COMMITTEE OF PUBLIC ACCOUNTS debate -
Thursday, 25 Mar 2010

Special Report No. 63 of Comptroller and Auditor General: Tribunals of Inquiry (Resumed)

Mrs. Justice Catherine McGuinness (President, Law Reform Commission) and Mr. Declan Purcell (Board member, Competition Authority) called and examined.

Chairman

I thank the witnesses from the Law Reform Commission and the Competition Authority for making themselves available to the committee so that we can finalise our examination of the Comptroller and Auditor General's report on tribunals of inquiry. In our meeting of 2 July 2009, we conducted a detailed examination of the way in which the tribunals were run and we heard further evidence this morning. The committee has a genuine concern that greater economies and efficiencies could have been achieved. That is putting it mildly. This session will be more of a briefing than an examination of the witnesses as the two agencies concerned have conducted separate reviews of the relevant areas.

I welcome Mrs. Justice Catherine McGuinness, president of the Law Reform Commission and invite her to introduce her officials.

Mrs. Justice Catherine McGuinness

I am accompanied by Mrs. Patricia Rickard-Clarke, who is a solicitor and full-time commissioner and Mr. Raymond Byrne, director of research. The Law Reform Commission employs two full-time commissioners, myself and Mrs. Rickard-Clarke, and three part-time commissioners. Mr. Byrne is in charge all the researchers in the commission.

As Mr. Buckley noted at the beginning of the proceedings, the Law Reform Commission is an independent body established under the Law Reform Commission Act 1975 to keep the law under review and make recommendations on its reform. We work through programmes of law reform and are at present working on our third programme of law reform for 2008-14. We also respond to requests from the Attorney General on particular aspects of the law.

Chairman

I interrupt Mrs. Justice Catherine McGuinness, by her leave, so that I can introduce the other witnesses. I welcome Mr. Declan Purcell, board member of the Competition Authority, and ask him to introduce his officials.

Mr. Declan Purcell

Good afternoon, I am one of the three board members of the Competition Authority. I am accompanied by Ms Carol Boate, director of the competition advocacy division in the authority, and Mr. Cathal Hanley, a case officer in the same division.

Chairman

We are also joined by officials from the Department of Justice, Equality and Law Reform.

Mr. Brendan McNamara

I am the principal officer in the civil law reform division and I am responsible for drafting the Tribunals of Inquiry Bill 2005. My departmental colleague, Mr. Eamon Saunders, had responsibility for the Morris tribunal.

Chairman

I ask the officials from the Department of Finance to introduce themselves.

Mr. Dermot Quigley

I am accompanied by my colleague, Mr. Eugene Barry.

Chairman

Does Mr. Buckley wish to comment?

Mr. John Buckley

The committee considered the special report on tribunals of inquiry last July. The focus of today's hearing is the legal cost of the tribunals. These fall into two categories, namely, the cost of the tribunals' own legal teams and the cost of witnesses assisting the tribunals.

The special report suggested several ways in which costs might be better controlled. In the case of tribunal legal teams, cost is a factor of the rates paid, the efficiency with which resources are used and the duration of the inquiry. The report suggested there was room to improve administrative efficiency through approaches such as resource substitution, which would involve the use of less expensive paralegal staff for research and investigation; engaging counsel for modules rather than the entire inquiry; taking account of evidence heard outside the jurisdiction without the necessity for reading it in; the delivery of witness evidence through sworn affidavit and legal submissions in legal form; limiting oral procedures to disputed issues where a party's reputation or interest was potentially in question; and making use of concurrent sittings where more than one member was available and discrete modules could be identified.

In regard to third party representation, the report suggested that more transparency and certainty is needed. Our recommendations included formal granting of legal representation and the extent of that representation in advance in cases where the tribunal has determined that the evidence of a witness is likely to be relevant and that the proceedings could impact on the witness's constitutional rights. We also recommended a cap on the legal fees recoverable by third parties and provisions for vouching and submission of bills on a timely basis.

Appendix L of the special report sets out key recommendations of the report of the Law Reform Commission in the area of cost containment, which includes consideration of alternatives, such as the commission of investigation route, where possible; more precise terms of reference; a central source of guidance on tribunal administration and procedure; and the establishment of an up-front budget. It also suggested a range of measures to control the extent to which representation would be funded from the public purse.

In its report dating September 2006, the Competition Authority outlined a set of competition issues that it identified in respect of the legal profession and made 29 recommendations for reform, a number of which relate to legal fees. These include in particular the need to remedy the limited information on fees and costs on the part of persons engaging lawyers made available by individual lawyers and their representative bodies; the fact that the State, as a large purchaser of legal services, is well placed to influence the move towards competitive tendering; and the need to ensure the taxation process does not support uncompetitive practices.

Both reports make a number of other important recommendations which I have no doubt the witnesses will outline in detail.

Chairman

I invite Mrs. Justice McGuinness to make her opening statement.

Mrs. Justice Catherine McGuinness

The Law Reform Commission's 2005 Report on Public Inquiries Including Tribunals of Inquiry, which is available at our website www.lawreform.ie, made 58 recommendations for reform of the law on tribunals of inquiry. It also contained a draft tribunals of inquiry Bill which consolidated into a single Bill, with amendments, the existing Tribunals of Inquiry (Evidence) Acts 1921 to 2004. This draft legislation was the basis for the Tribunals of Inquiry Bill 2005 which is currently before the Oireachtas. Many of our recommendations have been included in that Bill.

The commission's report acknowledged the importance of having available a public process of inquiry in addition to the private, low key, commission of investigation. Many of the recommendations in the 2005 report aimed at promoting the efficiency of the tribunal of inquiry process and focused on the following two elements: early project management of the process, including the drafting of terms of reference, which would contribute to overall efficiency; and management of financial costs at an early stage and flexible arrangements on personnel selection fee arrangements. We have included more detail on these main recommendations in our submission to the committee.

In regard to terms of reference, the commission recommended that the current situation under which tribunals are established on the basis of resolutions by both Houses of the Oireachtas should be retained. The commission also recommended that alternatives, such as a commission of investigation or civil or criminal court proceedings, should be considered before establishing a tribunal. Where a tribunal is established, the commission recommended reform of the procedures for drafting its terms of reference, in particular, how they might be made as precise as possible. This would include what we call a cooling off period to refine the terms of reference before the tribunal begins its work. In effect, this would give as much time and provide as much care as possible to ensure the terms of reference were fairly carefully set out or limited and would be unlikely to spread over a vast area of either fact or law. The commission also recommended that a central inquiries office be established. It would publish booklets setting out key administrative and procedural guidance for tribunals rather than reinventing the wheel each time a tribunal was set up.

As regards the financial cost of tribunals, the commission recommended that the relevant Department with responsibility for a particular tribunal, following consultation with the Department of Finance, set a broad budget figure at the outset of the tribunal. As regards legal and other professional representation, the commission stressed the need to give the considerable thought to the level of representation a tribunal engages for particular tasks and, in particular, whether persons other than lawyers should be engaged for certain functions. I am referring to the staff of the tribunal. They need not necessarily all be lawyers; certain tasks could be done by others at a lower cost.

I refer to the fee structures for professionals. The commission recommended that flexible arrangements be put in place for the engagement and remuneration of lawyers and other personnel involved in tribunals. This could include a combination of a set fee structure, a tendering procedure or the existing procedure whereby a tribunal engages a lawyer at an agreed level of remuneration.

Much of the discussion is about planning, examining who will have representation, whether lawyers are needed as opposed to anyone else and in what way lawyers are hired, including matters such as tendering. In our consultation paper on public inquiries published in 2003 which preceded the 2005 report we recommended the enactment of legislation to provide for a private, low key inquiry which could focus on the malfunctioning of the system rather than individual wrongdoers. This could operate as a preliminary step or, in some cases, be an alternative to a full scale tribunal of inquiry. In fact, the essential elements of this recommendation were implemented when the Oireachtas enacted the Commissions of Investigation Bill 2004.

To summarise, we are looking at good management, planning and trying to devise a plan for both the way in which a tribunal of inquiry would run and the way in which costs would be handled.

Chairman

I thank Mrs. Justice McGuinness. Can we publish the statement?

Mrs. Justice Catherine McGuinness

Yes, certainly.

Chairman

I again welcome Mr. Purcell and call on him to make his opening statement.

Mr. Declan Purcell

The committee has our statement from yesterday. Bearing in mind what was stated about trying to save time, I will summarise what we said.

As the committee is aware, at the end of 2006 the Competition Authority published its report on competition in the legal profession. Our starting point was that a competitive market for legal services, accompanied by appropriate regulation to ensure the maintenance of quality standards, promoted access to the legal system. We concluded that the regulatory system which applied to the legal profession in Ireland needed very significant reform. We still believe that is the case some three years later. We identified the system of self-regulation as a particular concern. Despite the best of intentions, such a system of self-governance will always be far short of the standards of openness, accountability and transparency we expect in a modern economy. The result of this outdated system of regulation is that the cost of legal services in Ireland is a great deal higher than it should be. A World Bank report in 2009 showed that legal fees in Ireland were among the highest in the developed world. While the Law Society and the Bar Council have introduced some reforms since we published our report, the core central issue of who regulates the legal profession still remains to be tackled. The persistence of the dual roles of the Bar Council and the Law Society as regulators and representatives is out of date in a modern economy. We see no good reason the legal profession should be special or unique in insisting on running its own affairs without anyone checking this from the outside or setting the right rules in the first place.

Let us consider, for example, the medical profession which, on the one hand, has an independent statutory body, the Medical Council, to regulate it and, on the other, bodies such as the Irish Medical Organisation to represent the interests of doctors. To use other analogies, we would not expect a banking association to regulate the banking sector or the ESB to regulate the energy sector. Our report recommended that self-regulation be replaced by an independent legal services commission which could be a fully independent, accountable, transparent regulatory body, the job of which would be to put the interests of consumers and the wider public first.

We made several other key recommendations, apart from that central and core recommendation, which I will run through very quickly. We proposed that consumers and businesses have direct access to barristers for legal advice. Barristers should be allowed to form modern business structures such as partnerships or represent themselves as groups. In the interests of economy, we suggested the common law right of solicitors to hold on to a client's file, thus preventing a client from switching to another solicitor, should be done away with. We recommended legal fees should, in practice as well as in theory, be based and awarded on work done, not by reference to the size of the award received by the client. We also suggested the creation in Ireland of a profession of conveyancers, people with specialist qualifications in the relevant law, to provide conveyancing services in competition with solicitors.

The final recommendation to which I refer is that which the committee probably wishes to discuss, that is, that the State examine the possibility of introducing competitive tendering for the provision of legal services. I refer specifically to competitive tendering. We addressed this recommendation to the State as a consumer or procurer of legal services. The intention was to ensure the State could get value for money or better value for money for the legal services it used in appropriate circumstances. This recommendation followed concerns at the time about the cost of tribunals, an issue the committee is now discussing. As it is aware, the Comptroller and Auditor General's report estimates that the total cost of the three main tribunals is likely to be somewhere between €336 million and €366 million.

Competitive tendering and contracting out has been widely adopted internationally as a tool to improve budget performance and lower costs. It is widely and successfully used in government and industry for the procurement of a wide range of products and services. In the area of legal services specifically, competitive tendering may be an appropriate tool for obtaining value for money where a Department, local authority or other public body requires ongoing legal services. For example, this could relate to a specific long-term project, a stream of existing or anticipated similar cases against the State or a commission of inquiry which is likely to proceed for some time. Clearly, competitive tendering would involve solicitors and barristers competing to be the chosen provider of defined legal services for a specific period. With a tender process, interested persons make a proposal and one is selected based on quality, price and value for money. Naturally, the design of the request for tenders is important in securing quality services at the right price in the long term. If some of these principles of competitive tendering had been applied at the initial stages of appointing legal counsel for the tribunals, the bill being faced by taxpayers for services rendered at Dublin Castle and elsewhere might be considerably lower than the one on which Mr. Buckley's report has focused. I stressed that competitive tendering may be suitable for certain types of ongoing legal projects. They clearly would not be suitable for very fast, on-off requirements where it would not be practical to go to the market. If we have an enforcement case, it would not be practical to go to the market, plus the defendant would know we were thinking of taking action, which would not be a very wise thing to do.

Chairman

May we publish Mr. Purcell's statement?

Mr. Declan Purcell

Yes, certainly.

Deputy Pádraic McCormack

My first question concerns the Law Reform Commission. Has there been any proposal to review the way the Department of the Taoiseach handled the Moriarty tribunal?

Mrs. Justice Catherine McGuinness

That would not be a matter of law. It would fall within the competency of the Law Reform Commission. We must work through the programmes of Dáil reform and the requests of the Attorney General which are the statutory duty of the Law Reform Commission. Like any other statutory body we cannot go beyond our statute. We do review factual matters of that sort. When we looked at our report, we looked at how the tribunals had turned out and why we would want to make the kind of recommendations we did. We saw there was a need for some better management of how the tribunals were formulated and costed, but we would not be picking through the figures of the Attorney General or anybody else in the running of the tribunals.

Mrs. Patricia T. Rickard-Clarke

Unless a matter was referred to us by the Government through the Attorney General, as happened in regard to the DIRT inquiry where an issue arose as to whether there should be a Revenue prosecutor or court and the issues of whether there should be such an office was referred to us. We reported on that and at the time we said, "No". It might arise in that context but not generally as a review of work done. We might be asked to address a legal problem.

Deputy Pádraic McCormack

Mrs. Justice McGuinness mentioned flexibility in her contribution. Could she expand on that? What does the flexibility mean?

Mrs. Justice Catherine McGuinness

The flexibility was more in terms of looking at the way legal fees might be controlled. In that way, I will refer to what the Competition Authority said, namely, that there are certain legal areas where tendering might be suitable if one is appearing for a long period of time and one could forecast what was wanted. There are certain areas of the law where one needs a barrister very quickly and tendering processes take considerable time. It would not be practicable. We would see a combination of the different ways of paying legal fees in the running of tribunals which would have to be managed and planned in the most economical way possible.

Mrs. Patricia T. Rickard-Clarke

In regard to the type of legal fees, it comes back to the organisation and issues. In our report we identified three types of public inquiries, a general inquiry, a special inquiry and a mixed inquiry. A general inquiry would be an inquiry into a system issue, whereas a specific inquiry or special inquiry might concern a situation where there are named individuals. A mixed inquiry would be a combination of both. If individuals are named, there is a question of representation, which gives rise to a requirement for an analysis at the initial stage as to what sort an enquiry will be run and the implications of that, in terms of cost. That leads on to another issue which we highlighted, namely, the inquisitorial nature versus the adversarial nature of public inquiries.

The training of lawyers in this jurisdiction is very much on the adversarial side and they should understand it is inquisitorial in nature, something which is in the 2005 Bill. We recommended it should be stated in statute that it is inquisitorial in nature. However, if one mentions the question of named individuals, which automatically gives rise to representation and the right of the individual to representation, which may require a more adversarial approach in the inquiry.

These are issues which should be addressed at the outset, in terms of the project plan on what is intended and the implications of the cost of the decisions which are made at an early stage. The implication of that is one of the lessons which could be learned in planning tribunals.

Deputy Pádraic McCormack

Does Mrs. Justice McGuinness consider that any of the recommendations in the report have any chance of being implemented?

Mrs. Justice Catherine McGuinness

Many are contained in the Bill that is currently before the Oireachtas. It has not come to fruition as yet, but it is for the Oireachtas and not the Law Reform Commission to decide whether it wishes to pass the Bill.

Deputy Pádraic McCormack

Did Mrs. Justice McGuinness examine any tribunals of inquiry in other countries, such as in the United Kingdom?

Mrs. Justice Catherine McGuinness

We examined how tribunals worked elsewhere. The United Kingdom has had problems about tribunals of inquiry which have gone on for a long time. One has only to look at the Saville inquiry to see how its inquiries can also spread into enormous costs. I do not know whether we have a lot to learn in that area. In any area which the Law Reform Commission examines, we look at what is happening in other countries and jurisdictions to see where we can get good ideas and inspiration for reform of the law in this country.

Deputy Pádraic McCormack

I will direct my final question to Mr. Purcell. I was very interested in his suggestions on competitive tendering. Are there any situations in which lawyers compete on price?

Mr. Declan Purcell

Outside the tendering process?

Deputy Pádraic McCormack

Yes.

Mr. Declan Purcell

Lawyers and their representative bodies claim, if one asks them, that there is no more competitive market for people's money and that they are fiercely competitive. However, many people doubt that.

Deputy Pádraic McCormack

Our last session seemed to disprove that.

Mr. Declan Purcell

It is a matter of opinion. The view of the Competition Authority is that we do not try to set some sort of benchmark as to what level the fees should be charged. We try to look for particular things which are stopping people from competing with each other, if competing with each other has the effect of bringing down the price for the consumer. In our report we tried to identify a number of restrictions which, if they were removed, would at least allow more competition to occur. One can take a horse to water but one cannot make it drink.

Deputy Pádraic McCormack

Does Mr. Purcell think he has any chance of having the recommendations of the report implemented?

Mr. Declan Purcell

Some of our recommendations have already been accepted. We made 29——

Deputy Pádraic McCormack

I refer to competitive tendering.

Mr. Declan Purcell

That was our final recommendation. To our knowledge, it has not been implemented in Ireland yet. On the chances of it happening, one probably has to ask a lot of Departments and public bodies about it because while the recommendation was primarily addressed to the Minister for Justice, Equality and Law Reform, we could just as easily have addressed it to the Minister for Finance, the Government collectively or any local authority. However, the Minister for Justice, Equality and Law Reform is the person to whom we address the recommendation.

Deputy Pádraic McCormack

Would Mr. Purcell agree that the State is one of the key drivers in having high costs for legal fees in this country?

Mr. Declan Purcell

In terms of the regime of restrictions and law over which the State presides, which is the focus of our report, I would have to agree because we made a number of recommendations addressed to the Government to try to get some of the restrictions removed.

Deputy Pádraic McCormack

I rest my case.

Chairman

On the recommendations on a commission of investigation or a civil or criminal court proceeding, I am surprised there was no reference to the role of the Oireachtas and its committees in carrying out inquiries or investigations. Does the commission have a view on the decision of the Supreme Court on the Abbeylara case and how we have been handicapped in dealing with issues on a weekly basis?

Mrs. Justice Catherine McGuinness

I cannot comment as I was one of the judges in the Abbeylara case and wrote a judgment on it. I might ask Mr. Byrne to reply.

Mr. Raymond Byrne

In the commission's report it discussed the Abbeylara decision. The commission was under the constraint that it does not make recommendations for constitutional amendments, its role is limited to making recommendations for the reform of legislation. In that respect the commission was limited to noting that the decision in the Abbeylara case has placed restrictions on the role of Oireachtas committees but the commission did not express a view on whether there should be a constitutional amendment. It is an issue that has been debated in the Oireachtas and is a matter for it.

Chairman

It concluded, however, that the only way this major problem for the Oireachtas can be resolved is by constitutional change. There are different opinions and some say amendments to legislation would suffice but the commission has concluded that the only way around it would be a referendum.

Mr. Raymond Byrne

Yes, a referendum to deal with the kind of the inquiry that was being proposed in the Abbeylara investigation — where there were likely to be issues that would give rise to potential civil or criminal liability. That was the particular focus of the Supreme Court decision. That particular form of inquiry would be prohibited, but a systems-type inquiry by an Oireachtas committee would not be. Today we are appearing in front of an Oireachtas committee and it is perfectly entitled when carrying out its functions, to engage in these types of inquiries and to look at value for money on behalf of the taxpayer.

There was a particular aspect to the Abbeylara inquiry and the Supreme Court interpreted that as moving towards a matter which the Supreme Court interpreted was not permissible under the Constitution as it currently stands. As far as the Supreme Court is concerned, that form of inquiry would require a constitutional amendment, but it did not prohibit all forms of appropriate inquiries by Oireachtas committees.

Chairman

Unfortunately our powers as a result of the Abbeylara judgment mean that in cases we have dealt with lately, we have asked the questions but we have been seriously handicapped in passing judgment when we issue reports. We sought extra powers from the Department of the Taoiseach but we have not got a commitment on that. I was interested to hear that it requires constitutional change.

On the self-regulation of the legal profession, is the public getting a raw deal when there are issues of negligence and misconduct? Am I interpreting the Comptroller and Auditor General correctly on that?

Mr. Declan Purcell

Yes. One only needs to look at almost every other profession here and we can see the representative and regulatory split I mentioned in my opening comments. The Medical Council and the Irish Medical Organisation were mentioned but the same goes for almost any profession. In the health care professions, for example, there is a dental council as a statutory regulator on the one side and a representative body that effectively acts as a trade union for its members. That is absolutely legitimate. The legal profession is one of the last professions in Ireland that is holding out for a self-regulatory system.

Looking at England and Wales, with whom we shared a common legal system and structures until quite recently, the same self-regulatory systems existed but the British Government has since changed that and the splitting of roles I mentioned has taken place. There is an independent regulatory oversight body for barristers and solicitors in England and Wales. It is being done in Britain and is being done in every other profession in Ireland.

Chairman

Does the Comptroller and Auditor General share my view that the ombudsman who was set up and funded by the Law Society does not serve the interests of the public in its performance to date and that any office funded by the legal profession is a puppet of the legal profession?

Mr. Declan Purcell

The legal services ombudsman, an office that is yet to be set up, is a creature of statute; it is not a self-regulating mechanism. It will be established by the Legal Service Ombudsman Act, although no ombudsman has been appointed yet. That ombudsman will be appointed by the State.

To have any further assistance available to consumers of legal services is a welcome development. However, it goes nowhere near the fundamental sort of reform that is necessary. It will not, for example, apply any new forms of oversight to the legal profession that it did not already have. Effectively it will add a further small piece to the disciplinary processes of the Law Society, whereas we are talking about a more root and branch reform of the entire regulatory structure, not just one small part of it.

Chairman

Does it not fulfil a role as a protector of the consumer?

Mr. Declan Purcell

It will add some protection in so far as it goes and that is welcome. In terms of the scale of what needs to be done regarding this profession, it is only a small step and a great deal more needs to be done.

Deputy Michael McGrath

It is fair to say that our experience of tribunals of inquiry in recent years is such that any Government would be cautious about establishing any further tribunals of inquiry. The model being played out publicly has failed the taxpayer miserably and it remains to be seen how effective that model is in getting at the truth. That will emerge in due course when we have the final reports. The model needs to be completely reconstructed, however, and this discussion is an important part of the process following the 2005 report and the legislation currently before the House.

In the current sitting tribunals, the chairmen had complete discretion from the outset to appoint senior counsel to act on their behalf, leading to the dramatic increases in costs over the years, with some senior counsel earning in excess of €8 million, perhaps more. From a procurement and a competition point of view how was that done? How is it that the chairperson had sole discretion to appoint senior counsel without any recourse to competition?

Mr. Declan Purcell

I took care to look at the committee's proceedings for 2 July 2009. I note there was a lengthy interplay between the Secretaries General, various Departments and members of the committee on this point. I would not be competent enough to have a view on whether a sole member of a tribunal or the chairman of a tribunal or whatever should have been able to appoint a counsel by himself or herself. All I can say is that there are other ways of doing this which may, looking back at least, offer better value for money and, perhaps, a more accountable use of services. For example, in any walk of life, if one tenders for something, it is generally for a set project that is carefully drawn up for a set period and if there is no performance or under-performance, that can be the end of that and one can recruit somebody else. There is an institutional memory argument that I heard raised before this meeting. The point was made that one does not want people just walking off and holding the State to ransom. I would have every confidence in highly trained legal professionals to pick up the thread of something that somebody else did very quickly. At least, that has always been our experience in the lawyers we have hired for cases. Sometimes for good reason, a counsel we would hire might have a conflict and another person has to come in straight away and pick up the threads. That is what they are trained and experienced in and there is no reason they would not, so I do not see that as an obstacle.

Deputy Michael McGrath

Will Mr. Purcell give his view of the reason legal fees in Ireland, generally speaking, are so high? He referred to a report which indicated that legal fees are high relative to other countries. Given that we read in our newspapers that qualified solicitors are unable to find employment in the legal profession, why is it that fees are artificially high? What are the key barriers to competition in the legal profession?

Mr. Declan Purcell

The first answer to the Deputy's question — please do not think this is glib — is because they can. It depends on the kind of business one is talking about. If one is talking about personal business, for example, the making of wills, probate work, or personal individual business, a solicitor can charge what he or she thinks the market will bear. That is the way life is. There is much evidence, in regard to personal business that there is a lot more savvy out there on the part of individual consumers who do not simply put up with that any more. That is one reason. It is simply because they can charge.

In regard to the other end of the spectrum, and we will stick with the solicitors' branch of the profession, in the case of advisers in a merger transaction or some of the big firms of solicitors, for example, the competition is very intense because they are all trying to get a slice of whatever corporate business is going and would probably cut each other's throats for that business. The kind of round legal fees the World Bank would have been looking at would have been for society and consumers in general and they were way higher than they should have been.

Our take on this, and the evidence we produce in our report led us to conclude, as we conclude with many other professions, that there are too many protections and shelters which protect individual professions from the vagaries of a market. I mentioned in my presentation initially that if one has a dispute with one's solicitor and one wants to get another solicitor, the first solicitor can hold on to one's records and one's file. There is no other profession that I know of where that is the case. If one chooses to move from one dentist to another, there is some professional requirement on the first dentist to give the second dentist the records. That is one instance where that can cause problems and obviously additional costs for consumers. With all the restrictions we identified, one could drill down through them and see that will inevitably lead to higher costs for the person paying the piper. That is what we see across the range of studies we do of various professions and sectors, that there are too many legislative and regulatory shelters under which people, professionals and businesses of all kinds can take refuge. When those are stripped away, costs, fees and prices start to fall.

Deputy Michael McGrath

Perhaps I can ask Mrs. Justice McGuinness——

Mrs. Patricia T. Rickard-Clarke

I was going to make a comment on the Deputy's earlier question about the sole member in regard to selecting, etc. One of the main recommendations in our report was that a central inquiries office should be put in place to gather together know-how, implement procedures that members of tribunals would follow and implement administrative structures. For the taxpayer, this would facilitate much more project planning, cost efficiency and so on and the whole question of fees could be dealt with there. Obviously the nature of the tribunal will dictate what type of legal or other expertise is needed. At the same time, that could dictate how people would be employed, either on a salary basis or by a tendering process or on a module basis. The question of efficiency arises in terms of the modules and how one employs people for specific pieces of work. That is key. Our understanding from our research between 2003 and 2005 and from speaking to people involved in tribunals is that there was a lack of administrative knowledge and a lack of know-how. If people were asked to run a tribunal, perhaps some did not have experience in all the very necessary issues to ensure there was a budget, a plan, cost controls, a reporting mechanism and accountability. None of that was put in place for most of the tribunals and that is a key issue.

Mrs Justice Catherine McGuinness

The situation is that a person who is asked to be in charge of a tribunal or an inquiry is more or less thrown in at the deep end and asked to make decisions. I had the experience of running the Kilkenny incest inquiry which, luckily for me, did not involve a lot of employment of lawyers or anything of that kind and the cost level was very low. Had I not had the administrative back-up of the South-Eastern Health Board at the time, it would have been very difficult for me to start. This is the reason we consider that planning ahead and putting a system in place for running inquiries is important so that when a person is asked to do it, he or she knows there are rules for doing this work and ways of approaching it to make it more efficient and save money.

Deputy Michael McGrath

The Law Reform Commission's report is five years old and the legislation was published five years ago. Given that we have five more years of experience of the tribunal process, has the Law Reform Commission's views changed fundamentally on any issue? Obviously the principles remain the same, as set out in its report. Has its thinking changed following the emergence of——

Mrs Justice Catherine McGuinness

Generally speaking, when we conduct a project like this and produce a report, that is the end of our involvement in it. We would proceed to the other parts of our programmes of law reform or our responses to requests of the Attorney General. We have not gone back as a body to examine any individual feelings we might have. We have not gone back as a commission to re-examine that and therefore I could not say we had added anything to our——

Deputy Michael McGrath

Does Mrs. Justice McGuinness believe there is a need to do that or does the report stand?

Mrs. Justice Catherine McGuinness

We would be hopeful at least that the Bill now before the Oireachtas could be brought into law. It seemed to get held up at an earlier stage for one reason or another but perhaps the position now requires it at least as much if not more than it did when it was first brought before the Oireachtas.

Deputy Michael McGrath

Hear, hear.

Chairman

In Mr. Purcell's response to Deputy McGrath earlier he said lawyers are trained to pick up a brief or a position if somebody leaves, and that they can do that fairly easily. That is my interpretation of what he said.

Mr. Declan Purcell

It was speculation on my part. It was a conclusion on my part just from observation because that is what one sees them doing.

Chairman

Can I take it from that that if the Government called those lawyers' bluffs and told them if they are not happy with what they are getting they should walk, Mr. Purcell believes there would have been many other lawyers who would have been glad to operate at the fees operational at the time?

Mr. Declan Purcell

I will not comment on what the Government could or ought to do in this particular case but I answer the Chairman's question by saying that is what happens in every other walk of life. If I do not like the job my car mechanic is doing or, perhaps more relevantly, the way my general practitioner is treating me, and he is dealing with my health and my life and therefore it is somewhat more problematic, I can change, and I do. I can change my solicitor if I wish. Why should I not do that? The Government is no different from me to that extent.

Chairman

I interpret from Mr. Purcell's comments that they should have been allowed walk, that there would have been many others available to take up the work and that the tribunal would not have been at risk.

Mr. Declan Purcell

I would have to say "Why not?"

Chairman

My next question is for Mrs. Justice McGuinness and it concerns the central inquiries office. Where does she envisage that office being located? Would it be within a Department, an agency or would she like to see a separate agency similar to the Standards in Public Office Commission?

Mrs. Patricia T. Rickard-Clarke

In the report we set out a number of alternatives such as the Attorney General's office, the Department of the Taoiseach or the Department of Finance. We did not come down one way or the other in that regard but we said it was an issue that should be seriously examined, with the Government deciding the appropriate office for it. We felt that a running office would not be appropriate but that there should be a core element of knowledge available to ensure, in terms of when public inquiries are set up, that before a full public tribunal of inquiry is set up we would examine the other options first and then decide on the procedures, depending on what route is taken.

Deputy Thomas P. Broughan

I welcome our guests. Apologies for my absence earlier. I was working on the merchant marine Bill for the past few hours.

I want to make some brief points. On the Competition Authority, I am aware Mr. Prasifka is coming towards the end of his term and he seems to believe the major logjam regarding the authority's proposals, which I am sure most citizens would believe are reasonable, is the Department of Justice, Equality and Law Reform and that the Department appears to be operating as part of the great lawyers' trade union to ensure there will not be any fundamental reform. Is that the case? Does the Department of Justice, Equality and Law Reform have a case to answer? This committee is interested in controlling State expenditure but is it the authority's perspective that the Department of Justice, Equality and Law Reform is not interested in controlling State expenditure?

Mr. Declan Purcell

The Deputy has asked two questions. On the first one about Mr. Prasifka, his term is up. He has gone to another appointment and we are currently "chairmanless".

On the second wider question about the recommendations we have made, we have made about 29 recommendations in this report, about half of which were addressed to the Minister for Justice, Equality and Law Reform. Incidentally, by far the most important of them were addressed to the Minister. I would answer the Deputy's question in this way. Most of the remainder of the recommendations we made were to the Bar Council and to the Law Society. They were more minor but they were still to those bodies, and several of those have been implemented. On the State side, I believe we made about 15 recommendations to the Minister and one of those has been implemented. That was to do with the use of the Irish language. The rest of them have not yet been implemented. I am afraid that has to be my answer to the Deputy's question.

Deputy Thomas P. Broughan

Under the authority's normal powers regarding competition law, for example, the oil business which is another portfolio on which I represent our party, it has a clear remit. Are there any sanctions it could take against outfits like the Bar Council? I note its report states it has no statutory basis. Are there any ways in which it could use its powers effectively to prosecute restraint in the legal profession, in other words, to take vigorous action, if necessary, in the courts against people in the legal profession who are restricting competition? Can that be done?

Mr. Declan Purcell

In theory, yes. I say "in theory" because if we take the Bar Council as an example, it is probably the case, and I am not a lawyer and therefore I am not giving a legal opinion, that the Bar Council is what is called in the Competition Act an association of undertakings. If we got a series of complaints we could probably investigate those using our enforcement powers depending on what the complaint was, whether it was substantiated and so on. In theory, we could do that if the complaint alleged was an offence under the Competition Act.

Deputy Thomas P. Broughan

The independent commission's analysis is that that is the correct way to proceed.

Mr. Declan Purcell

Yes, without going all the way down the legal route over a long period of time, with a lot of money being spent. What we do and what I am responsible for in the Competition Authority is to advocate more competition in the economy. That is our statutory function but there is no compulsory element to it. We rely on the power of persuasion and the power of the argument, and it pays dividends in many sectors of the economy. Many Departments have been quite active in adopting our recommendations and stripping away bits of regulation or law here and there, and obviously one would be happy with that but the result is mixed. There is nothing else to say except to admit that.

Deputy Thomas P. Broughan

On the Law Reform Commission report and the comptroller's report, I recall meeting people while canvassing in a by-election some years ago at a time when the two main tribunals had been running for some years. Many of our constituents told us that no matter how long it takes or how much it costs they wanted to know the truth. That is still the belief of many Irish people regarding the Flood, Mahon and Moriarty tribunals. They want to know the truth. Both tribunals have had to battle against serious intimidation recently, the Moriarty tribunal in particular, yet they have carried on and have shone light on very important areas of Irish life. I do not know how their contribution can be quantified. Our job is to quantify things in terms of the expenditure of the State, and we would be critical of the systems used, but it must be remembered that the Flood and Mahon tribunals in particular have shone light on unsavoury if not to say criminal areas of Irish life which is valuable and about which the public wants to know.

Recently, and astonishingly, the Houses of the Oireachtas voted, effectively, to reverse the finding of a tribunal of inquiry, the Stardust tribunal. That tribunal lasted less than a year but its key finding was effectively reversed, as far as I could see, by a declaration of the two Houses, supported by the Taoiseach. That also must be borne in mind. However, with regard to the key recommendations, is there any evidence that the recommendations that were made at that stage have been incorporated into the ongoing work of the two main tribunals?

Mrs. Justice Catherine McGuinness

Not as far as I know. I am not sure of the situation there but I imagine efforts are being made to cut back on the additional costs of the tribunals. The Department of Finance would probably know more about that than me. The commission would agree with regard to what the Deputy said about the value of the tribunals and the inherent value of finding out the truth. We acknowledged in our report the real importance of having a public process of inquiry available in addition to having private inquiries. It is important that the State should have this form of inquiry available as well. What we were looking at was basically the efficiency of running it. We are certainly not saying we should cease to look into matters of this nature.

Deputy Thomas P. Broughan

Thank you.

Chairman

Mr. Eamon Saunders is from the Department of Justice, Equality and Law Reform.

Mr. Eamon Saunders

That is correct.

Chairman

With regard to the findings of the Competition Authority, Mr. Purcell said that only one of 15 recommendations that went to the Department has been implemented. I accept this is a policy matter but will you convey to the Department the views expressed here today? We will draw conclusions about the inadequate response by the Department to the Competition Authority's findings and recommendations.

Mr. Eamon Saunders

Absolutely, Chairman.

Chairman

Mrs. Justice McGuinness, there have been a number of calls for a comprehensive banking inquiry to be carried out by the Oireachtas. Do you believe the Oireachtas has the powers to carry out the necessary inquiry or would it require legislative changes or a constitutional change?

Mrs. Justice Catherine McGuinness

I will not give an opinion on that off the top of my head, especially as I would be speaking personally rather than on behalf of the commission. It is not a matter the commission has examined and we would have to be given a reference from the Attorney General to embark on such an inquiry and have time to think about it.

Chairman

Thank you. I thank everybody for their patience and responses to our questions.

The committee will evaluate the evidence taken today in conjunction with the evidence taken on 2 July 2009 and consider whether a special report should issue on it. Pending that decision, it is agreed that the committee dispose of Special Report No. 63 of the Comptroller and Auditor General. Arising from today's evidence, we must talk to the Department of the Taoiseach again because with many of the questions we were told that the agencies represented here and the Department of Finance were not in a position to answer them. I suggest deferral of noting this report until we consider the evidence today as quickly as possible and decide whether we need to recall the Department of the Taoiseach. Is that agreed? Agreed.

The agenda for next Thursday, 1 April, is Chapter 4 of the annual report of the Comptroller and Auditor General — financial commitments in the public private partnerships; Chapter 9 — termination of major ICT projects; Chapter 20 — central Government funding of local authorities; the Affordable Homes Partnership annual report 2008 and Special Report No. 65 of the Comptroller and Auditor General on affordable housing delivery.

The witnesses withdrew.

The committee adjourned at 1.46 p.m. until 10 a.m. on Thursday, 1 April 2010.