I call on Deputy Gilmore to move amendment No. 21. I observe that amendments Nos. 22 to 25, inclusive, are alternatives to amendment No. 21 and I suggest that we discuss amendments Nos. 21 to 25, together. I note also that if amendment No. 21 is negatived, amendment No. 22 cannot be moved.
Solicitors (Amendment) Bill, 1994; Report Stage (Resumed) and Final Stages.
I move amendment No. 21:
In page 15, to delete lines 40 to 53, in page 16, to delete lines 1 to 46, in page 17, to delete lines 1 to 52 and in page 18, to delete lines 1 to 51 and substitute the following:
"15.—(1) The Minister shall, by regulation, establish an Office of Solicitors Ombudsman, who shall be independent of the professions and administrators of law in Ireland.
(2) The Solicitors Ombudsman shall be entitled to investigate complaints from members of the public with regard to the conduct of any solicitor in the delivery of a legal service in any particular matter or in general.
(3) The Solicitors Ombudsman shall be entitled to have access to all or any documents concerning the investigation of any matter under subsection (2) from any solicitor or from any third party concerned and shall return those documents to the person entitled to custody on the completion of the investigation.
(4) The Solicitors Ombudsman shall be entitled to direct solicitors to act in a particular manner to resolve a complaint of a member of the public whether the complaint be in a particular or general manner, save that no such direction shall act, in any way, to usurp the functions of the Courts to judicially determine any issue relating to a matter pending before any court.
(5) The Minister shall, in making regulations herein, consult with the Law Society.
(6) The Minister shall require the Law Society to defray the costs of maintaining, the Office of Solicitors Ombudsman.
(7) A person appointed as a Solicitors Ombudsman shall not be or have been a practising solicitor or barrister and shall be independent in the exercise of his functions.
(8) The Solicitors Ombudsman shall present a yearly report on the working of his office to the Oireachtas.".
This is the critical amendment concerning this legislation. The Bill is intended to establish new procedures largely for the regulation of solicitors by the Law Society. There is much in the Bill to be welcomed as it will improve protection for solicitors' clients. The Law Society expressed general satisfaction with the contents of the Bill — it may perhaps regret the degree of enthusiasm it showed for the Bill at an earlier stage in its passage through this House.
The main flaw in the Bill is that it does not provide for an independent mechanism outside of the Law Society which would enable clients to process complaints against solicitors or against the Law Society. There is a misbelief among the public, repeated in sections of the media that this Bill provides for the establishment of an independent ombudsman, but it does not. Section 15 provides for the establishment of an independent adjudicator appointed by and paid for by the Law Society, who will function within the Law Society and report to that society, but whose functions and ability to investigate complaints from solicitors' clients will be severely restricted. The first restriction is that the adjudicator may deal only with:
any written complaint made to the adjudicator by or on behalf of a member of the public against the Society, concerning the handling by the Society of a complaint about a solicitor made to the Society by any person.
The adjudicator is also prohibited from dealing with complaints, for example, which have been dealt with two years previously by the Law Society.
The degree to which the so-called independent adjudicator may deal with complaints made by the public is quite restricted. It is certainly not what is being sought by several Members of this House, including members of the committee which dealt with the Bill on Committee Stage, and by wide sections of the public, which is the establishment of an ombudsman's office for the solicitors profession to deal independently, outside of the Law Society, with complaints made by the public against solicitors.
My amendment proposes to establish the office of solicitors ombudsman. I am very disappointed the Minister has not responded more positively on Report Stage as he indicated he would on Committee Stage. When we discussed this issue in Committee the Minister seemed to accept that there was validity in the case that the State would have to establish this type of independent office. He undertook to have further consultations with his Department and the Department of Finance with a view to producing an appropriate amendment, and I am very disappointed he has not made that response.
The degree of complaints made by the public about solicitors has recently been reported in the press. For example, it is reported that according to the Law Society, more than 5,000 complaints were made about solicitors to the Law Society in the past five years. According to an article in The Irish Times on 11 June 1994, the majority of those complaints were dealt with privately by the Law Society.
Of the 5,000 complaints received by the society between 1988 and 1993, up to one-third were referred to an internal society committee which sent about 10 per cent of those to the disciplinary committee. The disciplinary committee's 1991 report states that 44 applications were dealt with resulting in the establishment of 28prima facie cases of misconduct leading to ten findings of actual misconduct. The amount paid from the compensation fund gives an indication of the number of complaints and the Law Society report states that payments totalled £2,657,000 last year. The number of complaints is substantial, over 5,000 in a five year period and the Law Society felt that at least one-third warranted referral to its internal committee. There is probably some apprehension that this understates the degree to which the public makes complaints to the Law Society.
The legal services Ombudsman in Britain stated in his 1992 report that the number of complaints he received amounted to 8 per cent of the total number dealt with by the internal investigative committee of the legal professions. It shows quite clearly that even where there is an internal mechanism for dealing with complaints from clients of members of the legal profession a significant number — which amounted to 8 per cent in Britain — were referred to the legal services Ombudsman. It is also interesting that the legal services Ombudsman in Britain made the point in his report that the internal committees of the British legal professions which examine complaints from the public about the legal professions actively try to discourage clients from pursuing their complaints. He states in his report:
I have come across a number of cases where people who have complained to the Solicitors' Complaints Bureau have been distinctly unhappy to find themselves redirected by the Bureau back to the solicitors they are trying to complain about.
He states that this will have to be dealt with. Many aggrieved clients of solicitors in this country are familiar with that practice. I met many people, as I am sure other Members have, who after submitting complaints to the Law Society were not happy with the way they were pursued and believe that a complaint is ignored.
The Law Society is responsible for the education and registration of solicitors and, effectively, is the trade union for solicitors. It is not the appropriate body to investigate its own members. The so-called independent adjudicator the Minister proposes is not the equivalent of an independent Ombudsman as the office will be funded and controlled by the Law Society and will report to it. It is also restricted by time limits in the Bill. If the legislation is to be of any real use we need to establish an independent office of Ombudsman for the legal profession. We are familiar with that concept, we have the Ombudsman for the public service and the insurance industry Ombudsman. Such an office should be established and then the public would have a great deal more confidence in their dealings with the legal profession and in the outcome of complaints against it.
As we are discussing amendments Nos. 21 to 25, inclusive, I will comment on amendment No. 22 in my name and that of my colleague, Deputy Browne.
I think there is paranoia among solicitors that somehow there is, to quote Shakespeare "a kill lawyer syndrome" in the Houses of the Oireachtas, which is not the case. However, the level of public concern is reflected in the comments of Members. In the past the attitude of the Incorporated Law Society to those who made complaints — I note it has made an effort to change in recent times — contributed to the odium in which it was held. I recall accompanying a constituent who had made a complaint to a committee of the Law Society. To be fair, I was permitted to accompany him to try to persuade the committee to uphold my constituent's request for a breakdown of his legal costs which, despite his best efforts, he could not get. The Law Society did not assist him and — only under pressure — allowed him to make his case before a committee. Some members of that committee tried to justify why something as simple and straightforward as a breakdown of costs was not furnished but, thankfully the wisdom of more streetwise solicitors prevailed and the information was eventually given. By trying to justify such practices in the past the Law Society has brought odium on solicitors, in particular, and lawyers generally.
Because you are paranoid it does not mean that people are not out to get you. Therefore, we must be fair in everything we say and in how we legislate. This House is reflecting the widespread concern of clients of the legal profession. I do not have confidence in the Law Society to police this Bill when enacted and I understand it does not want to do so. The Law Society and solicitors' clients are in agreement that it is not acceptable that the role of adjudicator is funded by the Law Society. The Law Society feels it is an imposition on it and clients feel it does not assist the independence of the adjudicator. We need, therefore, to provide a totally independent system for considering conflicts where they arise between clients and solicitors. The best way to do that is to extend the remit of the existing Ombudsman, Mr. Michael Mills. He published his final report yesterday and has given great credibility to that office by the way he conducted himself as its first incumbent. He has brought great credibility to that office, as its first occupant, by the way he has conducted himself and he has set a tremendous standard for his successors to follow. He has established an office which enjoys great public support and in which the public have much confidence. Why should his office examine complaints in this area? I believe it should because the courts are a wing of Government the same as local authorities, central Government and the Dáil.
Under the Constitution the courts are independent of the Government and of the other institutions of the State in the way they conduct their business. It would be wrong for the Legislature to interfere with any of the rulings of the courts, but the administration of the courts is another matter. The practice of the law, however, is another matter also. Because we have this separation of power we have been inclined to leave the business of the courts, including the practice of the law as it affects the ordinary citizens of this country, to the courts because we feel it is not any of our business. It is our business. It is not our business to interfere with the judges and how they do their job, but it is our business to ensure that the administration of the courts is efficient, effective and that the people are treated fairly by those they choose to represent them in the courts.
This particular wing of Government should come under the responsibility of the Ombudsman. That is perfectly fair and reasonable. It would be a slight departure from what we are used to, but the courts are a wing of the Government, no more than that. However, because of the separation of powers we have not been swift to intervene and help people when they feel they have been treated badly by their solicitor. It would be wrong of us, however, to give the impression that all solicitors are errant solicitors. That is not the case. The majority of solicitors are decent people like the rest of us; but where a solicitor is representing a client who does not know the law, all the cards are in the hands of the solicitor and if he or she is an errant solicitor, the clients rights will be completely abrogated by the person who is in a position of trust and who should be looking after their interests. That is a totally unacceptable abuse of power about which we in this House are entitled to be concerned.
What would we do if doctors regularly told their patients that they were not going to tell them what was wrong with them, they were not going to make the files available to them and that they should simply continue to take the prescribed medicine? We would say that that was unreasonable behaviour on the part of the doctors, that there must be doctor-client confidentiality and that doctors must be responsible and reasonable. We would also say that they cannot charge their patients whatever fee they choose and that they must treat people in a decent way. The Department of Health would take an immediate interest in such a situation even before this House demanded that it do so. The Department of Justice does not take an interest in the way solicitors or lawyers generally treat their clients. There is a role for Government in overseeing this activity and I believe the person to do that is the Ombudsman appointed by the Houses of the Oireachtas. He is the person who should be given this role.
I hope I am not being unjust to the Law Society but I do not believe it would have any difficulty with the Ombudsman taking on this role. I understand it is exactly what the clients and solicitors are demanding. The problem facing the Minister is that this would probably require additional funding because the Office of the Ombudsman would have to be expanded. In my amendment I provide for consultation with the Law Society to set an annual contribution to be made by the society towards the cost of running the Ombudsman's Office. That would not mean that the Ombudsman would be on the payroll of the society because the Ombudsman, in law, has established his credentials and his independence and he has been completely fair in the way in which he conducts his business.
I am asking the House to accept this Fine Gael amendment. I believe it would be the most fair and equitable way to deal with this problem and that it would enjoy broad support. I know the Law Society would not like to be asked to make an annual contribution towards the running of the Office of the Ombudsman but the way the amendment is framed in regard to annual consultation with the society would at least give the society a better opportunity, in the knowledge of the finances from year to year, to discuss with the Department of Justice on an annual basis its input to the additional costs incurred in the running of the Office of the Ombudsman.
The Law Society or lawyers generally should not balk at this proposal. We have reached the stage in our society — and this applies not just to lawyers but to journalists, politicians, members of the Church and so on — where if one criticises somebody, one is immediately accused of being down on them or being anti-solicitor, anti-lawyer or anti-journalist. Journalists, in particular, are very thin skinned about this, although they criticise all the time. Lawyers, however, regard any criticism as being anti-lawyer. That is an indication of paranoia on their part.
Everybody in this House knows that all is not well with the legal profession. The sort of fees that have been charged by lawyers through the years are wholly unacceptable. Consider what happened at the beef tribunal? People often ask what is bringing the legal profession into disrepute. It is not as a result of any criticisms made in this House; it is the lawyers themselves who are bringing the profession into disrepute. The legal profession should not be allowed to bring itself into disrepute because within it there are many honourable people. In fact, the vast majority of people in the legal profession are honourable, but if they are allowed to write blank cheques — as has been the case at the beef tribunal, particularly in regard to barristers — and if they grab everything they can in a gluttonous fashion, that is not acceptable. When I saw the lawyers going in and out of the beef tribunal with their large briefcases I wondered whether they contained their daily fees. If they act in such a blatant way, how can they expect people to respect the profession?
There must be some ethical standards within which these people are required to behave. If they do not adhere to those standards the profession should realise that such behaviour will not reflect well on it. There has been no criticism from the Bar Council or the Law Society of that sort of behaviour and anyone who criticises such behaviour is put down as anti-lawyer. That is not the case. We need lawyers. With the amount of legislation we pass in this House year in year out, the public would not know where it stands in regard to that legislation without the services of lawyers. Lawyers play an important and central role in society, but if they expect to be respected — and they do and should — they have a duty to behave in a decent manner. In the past there have been indications of an erosion of standards in that area. In relation to complaints by clients against solicitors who have abused their positions of trust, there must be some acceptable and totally independent way of examining such complaints and our proposal is the best way of doing that.
Deputy Gilmore has an amendment similar to the Minister's amendment, No. 23. I have no difficulty with that. Our amendment is to delete lines 17 to 20 which state that an adjudicator appointed under this section may not examine or investigate a complaint made to him under this section after the expiration of two years following the determination by the society of a complaint made to the society. In the event that the Minister is not prepared to accept our amendment substituting the Ombudsman for the adjudicator, I hope section 15 (4) (g) will be deleted. I do not think the two year retrospective period is long enough. Many people will not be aware that their rights have been taken away in this fashion. I hope the House will accept the Fine Gael amendment No. 24 to delete that paragraph.
I supported the amendment put down by Deputy Mitchell when we debated this on Committee Stage because the principle inherent in his amendment is the solid one in jurisprudence that one should not be a judge in one's own cause. The dilemma for the Minister is that, in his effort not to have any demands on the Exchequer, he is compromising the perceived independence of the system we are putting in place. The amendment gets around that because it would oblige the Law Society to contribute towards the expense of the Ombudsman's role in judging complaints against solicitors.
The Bill imposes penalties and substantially increases the powers of the disciplinary tribunal to deal with complaints of shoddy work and excessive charges. These matters form the basis of complaints by clients against solicitors. I trained as a lawyer although I did not practise.
(Carlow-Kilkenny): Did the Deputy declare her interest in advance?
I am not a solicitor. In the past there was an unequal and ascendant relationship between solicitors and their clients. It was not a normal customer relationship. It is an unusual relationship because usually there is a lack of knowledge on the part of one party. The solicitor has a duty to be caring and to respond to the client. In the past there was a certain brusqueness and ascendant relationship between solicitor and client. I witnessed behaviour which was rude and shoddy and for which no apology was made. That was the way business was done. It was sufficiently widespread through the generations for a feeling of disquiet to build up that the client, as a consumer, was not getting a fair deal.
This Bill tries to tip the balance in favour of a client as a consumer. In law, the client comes to the solicitor with no knowledge, in the main, and places his trust in him. He must take the solicitor's advice as being the best advice. The Bill makes it obligatory for solicitors to talk about costs at the beginning and lay them on the line for clients. In the past it was traditional for solicitors not to talk about fees and present the unfortunate client with a bill, which was usually a surprise, at the end of the case. This was particularly hard for the client if they lost the case. Most people who go to law are optimists but only one person will win the case and it can be quite difficult for people to pay huge sums of money in costs.
A range of issues affects the cost of legal proceedings. It is not all about fees that solicitors charge. There are infra-structural problems in the court system which has been under-funded for years. I accept the Minister is addressing this area. Court delays increase the cost of proceedings as travelling and other expenses of witnesses, doctors and so on must be paid even if the case is adjourned in order to take a criminal case because such cases takes precedence in the list. The court system is in a state of near collapse due to delays and backlogs. This has a bearing on the high cost of litigation.
The Minister has compromised the perceived independence of the adjudicator. If he wants to achieve a perception of independence the State must pay for the adjudicator but it is not willing to do so. The State is not prepared to pay for or extend the role of the Ombudsman to deal with complaints brought against solicitors. I do not expect the Minister will accept Deputy Mitchell's amendment which would deal with his dilemma. We had this debate on Committee Stage. I support the amendment.
The Second Stage debate was very limited and some who contributed were confined in their remarks. My remarks on the reform and improvement of the relationship between client and solicitor are set out in detail on the Second Stage speech I made in May 1992. My views have not altered because things really have not changed. Although we have seen some public signs of accountability from the Law Society, in reality nothing has changed. I monitored some of the cases which went to the Law Society and the procedures do not lend themselves to justice being done.
This section is the litmus test of whether the consumer will receive justice and of the Minister's commitment to reform. Unfortunately both are failing. As a result of the deficiencies in this section, which impacts on many other sections, the Bill is bogus. It pretends to represent and protect the rights of the consumer but it perpetuates the self-regulatory role of the society and the interests of what is basically a trade union.
Like previous speakers I hoped the Minister would be a Minister of real reform regarding court reform, judicial reform and costs. Even the conservative Government in Britain have set up an inquiry into court costs and procedures under Lord Wolfe. The main purpose of the inquiry is to find ways of reducing costs to clients and to ensure more efficiency in the courts. Deputy O'Donnell referred to the need for reform of court procedures, but the most important and urgent need is to reduce costs to the public. High costs are not only a major disincentive to people taking cases against vested interests and wealthy opponents, they also have an impact on our lives. For example, the high costs of insurance are curbing job creation while high legal costs give rise to dearer employers' liability and car insurance. I had hoped the Minister would give us some idea of his reform programme but, unfortunately, he did not.
In Great Britain Lord Wolfe is leading the call for cheaper insurance. Public seminars will be held on the costs of insurance at which the public will be entitled to express their views. Nothing of that nature is being done in this country because the dead hand of the vested interests is leaning heavily on legislators. The legal profession has an involvement in all political parties and anyone who questions its privileged position is depicted as being anti-solicitor or a solicitor hater. This is not the case; we are pro-consumer and not anti-anybody.
Section 15 is unnecessary as all the issues with which it deals could have been dealt with under the Ombudsman Act, 1980. The extension of the powers of the Ombudsman to include the investigation of complaints against the Law Society and the solicitors' profession would only have required an amendment to the Act by way of a Statutory Instrument. Having studied the Act, I find it strange that there is no reference to the Law Society in either the First Schedule, which lists the bodies and persons subject to investigation by the Ombudsman, or the Second Schedule which lists those bodies and persons subject to investigation. Statutory Instruments have already been used twice to amend the Ombudsman Act, 1980 — Statutory Instrument 332 of 1984 and Statutory Instrument 66 of 1985. The 1984 instrument included a number of bodies previously excluded from investigation — An Post, Bord Telecom Éireann, health boards and local authorities. A further Statutory Instrument should now be introduced to extend the powers of the Ombudsman to include the investigation of complaints against the Law Society and solicitors.
The Act empowers the Minister to appoint as many officers and staff as the Ombudsman requires thus ending, inter alia any backlog of complaints to be dealt with efficiently. The only objection the Minister could have to the office of the Ombudsman must relate to funding. He should be well aware that in the past taxpayers' money was spent on causes less noble than seeking justice for the aggrieved clients of solicitors. Expense is not a valid argument in this case.
I appeal to the Minister to seriously reconsider this section, the litmus test of the legislation. If it is enacted in its present form the Law Society will have full control over the investigation of complaints against it and its members, solicitors. I have a major problems with such a proposal as it is handing over de facto to the Law Society responsibility for the investigation of complaints against its members. Objections to what I am saying could be overcome by the introduction of regulations to include other professions under the Ombudsman Act, 1980. I hope the Minister will give consideration to this proposal.
In case the Minister thinks I am flying a personal kite, I want to quote from the statement of the Irish Family Farm Therapy Group which represents the clients and "victims" of solicitors and the Law Society. It has asked the Minister for provision to set up an office of ombudsman and to allow him to oversee the investigation of complaints against solicitors. This is in accordance with the recommendation of the Fair Trades Commission. It goes on to say that in its present form the Bill oppresses clients of the legal profession, if enacted, will be bad law and that, ironically, it was drawn up in consultation with the Law Society, which Minister O'Dea has accused of failing in its responsibilities to discipline the profession, and without any input by consumers. The group had a number of meetings with Minister O'Dea, they made detailed submissions to him to amend the legislation in the interests of consumers but they fell on deaf ears.
It says that, in contrast, the legal lobby has had so much influence on the Bill it could be said to have hijacked it. The group believes that if the Minister does not accept our amendments the Bill, which purports to protect the consumers of legal services, will be unconstitutional. If the Bill is signed into law the group will ask the President to test its constitutionality in the courts.
It will be welcome to do so.
The Minister should be doing its job. No group can deal with complaints against its members in a fair way.
(Carlow-Kilkenny): I confess openly that I have no connection with the legal profession and no legal training.
Deputy Allen has a monopoly in representing victims.
(Carlow-Kilkenny): My remarks will, therefore, relate to my experience.
I am a member of the victims' group.
I have also been a victim.
(Carlow-Kilkenny): I support the proposal that the Ombudsman's office should deal with complaints against the legal profession. The present Ombudsman is unique. Normally, the phrase “ní bheidh a leithéid ann arís” is used when referring to someone who has died but it could equally be used in the case of the Ombudsman. It is a pleasure to deal with the staff in his office who are always more than helpful. I am not in favour of appointing an ombudsman for every group. Even though extra staff will be required to deal with those complaints, this will not be as costly as setting up another ombudsman's office.
I have a certain sympathy with solicitors who argue that they should not pay the costs of the Ombudsman's office. If it had been proposed at the time I was a teacher to set up an ombudsman's office to investigate complaints against teachers I would have objected very strenuously to teachers paying for this office as innocent people would have to pay for those who are guilty. Why should the 98 per cent of solicitors already paying fees pay extra money for an office which will investigate complaints against the other 2 per cent of solicitors? All that is needed is one black sheep in a thousand who may get away with £500,000 and there will be numerous complaints that all solicitors are gangsters. It is said that all politicians tell lies, all politicians are in politics to get what they can out of it, that all politicians make false promises. We rightly object to that type of labelling. Very often solicitors get a raw deal, in that they are all labelled as being similar, all confiscating clients' money. Some do, but it is a very small minority. Some solicitors may be inefficient but there are teachers, politicians and others who are also inefficient. In general solicitors are no worse than any other group of professional people, all of whom will have a certain number of black sheep. Our amendment requiring them to pay a certain amount of the costs of the Ombudsman is fair, but they should not have to pay all of the costs. Why should they?
While I agree entirely with the argument advanced by Deputy Gay Mitchell about the legal fees paid to barristers engaged in the Tribunal of Inquiry into the Beef Processing Industry I differ slightly from him in that I would not blame the barristers, solicitors or anybody who has earned that money. Rather I would blame the person or persons who drew up the relevant arrangement. They should be taken to some country that still engages in flogging, left there for a fortnight, and return thereafter if they are still able to walk. If any of us here was offered a two year around the world trip to ascertain how Ombudsmen operate in other countries, we should not be blamed for so doing because of our sense of duty to the State, but the person or persons who made the offer should be deemed to be guilty of having made that offer. I do not blame anybody for accepting large fees; if they can earn £5,000 a day that is their luck, but whoever drew up the arrangement should be hauled in and questioned because such action is indefensible.
Whenever an injustice has been committed, allowing somebody a period of two years, or three as the Minister proposes in his amendment, within which to lodge a complaint does not mete out justice to anybody. Why should somebody wronged by a solicitor discover that the only factor that prevented them from obtaining justice was that a limit of three years was stipulated within which to lodge their complaint? What advantage is that? Certainly it does not benefit somebody who has been wronged because very often people do not fully realise what is happening until it is too late. In some cases, a limit of two or three years will prevent such people from getting a fair crack of the whip.
I am very sympathetic to the principle being espoused by Deputy Gay Mitchell. Public perception of the independence of an adjudicator or Ombudsman is very important because, once a client has contacted a solicitor and confined in him or her, they are totally dependent on that professional. Almost without exception the client will know little or nothing about the law, rendering him or her almost totally dependent on the solicitor or barrister consulted. It is important that we can have confidence and trust in the operation of the system in terms of the relationship between client and solicitor and barrister. I would not write off what Deputy Gay Mitchell said. It has much merit.
Deputy Browne referred to a number of cases with which I would be familiar. Perhaps I might cite one or two others. I have known of cases of solicitors dealing with the transfer of estates with substantial amounts of money involved which have been frozen, where I do not know, for a considerable period without any satisfactory explanations being furnished. That kind of practice is not good enough. In other cases clients approached me contending that solicitors had not furnished them with a reasonable breakdown of the costs for their services. I am sure the people opposite would have many more examples, but I have quite a number on my files.
I agree there is a definite need for an independent adjudicator or Ombudsman. It boils down to a choice between consulting the Ombudsman, as Deputy Gay Mitchell proposes in his amendment, or an adjudicator, as the Minister proposes.
Though Deputy Browne and I come from the same professional background, I disagree with him in the analogy he drew between complaints lodged against teachers and those against other professionals. He said he would not like to have to consult the Ombudsman in order to have a relationship between a teacher and student investigated. In the case of this Bill, one is dealing mainly with a relationship between a solicitor and his client and the more contact there is, person to person, the more money the solicitor or barrister makes. There is no doubt that in the past the Incorporated Law Society failed to regulate properly a satisfactory relationship between solicitor and client, leading to the urgent need for an adjudicator. I would be extremely reluctant to ask the taxpayer to pick up that tab, since the general public perception — and I have little reason to believe it to be wrong — is that, in the main, the legal profession is reasonably well financially endowed. Since it appears to be a well remunerated profession, if there are miscreants within their ranks, it is only reasonable that the regulatory body, through its membership, should be asked to pick up the tab. I have no qualms about contending that solicitors and the Incorporated Law Society should pay for an adjudicator to be appointed.
There appears to be worry on the part of Members opposite, with which I can sympathise to a certain extent, about a perception that, because the Incorporated Law Society will be the investigating body, such investigation will not be independent and will not merit public trust and confidence. That is reasonably well covered in the Bill where the Minister will have to give consent to the appointment of that adjudicator. The Bill also provides an insistence on an annual report being furnished. On the basis of those two provisions, the safeguards are sufficiently strong. While I am sympathetic to the concept of total investigatory independence, the Bill goes far enough.
I am sorry Deputy Gilmore is disappointed but life is full of disappointments. He is disappointed that, despite the fact that I saw some validity in his amendment, I did not take it on board. I said to Deputy Gilmore on Committee Stage that he had made his case well, that there was some merit in his argument and that I would examine it and discuss it with the various people involved, such as with the Department of Finance. I have done all of that and reflected on the case he made. After careful consideration and discussion, I have concluded that I am not prepared to accept his amendment. To some extent Deputy Gilmore made my case in the latter part of his contribution when he extolled the adjudicator or Ombudsman system in the case of the insurance industry or the credit union business. What we propose in this Bill is precisely the same as that which operates for the self-regulation of both those sectors of the financial services industry.
Deputy Gay Mitchell referred to a difficulty he experienced in relation to a particular case, when a client had sought a breakdown of his legal bill. Section 68 will change all that.
I was giving it merely as a general example.
It will place very definitive obligations on solicitors in furnishing breakdowns, explaining how costs are assessed and so on.
Deputy Gay Mitchell also made the point that the courts are a wing of Government. We are not talking here about an Ombudsman, or an adjudicator for the courts; we are talking about an adjudicator for a private profession. As Deputy Mitchell will be aware, the self-regulation system of investigation applies in the case of all private professions and we are not changing that here. He also referred to doctors. The medical profession, of which I have some knowledge, is a self-regulation profession. If there is a difficulty with a doctor it is investigated internally and ultimately goes before the Medical Council. It is precisely a self-regulation system and in the case of solicitors it will be strengthened considerably by the provisions of this legislation. Deputy Mitchell referred to what the Law Society wants in relation to an independent adjudicator or a complaints system. The Law Society wants everything so long as they do not have to pay for it. That is the reality. I know that because I have been dealing with them for the past 18 months and I have received many submissions. They will accept the public service ombudsman, a private ombudsman, anything or anybody, so long as they do not have to foot the bill. That is the bottom line with the Law Society. Unfortunately for them I take a different view.
In relation to Deputy Gilmore's amendment about the payment of the adjudicator, if I understand it correctly, he feels that if the solicitors pay the adjudicator the public perception will be that the adjudicator is not totally independent of the profession. On the other hand, if the Law Society pays a third party, namely the Department of Finance, who in turn pays the adjudicator, the public perception will be different. Whatever about the public perception, the reality will be no different. If Deputy Gilmore is suggesting that I should do some type of three card trick operation such as this to fool the public, I will not engage in that.
Deputy Liz O'Donnell referred to infrastructural problems in relation to costs and acknowledged that we are dealing with them. I accept there is a problem in this area and much can and should be done to reduce costs generally in the legal profession. On Second Stage, Deputy Gilmore referred to a radio interview I gave in which I said that because of competition in the legal profession charges were as low as possible. He said that £500 for this or £300 for that did not appear very low. Costs are as low as possible in relation to what the service costs the solicitor. We are trying to reduce court costs and the costs of legal administration. In that regard the Minister for Justice, Deputy Geoghegan-Quinn, has comprehensive proposals which will come before the House in the next session.
I am under-awed by Deputy Allen's contribution. I would remind him that the use of vulgar terms such as "bogus", "ridiculous", and so on will not advance his case one iota. I will be persuaded by solid argument, not by epithets of that nature. Deputy Allen said we are perpertuating the self regulation system of the Law Society.
It is a reality.
Every private profession here is self regulated. The same applies in the legal profession. What was needed in the legal profession was not to change the entire system of self regulation but to strengthen it in view of the fact that there were perceived weaknesses in it. In regard to legal costs Deputy Allen was engaged in another mission recently and may not have been in the House to hear the Taoiseach and the Minister for Justice announce that we would have legislation in the autumn in relation to legal costs and cutting down the costs of court procedures.
Deputy Allen made a valid point in relation to insurance costs but I do not agree with him. Deputy O'Donnell's former leader, Deputy O'Malley, has some experience in this regard. Deputy O'Malley was of the view that insurance costs could be cut by reducing legal costs. Unfortunately his efforts in that regard did not bear fruit. The only way to reduce insurance costs is to reduce the level of awards. The single biggest element in insurance costs is the level of awards. In other countries where the level of awards is restricted the premia payable compares very favourably with those paid here in comparable cases. My colleague, the Minister of State at the Department of Enterprise and Employment, Deputy Seamus Brennan, has proposals in that regard which I expect to see in the next session. He will bring forward those proposals against the most vicious and sustained opposition from vested interests. The level of awards will be controlled, which is the only way to reduce insurance costs.
As Deputy Fitzgerald has rightly said, we are making the solicitors pay to strengthen the system. Heretofore the profession was self regulated. They did not do it properly. It has to be strengthened and they should pay for it.
I make one point before concluding. I have noticed a number of drafting amendments from Deputy O'Donnell, amendments Nos. 40, 41, 45, 49, 63, 87, 91, 92, 93, 95 and 96 which I propose to accept.
What sort of a deal was done there?
As it is now 2.15 p.m. I am required to put the following question in accordance with an Order of the Dáil of this day: "That amendments Nos. 40, 41, 45, 49, 63, 87, 91, 92, 93, 95, 96 and the amendments set down by the Minister for Justice, and not disposed of, are hereby made to the Bill, that Fourth Stage is hereby completed and that the Bill is hereby passed."
The Dáil divided: Tá, 57; Níl, 32.
Tá
- Ahern, Michael.
- Andrews, David.
- Bhreathnach, Niamh.
- Bree, Declan.
- Briscoe, Ben.
- Browne, John (Wexford).
- Byrne, Hugh.
- Costello, Joe.
- Coughlan, Mary.
- Dempsey, Noel.
- de Valera, Síle.
- Doherty, Seán.
- Kemmy, Jim.
- Kenneally, Brendan.
- Kenny, Seán.
- Killeen, Tony.
- Kirk, Séamus.
- Lenihan, Brian.
- Leonard, Jimmy.
- Martin, Micheál.
- McDaid, James.
- Moffatt, Tom.
- Morley, P. J.
- Moynihan, Donal.
- Moynihan-Cronin, Breeda.
- Nolan, M. J.
- Ó Cuív, Eáamon.
- O'Dea, Willie.
- Ellis, John.
- Fitzgerald, Brian.
- Fitzgerald, Eithne.
- Fitzgerald, Liam.
- Flood, Chris.
- Foley, Denis.
- Haughey, Seán.
- Higgins, Michael D.
- Howlin, Brendan.
- Hughes, Séamus.
- Jacob, Joe.
- Kavanagh, Liam.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Leary, John.
- O'Rourke, Mary.
- O'Shea, Brian.
- O'Sullivan, Toddy.
- Penrose, William.
- Ryan, Eoin.
- Ryan, John.
- Ryan, Seán.
- Smith, Brendan.
- Smith, Michael.
- Taylor, Mervyn.
- Treacy, Noel.
- Wallace, Dan.
- Walsh, Eamon.
CLASS="CP">Níl
- Allen, Bernard.
- Barrett, Seán.
- Barry, Peter.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Crawford, Seymour.
- Crowley, Frank.
- Currie, Austin.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Avril.
- Durkan, Bernard J.
- Finucane, Michael.
- Fitzgerald, Frances.
- Gilmore, Eamon.
- Higgins, Jim.
- Hogan, Philip.
- Kenny, Enda.
- McCormack, Pádraic.
- McGinley, Dinny.
- McGrath, Paul.
- Mitchell, Gay.
- Noonan, Michael.
- (Limerick East).
- Owen, Nora.
- Shatter, Alan.
- Yates, Ivan.
CLASS="CP">Tellers: Tá, Deputies Dempsey and B. Fitzgerald; Níl, Deputies E. Kenny and Boylan.
Question declared carried.
Sitting suspended at 12.35 p.m. and resumed at 12.45 p.m.