I thank Deputy O'Brien, Deputy Browne and others for their contributions which have informed us on this Bill. We are glad that the Bill is generally welcomed and we take note of the reservations and criticisms which have been expressed. There is no doubt that some changes will have to be made on Committee Stage as a result of those criticisms. However, as I said already, we will not adopt a dogmatic attitude towards non-contentious legislation. Particularly in regard to the regulation of a very important profession in our community, we should adopt an all-party approach. The Bill, in its final form, should be a distillation of all the experience, wisdom and views expressed by Members. It is my intention — I know it is that of the Minister too — to take on board valid criticisms and points voiced not merely from our side of the House but from the Opposition side as well.
The main discussion on this Bill related to sections 73 and 74 which empower banks and trust corporations to provide probate and conveyancing services. Some Deputies, such as Deputy McCartan, did not object in principle to opening up these areas of work to these financial institutions but wanted to see adequate safeguards included in the relevant sections before they would support the proposals. Other Deputies seemed to be completely opposed to the proposals, and opposed them in principle. All Deputies who referred to the matter had some reservations — and I agree with them — about what is proposed. There was a common concern expressed in relation to the control of banks, including the provision of conveyancing and probate services. We were asked who regulates the banks?
The first thing I want to say about sections 73 and 74 is that they were drafted solely with the consumer in mind. There was no intention to increase in any way the profits of banks or of other financial institutions. The aim behind the provisions of sections 73 and 74 was to provide consumers of legal services with a choice. The theory was — and this is the fundamental assumption underlying the report of the Fair Trade Commission — that if one abolishes the monopoly in those areas, if one introduces other institutions which can compete in the provision of these everyday important services, one will achieve greater efficiency and reduced costs. Whatever may be the ultimate effect of this, I want to assure Deputies on all sides that is the theory behind sections 73 and 74.
My respected and very experienced colleague, Deputy Lenihan, seemed to be of the view that there was already sufficient competition among the solicitors' profession in view of the fact that there are now some 3,500 practising solicitors nationwide to cater for approximately three million people. He could not understand why these two very important services and elements of solicitors' work and practice should be taken away from this vast body of competing people and handed over to the banks and financial institutions. Of course, that is not the reality; the reality is that the consumer is being afforded the opportunity to avail of the services of those institutions as an alternative to going to one of the 3,500 practising solicitors. From that point of view I have to disagree with Deputy Lenihan's contention in that regard.
The proposal in sections 73 and 74 will implement the minimum proposal of the Fair Trade Commission for deregulation in the areas of probate and conveyancing services. The approach adopted by the parliamentary draftsman of my Department, who drafted the Bill, is the minimalist approach in this regard. There is no doubt that there is scope to go much further but this constitutes the minimumvis-à-vis what was suggested. Therefore, it will be seen that the proposals reflect a deliberately conservative approach in opening up these areas of work hitherto reserved exclusively to solicitors because of the inherent importance of the legal services involved. It is my belief that by confining the degree of deregulation, initially at least, to financial institutions it will be easier to ensure that a professional level of services will be provided to the public, that adequate safeguards can be put in place and that effective, independent supervision and control will exist over the provision of these services by banking companies and trust corporations.
To put these proposals into perspective, first, let me take conveyancing. Deputies will recall that in 1989 the Oireachtas enacted the Building Societies Act one of whose provisions allowed building societies to provide conveyancing services. Deputies will be aware also that there is now, in my view, healthy competition between building societies and banks in the provision of mortgage finance.
Section 74 of this Bill contains similar provisions to be applied to the provision of conveyancing services by banks. With building societies and banks competing vigorously in the mortgage finance market, clearly it would be anomalous if one group of financial institutions were empowered to offer a further service, namely, conveyancing, which is almost inextricably bound up with financing a property purchase, while another group were limited to providing mortgage finance alone; in other words, as matters stand at present, the balance is tilted unfairly in favour of building societies in relation to the mortgage finance market. That is obvious discrimination for which there is no good or obvious reason; hence the provisions of section 74 which extend this facility to banks.
Many Deputies were concerned — and when I first read the Bill as a backbencher I too was concerned — about the safeguards that would be provided to cover compensation for fraud and negligence, conflicts of interest, confidentiality and abuse of information coming into the possession of the banks in the course of a conveyancing transaction. I share Deputies' concern at the need to provide safeguards in regard to these matters, but, if one examines the provisions of section 74 in detail, one will see that there is a whole range of provisions which will enable such safeguards be put in place before banks can provide these services. Some will be the subject of regulations I will be empowered to make. This will allow some flexibility which is important when new arrangements are being introduced. The Department of Justice and the Minister for Justice will have power to deal with any problems that may arise in practice. I would much prefer that approach to that suggested by Deputy McCartan, which was that all safeguards should be expressly set down in the section. That would constitute a rather inflexible approach. I would prefer the more flexible approach adopted in the Bill as drafted.
I might also remind Deputies of the assurance given earlier in this debate by my predecessor that, in making the necessary regulations, it is the intention to ensure that conveyancing services provided by banks and building societies be provided under the supervision of qualified solicitors employed by those institutions; that is of paramount importance. The Minister for Justice will be entitled to do so under the regulations. This should ensure that the conveyancing services provided by banks will be carried out in a proper professional manner. The Minister will be empowered under the section to ensure that adequate compensation is available to clients who suffer loss due to any fraud or dishonesty by officers or employees of banks in connection with the provision of conveyancing services. That will be covered in the regulations also. Given their extensive financial resources banks should be in a relatively easy position to meet any requirements in this area.
The provision of conveyancing services by banks will be subject to all the provisions of section 74 and all the provisions in the regulations which the Minister will be empowered to make under that section. However, the matter of control does not end even there. I might remind the House that all banks come under the continuous supervision of the Central Bank, the statutory supervisory body of banks. I do not want to go into detail on this matter today — that can be done on Committee Stage — but, in itself, that will provide a very stringent extra layer of control over the provision of the conveyancing and probate services by banks.
In relation to probate, the proposals in section 73 of the Bill are that banks and trust corporations, as defined, should be able to provide probate services for reward. I want to emphasise that what is involved here are the present restrictions imposed under section 58 of the Solicitors Act, 1954, on the preparation of wills and the taking of instructions for and preparing documents to apply for or oppose a grant of probate. Banks and trust corporations are already empowered to act as executors of wills and be granted probate when nominated as executors. That has been the position since 1965. Banks and trust corporations are regularly involved in the administration of estates which usually represents the most onerous and difficult aspect of work in this area involving the collection of the assets of a deceased, the payment of debts and then the distribution of the net assets. Therefore, it will be clearly seen that the institutions involved in the provisions of section 73 are already experienced in the administration of estates. Indeed, some banks have specific trustee departments concerned solely with this type of work or related work. I am not aware of any general problems experienced by the public in regard to the provision of these services. It is relevant to point out that, in his recent first annual report, the Ombudsman for credit institutions did not refer to any complaints on the part of members of the public in regard to the executor or trustee business of these institutions.
I should also mention that, when the original statutory restriction on preparing legal documents relating to real or personal estate was introduced under the Stamp Duties Act, 1891, the drawing up of wills or other testamentary instruments was specifically excluded. That remains the position today in Northern Ireland, England, Wales and Scotland so that anybody, and not just banks and trust corporations, can prepare a will for reward in those jurisdictions. The solicitors' profession here secured a new monopoly in this area in the 1954 legislation.
The other activity which is being deregulated under section 73 is the restriction on the taking out of grants of probate and letters of administration. In cases where a trust corporation are named as executor in a will they are entitled to be granted probate by the High Court. However, due to the present restriction in section 58 of the Solicitors Act, 1954, they must instruct a solicitor to take out the grant. This, of course, adds to the cost. Many people without any legal qualifications at all may apply for and are granted probate or letters of administration each year at very little cost with the assistance of the personal application service in the High Court. I have advised many people to avail of that service. Many people in my constituency and surrounding districts have availed of the service and found no difficulty with it. I cannot see the logic in this service being confined to being provided for reward simply to one profession. In other words, the banks and trust corporations who, as I said already, are empowered to perform as executors the most onerous part of probate business or of administering a particular estate should be allowed to perform this small interim operation for reward in the same way as solicitors. However, this matter will not end today. I am not ruling out the introduction of further improvements or the inclusion of further safeguards to meet any reservations Deputies may have. I am not referring only to the reservations they have expressed up to now but to new reservations which may be expressed on Committee Stage.
I am already considering the need to strengthen the provisions in the Bill by including enabling provisions in relation to the complaints machinery. While the machinery established under the voluntary Ombudsman scheme for credit institutions will be available to clients taking conveyancing or probate services from these institutions, it is possible that some trust corporations not providing credit facilities would not come within the scope of the voluntary Ombudsman scheme. I would also be concerned that the limit of £25,000 which applies to awards made under the voluntary scheme could be insufficient in the context of conveyancing and probate work. That issue has already been taken up with the Irish Bankers' Federation who are responsible for the scheme.
I would also agree in principle with the view which has been expressed that the costs of professional legal services provided by banks and trust corporations should be subject to independent taxation by a taxing master. I am also considering the need for additional provisions in section 73 to empower the Minister to prescribe regulations along the lines already provided for in section 74 to further safeguard the interests of clients of banks or trust corporations in connection with the probate service. I am particularly concerned that acceptable standards would be adopted by banks and trust corporations in drawing up wills for clients. I shall be considering the extent to which this should require the involvement of qualified solicitors. I accept that it may also be necessary to look at the financial requirements set out in section 30 of the Succession Act, 1965, in relation to qualifications as a trust corporation and which may need to be revised.
As I said, the intention of this section is to provide an element of choice for consumers. The Incorporated Law Society and various solicitors who have made representations to us on an individual basis seem to indicate that the passing of this Bill will herald doomsday for the legal profession. I do not think this will necessarily be the case, particularly in view of the restrictions and safeguards in the legislation and the further safeguards which we are going to introduce. However, it has been represented to me that there is already sufficient competition in the legal profession in view of the fact that in a country with some three million people there are approximately 3,600 practising lawyers. Competition is a good thing but I suppose there can be too much of a good thing. Both the Minister and I constantly think about this and we will be open to suggestions on Committee Stage.
With regard to the proposed independent adjudicator, Deputy Barrett who at the time was the Fine Gael spokesman on Justice before he voluntarily departed to the backbenches, suggested that the scope of the independent adjudicator should extend to barristers and court staff. Deputy McCartan was unhappy with the designation "independent adjudicator" and suggested it was a new concept. He suggested that the functions proposed for the independent adjudicator should be conferred on the existing statutory Ombudsman for the public service. Like Deputy Bell, the then Labour Party spokesman on Justice, he was concerned that the adjudicator would not be independent in carrying out his functions if the cost of his office was met by The Incorporated Law Society. Deputy Bell suggested that the cost of the operation would be passed on to the clients of solicitors. Deputy McCartan alleged that the powers of the adjudicator would be limited to examining the procedures of the law society for considering complaints about solicitors and that he was not being empowered to investigate individual cases of complaint or to seek redress for a complainant. He also suggested there was a further weakness in the proposals in that the adjudicator would not be able to deal with complaints initially from the public but only after the law society had investigated them.
With regard to the title "independent adjudicator", this is not a new concept. It follows the precedent set out in the Central Bank Act, 1989, and the Building Societies Act, 1989, both of which contain enabling provisions for the establishment of schemes to investigate complaints against banks and building societies by "an independent adjudicator". The detailed provisions are contained in section 27 of the Central Bank Act, 1989, and section 92 of the Building Societies Act, 1989. Although the title "Ombudsman" is widely used to describe the type of functions to be conferred on the independent adjudicator, I prefer to avoid confusion. This is the only reason the term "independent adjudicator" is used instead of the term "Ombudsman". There is no magic about it; it is simply to avoid confusion. It also emphasises that the function of the independent adjudicator is to adjudicate on complaints and to do this in a completely independent and, hopefully, impartial way.
Deputy McCartan made the point that the adjudicator's powers will be confined to examining the procedures of the law society for handling complaints and the general overall conduct of the society in regard to these matters. Having practised for a number of years in the taxation department of a large firm of accountants in this city, I know what Deputy McCartan has in mind. When I looked up cases I often read about the powers of the special commissioners of taxation in the United Kingdom who would come to a conclusion about whether somebody was liable to tax and whether something was an allowable item of deduction and the case would be appealed to the High Court and perhaps, subsequently, sent to the Court of Appeal or even the House of Lords. The great body of our case law on taxation comes from the United Kingdom. In reading High Court or Court of Appeal decisions I noted that they often said that if the matter had been brought before them in the beginning they would have come to a different conclusion but could not say that the special commissioners of taxation were unreasonable in coming to the conclusion they did and could not, therefore, overturn what they had done.
I have closely examined section 15. There is no doubt that it will enable powers to be conferred on the adjudicator to investigate individual cases and reinvestigate complaints handled by the law society. He will be empowered to make recommendations to the law society as a result of the investigation of individual complaints. Although the adjudicator will not have power to force the law society to accept his recommendations there will be great pressure on them to do so because he will submit annual reports to the Minister which will be laid before both Houses of the Oireachtas.
Deputy McCartan raised a serious point in this respect with which we will have to deal. I would not be at all happy if the independent adjudicator could only examine whether the law society had properly investigated a complaint. My interpretation of the role of the independent adjudicator is that he should be similar to an appeal judge — he should be able to look again at a complaintab initio and if the wants to come to a decision which is different from that reached by The Incorporated Law Society's investigating body he should be entitled to do so.
Deputy McCartan criticised the fact that people will not be able to make complaints about solicitors directly to the adjudicator in the first instance, but I do not understand that criticism. The role of the independent adjudicator is in the nature of a court of appeal. I can assure Deputy McCartan and the other Members — I say this from vast experience of dealing with clients, particularly aggrieved clients, and solicitors — that if clients were empowered to make complaints to the independent adjudicator in the first instance the law society would never receive a complaint. It would be by-passed. Perhaps there is a very good reason that should be the case, but much of this Bill would be redundant if a person could go to the independent adjudicator in the first instance.
The scope of the proposal in section 15 is confined to complaints about solicitors. Complaints against members of the Bar have not been included because the Bar Council, in response to recommendations of the Fair Trade Commission, recently introduced, on a voluntary basis, machinery for dealing with complaints against themselves. It comprises an investigation and disciplinary committee which includes two lay persons nominated by trade unions and employer bodies and a further appeals tribunal which can review any decision by the committee. It is headed by a retired High Court judge and includes a lay representative. The machinery is available to anybody who wishes to complain about the handling of his case by a barrister.
I amau fait with this matter, and there is a question of balance here. I have witnessed a number of cases recently where people wished to raise complaints about the handling of their cases by members of the Bar. Even though this machinery is there — I am not suggesting for one moment that the Bar have tried to keep it a secret — they have not tripped over themselves advertising it widely because none of the people who made complaints to me was aware of any such machinery. I have now referred all three complaints to this new body and I am waiting with great interest to see how they will be dealt with. If this machinery is not sufficient self-regulation, the Minister has informed me that he will have no hestitation in bringing legislation before this House to extend the scope of this Bill to cover the Bar. It would not be appropriate to extend the role of the independent adjudicator to include matters which would become the subject of court proceedings and the actions of court staff because of the independence of the courts under the Constitution.
These matters are also excluded from the scope of the Ombudsman for the Public Service for similar reasons. I am not, nor is the Minister, in favour of Deputy McCartan's suggestion to extend the role of the Ombudsman for the Public Service to include complaints against solicitors. We have to be realistic about this. It would be inappropriate if there were one single complaints machinery for the public sector and the private sector. It is important to keep them separate; hence they are separate in this legislation.
Concern has been expressed about the independence of the adjudicator whose operation will be funded by the Incorporated Law Society. There are at least three important safeguards built into the provisions of section 15 of the Bill to ensure that the adjudicator will be able to operate in a completely independent way. I can assure the House that if those measures do not prove sufficient, there will be no hesitation on our part in bringing forward further measures. First, the Minister's consent will be required for the appointment of the independent adjudicator, even though the appointment will be made by the Incorporated Law Society. Second, the adjudicator will be required to report annually to the Minister on the discharge of his duties. As he will be under a statutory obligation to act independently in the exercise of his functions, the adjudicator can be expected to raise any issue of interference with his independence in the course of his reports. Third, the Minister will require publication of these annual reports and shall lay them before both Houses of the Oireachtas. Any difficulty encountered by the Ombudsman in discharging his statutory functions will be a matter of public record and will be immediately brought to the notice of the Minister for Justice.
The law society have expressed great concern about the fact that they will have to fund the operation of the independent adjudicator. This is not unusual; the same procedure applies to the credit institutions who voluntarily appoint their own ombudsman and pay him themselves. It is only right and proper that the law society should fund the office of the adjudicator provided it does not interfere in any way with his independence. We must put this in perspective and ask ourselves why we are introducing an independent adjudicator. We are doing so because the law society have not satisfactorily regulated their own business. Because the independent adjudicator is being appointed as a result of the failure of the profession in this regard, it is only right and proper that he should be paid by that profession. In regard to the costs about which so much noise has been made by the Incorporated Law Society, the information available to me is that the total operational costs of the office would be about £100,000 per annum. As there are 3,500 practising solicitors, simple division illustrates that this measure will add about £28 to the total annual cost of each solicitor.
In relation to fee advertising by solicitors, some Deputies had reservations about the proposal in section 63 of the Bill to allow solicitors to advertise their fees as recommended by the Fair Trade Commission. They made the point that the cheapest is not necessarily the best. Deputy Bell thought that such a development would lead to increased costs for legal services.
Deputy Cotter was unhappy with any apparent criticism of people who take personal injury cases to court in pursuit of legal claims. The recommendations that solicitors should be permitted to advertise their fees is one of the principal recommendations of the report of the Fair Trade Commission on the legal profession. The commission concluded that the present prohibition on the advertising of fees and charges by solicitors is unfair and contrary to the common good. They considered that price advertising would lead to increased efficiency, a reduction in costs and making available routine legal services at a reasonable cost to a much enlarged market. The commission emphasised the need for consumers to have accurate information on the availability of services to allow them to choose the most appropriate combination of price and quality. They were also of the view that a prohibition on the advertising of fees in particular would tend to limit competition in fees, and I agree with their conclusions in this regard.
We must recall that in 1988 the law society lifted their prohibition on solicitors charging less than the level of fees prescribed in various statutory scales of fees, and that was a good decision. It opened up the possibility of price competition in the provision of solicitors' services, which is very commendable. However, I agree with the conclusion of the Fair Trade Commission that if price competition is allowed it is virtually axiomatic that advertising of fees should not be forbidden — one directly follows the other — and that freedom to advertise fees is essential for effective price competition in most cases. To put it briefly, I am of the view that fee advertising is the key to competition, competition is the driving force of an efficient economy, and an efficient economy benefits the consumer through lower prices.
Deputies' fears in this regard may be somewhat exaggerated. Deputies from all sides believe that solicitors, in order to get an appropriate market share, will tend to undercut and advertise services below the cost at which they can afford to provide them and as a result will provide a shoddy and inadequate service for the client. There are many safeguards in this Bill to deal with solicitors who provide shoddy and inadequate services. It is not going too far to say that that is what the Bill is all about. Adequate machinery will be available to the law society and if the law society do not perform their functions satisfactorily, the independent adjudicator will deal with the matter. As I have said, he will report annually to the Minister and his reports will be laid before both Houses of the Oireachtas. It is fair to say that there are sufficient safeguards in the Bill to prevent shoddy or inadequate services. No solicitors are compelled to advertise fees for any service provided; that is a matter for themselves.
As regards any criticism, expressed or implied, of people who take personal injury cases to court, I fully accept that people have a constitutional right to have these controversies determined by the courts. However, there is concern, which I share, about the increasing number of spurious personal injury claims which appear to be coming before our courts, according to the reported remarks of judges. The Government have decided to include provisions in the Bill which permit the law society to deal with ambulance chasing type advertising by a minority of unscrupulous legal advisers or any advertising contrary to public policy.
If more time was available to me I could speak at length about my views on this and how one local authority, of which I had the privilege to be an alderman, Limerick Corporation, were brought virtually to their knees financially by people bringing spurious claims. Indeed some people were advised, encouraged and, in some cases, coerced by solicitors to bring those claims. The effect of this has been to undermine the economy in certain key areas. It has also destroyed jobs in a number of areas and I know that in Limerick Corporation this has resulted in a number of people being put on short-time. Something will have to be done about this as a matter of urgency.
My colleague, the Minister for Industry and Commerce, Deputy O'Malley, announced a year and a half ago that a special Cabinet sub-committee on insurance was being set up consider what should be done about high insurance costs. I am not aware if that committee has reported but I will take the matter up with my colleague.
Deputy McCartan urged that a radical overhaul be undertaken of the system of legal education. He referred to the proposals made by the Fair Trade Commission for,inter alia, common vocational training for solicitors and barristers and was critical that not enough was being done about this in the Bill. He also referred to an increasing problem facing intending solicitors in obtaining apprenticeships, which could become a new barrier to entry into the profession. I have a great interest in legal education having been involved in it to some extent for some time. I understand the Incorporated Law Society, the Kings Inns, together with representatives from the universities, have been meeting to discuss the question of legal education, including the matter of common vocational training. I am keeping the matter of legal education under active review and I am anxious to see progress being made quickly towards a system of common vocational training for barristers and solicitors. I have made my views on this matter known to the Incorporated Law Society and the Bar Council. I have stressed also the need for speed in this matter.
On the question of ensuring there are enough apprenticeship places, the Bill contains a number of provisions which will make it easier for practising solicitors to take on apprentices. I am aware that people are experiencing difficulty being taken on as apprentices, but I do not know what we can do about that, as I do not think we can constitutionally force solicitors to take on every person who applies for an apprenticeship. However, there are a number of provisions in the Bill, particularly section 40, which reduce from seven to five years the period of continuous practice required before a solicitor may take on an apprentice but the law society may agree to a shorter period. We will discuss this issue further on Committee Stage to see if there is anything we can do in this regard.
Deputy McCartan believes that compulsory Irish will be retained because of one Minister's intervention. Let me assure Deputy McCartan that this is at variance with the facts. This was a Government decision and there are good reasons for it. Irish continues to be compulsory because, as Deputy McCartan is aware, the fundamental legal document of this country is the Constitution. The Constitution is in both Irish and English and if there is conflict, the Irish version prevails. Deputy McCartan, as a practising lawyer, will also be aware that the Supreme Court on several occasions referred to the Irish text in constitutional cases to interpret a constitutional provision. As constitutional law is the fundamental law of this State, no study of Irish law would be complete without a knowledge of the Constitution. It is therefore appropriate that solicitors who qualify here and make up the great majority of solicitors practising in the State, should have a competent knowledge of the Irish language.
Deputy McCartan made a valid point, with which I agree, that the standard of the Irish exam that a solicitor has to pass would not qualify a solicitor to conduct court proceedings through the medium of Irish. However, let me point out, that in section 43 we have made provision that the Law Society can arrange for post qualification education and Irish should form part of that post-qualification education. While people should not be compelled to take post-qualification courses in Irish they should have that option, should they wish to do so. They will only want to do so if it is likely they will be conducting cases through the medium of Irish.
Deputy Seán Barrett referred to the law society's request to put a cap of £250,000 on awards from the statutory compensation fund. He mentioned that the unlimited liability in the case of the compensation fund covering solicitors does not apply to other professions, such as stockbrokers or auctioneers. I am not in favour of making provision in the Bill to reduce the protection the public have from acts of dishonesty by solicitors. A ceiling of £250,000 for any one incident of dishonesty by a solicitor, as suggested by both the law society and Deputy Seán Barrett, would clearly not afford the public the level of protection they currently enjoy and have come to expect in their dealings with the solicitors' profession. There is a fiduciary relationship between the solicitor and his client and for that reason I would not like to do anything that would lessen the protection of the client in this case.
Deputy McCartan was unhappy that the Minister will be empowered to nominate the proposed five lay members of the disciplinary committee under section 16. He would have preferred if consumer bodies, the trade unions and the FIE nominated the lay representatives to represent the public interest. This is the first time it is proposed to appoint lay people to the disciplinary committee of the High Court. This represents a considerable advance. I assure the Deputy that when the Minister makes his initial appointments he will consult as widely as possible to see to it that as far as possible all strands of public opinion will be represented.
Both Deputies McCartan and Bell suggested that the provisions in section 62 dealing with solicitor and client accounts should be expanded to protect moneys received by solicitors for their clients following an award by the courts. Deputy McCartan suggested that a provision should be included making it a criminal offence where a solicitor deals with or removes client's moneys from the client account, without the client's consent in line with the proposals made by the law society. This is an interesting suggestion and I will consider it further. The law society have made submissions to me about this matter and they intend to make a detailed submission for incorporating suitable provisions in the Bill to deal with this matter. I propose to discuss the matter further with them before deciding what amendments may be needed on Committee Stage. Deputy McCartan made a further suggestion that a solicitor should be required to hand over to his client any cheque for damages received from a losing party within a certain period of time. I intend to consider this matter before Committee Stage.
Various Members, particularly Deputy Seán Barrett, suggested that all existing statutory scales prescribing solicitors costs and fees should be withdrawn and repealed. This is a complex matter. The Fair Trade Commission considered it, but, unfortunately, they divided on it and produced a majority and a minority report on this question. I understand two members of the commission made different suggestions about the payment and control of costs. These recommendations are being examined and any proposals for future changes will be contained in future legislation.
Deputy Shatter argued for a separation of the role of the law society as a trade union for the profession from their role as the regulatory body for the profession. He criticised the provisions of section 8 on the grounds that it is not clear who will investigate complaints made to the society. I was amazed to hear this proposal from Deputy Shatter because he is as well aware as anybody, and more aware than most, that it is committees of the law society who have the function of investigating complaints made against solicitors. This is very well established. The council of the society is empowered under section 73 of the Solicitors Act, 1954, to appoint committees to exercise any of its functions.
Deputy Shatter also criticised the provision in section 8 which would appear to allow clients to complain about inadequate services provided by solicitors when acting as advocates in relation to litigation cases. According to legal authorities it is well established that a solicitor enjoys the same immunity from being sued in respect of his work as an advocate as a barrister. The barrister was granted that immunity by the British House of Lords in the old case of Rondel v. Worsley in 1965. Similar provisions currently apply in neighbouring jurisdictions regarding inadequate services.
Deputy Shatter referred to the new functions which the law society are being given in section 9 to impose sanctions for imposing excessive fees. He argued that this was a duplication of the present functions of the Taxing Master of the High Court and county registrars, who also adjudicate on bills of cost. I would remind Deputy Shatter that the new machinery will be additional to the existing machinery and it will make it easier for people to complain about overcharging. Is Deputy Shatter in favour of the present system whereby in order to complain about costs one must instruct another solicitor and go before the Taxing Master of the High Court? Several people have informed me of being overcharged by solicitors but when I advised them on the procedure to deal with it they said, forget it. This legislation will make it easier for that problem to be dealt with. Deputy Shatter is a practising lawyer and he can make whatever points he wishes but when he comes in here he is a legislator and he is supposed to represent the public interest. I would be very critical of that suggestion by him.
Deputy Shatter was very critical of the proposal in section 15 that the independent adjudicator cannot be a practising solicitor or barrister. I am sure there are many suitable candidates who would be available with sufficient knowledge of the legal system and, as Deputy Browne said, with sufficient common sense — to fill the role of independent adjudicator. The public could hardly be expected to have confidence in the adjudication of an ombudsman who himself was one of the club.
Deputy Shatter referred to the possibility that the banks would abuse their position when distributing the assets of an estate when engaged in probate work. They could ensure, he said, that the moneys were invested with the bank itself and would not give independent advice in investing such moneys. He may have a point and I will look at it. I am considering that section on an ongoing basis and it will be discussed in some detail on Committee Stage. Deputy Shatter asked why a solicitor should be controlled by legislation while barristers continue to be uncontrolled by statute. He called for a comprehensive code of legislation covering both branches of the legal profession. The particular reason solicitors have been subject for centuries to special legislation were explained by the Minister for Justice in his Second Stage contribution. The reasons barristers are being excluded from the scope of the independent adjudicator for the present have been outlined already. They arise from the fact that new machinery has been introduced but if that machinery is not seen to be working well they will be included.
Deputy Shatter referred to the problem arising from section 62 from the existing lien that a solicitor has for his costs on some of the proceeds of an award of damages to his client. It is a good point but it is one for Committee Stage and we will consider it then.
Deputy Brian Lenihan argued that provision of probate services by the banks and financial institutions would be contrary to the public interest and that section 73 of the Bill will need to be radically altered so as to be acceptable. I take on board the points made by Deputy Lenihan and we will come back to them on Committee Stage. Deputy Lenihan also argued that a client taking out a mortgage would not get independent legal advice from a bank which is also providing him with conveyancing services. In relation to that point a person taking out a mortgage from a bank will not have to take conveyancing services from them. Having said that, if the bank are prepared to offer conveyancing services — and it is in the bank's interest to do so — I would imagine the unfortunate client would be under considerable pressure to take the conveyancing services from the bank, otherwise he may not get his loan. We shall look at that that point between now and Committee Stage.