26, I fully appreciate the Senator's wish to find a workable and fair solution in regard to the existing complaints handling functions of the Law Society and the Bar Council. As I have brought forward a like-minded amendment, I ask him to consider withdrawing his proposal on that basis.
I thank the Minister for her response. The Government amendments came in quite late in the day. Our own were probably submitted at the same time. We seem to be coming from a similar position on this issue. I will take what the Minister has said at face value and on that basis we will withdraw the amendments while reserving the right to resubmit them on Report Stage. We will discuss the issue with the people concerned in the interim to ascertain whether they still have concerns. We will analyse the Minister's amendment with that in mind.
This amendment provides for a change in regard to superannuation. It is being brought forward for technical reasons following discussions with the Department of Public Expenditure and Reform. The provision will ensure the new regulatory authority has the flexibility and discretion to make such superannuation arrangements as may be necessary.
I initially intended to submit an amendment to delete section 24 in its entirety. It is an extraordinary section in that it provides for private employees to be become fully pensioned civil servants without any assessment or competition. From speaking to colleagues and others, I understand the last time this was done was when Charlie Haughey nationalised the staff of a motor factors business before an election which was seen back then as very much a political stroke. Will the employees who become fully pensioned civil servants under this section be appointed at general service grades? Will they be able to transfer out of the authority into other areas, which would rather negate the point of bringing them into the body in the first place? Will the cost of assuming staff into the State service at elevated points on a payscale and with a consequent elevated pension entitlement not significantly increase the expenditure associated with the establishment of the new regulatory authority? It seems an inappropriate way to proceed. Surely the correct method would be to define the role, advertise it and let the best qualified persons apply rather than just taking private staff and making them into fully pensioned civil servants? The positions should be put out to public competition in order that all relevantly qualified persons may apply. If it turns out the best people are, in fact, those the Government is proposing to make fully pensioned civil servants, then so be it. However, the positions should be opened up to a much wider pool of applicants.
There is a danger under this section to do with regulatory capture. As we know from the banking inquiry, a good regulator should, in the wider public interest, be independent of the sector he or she is regulating. Both the Law Society and the Bar Council have done a splendid job on behalf of their clients in resisting change for the past 38 years or so. Do we expect them now to become agents of change? There is a risk in this regard, and it is a substantial one, in requiring a Pauline conversion by the people involved whereby they would now become pro-consumer having previously represented producers.
I wish to comment briefly on what Senator Barrett has said. He has issued a note of warning and given an example of experience from which we can learn. I appreciate what is being proposed and understand the necessity for it because people who have a degree of expertise can bring it to the new authority. I presume the Minister is expecting that a sizeable number of the authority's staff will be new to the space and will come from outside the fold. We are not prescribing here that the new authority will be made up entirely of staff from within the current confines. We are simply allowing that such staff may be taken on board. However, we must send the message forth that the spirit of the changes proposed in this legislation must result in the majority of the staff coming from outside the current confines. Is that something we could try to prescribe on Report Stage? We are prescribing who may make up the quorum of a meeting. Could we also prescribe that the initial staff complement would include at least a majority of people who did not previously work for the other agencies? While we are not putting a bar on staff from the Law Society of Ireland or the Bar Council applying for posts, for which some of them will be eminently qualified, we should try to ensure a majority of the staff at the new authority would be new. Can the Minister see some way of providing for that? Perhaps section 23 would be the most appropriate place in this regard. We must ensure, either in section 23 or section 24, that the authority will present a very fresh face and provide for a majority of new staff.
This is a new, independent body. The legal services regulatory authority will decide how to advertise for the majority of its staff. When the debate on this legislation took place in the Dáil and during the Second Stage debate in this House, it was clear that most if not all Members in both Houses felt that there was a case to be made, given the decades of experience among the staff in the Law Society of Ireland in dealing with complaints and very complex legal issues and in the best interests of moving forward and having a seamless transition from one to the other, for ensuring some staff who handle complaints under the auspices of the complaints committee of the society, which operates independently, would transfer to the new authority. Members argued that we should make arrangements to transfer a limited number of staff to the authority so as not to lose their expertise. That expertise will be built on and there will be other staff, independent senior management and an independent board made up of the representatives to whom I have referred. Furthermore, the board will have a lay majority.
To answer some of the more detailed questions, the intention is that staff will preserve their current terms and conditions and will map onto a moderate public service grade. That will be done by ministerial order. It is a question of expertise in this area and transferring that to the new authority. That is the key issue. We are talking about a small number of people out of the total staff of the legal services regulatory authority. As I said, there was much agreement across both Houses that this was desirable in the interests of best practice and a smooth transition.
I would make the point again that there will be a lay majority on the board. There will also be representatives from the Competition and Consumer Protection Commission, the Legal Aid Board and other bodies, as well as independent management. While the staff concerned gained their expertise while working in another setting, they will be under independent management and an independent regulator.
I move amendment No. 31:
In page 32, line 19, after “Authority” to insert “subject to the approval of the Competition and Consumer Protection Commission”.
This amendment was tabled in the context of guarding the guardians, so to speak. The authority should not have the power to increase fees without any checks and balances, which could be provided by the Minister or by the Competition and Consumer Protection Commission. It is not a major issue but a point I would put to the House for discussion. Amendments Nos. 32 and 33 properly belong to the Minister.
Amendments Nos. 32 and 33 are Government amendments which are intended to reflect the fact the new authority, which is to be self-funding by means of a levy on the legal professions it is regulating, will have clear discretion to use any fees it raises in support of carrying out its functions independently under the Bill. I would like to mention at this point that I may come back with a proposal on Report Stage to delete subsection (3) of section 28. The new authority will be funded through its levy rather than through the Exchequer, save for some start-up support being provided on a recoupable basis.
In the context of Senator Barrett's amendment, the new authority must be able to charge and recover fees without being subject to the approval of an external body or group which may have an interest in its remit.
I move amendment No. 34:
In page 35, between lines 25 and 26, to insert the following:“(d) the right of direct access to a barrister other than through a solicitor;”.
This amendment deals with territory we have already been over in the context of the work programme of the new body. Education and training is first, followed by subsection (1)(b) on unification. Subsection (1)(c) deals with the creation of the new profession of conveyancer. We have discussed the urgency of that provision, given that some studies would indicate there are significant differences in the costs for that service between the United Kingdom and here. In that context, I suggest that this provision be moved up the list. My amendment proposes a new subsection (1)(d) which gives the consumer the right of direct access to a barrister other than through a solicitor. This issue has been mentioned by the Competition Authority as one of the restrictive practices in this area but it is not on the work programme of the body as outlined in section 33(1). Will the Minister consider this proposal to address one of the traditional restrictive practices identified in this area?The right of audience is currently very restricted. I gather we have a surplus of barristers who are available and have the necessary skills and qualifications. Why can people not approach them directly? Would that have a good impact on cost? That is the purpose of amendment No. 34.
Amendment No. 35 reflects the concern that, as legal services are developing, they are becoming increasingly oligopolistic, dominated by three or four firms. Senator O'Donovan has referred to that. It will damage the cost structure of the sector. It is a matter of increasing worry in respect of the economics of the professions. I gather that all but one company on the FTSE 100 are audited by the "big four" accountants. The concentration of a small number of legal firms, from three to five depending on how one measures them, should be a matter of concern to the authority as it sees how the sector is developing. Amendment No. 35 seeks to address this issue.
Amendment No. 36 is one we have discussed already. It covers the question of whether the work programme can be brought forward, earlier than in two years. As we have mentioned, the two-year period is specified to deal with the education of the legal profession.
Amendment No. 38 concerns "reports on the creation of a new professional conveyancer, including the conduct of conveyancing by other professions, the extent of monopolistic provision of legal services in the State and the right of direct access to a barrister", rather than through a solicitor. The reference in the amendment to "other than through a barrister" is a mistake on my part but what I am trying to say is implicit. Should the work programme that is envisaged have different priorities after Members of the Seanad and the wider public have expressed their views? Conveyancing is urgent, as is the right of audience. I found, in preparing for this debate, that there is concern over the increasingly monopolistic concentration ratio, as mentioned by Senator O'Donovan. I refer to the dominance of the sector by the big firms. There is concern in the National Competitiveness Council about the high cost of legal fees. Can we introduce more competition into conveyancing? The Minister referred to this earlier. Can we use the stock of barristers better by allowing people to approach them directly?
We have already discussed the issue of conveyancing. I have said to the Senator that I will revert to him on this on Report Stage having examined it. I take the points the Senator makes. Obviously, I will have to proceed while taking into consideration the range of other reports requested and the sort of sequencing that exists. I do not want to swamp a new authority with responsibility for producing many different reviews in a very short period, particularly in the first year. I will certainly examine the conveyancing issue. The Senator has made a very strong case in that regard. Let me see what I can do about it.
Section 86 of the Bill already provides for direct access to barristers. As the Senator knows, in non-contentious matters there is statutory provision in this regard for the first time, and that is important. The creation of the new legal partnerships, which will be up and running in 2016 after the six-monthly report, also deals with the question of access. There is to be statutory recognition and regulation for the first time of the 100 barristers who operate outside the Bar Council and whose number is probably increasing. This also deals with that issue of access. However, we have said the LSRA should carry out a review of this. That is provided for. I hope that gives the Senator an idea of the approach we have been taking to this issue.
That we are now dealing with limited liability is supportive of smaller firms, particularly of solicitors, many of whose practices have actually wanted to merge around the country in order to provide what might be regarded as a more comprehensive service. The chance of this happening will improve with limited liability, and that will make for more competition and probably a better service and access, or a different service and different form of access than we have at present. I do not intend to accept the amendments and hope the Senator will accept the points I am making.
I thank the Minister. What she said is most interesting.
An allied concern is that if we have law firms, access to law might become more difficult. If we allowed correct access to barristers, it might become less difficult. That should be considered. Will the firms with large numbers of partners comprise a means of excluding those on low or below-average incomes from gaining access to the law? There is concern over corporatisation. However, I thank the Minister for her most interesting and informative responses on my amendments. I will not be moving amendments Nos. 35 to 38, inclusive.
Government Amendment No. 50:
In page 41, between lines 22 and 23, to insert the following: “PART 5
COMPLAINTS AND DISCIPLINARY HEARINGS IN RESPECT OF LEGAL PRACTITIONERSConstruction (Part 5)
40. (1) In this Part—
“barrister” means, in relation to a person who is the subject of a complaint under this Part—
(a) a practising barrister, or
(b) a person who, at the time of the act or omission to which the complaint relates, was a practising barrister; “solicitor” means, in relation to a person who is the subject of a complaint under this
Part—(a) a practising solicitor, or
(b) a person who, at the time of the act or omission to which the complaint relates, was a practising solicitor.(2) For the purposes of this Part—(a) the legal services provided to a person by a legal practitioner shall be considered as being of an inadequate standard where, by act or omission of the legal practitioner, the legal services actually provided by him or her—(i) where the legal practitioner is a barrister, were inadequate in any material respect and were not of the quality that could reasonably be expected of him as a barrister, and(b) a reference to an amount of costs sought by a legal practitioner in respect of the provision of legal services means an amount of costs specified in a bill of costs issued by the legal practitioner concerned, and
(ii) where the legal practitioner is a solicitor, were inadequate in any material respect and were not of the quality that could reasonably be expected of him or her as a solicitor,
(c) a reference to the resolution of a matter in an informal manner includes a reference to the referral of the dispute concerned to mediation or other appropriate form of dispute resolution.”.
We have discussed in detail the inspection issues. This is the situation where the Law Society under the oversight of the legal services regulatory authority will retain its existing investigative, protective and disciplinary powers in the financial regulation of solicitors under the Solicitors Acts. The Law Society will continue to oversee implementation of the solicitors' accounts regulations, to carry out routine financial inspections of solicitors, to investigate financial infringements and prosecute them before the newly set up Legal Practitioners Disciplinary Tribunal.
Part 5 of the Bill deals with complaints and discipline. They relate mainly to procedures, into which I have gone in some detail, to be followed by the authority in dealing with such issues. Amendment No. 50 inserts a new section 40 which includes various definitions.
Amendment No. 51 is an important provision which specifies what is meant by misconduct by legal practitioners in the context of this legislation. I did say earlier that an act of omission by a legal practitioner could be considered to be misconduct, of which there is a definition. The list of reasons has been discussed with the professional bodies and it includes: fraud and dishonesty; breaches of the solicitors Acts; offences under this Bill; inadequate service; excessive costs; the commission of an arrestable offence; behaviour likely to bring the solicitors’ profession into disrepute; and behaviour likely to bring the barristers’ profession into disrepute.
Subsection (2) sets out the manner in which the complaints or disciplinary tribunal established under the Bill or the High Court in considering a matter of excessive costs can determine whether an act or omission should be considered as constituting misconduct. It is very important, consumer friendly and necessary to have it in the legislation. We often hear from individuals that certain acts were not carried out or followed through. The Bill deals with that issue.
Amendment No. 52 concerns the making of complaints under the Bill. It defines the three main reasons a person may complain to the authority: the act or omission of the legal practitioner constituted misconduct; the legal services provided by the legal practitioner were inadequate; and the amount of costs sought by the legal practitioner was excessive.
Subsection (2) provides that from the commencement of the Bill complaints may be made only to the authority. That is a major change in regulation. This gives the authority responsibility for the handling of all complaints against legal practitioners.
Subsection (3) makes it clear that where a report or an interim report of an inspector under Part 3 is received by the authority, an officer of the authority may make a complaint in respect of the legal practitioner.
Subsection (4) is a key provision which provides that where the Law Society, following an investigation under the solicitors Acts, considers an act or omission of the legal practitioner constitutes misconduct, it must notify the authority. It has to bring any investigation where this is found to the attention of the authority and give its views on the circumstances such that the matter shall be deemed to be a complaint made by the Law Society. However, subsection (5) provides that subsection (4) shall not apply where the matter either constitutes a breach of, or is related to, an act or omission which constitutes a breach of the solicitors' accounts regulations.
Under subsection (6), the authority is required to notify the Law Society of any complaint received about a solicitor. That is extremely important.
Amendment No. 53 inserts a new section 43 which provides guidance on the referral of complaints by the professional bodies to the authority. It lays out the procedures they are to follow in sending complaints to the new regulatory authority. The section provides that following commencement of the Part where a client of a barrister makes a complaint to the Bar Council, the Honourable Society of the Kings Inns or the Law Society, it shall be referred to the authority and the client shall be deemed to be the complainant.
Amendment No. 54 is a technical provision on the making of a complaint to the authority, that the period beginning on the making of a complaint to the authority and ending two months after the complaint is determined under this Part shall be disregarded in reckoning any period of time for the purposes of any limitation period in the making of an application for adjudication of a bill of costs under Part 10. That gives some leeway for the complaint to be considered rather than counting the time from the moment the complaint is made.
Section 45 provides that where a complaint is withdrawn but the authority considers it to be in the best interests of the public to do so, the authority may proceed or continue to deal with the complaint under this Part. This is quite important because if there is a public interest issue, even though the complaint is withdrawn, the authority can proceed to deal with it.
Amendment No. 56 is a key provision that gives the authority the power to make regulations regarding the making of a complaint and the procedures to be followed by the authority and the complaints committee in investigating such a complaint.
Amendment No. 57 is a standard provision which relates to fees for the submission of complaints and which provides that the authority may, by regulation and with the consent of the Minister for Public Expenditure and Reform, prescribe fees for the making of a complaint and circumstances where they may be refunded. How it handles complaints is dealt with in amendment No. 58.
Amendment No. 59 deals with the point Senator Denis O'Donovan raised about the fact that not all complaints received by the authority will be worthy of further investigation. This provision gives legislative standing to the principles on the admissibility of complaints received by the authority. The section lists a number of instances wherein the authority may determine that a complaint is inadmissible such as complaints that are vexatious or without substance or foundation. There has to be a clear way in law for the authority to deal with such complaints. Other instances arise where the act or omission to which the complaint relates is the same subject matter of a complaint previously determined under the Bill; the act or omission of a solicitor to which the complaint relates is substantially the same as a complaint previously determined by the High Court or the Law Society; the act or omission of a solicitor to which the complaint relates was the subject of criminal or civil proceedings in which a final determination was made by the court in favour of the solicitor. The section goes into the detail of the range of situations that will guide the legal services regulatory authority in dealing with a complaint. The authority may defer consideration of a complaint until a final determination, including any appeal, rehearing or retrial in civil or criminal proceedings, has been made. I am sure people will see that this makes absolute sense.
There is a section that allows the independent authority to request the Law Society to investigate any matter relevant to a complaint against a solicitor. Section 50 permits the authority, the complaints committee or the Legal Practitioners Disciplinary Tribunal to request, in relation to a complaint against a solicitor, that the Law Society carry out an investigation under the Solicitors Acts into any matter relevant to the complaint. The section further provides that the Law Society shall comply with the request and within one month of receiving the request furnish the authority with an interim report on the matter, together with an indication of when the final report will be available. The section makes it clear that any interim or final report of the Law Society shall be admissible in proceedings under this Part.
I have gone into a lot of detail on this section, but it is very important to be aware of what we are trying to do. It is a question of oversight and giving confidence to the public that there is a fair and equitable regime in place for complaints and disciplinary issues and that all of the detail has been covered in respect of instances of fraud or dishonesty, breaches of the Solicitors Acts, inadequate service, excessive costs and so forth that can now be dealt with by an independent body. There is also a role for the Law Society and the Bar Council, but this is an independent body which will deal with these issues.Obviously, the compensatory fund will remain with the Law Society.
I wish to go through these amendments. Basically, these are the Parts of the Bill that deal with the range of areas concerning the efforts the authority will make to facilitate resolution of complaints. For example, amendment No. 61 permits the authority to seek resolution of complaints relating to inadequate service. Amendment No. 62 allows the authority to consider excessive costs. The purpose of amendment No. 63 is to set up a mechanism within the regulatory authority to enable a review committee to consider reviews requested by a party to a determination of the authority under sections 51 or 52 and it lays down the membership of that review. Amendment No. 64 allows the authority the power to offer assistance where it is considered that the conduct of the legal practitioners could constitute misconduct. In this regard, I note that I may table a further amendment on Report Stage with regard to the definition of misconduct that will apply and perhaps in respect of some related matters. For the information of Members, I also intend to table some further amendments on Report Stage to deal with the legal issues regarding the precise transition arrangements, new regimes and cut-off dates as to when the new definitions of misconduct, etc., will apply. I will deal with this on Report Stage. Amendment No. 66 is about the admissibility of various statements and amendment No. 67 inserts a new section 57, which specifies that the authority shall prepare and publish guidelines on the manner in which the resolution of complaints by informal means may be conducted.
I stated at the outset of this debate that when it comes to considering complaints, there will be a form of triage system. In the first instance, one must establish whether the complaint is admissible and I have said quite a bit about that. Second, there will be a triage system and then there will be the assessment of the complaint. This may or may not go to the disciplinary tribunal and this section is to describe how the resolution of complaints by informal means will be conducted. Senator Barrett will appreciate why I cannot accept his proposed amendment No. 93. As it is set out, it would defeat access to the informal resolution of excessive fee complaints it is intended to make available to the public under the current text of the Bill. The purpose of the informal complaints track is to provide an alternative to the taxation of costs, as this can be a costly or cumbersome option for members of the public to pursue. This informal option does not prevent a legal practitioner from being subject to a complaint of misconduct about grossly excessive fees. I hope that clarifies matters.
As Minister stated, this pertains to setting up the procedure to deal with the costs aspects. If there is a known referee, the Taxing Master as was, and the chief legal costs adjudicator, it might help the process to be able to state that while the two parties can continue having this argument, the adjudication is that costs were X amount. It is a suggestion to the Minister that it may be useful to have a referee present. Would this prevent prolonged discussions, if the two parties could identify a person who can give them a verdict on this matter and could decide to not use up valuable legal time having debates about it? It would be great to have a referee who would be available to be frequented, were the parties to so desire, and it is a question of whether to point them in that direction. I will not press the amendment but that which I have outlined is the idea behind it. We have a service that can solve these disputes by stating the bill is X and has been independently adjudicated and this might short-circuit longer debates and arguments. However, I will not move the amendment and I thank the Minister for her response.
It might be helpful were I to inform the Senator that the legal services regulatory authority, LRSA, will have the potential to refer directly. Consequently, this can be done to the new body that replaces the Taxing Master.
I wish to ask a question of the Minister. Members are being snowed under with paper and, in that context, I hope I am reading the amendment booklets correctly. Amendment No. 63 provides for the make-up of the review committee and outlines the work it will do. Will it be necessary to make provision for a reporting timescale for such reviews? The amendment makes provision for who will sit on the review committee, its make-up and so on. Is there an indication here or elsewhere as to a timeframe for the review committee to make a recommendation? Could such a timeframe be considered?
I would be inclined to leave that to the management of the legal services regulatory authority. Obviously, these reviews could vary in terms of substance in that some could be relatively straightforward whereas others might be more complicated. It will consist of three members, two of whom shall be lay members. Where the complaint refers to a solicitor, one member of the committee shall be a solicitor, while where the complaint relates to a barrister, one member shall be a barrister. The eligibility is also outlined. In respect of the range of tasks with which this body must deal, I must state my reluctance to consider changes. Perhaps this matter should be examined as part of the two-year review, when one will be able to see how many cases were referred, what was the scale involved, whether there was a question of reviews backing up or something similar and whether a new method or more people were needed on the review committee. I suggest this might be best done after the two-year review.
This group of amendments deals with the establishment and procedures of a new complaints committee. Amendment No. 68 is a key provision which obliges the authority to refer a complaint to the complaints committee where it has determined that the complaint is an admissible complaint, and we have already discussed the range of areas where a complaint can be made or where the matter has not been resolved in accordance with the informal procedures. This amendment deals with the way that will be handled. The membership of the complaints committee is outlined in detail.
Amendment No. 70inserts a new section 60 relating to the investigation of complaints referred by the authority to a divisional committee. It gives details of the exact procedures that must be followed when referring the authority to the divisional committee and the duties of a divisional committee regarding an investigation. Where the committee considers that the complaint could be resolved under sections 51or52, it shall refer the complaint to the authority for further action. The options available to the divisional committee are spelt out in the legislation also. There is also a subsection that provides that where the committee considers that the act or omission warrants the imposition of a sanction, it may issue a direction to the legal practitioner to take such measures as the committee considers appropriate. It goes into all the details of how complaints will be dealt with, the sanctions that can apply, the action that can be taken and the way the committee will work.
There is a list of measures which may be imposed by the committee. I would bring the attention of Senators to those, a number of which I will read out. They include a direction to the practitioner to perform or complete the legal service concerned; a direction to arrange for the completion of the legal service; a direction to complete specified modules of continuing professional development, which is looking at the professional development issue; a direction to the practitioner to put aside all fees that were associated with the legal service; a direction to the practitioner to refund all or some of the fees already paid for the legal service; a direction to the practitioner to take any other action in the interest of the complainant; a direction to withdraw or amend an advertisement; a direction to pay a sum not exceeding €5,000 as compensation; a direction to pay to the authority a sum to cover the costs of the investigation; and a direction to pay to the authority an additional sum where the practitioner did not co-operate with the committee. A range of issues are dealt with in those measures. There is also the section that deals with appeals to the disciplinary tribunal by legal practitioners against determination of the divisional committee or a sanction imposed by a divisional committee.
Section 63 provides that the authority shall, every six months, which I believe is an appropriate timeframe, publish a report outlining the number and type of complaints received, which is why I said there is transparency in this Bill; the nature and outcome of the complaints; the number of complaints referred to the complaints committee; and the number of those complaints which were determined by the complaints committee, including details on sanctions imposed.
While I appreciate the intentions behind Senator Barrett's amendments, I do not propose to accept them because the number of members and the divisions of the new complaints committee of the Regulatory Authority is intended to facilitate the efficient processing of the thousands of complaints that will come before the Regulatory Authority based on current caseloads. Halving the committee's membership along the lines proposed would immediately create a backlog about which I would be concerned. This section goes into detail on how complaints are being dealt with, the responsibilities of various committees, the issues that can be dealt with and the sanctions that can be imposed. It deals with all the relevant issues around those provisions. As Senator Barrett can see, this list of issues and sanctions is strong and supportive of consumers who may have concerns about the kind of legal service they have received.
On amendment No. 68, under the new complaints regime, and I may have misinterpreted the Minister, there will not be 27 people hearing the case. Do the 27 divide the work among them? Is it the case that the 27 people handle all the complaints but do not hear them all? Is there a smaller committee to do the work because 27, including eight solicitors and four barristers, seems a cumbersome body.
The complaints committee consists of 27 members, the majority of whom will be lay people. The law society shall have eight members. The Bar Council have four. Members are appointed for a period of four years and shall be eligible for reappointment. Lay members must be independent of the professional bodies but have some expertise or knowledge of the provisions of legal service or maintenance of standards in an organisation.
To answer the Senator's question in more detail, I should have said that the Bill provides that the complaints committee shall act in divisions of not less than three and not more than five members but must have an uneven number and a majority of lay members.
This is a long series of amendments which relate to a core aspect of the complaints and discipline elements of Part 5 – the legal practitioners disciplinary tribunal.
A new section 64 is inserted by Amendment No. 74. That is providing for the establishment, in law, of the new legal practitioners disciplinary tribunal. Unlike the existing disciplinary framework where each legal profession has its own disciplinary tribunal, the new tribunal will deal, from the enactment of the Bill, with the professional conduct of both solicitors and barristers.
Amendment No. 75 inserts a new section 65 into the Bill. The new section being inserted under this amendment largely replicates the existing section 63 of the Bill. It increases the threshold of membership and that better reflects the combined workload of the existing tribunals under which each panel of three averages ten meetings per year. The initially proposed membership of 16 would have been inadequate to deal with the new disciplinary tribunal's anticipated workload and I would have been afraid that that would have led to a backlog of cases.
Another key change made under this amendment is that each division of the disciplinary tribunal shall be not less than three persons. The existing text of the Bill had provided in addition that each division should not be more than five members. However, having considered this aspect further, it was decided that for the sake of consistency of procedure and fairness all divisions of the tribunal should be of three persons.
Amendment No. 76 is similar to what was in place previously. It corresponds to section 64 of the Bill as passed by the Dáil and Second Stage of which was passed by the Seanad.
Amendment No. 77 inserts a new section 67 which expands the existing two-line provision in the Bill as passed by the Dáil to take account of additional functions - the ones I have outlined - that will now be carried out by the disciplinary tribunal. These will include, for example, appeals from the regulatory authority or from the Law Society to the tribunal in relation to determinations or sanctions, about which we have just spoken, that the complaints committee might put in place.It will also include appeals by a legal practitioner against a determination or sanction made against him or her by the complaints committee. For its part, the complaints committee will also be able to refer matters to the disciplinary tribunal where it considers this appropriate.
Amendment No. 78 inserts a new section. This amendment is necessary to allow for the fact that the legal services regulatory authority and the Law Society will present evidence to the new legal practitioners disciplinary tribunal grounding the contention that there has been misconduct by a legal practitioner. Whereas the legal services regulatory authority will do so in relation to public complaints, including those where it requests a financial report about a solicitor from the Law Society, the Law Society will do so in relation to matters that have come to its attention in overseeing the solicitor accounts regulations. They will deal with different elements.
Section 69 is with regard to the regulations that will need to be made for an effectively functioning disciplinary tribunal, with some slight adjustments to allow leeway for parties besides the regulatory authority and the legal practitioner concerned to make submissions to the disciplinary tribunal.
Amendment No. 80 is quite long but is largely the same as its precursor, which is section 69 of the Bill as passed by the Dáil. It contains a suite of supporting powers which enable the legal services regulatory authority to enforce attendance at its hearings, to compel the discovery under oath or affirmation of documents and to sanction obstructive or unco-operative behaviour, including by imprisonment or fine. However, there is one new subsection, which enables the Law Society to come within the remit of the disciplinary tribunal in the prosecution of financial infringements which come to its attention under its retained financial regulatory role.
Amendment No. 81 reflects section 69 of the Bill and sets out the steps to be taken by the disciplinary tribunal in holding an inquiry, with regard to how it deals with witnesses, takes evidence and takes advice. There are new additional provisions in the new version of the section, which cover those cases in which the legal services regulatory authority will make appeals to the tribunal against determinations or sanctions imposed by a division of the complaints committee. In other words, the additions to the original section 69 now found in section 71 are there to facilitate the new and additional appellate functions of the disciplinary tribunal.
Amendment No. 82 inserts a new section 72 into the Bill. This reiterates what was in the Dáil in section 70. It sets out the range of sanctions that can be applied by the legal practitioners disciplinary tribunal. One can see as we go through the Bill that in each case one must describe how each body deals with complaints, the complaints it can handle, the sanctions it can impose and whether there is the possibility of the decisions of one body being appealed by another. This section examines the role of the disciplinary tribunal which, as I have stated, will take over from the two committees which previously dealt with disciplinary issues. We will now have one body, namely, the legal practitioners disciplinary tribunal.
Amendment No. 83 deals with appeals against a decision of the disciplinary tribunal.
Amendment No. 84 relates to appeals to the High Court, and leaves the menu of sanctions that can be imposed through the High Court to a separate section. In its new configuration, the section deals with the High Court’s ability to hear appeals by persons so entitled under the new section 73, which we have discussed.
Amendment No. 85 provides that where the legal practitioners disciplinary tribunal decides to pursue a case for High Court sanction and the legal practitioner takes an appeal against this, the court is first to consider that appeal. In so doing the High Court can either confirm the disciplinary tribunal’s determination that the matter is for sanction before it or determine that the act or omission by the legal practitioner was not misconduct.
The new section inserted by amendment No. 86 mirrors that which was in Bill as passed by the Dáil, and merely sets out how the jurisdiction vested in the High Court under the preceding sections we have discussed shall be exercised by the President of the High Court as he or she may direct.
Amendment No. 87 inserts section 77, which mirrors that previously contained in the Bill save for the fact that it updates relevant references to cite the Court of Appeal rather than the Supreme Court, as would have applied prior to the establishment of the new Court of Appeal, which has been up and running for the past year.
Amendment No. 88 inserts a new section 78 which sets out the way in which orders made by the High Court or determinations made by the disciplinary tribunal are to be furnished to the Registrar of Solicitors in the case of solicitors, and to the Honorable Society of King's Inns with regard to barristers.
Amendment No. 89 is a short provision regarding the various documents involved and the legal privilege that applies.
Amendment No. 90 allows for a High Court order to be made on application of the regulatory authority where it is shown that a legal practitioner or any other person has refused, neglected or otherwise failed without reasonable cause to comply in whole or in part with a determination made by the legal practitioners disciplinary tribunal.
Amendment No. 91 is a transitional provision, and amendment No. 92 makes it clear that the authority in the performance of its functions where a complaint refers to a solicitor may exercise all the powers conferred on the Law Society under the Solicitors Acts.
67. The Disciplinary Tribunal may hear the following applications that are brought to it in accordance with regulations under section 69(1):
Government amendment No. 77:
In page 41, between lines 22 and 23, to insert the following:“Applications to Disciplinary Tribunal
67.The Disciplinary Tribunal may hear the following applications that are brought to it in accordance with regulations under section 69(1):(a) an application by the Complaints Committee under subsection (7)or (8)(c)of section 61;
(b) an application by a legal practitioner under section 62(1);
(c) an application by the Authority under section 62(2);
(d) an application by the Law Society under subsection (6) or (7)(c) of section 14A of the Solicitors (Amendment) Act 1994;”.
I move amendment No. 98:
In page 71, to delete lines 10 to 15.
The issue is how we determine the costs. The key point is whether the costs will be averaged over all the members or whether more of the costs will be paid by those about whom the most complaints are made. If the costs are averaged then a moral hazard arises since everybody pays but those who perform least successfully, according to their clients, can share the bill with others. I find that difficult. Subsection (10) states "the amount of levy payable by the professional body or person concerned". Will the Minister clarify the principles? Will the people about whom most complaints are made pay bigger levies or will it be averaged over all the people, including those about whom no complaints are made?
Amendment No. 98 as proposed by Senator Barrett would prevent the new regulatory authority from raising a levy on those barristers who will be regulated by it and who choose to practise outside the Law Library model. It would also prevent the authority from issuing the relevant notice to those practitioners or professional bodies which would give rise to its regulatory costs each year. I am not sure if that was the Senator's intention but this would be the impact of the amendment. I would be concerned about this. The complaints and the work that arises from them in respect of each branch of the profession will determine the levy which is payable on the basis of the actual costs incurred by each branch the previous year. It will be ongoing and the levy will be calculated on the previous year's costs of the work that needed to be done by the authority and the number of complaints incurred by each branch.
I thank the Minister for her clarification. It seems that if a barrister is employed by a company and satisfies all the duties the company requires him or her to discharge, then that barrister may face a levy because somebody else is dealing in an unsatisfactory way with his or her own clients. The general principle should be that those who give rise to the complaints should bear the costs rather than having them averaged over people about whom no complaints have been made.
It is ironic that section 80 is about the levy, and when we try to amend the section, we are not allowed to do that because we are told it would incur a cost to the Exchequer. I find this strange and it seems like a technicality to try to kick it to touch. The amendments are a genuine attempt to improve the legislation because we have said that we are very positive about this legislation. We believe the Minister may need to look once more at the levy. We wish to raise the concerns of people in the Bar Council in particular that the levy is a fair one and that it reflects the volume of complaints against barristers. They have also expressed concerns that the levy is too high and could negatively impact on many barristers who are at the earlier stage of their career or who are struggling financially with their practice. It might affect rural barristers also and those who may work in less lucrative practices. This is why we tabled our amendment. It is unfortunate that it has not been taken into consideration but perhaps the Minister might take on board the sentiment which we put forward and she might consider it for Report Stage. We may consider trying to amend on Report Stage in a way that might not incur a cost to the Exchequer.
The Senators should keep in mind that the practitioners are just responsible for a block of 10% of costs. The remainder is divided between other bodies.
The Bill allows for the introduction of a range of new business models. These include legal partnerships which are partnerships between solicitors and barristers or between barristers only and multidisciplinary practices and which allow for the provision of legal and other services by one firm. As a result of amendment No. 99 and other amendments tabled, the Bill will provide for the introduction of limited liability partnerships in respect of both solicitors partnerships and legal partnerships.
I will deal with the contextually minor amendments in this grouping before discussing amendment Nos. 100 and 101. As per amendment No. 102, complaints relating to the proposed business models will be handled by the authority. Under amendments Nos. 103 and 105, a small fee may be charged by the authority concerning the notification of a legal partnership or a multidisciplinary partnership that is about to commence business. Obviously, such partnerships will have to have strict indemnity insurance. A further amendment in this grouping aims to bring the Bill into line with the new personal insolvency culture whereby a person should no longer be prevented from operating within a business environment merely because he or she has entered into a formal debt arrangement.
I will now deal with amendments Nos. 100 and 101. The relevant sections currently provide that no professional code which is a code of practice drawn up by a legal professional body such as the Law Society of Ireland or the Bar Council shall prevent a legal practitioner from providing legal services within a legal partnership or a multidisciplinary practice. Senators will be aware that a legal partnership is a partnership between either solicitors and barristers or between barristers only. It is a new creature of this Bill which has been prohibited up to now under professional rules. Multidisciplinary practices are firms that will be able to provide both legal and other services together under one roof. These are also currently prohibited under professional rules and the Bill provides for their introduction, subject to the outcome of a formal public consultation process under Part 8. I was advised by the Attorney General that the approach in the Bill, as published, which seeks to directly interfere with the professional codes of the legal professional bodies is at high risk of vulnerability to legal challenge on the grounds of undue interference with the professional bodies' constitutional rights of association. The original sections would, in effect, dictate to the legal professional bodies who they may include and exclude from their membership and it is this, in particular, that opens up the provisions to the possibility of successful legal challenge. As it is understood that such a legal challenge is not unlikely and in the interests of achieving the overall goal of the Bill, I am tabling these amendments because these new provisions still provide, as a matter of law, that barristers and solicitors may provide their services through one of the new business models, that is, they will have a statutory right to do so but the provisions have been reworked so as to avoid the risk of undue interference in the legal professional bodies' control over their own membership. In effect, this will mean that any lawyers who want to work through legal partnerships, multidisciplinary practices or limited liability partnerships or as employees will be able to do so. It will clearly remain the right of the legal professional bodies to decide whether such lawyers can also become members of their associations, such as, for example, the Law Library. However, Senators should note that subsection (2) of both revised sections explicitly prevents any legal professional bodies from preventing their own members from doing business with other lawyers who choose to operate within the new business models. These are very important provisions.
On this section and all of those sections relating to multidisciplinary practices, the Minister and I have a difference of opinion from a philosophical point of view. The amendments that the Opposition has tabled relating to the sections which deal with multidisciplinary practices are based on our opposition to those practices where solicitors, barristers and accountants operate under the same roof and for the same company. Our understanding is that this model has failed internationally and our fear is that the best and brightest of the legal profession will be secured by the wealthiest companies in society, namely, big businesses and large corporations, to the detriment of the average citizen seeking legal representation. Sinn Féin wants a level playing pitch for all citizens and is particularly concerned that those in rural communities will be able to access - through the offices of local solicitors and as is generally the case at present - the services of barristers with the appropriate skills to represent them. We fear that corporatisation will happen with the multidisciplinary practices and that we will see a centralisation of the most skilled in the area so that when people with less money in their pockets seek top-quality representation, they will find it difficult to access. Sinn Féin will be opposing the elements of this Bill that relate to multidisciplinary practices for this reason.
A significant number of qualified solicitors and barristers do not work as solicitors or barristers but work for the firms to which Senator Ó Clochartaigh has referred. They work for accountancy firms, multinational companies, financial services organisations and so forth. If this provision makes any difference it all, it will allow them to compete with such firms on a more level playing field. As a qualified solicitor with some experience of this area, I welcome this provision.
Section 84 is related to section 86. The former defines a contentious matter as "a matter that arises in, and that relates to the subject matter of, proceedings before any court, tribunal or other body or person before which the respective legal rights and obligations of two or more parties are determined, to which the person instructing the barrister concerned is a party". Section 86 provides that "No professional code shall operate to prevent a barrister from providing legal services in relation to a matter, other than a contentious matter where his or her instructions on that matter were received directly from a person who is not a solicitor." Almost everything can be defined as a contentious matter unless one wants to ask a barrister for a tip for the races at Leopardstown, for example. Section 84 undermines the recommendation of bodies such as the Competition and Consumer Protection Commission to the effect that consumers should be able approach a barrister without having a solicitor involved.
This is David versus Goliath. There was an access through country solicitors to sole trader barristers. I disagree with my learned friend, Senator Hayden. Corporatisation holds dangers for the average citizen facing these corporate law firms. It will also be David versus Goliath in the courts.
This section is all about contentious matters. One can talk to one’s barrister without a solicitor being there, provided the matter is not contentious. That seems to retain the prohibition that I have been against since the debate began some hours ago.
When somebody becomes a qualified solicitor they are eligible to be registered on the Roll of Solicitors but to practise as a solicitor they must hold a practising certificate. As Senator O'Donovan knows, they may have their name struck off the Roll of Solicitors or be suspended for practising because they do not hold a practising certificate. However, the fact that they do not hold a practising certificate does not mean that they are not a qualified solicitor. I believe this section is attempting to distinguish between persons who are qualified solicitors, as such, and those who are unqualified pursuant to the section.
I understand why the Senator raises this, but subsections (a), (b), (c), (d) and (e) of the section outline the circumstances in which somebody who was a solicitor now comes under the term "unqualified person" under the Solicitors Act because they had been struck off the Roll of Solicitors, been suspended from practise, had the issue of a practising certificate to him or her refused under section 49 of that Act, and so forth. Once one reads the definition of "unqualified" under the Solicitors Act that makes sense.
To be helpful, would the word "disqualified" be more appropriate and cause less confusion? Disqualified indicates that for whatever reason, be it suspension or being struck off, one is disqualified. It is similar to a person being disqualified from driving. It would read more easily and make more sense if the word "disqualified" was used instead of "unqualified".
In terms of definition, that word has been there since 1954 and there is precedent in that regard. It is the definition in the Solicitors Acts. We are amending those Acts but there is no information available to me that it has led to any problems. I will check it out, but I do not believe it has.
Amendment No. 112 obliges the managing legal partner in a multidisciplinary practice to manage the practice in such a way as to ensure that the provision of legal services is in accordance with the provisions of the Bill and adheres to the professional principles set out in the Bill. Amendment No. 113 places positive obligations on the managing legal partner to ensure this happens.
Is it envisaged that there could be a person managing a multidisciplinary practice who is not a qualified barrister, solicitor or accountant, such as a CEO who has experience of management? I understand that is prevalent in some of the practices at present; there might be somebody who is good at getting people together.
I worry about subsection (5) and the Chinese walls. There are some law and accounting firms in this city of which it is said that there are so many Chinese walls that there are rickshaws parked outside. The subsection provides that a legal practitioner who is a partner in, or an employee of, a multidisciplinary practice shall not in the provision by him or her of legal services for a client disclose the affairs of the client to a partner or employee of the practice who is not engaged in the provision of legal services to that client without the express consent of the client. There will be the coffee corner and the drinks fountain, so there is a risk there. I agree with Senator Ó Clochartaigh on this.
I move amendment No. 114:
In page 79, between lines 35 and 36, to insert the following:“(f) specify the cost to the client of the services specified at (a) to (e) inclusive”.
The letter of engagement provides for many worthy things, such as specifying the services to be provided, specifying the services referred to in paragraph (a), specifying which of the services are services other than legal services, specifying the services under various sections, and providing such additional information as may be prescribed. I propose that it also specify the costs. One of the major problems consumers have is that the bill gets out of control and they are not told in advance what it will cost. It would be a pro-consumer step to insert this. The person must know what this costs. They might decide there are other ways to resolve the matter or they might decide to drop it. Specifying the costs in advance must be part of the engagement. One of the complaints traditionally made about the legal profession is that it does not do that, and the clients are at a disadvantage thereafter in the transaction.
If I accepted the new subsection proposed by Senator Barrett in amendment No. 114 it would create confusion about the letter of engagement, which is intended to clearly delineate for a customer which services are being provided by a legal practitioner in a multidisciplinary practice by making it simultaneously a bill of costs. This would clash with the extensive legal costs transparency obligations now being placed on legal practitioners elsewhere under the Bill.
Legal obligations are now being placed on practitioners in respect of cost. That is very consumer-friendly. Under Part 10 all legal practitioners will be required, under section 123, to issue a notice to clients, written in clear and understandable language, which will set out the legal costs that will be incurred or are likely to be incurred when they take on the work. That addresses the precise point the Senator made. Section 123(4) sets out in great detail what the notice must contain. The purpose of that section is to oblige all legal practitioners to disclose likely costs up front or, where this is not possible due to complexity, to give detailed and meaningful estimates. The Senator is correct that this matter has frequently been the subject of complaint in the past. Clients will also be given the option of a cooling-off period before they finally agree with the notice of costs.
There are substantial provisions in the Bill relating to costs. There is the move from the Taxing Master to the new adjudicator, and there are detailed provisions relating to costs, how they are done at present and how that must change.There are those sections I have just read into the record as well. There are many initiatives to give greater transparency and clients being more aware of the likely costs before they embark on any legal course. That is a very important part of the Bill. It takes us from the Taxing Master situation completely to a new office of adjudication costs.
Section 124 on agreement regarding legal costs, etc. states, "A legal practitioner and his or her client may make an agreement". I have asked for "shall" to replace "may". As the Minister has said, it is necessary that those costs be stated upfront given the level of complaints. I am inclined to agree with the Minister providing that the amendment to section 124 is acceptable but we have not reached that one. We might come back on Report Stage. I agree with what the Minister has said but the costs must be brought upfront. The Minister cannot rely on section 124 and it might be necessary to look at the word "may" the next day.
This is a technical amendment reflecting that we now have the Court of Appeal so the references to the Supreme Court are changed to references to the Court of Appeal.
I move amendment No. 121:
In page 85, line 2, after “operation” to insert “concentration ratio”.
Among the matters that need to be discussed is the increasing concentration of power in a small number of firms in the sector. That is the reason for the amendment.
I believe there will be sufficient leeway afforded by the current provisions for this and many other relevant aspects to be raised and taken into account in the reviews.
The Minister is talking about the establishment regulating the operation. Concerns about monopoly or oligopoly are important. I know the Minister has expressed that sentiment several times in this debate. I will not press the amendment.
I move amendment No. 122:
In page 85, line 33, after “engage” to insert “within one year following the establishment day”.
Section 104 states:
(1) The Authority shall engage in a public consultation process on—(a) the extent, if any, to which the restriction on legal practitioners, other than solicitors, holding the moneys of clients, as provided under section 36, should be retained,
This has been another of those long-standing grievances along with the ones we mentioned of not providing bills upfront and having a conveyancing monopoly. In fact, I believe solicitors have a cheaper rate of probate than non-solicitors. It is an issue we need to discuss urgently to ensure this profession lives up to all our aspirations of efficiency.
I am concerned that this amendment would compound the burdens of reviewing and reporting of the new authority in its first year of operations. We have put considerable thought into this and I have made some changes to it, as the Senator knows. It has been carefully laid out and sequenced under the Bill so as to make them realisable within achievable timeframes. I do not want to upset that timeframe that has been carefully thought through. We want to see the legal partnerships coming into operation in 2016. We want work done on the multidisciplinary partnerships within a certain timeframe. I have told the Senator that I would look at the issue of conveyancing and come back to him on Report Stage to see if I could suggest or accept anything specific in that regard. I will not accept the amendment.
I move amendment No. 124:
In page 86, line 36, to delete “4 years after the commencement of section 85, and every 5 years” and substitute “2 years after the commencement of section 85, and every 2 years”.
I will not press the amendment. The Minister has been most patient when we have discussed having certain things done faster. We should aspire to do things faster and meet the public's wish for reform in the sector.
Amendments No. 125 relates to the insertion of a new Chapter 3 of Part 8. The new Chapter provides for the introduction of an option for solicitors firms and legal partnerships to operate with the benefits of limited liability within a limited liability partnership business model with protection for the consumer in the form of both professional indemnity insurance and ongoing regulatory oversight by the authority. The amendments include the introduction of an option for both ordinary solicitors' firms and legal partnerships which are partnerships between solicitors and barristers or between barristers only, as provided for under Part 8, to operate with the benefit of limited liability within a limited liability partnership model. It is proposed to allow such firms, subject to certain safeguards, to limit the personal liability of the individual partners of the firm for its debts, obligations and liabilities. This is in line with precedent in several other comparable common law jurisdictions in which partnerships have been changed to allow for LLPs.
On amendment No. 126, it should be noted that the LLP provisions are not at this stage being extended to cover multidisciplinary practice provisions. As it is considered that the business forms which may be assumed by MDPs when they come into being and, in particular, whether they should be able to operate in full as LLPs when some of the professions participating may not be otherwise entitled to avail of such partnerships, is something which should be covered in the research and consultation process. The specific features of the new regime for LLPs include a system of authorisation and registration subject to appropriate fees through the LSRA of those partnerships that wish to become LLP and the maintenance of a publicly available register of these. Protection will be provided for the consumer in the form of an obligation on the firms to have substantial professional indemnity insurance. We discussed the PII earlier. The authority will have the power to set higher limits for the personal indemnity insurance if it sees fit in respect of the legal firms operating as LLPs as opposed to traditional partnerships. The authority will be required to maintain a register of limited liability partnerships. It provides for automatic loss of the shield from personal liability for partners who are found to have committed misconduct or crime in certain circumstances.
There is a clawback provision where a partner takes money out of the business when its assets exceed its liabilities, ongoing oversight by the legal service regulatory authority with an option to direct compliance and enforce by recourse to the High Court as necessary to enforce compliance. LLPs will be required to notify clients and creditors upon registration and commencement as an LLP. In the event of an insolvency of an LLP, the property of the partnership will be available to the creditors. In addition, there is a new section 113 which outlines the procedures involved in the cessation of operations as a limited liability partnership. Amendment No. 133 inserts a new section that permits the authority to make regulations on the operation of limited liability partnerships.
Amendment No. 134 disapplies section 3 of the Registration of Business Names Act 1963 with regard to partnerships operating in this Bill. Instead, anyone changing name as such a partner will be covered by the relevant provisions of the Bill.
The final amendment in this section makes it clear that although section 27 of the Companies Act 2014 prohibits the use of the description "limited" in business names, in certain circumstances under the Bill, the description can be used for limited liability practices.
I move amendment No. 136:
In page 89, to delete lines 16 and 17.
This is something that arose before and Senator O'Donovan has made a suggestion on it. The section refers to an "unqualified person" and goes on to say "notwithstanding that he or she is a qualified barrister" but they are qualified if they have qualifications. I think disqualified was the meaning that Senator O'Donovan stressed. It requires clarification because it declares people not qualified yet the same legislation says they are qualified.
I move amendment No. 137:
In page 92, to delete lines 28 and 29.
This relates to the chief legal costs adjudicator and the wish to have a pro-consumer element in this. It says at subsection (b) that the adjudicator will not operate where "the adjudication relates to an application for adjudication of legal costs as between a legal practitioner and his or her client". That is the opt-out clause. I would have thought that from the consumer point of view that is when we want the chief legal costs adjudicator to adjudicate on legal costs between a legal practitioner and his or her client. If we are not going to apply it here, where is the adjudication to apply? That is part of the earlier problem we referred to, the fear that clients have that legal bills get out of control. The word "unless" used here withdraws the ability of a client to go to the chief legal costs adjudicator.
I move amendment No. 138:
In page 100, to delete lines 9 to 12.
This concerns the prohibition on no fold, no fee. Section 122(1) states: "A legal practitioner shall not charge any amount in respect of legal costs if ... they are legal costs in connection with contentious business expressed as a specified percentage or proportion of any damages (or other moneys) that may be or become payable to his or her client, other than in relation to a matter seeking only to recover a debt or liquidated demand". Is it not a good idea for there to be a bit of price competition in this area? That is why I have tabled this amendment.
With this amendment, the Senator wishes to remove a basic principle of the Bill whereby legal costs are prohibited from being expressed as a specific percentage or proportion of damages or other moneys payable to a client. The Senator mentioned this earlier. That would be the impact of this amendment so I cannot accept it.
We want to make sure the explanation that has to be provided for a client of the procedures available to deal with a dispute about legal costs will have to be in writing. As I accept the Senator's point that it might be somewhat ambiguous, I will also look at that issue.
I move amendment No. 141:
In page 104, line 30, to delete “14 days” and substitute “28 days”.
When a client disputes any aspect of a bill of costs, he or she shall within 14 days of the bill of costs being provided for him or her set the machinery in motion. I wonder whether there is a need for more time because of the imbalance between the client and the solicitor. I put the matter to the Minister for consideration. People from a legal background and with legal qualifications said they would like a client to have more time in that instance.
The only point I make in that regard is that it would have implications for other periods of time that will apply under the Bill in relation to legal costs and where they are in dispute. I am taking all timeframes into account. I will consider the 14 day period and see whether it is feasible to make it a little longer without impacting too much on the other carefully calibrated sections in relation to time periods.
I move amendment No. 142:
In page 108, to delete lines 7 to 9.
The amendment relates to holding hearings in public. As I would like to think about the matter adgain between now and Report Stage, I will not press the amendment today.
I move amendment No. 143:
In page 109, line 33, to delete “less than 15 per cent”.
As it stands, the Bill reads,
Where an adjudication concerns only legal costs as between a legal practitioner and his or her client, and the Legal Costs Adjudicator has determined that the aggregate of the amounts to be paid is less than 15 per cent lower than the aggregate of those amounts set out in the bill of costs, the party chargeable to those costs shall pay the costs of the adjudication.
Does that mean that if I cannot secure a 15% reduction, I must pay the costs of the adjudication? That is why I am seeking the change. If one can secure any reduction, does that not justify the adjudication process, in particular, with its general pro-consumer emphasis? The Minister is setting the barrier high if one has to negotiate a 15% reduction.
The 15% margin is fair. It is fairly well accepted that one can have spurious and nebulous claims in relation to bills of cost. Determining bills of cost is very expensive and it is a well established legal precedent, not just in the area of law but in other areas also, that one does need to have some margin where there has to be some justification established to pursue very expensive procedures put in place. That is reasonable. The idea that one might secure a 5% reduction does not justify the level of administration involved in such instances. A figure 15% is, therefore, reasonable. However, I will leave it to the Minister to make her point.
Amendments Nos. 143 to 145, inclusive, are not acceptable as they would take the one sixth rule out of the equation in relation to who would pay the bill for a legal costs adjudication. As section 122, as passed by the Dáil, provides that a legal practitioner shall not charge any amount in legal costs in the circumstances set out in the section, I do not see the need for amendments Nos. 144 and 145 to be accepted in this instance. I refer Senator Sean D. Barrett to the section.
Amendment No. 144 was an attempt to deal with the matter of disclosure. The wording is, "provided that no client shall be responsible for costs incurred by the practitioner where the said practitioner has not disclosed the legal costs that will be incurred in relation to the matter concerned irrespective of whether the said practitioner has set out the basis on which the legal costs are to be calculated". We do ask for it in writing and quantification earlier, the purpose being to remove a defence. I will not move the amendment today, but I will think about it between now and Report Stage.
Section 146 makes statutory provision for the awarding and revocation of "patents of precedence", which are more commonly known as the title of senior counsel. This title is typically awarded to barristers with considerable experience and expertise in their field. It is a form of recognition for high-end legal skills and depth of legal knowledge – a quality stamp of sorts. In the interests of both transparency and fairness, this section places on a statutory footing a committee, consisting of the persons listed in section 145(2), to consider applications for the granting of this title in accordance with a range of balanced criteria. Traditionally, this title has only been accorded to barristers, but for the first time it will soon be available to solicitors also.
The original text needed some changes as it was considered to have missed the requirement for excellence in the granting of the title. That is the only amendment being proposed. In order to gain the honorary title of senior counsel in the future, a solicitor or a barrister will have to demonstrate a track record of competence and professional independence, as well as excellence in advocacy or in specialist litigation or a specialist knowledge of an area of law. The section, as it stands, merely requires "a capacity for" rather than "excellence in" these things. The amendment, therefore, brings the section more into line with what we intuitively know the title should stand for. It is a slight amendment.
I move amendment No. 147:
In page 120, line 23, after “exercised” to insert “solely”.
The purpose of the amendment is to have a right of access to a barrister without a solicitor being present. We discussed this matter, which is why I have suggested the following wording: after “exercised” to insert “solely”.
This is a technical amendment which is designed to bring clarity. The section provides that employee barristers will be able to act on behalf of their employers in court. Senator Hayden spoke on a related point. They are currently prohibited from doing so under Bar Council rules. The section also provides that the legal professional representative bodies will not be able to prevent their own members from working with such employee barristers. The essence of the proposed new section has not changed. Instead, it has been reworked to ensure it is clear and coherent in the overall context of the Bill. It is an important provision. As Senator Hayden explained, many barristers work as employees in various organisations including financial institutions and NGOs. They will have the possibility of being in court and representing their employers.
The Bill creates the conditions for a new type of barrister to emerge, namely, one who chooses to provide his or her legal services outside the traditional Law Library model. In that context, the amendment provides that the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 will be amended to allow the legal services regulatory authority to become the designated authority in monitoring for money laundering compliance regarding that new group of barristers. The Act of 2010 will remain unchanged in all other ways and, appropriately, the Law Society’s and Bar Council’s functions regarding money laundering compliance for their own members will also remain unchanged.
I move amendment No. 150:
In page 124, line 35, after “may” to insert “not”.
I am concerned that the authority may, by regulation, declare people qualified. In this day and age, people should acquire the qualifications. Particular emphasis is placed on experience. If we are trying to upgrade to a smart economy and a society of well-qualified individuals, then people who want to be solicitors should be qualified as solicitors, people who want to be barristers should be qualified as barristers and people who want to be both should be qualified as both. We have educational institutions and law schools which can provide this education, rather than doing it by regulation by an administrative body as proposed in the Bill. With a fair amount of common ground, we need a very well educated legal profession and it requires the traditional way of acquiring qualifications rather than just experience.
The Senator's amendments would negate an intended regulatory power of the new regulatory authority regarding movement between the professions of solicitor and barrister. The proposed references to “qualifications” are considered unnecessary in light of the fact that the question of being duly qualified to practise as a solicitor or barrister is already comprehended by the definitions of solicitors and barristers who are entitled to practise under the Bill.
The amendment proposes the insertion of a replacement section 158 which deals with the advertising of legal services. A key purpose of the amendment is to bring the State into compliance with Article 24 of the EU services directive. That EU directive requires, in general terms, the elimination of any rules, practices or regulations that are unreasonably restrictive on a lawyer's right to advertise. The European Commission had expressed a view that some advertising practices in Ireland, particularly those regarding barristers, are too restrictive and had issued a letter of formal notice in October 2014 to the effect that infringement proceedings for a breach of the directive could be taken at any time. In this context, my Department worked with the Commission, and, later, with our own draftspersons at home, to ensure the new wording of section 158 would bring Ireland’s legal services advertising regime up to date and into line with the directive.
The new section begins by providing a general entitlement for legal practitioners to advertise their services, whether as individuals or as lawyers, working within the range of partnerships that will be created by this reforming Bill. It goes on to provide a regulation-making power for the new authority to make advertising regulations that will be applicable to both solicitors and barristers. As a matter of common sense, the section provides for some consultation on the making of the regulations with the legal professional bodies or with any other bodies the authority considers appropriate but it is the authority that will have the ultimate say in what the regulations will contain.
Subsection (4) provides, in line with Article 24 of the EU services directive, that the regulations shall not impose any restrictions on the advertisements unless such restrictions are necessary both for the protection of the independence, dignity and integrity of the legal profession and for an overriding reason relating to the public interest. Any restriction must be both non-discriminatory and proportionate. These caveats clearly impose a high threshold regarding the imposition of restrictions, so the overall message is clear, namely, that all lawyers will be able to advertise freely and widely and across an unlimited range of media. This is in line with the Commission and the EU directive.
As a matter of public policy, and given the need to ensure high standards will still prevail, subsection (5)(d) sets out that it will not be permitted for lawyers to advertise in a way that, in the opinion of the authority, is in bad taste or materially false, or offers an inducement to any person to make personal injuries claims. The clause on personal injuries advertising is considered essential for the continued avoidance of the ambulance-chasing culture that is in evidence in some other jurisdictions. While lawyers will still be able to advertise the fact that they handle personal injuries cases and have an expertise in the area, the prohibition in place since 1994 on specific inducements to make personal injury claims will stand. In a similar vein, it will remain prohibited to advertise in inappropriate locations such as hospitals, funeral homes and cemeteries. It will bring us into full compliance with the directive.
A small amendment will be made to the Solicitors Acts on Report Stage to strengthen the existing and necessary prohibition on non-solicitors operating inappropriate, so-called "legal harvesting" websites which can avoid any requirements for accuracy or good taste and refer potential clients on to solicitors, for a referral fee, in full contravention of the Solicitors Acts. Senators van Turnhout and Heffernan have proposed some amendments to the amendment regarding legal services advertising. The insertion of the word "regulation" after "professional code" is unnecessary due to the fact that the definition of "professional code" in section 2 of the Bill already comprehends "regulations". It would be an unnecessary duplication. I cannot accept the second amendment, which proposes the deletion of subsection (5) because this is a crucial "principles and policies" provision without which the authority's regulation-making power would be utterly without boundaries and without meaning. The authority must be able to specify what types of advertising are acceptable and Senators will please note that the subsection is prefaced with the word "may" as opposed to "shall", so it does not mean that the authority will necessarily confine itself in these ways. In this instance, it is given flexibility. It will have a menu of criteria from which to draw when drafting the regulations. Some might think that such advertising should not be restricted in any way at all, but I have sought in the drafting process to maintain a very careful balance between allowing lawyers to advertise completely freely, while maintaining certain balances around what those advertisements contain, which I believe are in the public interest. We do need to maintain standards. As I have said, the wording of section 158 has met with the approval of the European Commission. Governments had not complied with the directive, so there were threatened infringement proceedings, but if we accept this section 158, they will disappear, so I would be very slow to undo the section, given that this section is fully compliant with the European directive and has the agreement of the Commission in that regard.
The switching around of the wording in the third amendment seems to make no difference in the intended meaning, so I do not think it is necessary. On the final amendment, the definition of "inappropriate location" has long been on the statute book without controversy and it gives clarity to the overall intention to maintain certain standards in advertising. It has long been public policy not to allow lawyers to engage in "ambulance chasing" or to prey upon distressed or bereaved persons in order to gain work and I see no good reason for that to change now or for standards to drop in that regard. I hope I have addressed the various relevant points regarding whether 158 meets the directive and why I do not believe the amendments being proposed are necessary, because most are already comprehended within the existing definitions, and, in the case of the final one, the definition of "inappropriate location" has long been on the statute book and has not given rise to any particular problems.
On the section, Senator van Turnhout was very au fait with many of the deliberations involved and asked me to give her some cover in the Chamber today as she is unable to attend for various reasons. On section 158, I am glad the Minister has clarified that it was under direct threat from the European Commission. I was a little concerned about whether fines had been issued but she has clarified that is not the case.
On section 158(5), Senator van Turnhout has asked me to put it on the record that she feels this subsection should be deleted as it serves no justifiable purpose that section 158(2) does not already cover. Section 158(2) provides for the only permissible purposes under the services directive that restrictions can be put on advertising. All the extra specifications in subsection (5) will leave the State open to enforcement and litigation. They also illegally restrict competition for legal services to the detriment of customers and the competitive market. I have been asked to put this on the record and I thank the Cathaoirleach for allowing me to do so.
I move amendment No. 3 to amendment No. 153:
In section 158(8)(b), to delete “electronic address or any information provided by the legal practitioner that is accessible electronically” and substitute “any advertisement provided by the legal practitioner that is accessible electronically”.
I wanted to make a point in respect of a number of amendments that I want to bring on Report Stage. We have discussed some of them today. Some relate to pre-action protocols in clinical negligence cases and some transitional provisions which we discussed earlier. There is also an amendment to update the protected disclosure section of the Bill in light of the Protected Disclosures Act of 2014 with some cross-references and to provide for some repeals and amendments to the solicitors Act. Quite a number have been suggested by various Senators, including one in respect of non-residence in the State and the inconsistencies between sections 17 and 19. There is a question here on the disclosure of information by the authority and its interchange with the principle of legal privilege.
An amendment may be inserted to require consultation with the Competition and Consumer Protection Commission by the authority when it is conducting the review and to give clarity around the timeline policy for the administration of complaints, which continues to be three years as a matter of policy. Another amendment may clarify how appeals from claim amounts on the compensation fund will be handled and there may be a reference for information to be passed to the Chief Justice if and when a barrister is struck down from the role of practising barrister due to serious misconduct. Another amendment will ensure the authority proves in regard to its resolution of complaints regarding excessive fees. There may be an amendment to section 153 to make a small distinction between solicitors and barristers to take account of their slightly different roles, as well as an amendment to the definition of "practising barrister" to ensure all barristers, like solicitors, have to complete a period of apprenticeship before offering legal services to the public.Some improvements may be required to clarify Part 5, the complaints section, in regard to timeframes and there may be more consequences for Parts 9 and 10. There may also be an amendment to section 1 to deal with some of the issues that have arisen in regard to competition. Many issues have arisen from today's discussion, but they relate to amendments and issues I will deal with on Report Stage.