Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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34. To ask the Minister for Justice and Equality the way in which the independence of the legal services regulator is assured; and if she will make a statement on the matter. [10981/17]

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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35. To ask the Minister for Justice and Equality if the new legal services regulator has a remit to examine cases retrospectively; if any statute of limitations applies; and if she will make a statement on the matter. [10982/17]

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I propose to take Questions Nos. 34 and 35 together.

Under section 13(3) of the Legal Services Regulation Act 2015 it is provided that, subject to the Act, the Legal Services Regulatory Authority "shall be independent in the performance of its functions". This principle permeates the entire 2015 Act and its respective provisions including in terms of the independence of the nomination of the Legal Services Regulatory Authority which has eleven members including a lay majority and a lay Chairperson. Under Part 2 of the 2015 Act, the Regulatory Authority, which has its own corporate identity and can sue or be sued in its own right, also appoints its own staff and Chief Executive subject to the usual oversight framework of the Department of Public Expenditure and Reform. It can establish its own committees in the conduct of its day to day business. It is subject, under the Act, to a suite of annual, business and strategic reporting obligations while also being financially and operationally accountable, including through its Chief Executive, to the Office of the Comptroller and Auditor General, the Public Accounts Committee, and the Oireachtas Joint Committee on Justice and Equality. In short, and with the benefit of a series of reinforced independence provisions introduced under Government amendments following publication of the Legal Services Regulation Bill in 2011, the Regulatory Authority now has the structures, functions and powers consistent with an effective, independent regulator while being democratically accountable including to the Houses and relevant Committees of the Oireachtas.

The statutory independence conferred by the 2015 Act also extends to potential members of the Legal Services Regulatory Authority. Such persons are each, under the relevant provisions of Part 2 of the 2015 Act, put forward by one of ten prescribed nominating bodies that are intended to represent a regulatory balance of interests between lawyers and the consumers of legal services. Neither the Government nor any other non-specified entity can nominate or otherwise insert additional candidates for membership of the Authority under these nomination and appointment provisions. In the consideration of nominees for membership of the Regulatory Authority both the nominating bodies and the Government are obliged to ensure that the nominees have relevant knowledge and expertise in a range of areas that are specified in Part 2 of the 2015 Act. By way of further safeguard, it is provided under section 9(2)(a) of the Act that when the members of the Regulatory Authority are to be appointed by the Government, there first has to be a resolution approving such appointment passed by each House of the Oireachtas. There is no departmental official sitting on the Authority and its membership is also staggered by way of both ensuring continuity of function and preventing change to the full membership at one time. Not only, therefore, is the independence of the Regulatory Authority set out in its own establishment and governance provisions, it is also copper-fastened by its chain of public accountability which is laid out under the 2015 Act as I have just described.

The independence of the Legal Services Regulatory Authority provided in the 2015 Act mirrors that which the Act also applies in relation to the legal professions and their clients. Under section 13(4) of the Act, the objectives to be observed by the Regulatory Authority in the performance of its functions include those of supporting and promoting the interests of the public and consumers and of competition in the provision of legal services in the State. They also include the objectives of supporting the proper and effective administration of justice, encouraging an independent, strong and effective legal profession and promoting and maintaining adherence to the professional principles. The professional principles, as set out in section 13(5), of the 2015 Act, are that legal practitioners must act with independence and integrity, act in the best interests of their clients and maintain proper standards of work. Moreover, they must comply with the duties that are rightfully owed to the court, and they must, subject to professional obligations, keep the affairs of their clients confidential. In a similar vein, the Regulatory Authority is also free from any Government or Ministerial involvement in relation to its regulation of codes of practice or professional codes under sections 22 and 23 of the 2015 Act, respectively.

Independence of function is also a cornerstone of the professional conduct and public complaints procedures that will be introduced with the commencement, at the appropriate time, of Part 6 of the 2015 Act. This will include the establishment of a new Legal Practitioners' Disciplinary Tribunal that will deal with allegations of misconduct in relation to both solicitors and barristers. At the same time, the Disciplinary Tribunal will be independent in its functions of the Regulatory Authority, the Government and the legal professional bodies. Relevant complaints will no longer be made by the public through the legal professional bodies as happens at present, but directly to the new Authority. Complaints made and completed under the existing professional conduct and disciplinary regimes operated by the Law Society or the Bar Council or their respective disciplinary tribunals cannot be made again to the new Regulatory Authority. Similarly, under the 2015 Act, any ongoing complaints already made under these existing regimes will have to be completed under their existing procedures and existing law.

With regard to the question of dealing with cases retrospectively, when Part 6 of the Legal Services Regulation Act 2015 is commenced then any new complaints from the date of commencement will be dealt with by the Regulatory Authority. It is my understanding that under the transitional provisions set out under section 91 of the 2015 Act, if they concern acts or omissions by solicitors that have occurred before the commencement date of Part 6, the Authority will deal with them. If such pre-commencement acts or omissions relate to inadequate services this will be done under the 2015 Act but if they relate to alleged misconduct by a solicitor then "misconduct" for the purposes of the complaint will continue to have the meaning it currently has under section 3 of the Solicitors (Amendment) Act 1960. Where new complaints concern acts or omissions arising following the commencement of Part 6 of the 2015 Act then they will be dealt with by the Regulatory Authority under the new provisions and procedures of that Act. There is a three-year time limit set out under section 58(7) of the 2015 Act for what might be described essentially as service-level complaints. This would be where, for example, it is being alleged that the legal services provided by a legal practitioner are of an inadequate standard, or that an amount of costs was excessive. However, the Deputy will particularly wish to note that, as currently is the case, there is no time limit set under Part 6 of the 2015 Act for complaints about professional misconduct. Complaints at this level would concern acts or omissions that may be considered as constituting professional misconduct as set out under section 50 of the 2015 Act. Such misconduct would, for example, include the seeking of an amount of costs in respect of the provision of legal services that is "grossly excessive" or the committing of certain listed breaches or offences.