Committee on Finance. - Solicitors (Amendment) Bill, 1958—Second Stage. – Dáil Éireann (16th Dáil) – Tuesday, 8 Jul 1958

Committee on Finance. - Solicitors (Amendment) Bill, 1958—Second Stage.

Minister for Justice (Mr. Traynor)

I move that the Bill be now read a Second Time. The object of this Bill is twofold. First of all, it proposes to provide for striking off the roll the name of a solicitor or his suspension from practice, or his admonishment in any case where he has been found guilty of misconduct. Secondly, the Bill, if enacted, will enable the names of solicitors which have been struck off the roll unconstitutionally to be struck off in a constitutional way, if the High Court decides that this should be done.

The need for this Bill has arisen because it has been decided by the Supreme Court that some of the provisions of Part III of the Solicitors Act, 1954—and, notably, those which provide for striking the name of a solicitor off the roll—are repugnant to the Constitution.

There will, I am sure, be general agreement that the position which has arisen as a result of this decision should be rectified with all possible speed. The solicitor's profession is one which brings its members into close and intimate association with members of the public and it is plainly in the public interest that a solicitor who is guilty of professional misconduct should be subject to severe penalities including, in proper cases, the penalty of being put out of the profession. This is the more necessary because a solicitor is often placed in such a position that he has in his hands money belonging to his clients which, if he is dishonest, he may dispose of to his own personal advantage and so defraud innocent people.

The 1954 Act purported to give the power of striking off or suspending from practice to the Disciplinary Committee of the Law Society with the right of appeal to the Chief Justice. The Supreme Court have now held that the right of appeal is not sufficient to bring provisions, otherwise unconstitional, within the Constitution. The Bill proposes in Section 3 to give the power of striking off, suspending from practice etc. to the High Court, which shall in addition have power to impose a fine, a power not given to the Disciplinary Committee by the 1954 Act. In particular cases, the matter will be brought before the High Court on a report by the Disciplinary Committee after it has held an inquiry. This inquiry is provided for in Section 2, under which the committee may inquire into the conduct of a solicitor alleged to have committed misconduct as defined in the section, and when the inquiry has been held the report of the committee is to be set down by the Law Society for hearing by the High Court.

Sections 2 and 3 are to deal with cases of striking off, etc., in the future. Section 6 covers cases where the Disciplinary Committee have already purported to strike off. In such a case, jurisdiction is being given to the High Court to strike off the roll any name purported to have been struck off. There are a number of these cases. In the instance of any solicitor concerned, the Law Society will apply to the High Court under Section 6 to have the solicitor properly struck off; and the High Court will have before it the evidence which was before the Disciplinary Committee. If satisfied with this evidence, the court may order that the name of the solicitor in question be struck off and any such order shall have effect from the date of the original purported striking off by the Disciplinary Committee under the 1954 Act. However, though the order of the High Court is being made retrospective, it will not affect the solicitor's right to collect costs for any work done by him before the date of the High Court order nor will it make it an offence for the solicitor to have practised as such before that order.

I now come to Section 9 of the Bill. This section confers an absolute privilege on any acts done by the Disciplinary Committee or their registrar in purported exercise of the powers conferred on them or him by the 1954 Act. This means that the committee cannot be successfully sued for libel or slander in respect of orders made by them striking off the name of a solicitor or suspending him from practice or in respect of the filing and publication of such orders. It is only right, I think, that a body which was acting in good faith in pursuance of statutory powers should be given this protection in the circumstances that have arisen.

The section also clothes with absolute privilege the making of reports to the High Court under the Bill or the setting down of such reports for hearing by the High Court. At this point it will be convenient to mention that there is a printing error in Section 9 (1) (b) of the Bill where the second reference to the Disciplinary Committee should be are reference to the Society. This can be corrected at the Committee Stage.

In addition to protecting the Disciplinary Committee and the society against actions for defamation, it is also desirable to protect persons, including the society, who make or have made applications to the Disciplinary Committee in regard to the conduct of a solicitor or who give or have given information in connection with such application. These persons are being protected in Section 9 (2) by what is called in law qualified privilege. This means that they will have a good defence to a libel or slander action unless they acted maliciously: that is to say, unless their conduct resulted from a wrong or indirect motive.

As provided by Section 8, the jurisdiction of the High Court is to be exercised by the Chief Justice or by a judge of the Supreme Court or of the High Court assigned by him, and Section 7 provides that an order of the High Court under the Bill shall be final and not appealable.

Section 4 of the Bill deals with the removal of a solicitor's name from the roll at his own request. Removal may be effected by the Disciplinary Committee or if they refuse to do so by the High Court. Under Section 5 the High Court may restore a solicitor's name to the roll where that name has been removed or struck off.

The remaining sections of the Bill are largely consequential and provide for the re-enactment of the existing provisions of the 1954 Act, which it is desirable to retain, and for the requisite repeals.

In recommending this Bill to the House, I should like to express my thanks to the Council of the Incorporated Law Society for their cooperation and assistance in helping me to frame the measure. It may be that I shall have to propose some minor amendments on the Committee Stage. However, they will not be amendments of substance and I do not propose to take up the time of the House by discussing them on this stage. They are at present being examined. As the House knows, our intention is to have this Bill through the Dáil this session.

Mr. J.A. Costello

I had some very close association with the passing of the Act which is called in this Bill the Principal Act, namely, the Solicitors Act, 1954. Accordingly, I would give general support to this Bill being Conscious of the fact that it is brought in to meet a serious difficulty. I have made it a rule never to express anything approaching a constitutional opinion on matters of constitutional law arising out of a Bill before the House. I propose to adhere to the same practice on this occasion and merely to hint that in one minor respect I am rather hesitant in thinking that the provision is really constitutional. I have no doubt the Minister has received adequate and expert opinion on the constitutionality of this Bill, particularly having regard to the fact that the Principal Act in certain respects has been declared to be unconstitutional. While general approval of the Bill should be given, certain matters may arise for discussion on the Committee Stage, it being agreed, I think, on all sides that a measure of this kind should be approached with a view to seeing that the best possible Bill will be secured in the public interest and that it will not unduly trespass upon the private interests of practising solicitors.

I agree with the Minister's statement that the public do require to be protected against defaulting solicitors. There are, however, many extenuating circumstances that arise sometimes when professional men get into difficulties and their cases has to be treated with a certain amount of sympathy. I should like to know from the Minister if a draft of the Bill has been given to the In corporated Law Society for their approval and if they have approved of it. I gather from the Minister that he did receive assistance from the Incorporated Law Society and that, of course, was understandable.

While the matters I mention would be more properly dealt with on the Committee Stage, I think it right that I should draw the Minister's attention to them so that he may consider them. I am rather uneasy about the provisions of Section 3. The procedure-putting it shortly and not necessarily accurately in every way—is that where a complaint is made against a solicitor that he has been guilty of professional misconduct or has failed in his duty towards his client, the Disciplinary Committee has to inquire into the allegation, take evidence and make a report. Under the provisions of the Bill the Disciplinary Committee on that evidence shall make a report to the High Court expressing at the same time an opinion as to what the High Court ought to do. The High Court them takes that opinion as it comes up and on that report, and on that report alone, except in one particular respect, the High Court must express an opinion. I am a little uneasy as to the constitutionality of this provision.

I would have been less uneasy if the procedure had been that a report would be made by the committee to the High Court who then exercised their judgment upon that report and took such evidence as they thought fit, but the High Court is presented with a report and an opinion and it is only where fresh evidence could be given in accordance with the practice of the hearing by the Supreme Court of an appeal from the High Court, that the High Court can take fresh evidence. That seems to me to be extremely restrictive. I doubt very much whether that is strictly constitutional and whether it is strictly in accordance with justice.

It would, to my mind, have been preferable to provide that the Disciplinary Committee would act as a fact-finding committee, make up their own minds in their own fashion and give their own opinion, but let there be a full appeal to the High Court. I would have no doubt whatever then as to the constitutionality of the procedure. I go back to the time when the new procedure of appeal from the Circuit Court came before the High Court. The whole basis of that original appeal was that the High Court should exercise a pretty elastic hearing of the appeal from the Circuit Court. That was the former practice and is the present practice, and the Supreme Court held they would hear that appeal on the basis of an appeal from a judge without a jury.

The position here is that the case will be taken as it stands. There will be no documents. The High Court judge might find himself in disagreement with the decision, and say: "If I had to decide this case originally I might have come to a different decision but as the facts are found by the Disciplinary Committee and as they have expressed an opinion, I do not feel inclined to interfere with the judgment." If my recollection is not inaccurate, the position as regards doctors, medical men generally, and all other professional men, dentists, veterinary surgeons and so on, is that they have a full appeal to the High Court from the decision of the disciplinary bodies.

I mention these matters merely that they may be adverted to in the consideration which the Minister and his advisers will give to the Bill in the interval between the Second Reading and the Committee Stage. I am sure the Minister will appreciate I am not mentioning it merely for the purpose of raising difficulties but for the purpose of directing attention to what I see may be difficulties which the Minister should consider.

There may also be some doubt and certainly some controversy on the subject of the High Court more or less giving legislative sanction to actions by the Disciplinary Committee which have been declared illegal and unconstitutional. There may be controversy about that, arguments certainly, as to whether in the event of a man obtaining a judgment of the Supreme Court that the action in removing him from the rolls was unconstitutional, automatic steps may be taken by virtue of an Act of Parliament to copper-fasten the original position. It may be strictly within the Constitution to express an opinion on that on the merits one way or the other, but I should not like to express an opinion at the moment. Certainly, some of these people appear to think they have had cause of action against the Incorporated Law Society and whether they should be deprived of that is a matter for debate and argument, at least, on which I express no opinion at the moment. Subject to these observations, I think something in the same nature is desirable. Accordingly, we shall support the measure.

Mr. McGilligan

I agree with Deputy J.A. Costello that legislation of this type is necessary even if it is not in exactly the from in which we think it is required. I also agree that it is necessary that we should get this patchwork legislation through as soon as possible so as to close the gap shown in the original Act of 1954 as revealed by the recent judgment.

I have some doubts with regard to two or three of the points mentioned by Deputy J.A. Costello. Apart from the question of whether or not what is proposed in the legislation would pass the test of constitutionality, I do not know why it is thought necessary to put in certain clauses.

Deputy J.A. Costello mentioned that, under Section 2, when the Disciplinary Committee hold an inquiry they then make a report, bring the whole matter to the notice of the High Court and include a recommendation to be made by the Disciplinary Committee, as to the order that they think should be made under Section 3. Why it is necessary to have a recommendation proceeding from them, instead of stopping short at the point of the Disciplinary Committee's finding certain facts after reporting to the High Court, I do not know.

The Minister will probably tell us the reason for giving to the Disciplinary Committee power to make a recommendation to the High Court— apart from the recent judgment that the Chief Justice, sitting as a person on an appeal from the activities of the old Disciplinary Committee, had taken the view with regard to what the Disciplinary Committee did that it was not open to him to swerve in any great degree on what the committee had recommended. I think that was one of the points on which the 1954 Act foundered, according to the judgment. It might lead to a conflict in the courts in relation to this matter.

I am mentioning points that ordinarily would be reserved for the Committee Stage. However, we are told, and we agree, that it is necessary to have this legislation through before the end of next week and therefore I think I may make these points now, even on the Second Reading.

With regard to Section 3 (1) (d), page 4, about line 10, the High Court, after hearing the case, may do certain things. It can order the striking off the roll of the name of the solicitor; it can order the suspension of the solicitor from practising for such periods as the High Court may determine or it may admonish the solicitor or admonish him and, by order, impose a fine upon him. Why is it not said that the High Court may refuse the application? I presume the answer will be that, if they do not strike off or suspend or admonish, the position is satisfactory so far as a solicitor is concerned. Costs arise after that. The payments of costs is related entirely to the payments by the solicitor whose professional conduct has been impugned.

Supposing the High Court finds that something being done to the solicitor because of alleged misconduct is not good and refuse. Has he, if he has successfully got through the ordeal, to meet his costs? There is nothing in the Bill as to such a solicitor, or anybody else, being given his costs. I suggest it would not be any blight upon the Bill to indicate that at least the High Court has power to refuse the application. All that is provided here is to do three things which are adverse to the solicitor.

Section 6 deals with the jurisdiction of the High Court to strike off the roll the name of any solicitor in respect of whom an order striking his name off the roll was purported to have been made under the earlier Act. I gather that this is an effort to make good the defects in the old Act. If the High Court, on the application of the society, finds that the people already struck off should have been struck off, then the High Court decide and, if they decide, the striking off operates from the old date. That may or may not be found good constitutionally. Supposing it is good constitutionally, why is it necessary to make the jurisdiction or the striking off operate from the earlier date? What would happen if it operated only from the date the High Court made the order?

I recognise that it is provided in the legislation under this same Section 6 (c), (i) and (ii), that, if the High Court makes an order striking the name of a solicitor off the roll, it shall have effect as on and from the operative date on which the purported order was made but not so as (i) to affect the right of the solicitor to recover any costs due to him for work as a solicitor during the period commencing on the operative date and ending on the date on which the order is made by the High Court or (ii) to make it an offence for the solicitor to practise as a solicitor during the said period.

Section 7 deals with the finality of orders of the High Court under Sections 3, 4, 5, or 6 of this Bill. Why has it been thought fit to make the High Court judgment final and not appealable? I do not see anything wrong in doing that. I think the legislative body has a right to say this. Appeal to a Supreme Court is limited. It does not proceed from the orders and judgments save where otherwise directed. Why is it thought necessary to prohibit an appeal, which would be the ordinary thing, from a decision of the High Court in such a case?

One of the things mentioned in the judgment as lending force to the contention that the Disciplinary Committee were performing a judicial function was the powers given under Section 19 of the original Act. Section 10 of this legislation adapts Section 19 of the Principal Act. The only adaptation is that the powers given to the original Disciplinary Committee are now given to the Disciplinary Committee under this piece of legislation. They are usually described as all the powers of a judge of the High Court type in respect of enforcing attendance of witnesses, putting people under oath, compelling the production of documents. These were two or three of the things to which the judgment of the Supreme Court referred, lending a good deal of strength to the argument that what was done by the old Disciplinary Committee was something of a judicial nature and then it was decided that it was not of a limited type.

There is a reference in page 8, towards the end of Section 12, to where publicity can be achieved for certain entries made in these two files that will be set up. But, towards the end of Section 12, it is said that care has to be taken—where a note has been inserted at the direction of the society that the furnishing of a report might cause injustice. I do not see where, positively, in this legislation that power is given to the society, that is, that they should be entitled at times to direct the insertion of a note that publicity of a creative type might work unjustly. I would ask the Minister to see if it was gathered in as an inherent power that the Disciplinary Committee would have or whether it is proposed to give them, in explicit terms, a power such as this.

Section 13 deals with application of the Bankers' Books Evidence Act, 1879. An application to or an inquiry or other proceeding before the Disciplinary Committee is to be a legal proceeding within the meaning of that expression as used in the Bankers' Books Evidence Act, 1879. The purpose is clear. It is, I suppose, in order to have easy production of entries from bankers' books. The proceedings before the Disciplinary Committee are regarded as legal proceedings. That clearly does affect the matter.

The Minister might take advice as to whether any reference to the Bankers' Books Evidence Act, 1879, is worth anything at the moment. Bankers are defined, for the purposes of this Act, as people who have duly made a return to the Commissioners of Ireland Revenue. I understand that no bank makes such a return nowadays. It would appear that no institution could qualify on a strict interpretation as a banker for the purposes of that Act.

That question was brought to the notice of the courts in England many years ago. The result was that in the Companies Act of 1948 there was an amendment to the effect that if a group of people carrying on the business of banking made certain returns to the company's office, then that precluded the necessity of making returns to the Commissioners of Inland Revenue. The Act has been called in question by some judges as being by no means clear. The Act has staggered along so far, but it might be improved by some amendment by way of the adaptation of the company law to ensure that the banks, as we know them, would be covered.

Finally, I presume this is the first effort in the immediate emergency in connection with solicitors to get some association of limited powers of a judicial nature to be carried out by people who are not judges appointed under the Constitution. There are many other bodies who may find that disciplinary committees which they have established would also come to be declared as carrying out powers and functions of a judicial nature, which would not be regarded as limited, and which might fall under the sweep of the judgment in the solicitor's case.

I understood that the judgment had been considered not merely in relation to solicitors but to other groups. The judgment did, of course, expressly exclude people who entered into an arrangement of a contractual type, whereby they allow themselves to be controlled in their activities by a disciplinary body but where disciplinary committees are established or control given to anybody in a piece of legislation, then the eyes of the courts may again light on such bodies and, as I say, the sweep of the judgment was very wide. The judge who delivered the judgment, speaking of limited powers and functions of a judicial nature, did say anything that affected people in their lives, liberties, fortunes or reputations could not be considered limited. If that is to be extended to other professional bodies, I should imagine that there will have to be a considerable amount of legislating for other groups such as the medical profession, the veterinary profession and such other groups.

We are dealing at the moment with the one group whose fortunes have been affected particularly by the judgment and certainly we will help the Minister to get this legislation through at the earliest possible moment in order to meet the emergency situation that has arisen.

Mr. Traynor

The first thing I should like to say is that I can give no assurance that the Bill will be any more constitutional than the Act which it proposes to replace. I say that merely as a layman. I feel certain that when the 1954 Act was going through this House as a Bill, it received the fullest discussion. I feel sure that before it ever reached the House it received all the consideration that a Bill of its character should receive. I can say the same in respect of the present Bill.

My first reaction when I studied this Bill was that it was a simple Bill, couched in simple language. That was the impression I got. I studied it section by section, sub-section by sub-section, and paragraph by paragraph and I thought I undersood it. I thought it was drafted in clear language and expressed what it was intended to express. Personally I was satisfied that this was a Bill to amend a situation created when the 1954 Act was declared unconstitutional. The Bill has received all the consideration that could be given to it by the people most capable of dealing with this subject.

The Bill was in fact submitted to the incorporated Law Society. It is designed, among other thing, to protect the committee of that society for acts resulting from the operation under the 1954 Act. If the Leader of the Opposition, Deputy McGilligan, or anybody else thinks that this Bill can be improved, there is no reason why an amendment should not be put down. We ourselves will have a number of small amendments; we may possibly have one of some importance that might meet some of the views expressed by the Leader of the Opposition and by Deputy McGilligan. If it is thought that the Bill can be made better than it is at present and if it can be made secure against another declaration of unconstitutionality, then I shall be very happy to receive the appropriate amendments. Naturally, none of us wants to enact a Bill that is of doubtful quality constitutionally and that may, in the future, cause the same difficulties as the 1954 Act has caused.

If any Deputy feels there are sections in the Bill that can be improved, I shall be glad to hear about them. Of course, we do not want to bring in anything that is not connected with the particular matter that gave use to the declaration of unconstitutionality. We do not want to utilise this Bill to bring in matters other than those with which the Bill is intended to deal. Personally I felt certain that the legal. authorities who dealt with this were giving me a Bill that would be fairly copper-fastened against any danger of another declaration of unconstitutionality. I want to say, without any disrespect, that it amuses me very much—and I want to emphasise that this is without any disrespect—to hear this Bill, which was brought in with the designed purpose of ensuring that its provisions would be constitutional, now at its very birth, being queried as likely to be unconstitutional in certain aspects. If there is anything in the Bill that has even a suspicion of unconstitutionality about it, I would appeal to Deputies to give me their help to ensure, as far as the House can ensure it, that the Bill will be within the constitution and will become an Act that will attain the object for which it is being brought in. I do not think I can say anything more than that. The whole matter can be dealt with in a much fuller way when we come to Committee Stage.

Mr. M.J. O'Higgins

Before the Minister concludes, could he give an indication of what is the "amendment of some importance" he forecast for the Committee Stage?

Mr. Traynor

The question is—I am not sure whether Deputy Costello or Deputy McGilligan referred to it—as to whether the High Court would be the right tribunal to deal with the misconduct of a solicitor or whether the Chief Justice himself should be the tribunal. I have considered this question. I asked myself: if the Chief Justice were to deal with these matters, should we have an appeal to a higher tribunal than the Chief Justice? Like Deputy McGilligan, I feel that there might be an appeal from an order striking off a solicitor's name, but those who are advising me do not at the moment seem to share my viewpoint. Naturally, being a layman, I did not press it. If the Chief Justice is to be the Judge, then to whom is the appeal to be made? I suppose it could be to the Supreme Court, but that would prevent the Chief Justice from sitting in the Supreme Court on an appeal from himself? That is the difficulty. I shall examine the question again.

Question put and agreed to.

Dáil Éireann debate -
Tuesday, 8 Jul 1958