Paddy Burke (Fine Gael)
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We will resume the debate on amendment No. 210 in the names of Senators Barrett and Quinn, which arises out of committee proceedings.

Sean Barrett (Independent)
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I move amendment No. 210:

In page 85, line 33, after “engage” to insert “within one year following the establishment day”.

I welcome the Minister back to the House. This amendment relates to barristers and provides that the authority shall engage in public consultation within a year of being established in order to progress the work of reform that the Minister is seeking.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The objective of this amendment is already provided for in the Bill. I would refer the Senator to the current timeline for those consultations, which is one year, as per section 104(2)(d). I hope the Senator is satisfied that the aim of his amendment is already covered in the Bill. I cannot accept Senator Barrett's amendment because the one-year time period is already provided for in the aforementioned section.

Sean Barrett (Independent)
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I welcome the Minister's response.

Fidelma Healy Eames (Fine Gael)
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I wish to speak to the amendment.

Paddy Burke (Fine Gael)
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Is the Senator seconding the amendment?

Fidelma Healy Eames (Fine Gael)
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Yes, I second the amendment and appreciate the Minister's clarification on that point. However, I am curious about the wording of the section. The Bill states:

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,

I ask the Minister to outline the classes of solicitors who are not allowed ---

Paddy Burke (Fine Gael)
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That is not relevant to the amendment.

Fidelma Healy Eames (Fine Gael)
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I know but I am seeking clarification from the Minister on the classes of solicitors who are not allowed hold moneys.

Paddy Burke (Fine Gael)
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The amendment is very specific.

Fidelma Healy Eames (Fine Gael)
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I know. Having read the section, is the Minister saying that as a solicitor one can be a little bit bad? I ask the Minister to address that point.

Sean Barrett (Independent)
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I thank the Minister for her response and will not be pressing the amendment.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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To respond to Senator Healy Eames, it is all solicitors.

Fidelma Healy Eames (Fine Gael)
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I do not think it is because there is a clarification ---

Paddy Burke (Fine Gael)
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Senator, we are dealing with amendment No. 210. Senator Barrett, who tabled the amendment, has withdrawn it.

Fidelma Healy Eames (Fine Gael)
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If the Minister could clarify ---

Paddy Burke (Fine Gael)
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The House has agreed to the withdrawal of the amendment.

Fidelma Healy Eames (Fine Gael)
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--- that all solicitors are not allowed hold moneys. Why is that?

Paddy Burke (Fine Gael)
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Senator, we are on Report Stage now, not Committee Stage. Senator Barrett has withdrawn his amendment.

Fidelma Healy Eames (Fine Gael)
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It is important for the record.

Paddy Burke (Fine Gael)
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It may well be but Senator Barrett has withdrawn his amendment.

Fidelma Healy Eames (Fine Gael)
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It is important for the record. Perhaps the Minister will have another opportunity to clarify this for me.

Trevor Ó Clochartaigh (Sinn Fein)
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I move amendment No. 211:

In page 86, to delete lines 34 to 40, and in page 87, to delete lines 1 to 13.

Sean Barrett (Independent)
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I second the amendment.

Paddy Burke (Fine Gael)
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I welcome a former Member of Dáil Éireann to the Visitors Gallery, Mr. Paul McGrath.

Sean Barrett (Independent)
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I move amendment No. 212:

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".

Trevor Ó Clochartaigh (Sinn Fein)
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I second the amendment.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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This is a drafting amendment to reconcile section references with the various amendments that have been made to the Bill since its inception. This is a question of maintaining correct numbering as we go through the numerous amendments to a Bill of this complexity.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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This is also a numbering issue.

Sean Barrett (Independent)
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I move amendment No. 218:

In page 89, to delete lines 16 and 17.

Trevor Ó Clochartaigh (Sinn Fein)
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I second the amendment.

Sean Barrett (Independent)
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I move amendment No. 220:

In page 92, to delete lines 28 and 29.

Fidelma Healy Eames (Fine Gael)
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I second the amendment.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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This is a technical amendment to section numbers.

Sean Barrett (Independent)
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I move amendment No. 226:

In page 100, to delete lines 9 to 12.

Fidelma Healy Eames (Fine Gael)
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I second the amendment.

Sean Barrett (Independent)
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I move amendment No. 231:

In page 102, line 31, to delete "may" and substitute "shall".

Fidelma Healy Eames (Fine Gael)
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I second the amendment.

Sean Barrett (Independent)
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I move amendment No. 235:

In page 104, line 30, to delete “14 days” and substitute “28 days”.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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If I was to suggest 21 days instead of 28 days would that be acceptable to Senator Barrett if there is a mechanism for the House to agree that? I intended to bring an amendment. I missed that one. I would be agreeable to 21 days, if that is acceptable.

Sean Barrett (Independent)
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I thank the Minister. If that were possible, I would second what the Minister has said.

Paddy Burke (Fine Gael)
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Is it 21 days instead of 14 days?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Yes.

Sean Barrett (Independent)
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It is an appeal period. I support the Minister.

Denis O'Donovan (Fianna Fail)
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My party will support that as well, if it is possible.

Sean Barrett (Independent)
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I move amendment No. 236:

In page 109, line 33, to delete "than 15 per cent lower".

Fidelma Healy Eames (Fine Gael)
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I second the amendment.

Sean Barrett (Independent)
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I move amendment No. 237:

In page 109, line 35, after "adjudication" to insert the following:"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".

Fidelma Healy Eames (Fine Gael)
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I second the amendment.

Sean Barrett (Independent)
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I move amendment No. 238:

In page 110, between lines 2 and 3, to insert the following:"(5) A legal practitioner who does not comply with section 122(1) shall not be entitled to recover from the client any legal costs in relation to the matter concerned.".

Fidelma Healy Eames (Fine Gael)
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I second the amendment.

Sean Barrett (Independent)
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I move amendment No. 242:

In page 116, to delete lines 11 and 12.

The term "senior counsel" is a term we acknowledge in law and it refers to members of the inner Bar. Under the legislation, a solicitor can be called senior counsel. While I am not particularly enamoured of titles, it meant something in the past which it will not in future, given that it will be extended to somebody who, previously, would not have been a senior counsel. We can all call ourselves professors or doctors; it does not mean those titles inherit the qualifications that existed in the past. I regret that the title is being shared around to people who previously did not qualify.

Denis O'Donovan (Fianna Fail)
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I second the amendment.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Amendment No. 242, if accepted, would mean a patent of precedence would not be conferrable with the title of senior counsel on a solicitor. The purpose of the patents of precedence provision in the Bill is to codify the process of becoming a senior counsel while also making it amenable to legal practitioners, whether barrister or solicitor, who have the requisite excellence in advocacy, specialist knowledge or special litigation. The amendment is somewhat contradictory to what the Senator has been arguing. To remove solicitors from the provision would defeat the opening up of this area of legal excellence to a significant cohort of persons who may have met the required standard. Given that solicitors already have the right of audience before the courts and can become senior members of the Judiciary, that there are procedures for solicitors and barristers to switch professions, and that the two professions already work closely together, I am not sure why the Senator is proposing this deletion. It seems contrary to the points he has been making about the need for more flexibility in the system. It is incongruous with some of the other amendments the Senator has suggested. Maybe I am missing something in the points he is making. It is intended to open up the title of senior counsel to solicitors, and it is reflective of the changes and flexibilities that exist more and more between the two professions.

Sean Barrett (Independent)
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I thank the Minister. I was hoping people could approach a barrister without having a solicitor present. I appreciate the Minister's point, and withdraw the amendment.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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This is another of the numbering amendments.

Paddy Burke (Fine Gael)
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Amendments Nos. 244 to 250, inclusive, 252 to 266, inclusive, 268 to 271, inclusive, 273 to 277, inclusive, 286 to 289, inclusive, 302 and 303 are related and may be discussed together.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As a result of the introduction of the new regulatory framework being put in place by the enactment of the Bill, a series of amendments need to be made to the existing provisions of the Solicitors Acts. We have a new framework here. We already have a series of Solicitors Acts in place. The new legal services regulatory authority will change the various issues regarding solicitors and barristers, including how complaints are dealt with. There will be a new regulatory framework and new oversight of financial management, and all the issues we have been discussing here. We have taken great care with this group of amendments. We were unable to do the work until we had the exact framework of the Bill in place. Only at this point could we work out the detailed amendments needed to all the Solicitors Acts in order to incorporate what is in the Legal Services Regulation Bill.What is being done in the entirety of this section is very technical. It involves detailed drafting in respect of which we engaged a lot of expertise and on which we spent a great deal of time to ensure the technical amendments to the Solicitors Acts reflect accurately the work being done in the legal services regulatory authority, LSRA, and the implications it has for the practice of the profession of solicitor. The series of amendments here is being made to the existing five Solicitors Acts. In the longer term, what will be required is the consolidation of the Solicitors Acts, but that is a separate job. For now, we suggest the range of amendments here in respect of the each of the Acts in place. There is no policy change other than what we have been discussing throughout the course of the debate on the Bill. This is merely about the transition into the Solicitors Acts of the LSRA and the implications it has for the Acts.

If I give an overview on the tabling of the amendments, it might be helpful to Senators. The tabling of these Government amendments is intended to ensure all complaints about the conduct of legal practitioners who are solicitors will, from the date of commencement, be taken under the relevant procedures of the new legal services regulatory authority. The amendments support the transitional arrangements for dealing with complaints already being dealt with under the Law Society's remit which will have to be completed by it under the existing regulations and processes. They remove any existing powers of the Law Society in relation to solicitors which will now be conferred instead on the new regulatory authority. They will ensure the existing powers and functions of the Law Society relating to the financial regulation of solicitors and to the solicitors' compensation fund are retained and firewalled. They will make the Law Society subject to and compliant with the relevant provisions and regulations of the new Bill under the new legal services regulatory authority. They will ensure relevant matters of misconduct can be amenable to the new legal practitioners' disciplinary tribunal, whether they arise from public complaints made to the legal services regulatory authority or as a result of the Law Society's retained financial and accounts regulation work. They will ensure that, when requested by the legal services regulatory authority, the Law Society will furnish the relevant investigating accountants reports in support of the handling of any public complaints relating to financial infringements. They will also ensure no regulatory gap is created between the existing regulations that need to remain in place and those that may be introduced in the future under the new regulatory authority regime.

Senators can see from the foregoing that the changes we are making must be reflected in the Solicitors Acts. These are the range of amendments, of which there are quite a few, to the five different Acts that must be made to ensure those Acts comply with the new regulatory authority.

Paddy Burke (Fine Gael)
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Amendments Nos. 278 and 279 are related and may be discussed together by agreement.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Amendment No. 278 proposes to insert a new section 150 in the Bill to provide a standard immunity clause which relates in general to acts and omissions of the new authority in the performance of its functions with regard to inspections and complaints against legal practitioners unless the act or omission was done in bad faith. It provides immunity in damages to the authority and its staff and to the State. Section 150(3) of the new section provides for immunity of the authority and the State from liability in damages for any acts or omissions of the Law Society in the performance of its functions.

Amendment No. 279 proposes the insertion of a new section 151 as a complement to the new section 150 to protect the State or the authority from any liabilities of the solicitors' compensation fund. When I was discussing that the compensation fund was staying with solicitors, I mentioned that obviously we did not want the State to take on any of the liabilities which might accrue from that.

Sean Barrett (Independent)
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Having reached amendment No. 279, I note that since amendment No. 244, we have dealt with more than 14 pages of amendments. We have made 36 amendments. This is the same as the page 41 issue we had last night. Page 120 should have been reprinted for this Stage of the discussion. It is unrecognisable from page 120 in the Bill.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It is the normal consequential implication of new amendments. That is why that has been done. It is the same as page 41 last night. It was not about amendments, as Senator Norris said, to one page. That was literally the virtual location of where the amendments started. They went from page 41 and were being inserted because they were new amendments. I just wanted to explain that.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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This is a technical amendment to delete Part 6 and substituting Part 5. It is because we have amalgamated Part 5 and Part 6.

Paddy Burke (Fine Gael)
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Amendments Nos. 281, 282 and 301 are related and may be discussed together by agreement. Is that agreed? Agreed. Recommittal is necessary as the amendments do not arise out of committee proceedings.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Protected Disclosures Act of 2014, which was steered by the Minister for Public Expenditure and Reform, is intended to provide a statutory framework within which public and private sector workers can raise concerns regarding potential wrongdoing that has come to their attention in the workplace, with the comfort of employment and other protections if they are penalised or otherwise disadvantaged as a result of the disclosure. Sections 155, 156 and Schedule 2 of the Bill, which contain specific provisions relating to whistleblowing in the context of legal practitioners, were always intended to be a temporary placeholder for whistleblower protection in the event that the Act of 2014 did not materialise.

It was assumed at the time of the publication of the Legal Services Regulation Bill in 2011 that this matter would ultimately be dealt with in other legislation of general application and the provisions here deleted. As this has now come to pass, the presence of sections 155, 156 and Schedule 2 in the Bill need to be deleted.

The Minister for Public Expenditure and Reform is also keen that this should happen in line with the Government decision to discontinue a sector by sector approach to whistleblowing, as well as the need to ensure there is no confusion and cross-cutting between parallel regimes. The Act of 2014 is understood to be comprehensive for these purposes. Since the Bill was published we have had new legislation for whistleblowers and we do not need to replicate the protected disclosures legislation in the Bill as obviously it applies to legal practitioners.

Paddy Burke (Fine Gael)
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Amendments Nos. 283 to 285, inclusive, are related and may be discussed together by agreement.

Sean Barrett (Independent)
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I move amendment No. 283:

In page 124, line 35, after "may" to insert "not".

Amendment No. 283 expresses concern about the fact the authority can waive educational qualifications by regulation. The Bill states people may be exempted from additional requirements to attend a course of education or training, sit and pass an examination or serve a period of apprenticeship or pupilage. If solicitors want to become barristers or barristers want to become solicitors they should take the examinations, pursue the courses and have the period of apprenticeship. We want to raise the standard, I presume, rather than give exceptions of this kind.

Trevor Ó Clochartaigh (Sinn Fein)
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I second the amendment.

Catherine Noone (Fine Gael)
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I am a practising solicitor. Someone who has done a science degree and goes on to do a medical degree is given certain exemptions. Certain exemptions and exceptions should be in place for members of the legal profession. At the end of the day, we are all lawyers and we have very similar qualifications and abilities. Certain exemptions should be made for members of both legal professions in these circumstances.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As I indicated on Committee Stage, I cannot accept amendment No. 283 as it would negate an intended regulatory power of the new authority on movement between the professions of solicitor and barrister. Barristers and solicitors can already move between professions and it is intended that the authority can look at ways to enhance this.

The fusion of the two professions will be looked at comprehensively by the authority in time, but this cannot be done immediately as it would require further legislation and other administrative and educational arrangements. If I were to agree to amendment No. 283 I would prohibit the authority from regulating movement between the professions of barrister and solicitor. This is something that happens all the time and the Bill is about facilitating such change of legal career rather than restricting it or banning it altogether.

The proposed references to qualifications in amendments Nos. 284 and 285 are considered unnecessary, as 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. I dealt with this at an earlier stage and the definitions in the Bill are very clear. The Senator wants to see more movement, but amendment No. 283 would restrict movement and would not attain the goal the Senator wants.

With regard to amendments Nos. 284 and 285, the definitions have been dealt with already.

Sean Barrett (Independent)
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I thank the Minister and the Senator for their responses. There should be no dumbing down of standards, and exemptions should be granted extremely parsimoniously.

Catherine Noone (Fine Gael)
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It is not dumbing down.

Sean Barrett (Independent)
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This is the point I am trying to make. In all of our colleges most people take their courses and pass examinations, and I would not support the thought of any mass exemption.

Denis O'Donovan (Fianna Fail)
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I am not trying to go into combat with my good colleague, Senator Barrett, but my long experience is that for some reason there is a misnomer that barristers are better qualified than solicitors. It takes solicitors six years to qualify, and I have no doubt whatsoever that most qualified solicitors are well capable of doing any barrister's work. In my view some of them are brighter.

Some barristers who specialised went on to become senior counsel and that is fair enough, but the vast majority of solicitors are quite capable of representing anyone in court, and would do a much better job than some of the barristers who may have little interest in the case. With all due respect, there is little between a qualified barrister and a qualified solicitor except for the fact they have gone down different roads. In most countries, including the United States, Australia and European countries, there is no difference between them and they are all lawyers. On this occasion I feel the Minister is correct and I beg to differ with my good colleague, Senator Barrett.

Paddy Burke (Fine Gael)
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The Law Society is well represented this evening.

Paddy Burke (Fine Gael)
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Amendments Nos. 293 to 298, inclusive, are out of order.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I introduced this amendment to Schedule 1 on the third additional list. This makes changes to section 2 of Schedule 1. In determining whether legal costs are reasonable, a legal costs adjudicator shall consider the listed matters where applicable. This safeguards the adjudicator's discretion on the matters listed, which will not all be applicable to every case.The amendments have all been discussed with the Competition and Consumer Protection Commission which has welcomed their introduction. The commission suggested the amendments will simplify the legal costs adjudication process and I am very happy to introduce them. I hope Senators will support them. They are intended to ensure that there is a more transparent costs system and that varying factors can be taken into account when adjudicating on costs. Given that the commission has recommended their introduction, I am very happy to go along with that.

Paddy Burke (Fine Gael)
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When is it proposed to sit again?

Maurice Cummins (Fine Gael)
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At 10.30 a.m. tomorrow.