Civil Law (Miscellaneous Provisions) Bill 2006: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

This legislation is welcome and it regulates the operation of the legal profession in terms of the application of charges and the handling of complaints. It is a departure from the existing self-regulation which is good. The establishment of a legal services ombudsman is a positive development and it could be seen as a useful precedent in regard to other areas of dispute.

I refer to legal aid which was originally provided on a voluntary basis but developed from there. It is now a much sought after service. Free legal aid does not apply to any great extent anymore. As my learned colleague, the Minister of State, Deputy Brian Lenihan, knows, only the hardened criminals can be absolutely guaranteed to get free legal aid. I have raised this issue in parliamentary questions and I know there are compelling reasons that is the case. Under the law a person accused of a serious crime is entitled to representation, with which I have no difficulty.

However, what I find difficult to deal with is that there are countless instances where people may not be able to afford to take a legitimate legal case which has good grounds. It would appear their constitutional rights are not being fully observed in the absence of their ability to take such a case. Since they are not criminals, they do not get that automatic access to free legal aid.

From time to time, I have tabled parliamentary questions to try to determine the full extent of the cost of free legal aid for the real criminals about whom we all know. It would be beneficial to legislators to measure the extent to which costs are escalating in that area, particularly in view of the fact many of these well organised, hardened, committed and professional criminals have such ready access to the system at which they seem to laugh and scoff.

We are dealing with civil legislation.

I know. I am crossing over the boundaries and I am measuring civil legislation against criminal legislation. In view of the fact a learned member of the legal profession is sitting opposite, namely, the Minister of State, Deputy Brian Lenihan, I could not but avail of the opportunity to bring it to his attention. I am sure he does not know about these matters but I thought I would remind him.

I am well aware of them.

The time has come when we should look at system where civil litigants have at least as good access to legal aid as criminals. It is a poor reflection on our society that we seem to believe it is imperative to give absolute protection to those who readily admit to being professional, outgoing criminals. The reason I say that is that if a citizen can prove the bones of a case exists, they should have as much right to free legal aid as those in the criminal law courts. Otherwise, it appears that we have two laws or standards, one that applies to protect criminals and the other that is slightly above and beyond the reach of the ordinary citizen. I hope the Minister, if not immediately then sometime in the course of examining what needs to be done, will examine this. It is something ordinary citizens talk to me about. They ask why they are not entitled to free legal aid while criminals are.

I raise this issue because what I refer to as ordinary, professional criminals nowadays are a fairly hardened, scary bunch. They intimidate, terrorise, offer protection and do all the nasty things we abhor. If the system is good enough to give them the kind of support to which they feel they are entitled then ordinary litigants in the civil area should have at least some similar recourse. The Minister of State, Deputy Brian Lenihan, may reply and tell me I am wrong but I merely relate to him what I have found through dealing with people who come to my clinics at weekends.

The other matter to which I wish to refer is legal separation, family law and the courts. We were all in this House when the various items of legislation were passed. I will always remember listening to how it was intended to simplify these matters. Relationships do break down and legal separations do take place. That cannot be changed. However, we can simplify or at least reduce as much as possible the procedures under the law to which people must resort. From what I see, legal separation has become very expensive. This issue may fall to be dealt with in the course of the legislation because the ombudsman may deal with it.

Some of the legal costs I have seen are frightening. In addition to the problem of legal costs, we must also examine the causes of the significant delays that are commonplace in such circumstances that affect whatever plans the parties have to achieve a new life. The current system is not living up to expectations and is incredibly expensive. It is almost unworkable, to the extent that if each side digs in, in respect of fighting down to the last line, it gets very difficult. This makes a sad situation worse. I am sure the Minister of State has had similar experiences.

I advise ordinary working people who do not have access to major resources to come to some agreement, go to court and have it notarised and walk away. If it drags along and polarisation and entrenchment set in, everything goes by the wayside and the situation becomes very difficult. I hope the Minister of State will make some reference to that in his reply, and that perhaps in the context of the legislation it might be possible to streamline matters in this regard.

Occasionally constituents ask me to go to court to see how they are being treated. I do not think the legal profession likes that. One would be amazed at how the system operates in terms of the frequency of adjournments, the nature of offences and the total costs to the Exchequer of processing what in many cases are minor offences involving all the paraphernalia of legal representation for both sides. In the UK there is a system of magistrates dealing with minor offences. I know the legal profession is not too keen on this either. I believe similar systems obtain in France and other countries where a senior member of the legal profession operates in a magistrate's court or similar and the costs are considerably reduced as it does not involve all the paraphernalia of the system trailing after it with all the entailing expenses. I wonder if the time has come to look at changing that aspect of the legal process to accommodate minor offences.

For instance, if somebody has not paid his or her television licence he or she is brought before the court. I have no difficulty in accepting there must be a penalty for it but I wonder if it is really necessary for such cases to go before the court. Is there not a lesser forum than the District Court where the matter can be resolved? This would make matters far less expensive. This area requires some consideration with a view to freeing up the system.

I have tabled a number of questions in recent times on the number of cases going through the courts, the speed with which they are processed and the reasons for delays. I do not always get replies because very often Ministers, even Tánaistí, get sensitive about questions of that nature. There is nothing personal involved. It is just a matter of getting the information and trying to identify where the snarl-ups arise. With the best of efforts such as an increase in the number of judges and so on, currently the process still operates very slowly and courts are full. We get complaints from time to time regarding the sitting times in various courts etc. It should be possible to identify the most common causes of the delays. In the area of criminal law, in many instances books of evidence have not been prepared and when cases come before the court they have to be postponed. Delays involve expenses. The more often one goes back to court, for whatever reason, the more expense is involved. All the trappings of administration have to go along with it.

If we look at the success of the ombudsman system in other jurisdictions it is obvious it has much to offer. The creation of a legal services ombudsman here will also prove of use. It is a forum where both sides can look forward to fair play — the defendant as well as the complainant. We all hear horrendous stories about what has happened to constituents and resorting to the existing bodies does not always bring about the resolution people would like. The ombudsman might not do that either but at least the system will hopefully be impartial, fair and will have the ability to deal effectively with complaints, whatever their nature. If not, at least it will be able to put in place some kind of recommendations or procedures whereby the same thing does not recur.

I welcome the Bill and am pleased to have had an opportunity to speak on it. I hope some of the things about which I have moaned will become the subject of some amending legislation, if not in this Bill, in the not too distant future.

I welcome the opportunity to speak briefly on this Bill and the ombudsman in particular. There is no point in having jobs for the boys and the girls in the form of the ombudsman if the position does not have authority or the necessary powers. We have many of those jobs.

Recently, I wrote to the Minister of State, Deputy Brian Lenihan, regarding a case and the Ombudsman for Children, who stated the case was not under her remit. If an ombudsman is to be established, he or she must be given the power to enter solicitors' offices and do what must be done. The 50-year fiasco that is the Law Society of Ireland investigating solicitors is the greatest joke. Its people who appear on its behalf on radio are well spoken, but they do not deal with the complaints that have been made over the years.

I hope the ombudsman will not be a joke and will have real powers. Many a person has not got justice from the State because he or she did not have the money or resources to bring a case to court. Some such persons are dead now. If a murderer, rapist or robber——

Hear, hear.

——goes to court, the victim gets nothing whereas the murderer or rapist gets everything, including free legal aid and the country's top barristers paid the top prices by the State. The ordinary citizen who does not have enough resources but who needs justice, law and support cannot go to court because he or she cannot afford it.

That is right.

The citizen will go to a solicitor who will say that he or she wants €5,000 up front for taking the case. The citizens in question do not have that type of money. If they had, they would not go to such a solicitor. They would go directly to the top in Dublin.

I hope we will have a system with some fairness because this country has become unfair. I love putting on the record that the rich are getting richer, the poor are getting poorer and the middle class is getting squeezed. In recent years, the Government has looked after the rich. The legal profession has been looked after by the Government and, in particular, the system. We have seen many tribunals and the amount of money spent on law and order, but we are not getting any value. The tribunals are going on and on and are making many people in the Law Society of Ireland richer.

I want to see something happen. A few months ago, hundreds of people attended a meeting to create an organisation to take on the legal profession. I hope that the ombudsman will be given the power to investigate complaints. That we will get a few cranks making complaints is fine, but we must deal with genuine complaints and the people who have been aggrieved and let down by the system, solicitors, the Law Society of Ireland and the State, which gave them no protection. I hope the provision of an ombudsman will be the answer to people's problems, but the potential appointee should not take the job if he or she believes there is no power.

The Police Ombudsman for Northern Ireland has the power to investigate and do her job. We want the same in respect of the proposed legal services ombudsman. There is no point in the Oireachtas introducing wishy washy legislation if the ombudsman is not given the power or is unsure as to whether he or she has the necessary power. Power must be given to the ombudsman to deal with problems. The Law Society of Ireland was given an opportunity. No organisation, be it the Garda, solicitors, politicians or others, should investigate itself. There should always be an independent person to do so.

Another matter upsets me. Previously, I raised the matter of a serious assault case in my constituency in which the Garda recommended prosecution but the victim's family received a letter from the Director of Public Prosecutions stating he would not prosecute. I examined the DPP's report in which he stated he is not required to be answerable to anyone. That is not right, as the DPP should explain himself to the proposed ombudsman. Perhaps we could include such a provision in the Bill. My constituents' daughter was hit on the head by a wheel brace, but the State did not see fit to prosecute despite the Garda's recommendation. The family wrote to the DPP but has not received a reply. If a person or family was in a similar situation, he, she or they should be able to write to the ombudsman and ask him or her to intervene by inquiring of the DPP why a daughter was in hospital for a number of weeks after an assault or why the State did not see fit to prosecute. These are reasonable questions.

If the public is dissatisfied with the DPP's decision not to prosecute a case, someone should be answerable. People in every part of the country should be answerable to someone. We all make mistakes. There should be an appeal mechanism and the ombudsman should be used in this respect. If people make complaints about the DPP, they should be able to write to the ombudsman to investigate the matter. I would like to see this reasonable request included in the Bill.

Is the Government serious about giving people justice and tackling the problem of legal costs? Will the rich have justice while the poor has none? People referred to the free Legal Aid Board, which has a good set-up. However, it does not have enough funds or staff to deal with poor people's complaints. The only people who get free legal aid are murderers and rapists. They will be looked after while there are not enough resources, staff or money to take care of the people who really need protection, law and legal aid. This should be corrected immediately.

I hope the Government will take on the legal profession in respect of fees. It is unrealistic and wrong to deprive people of justice because they do not have sufficient resources or money. The time has come for this matter to be tackled. As a society, we must give people justice. If they want it, a lack of money should not prevent them from going to the Four Courts or taking a case.

During the years, people have complained to me about wills and being unable to get information from solicitors, who have been protected by the House and legislation. I welcome this legislation and hope that powers will be given to the ombudsman to ensure genuine complaints can be quickly dealt with, the relevant solicitors can be brought in and their offices can be entered so that answers will be given to the ombudsman's questions.

What has been happening has been wrong. The largest farce of all is the Law Society of Ireland. As we recently saw in respect of the redress board, the State paid solicitors who were also charging people. This was double charging. It took the Law Society of Ireland a long time to deal with the matter. I listened to its president on the radio, but he did not do himself or the legal profession justice. Wrong is wrong and one should not be paid twice for doing one's job. I hope the ombudsman will take this matter on.

I hope people will be able to approach the ombudsman directly rather than through the Law Society of Ireland. The latter case should not be allowed. There is no point in a case being before the Law Society of Ireland for 12 months and hoping that it will go away. Previously, justice has not been done.

I welcome the Bill. I cannot state strongly enough that there is no point in an ombudsman if he or she does not have the power to deal with the complaints received. First, the ombudsman must be given the powers, second, he or she must be given the staff and, third, there must be a timeframe in which to deal with queries. There are many people out there who are dissatisfied with the legal profession and feel there is no place to go. This, they hope, will be their saviour in the sense that at least there will be somewhere to go to make a complaint, that the complaint will be dealt with, they will not need to wait for years, they will not have solicitors investigating solicitors, the ombudsman will be able to adjudicate on their case and such adjudication will be legally binding on the solicitors. I hope that will happen soon.

I welcome the Bill. I hope that in the future the Minister will give the Legal Aid Board the resources and staff to give the poor of this country access to free legal aid to get the justice to which they are entitled. Just because such people do not have sufficient money to do so does not mean they should not have access to the law. They are as entitled to it as anybody else. The Legal Aid Board does a good job but is under much pressure. It does not have sufficient staff and resources, and it is not right that these resources are not provided.

I welcome the introduction of the legal services ombudsman. I hope that I will not need to return in 18 months' time to tell the House that we set up the ombudsman and it is not working because he or she does not possess the necessary powers or resources. I hope that I am wrong and that this will be the first time people will feel that there is somebody, between the legal profession and themselves, to protect them and adjudicate on their cases.

I thank Deputy Ring for his contribution. I can assure him that, under section 25, the legal services ombudsman will have strong powers to require the provision of information. He or she can require to see the files and deal with them, which is a concern Deputy Ring expressed understandably in the course of his contribution. Deputy Ring might not be so pleased to learn that the scheme envisaged by the Bill is that the complaint will go in the first instance through the Law Society or the Bar Council.

That is wrong.

That issue can be examined on Committee Stage. There is a specific provision in the legislation which deals with the question of whether there has been unreasonable delay in either the Bar Council or the Law Society in the investigation of a complaint, and I understand that under the legislation the ombudsman can intervene in those circumstances. The ombudsman also has full power to review the investigation that has already been done by the Law Society. The ombudsman is being put in a strong position. I agree with Deputy Ring. A facility long needed in complaints against the profession is that there be an independent transparent mechanism for investigating solicitors or, indeed, members of the Bar who do not perform their duties in a professional manner, whether in the conduct of their practice, the dispatch of business or the handling, in the case of a solicitor, of clients' funds.

I thank Deputies for their wide-ranging contributions on what is a wide-ranging Bill. Some of the contributions were at a detailed level and those issues can be dealt with on Committee Stage, but I want to address some of the more important points made in the course of the debate.

The Minister, Deputy McDowell, wants to record his appreciation for the general welcome given to the content of the Bill on all sides of the House. I agree with Deputies that the provisions in the Bill are generally necessary and welcome. Where differences of view have been expressed on some of the details, they can be explored further on Committee Stage.

Deputies gave a general welcome for the establishment of the office of the legal services ombudsman. I noted that most Deputies are supportive of the proposals of the Minister and I now want to address some of the more general points raised in connection with the ombudsman.

Deputy Jim O'Keeffe and Deputy Howlin drew attention to the rising numbers entering the legal profession. Currently, there are over 7,300 practising solicitors and over 1,900 members of the Bar in the State. This rise in numbers is a reflection of the ongoing efforts of both branches of the profession towards reform and openness in their admissions policies. Given that the administration of justice and the administration of the law is so closely bound up with the public administration of the State, it is important that persons should have reasonable access to legal qualification. It is not simply a matter of providing a service for the public in a particular marketplace. It is a branch, and profession, of business which is so closely tied up with the administration of the State that citizens should be entitled to aspire to membership of the profession if they so wish.

There are approximately 1,100 complaints per annum against solicitors and approximately 25 per annum against members of the Bar. I share the concern of many Deputies on such levels of complaints, especially against solicitors. Given that there are over 9,000 practising solicitors and barristers many of whom would have large numbers of claims, it is not surprising this number of complaints arise but I am confident that the establishment of the legal services ombudsman will assist in rectifying problems which may arise in the investigation of complaints by the relevant professional bodies, both as regards the speed, thoroughness and outcome.

Deputy Ó Snodaigh queried section 11(2) and the arrangements on the appointment of staff to the office of the legal services ombudsman. It is a standard practice to obtain the consent of the Minister for Finance where staff are being appointed. Consultation with the Bar Council and the Law Society is considered necessary, given that they will both be funding the office of the legal services ombudsman. Section 18(5) provides that the Minister may recover from the Bar Council or the Law Society, as a simple contract debt, any amount due in respect of the levy. I have in the past expressed my appreciation of the willingness of the legal profession to embrace change and reform. I look forward to the valued contributions of Deputies on the establishment of the office on Committee Stage.

On the gaming and lotteries legislation, the Minister has in the past expressed concerns at the growth of unregulated casino-type operations in this country operating ostensibly as private members' clubs. These expressions of concern are not just the Minister's own views. His statements reflect the real worries expressed by the leading international anti-money laundering body, the Financial Action Task Force, that operations of this kind are vulnerable to abuse by laundering ill-gotten moneys. With that in mind, the Minister has established an interdepartmental committee, chaired by a barrister, to examine what approaches can be taken to regulate casino style operations. The deliberations of the committee will no doubt take account of broader gaming issues within the State. Among these issues will be the question of on-line gaming raised by a number of Deputies during the debate.

Deputy Howlin described as modest the proposals in the Bill to amend the gaming and lotteries legislation. He is correct. The limits being amended are hopelessly outdated and the Bill seeks no more than to remedy that aspect of the 1956 Act.

Deputy Cuffe adverted to the mathematics of the proposed increase in stake and price limits and expressed concern as to the vulnerability of children to exposure to gaming. The 1956 Act specifically outlaws gaming by those under the age of 16 and there are no proposals to lower that age limit. I might add that gaming is unlawful unless the local authority has passed the appropriate resolution permitting the operation of slot machines within its functional area. There are further steps that any intending operators must also take. They must obtain a certificate from the local District Court and then apply to the Revenue Commissioners for a licence, which may be granted subject to conditions.

Fifty years ago the maximum stake of sixpence would have bought, for instance, an eight-square bar of milk chocolate. The maximum stake of that level is clearly now unrealistically low, as is the maximum price limit of ten shillings. These need to be increased to realistic levels and that is all that this Bill does.

On statutory law restatement, Deputy Howlin, while welcoming the Bill, was worried that the approach taken would tend towards a lack of clarity as to what the state of the present law will be. I support his concern that statutes should be accessible, not just to the legal profession but to any person who wants to find out the current legal position. The Statute Law (Restatement) Act 2002, to which Deputy Howlin referred, provides a means whereby blocks of law on a particular matter can be drawn together and presented in a comprehensive and coherent way. Where possible, the provisions of this Bill have been drafted as amendments to existing legislation. This approach is ideal for the preparation of restatements, once this Bill has been enacted, of the various other elements of the Statute Book that it amends. It will be possible to update in a restatement form already available of the Succession Act. Other areas such as the gaming and lotteries legislation can also be restated after the Bill is passed.

In the matter of the court and court officers legislation there are difficulties. There is a mass of statute law, going back to the foundation of the State and before, that can often be a minefield for the inexperienced, and indeed the experienced, reader. I am glad to inform the House that there is a project under way under the aegis of the Law Reform Commission to address this major task.

Deputies Howlin and Catherine Murphy expressed concern about the limit of €3,000 in the Bill that the Law Society can award to a client against a solicitor who has provided a poor service. This is an innovation. The Law Society does not have this power at all at present. The maximum set in the Bill can be compared, for instance, with the maximum fine that at present can be imposed by the District Court in criminal matters.

As Deputy Howlin noted, the making of an award is not intended to limit in any way the right of an aggrieved client to pursue a full claim for compensation through the courts. The disciplinary committee of the Law Society is not a court of law and it is appropriate that its power to award compensation should be limited to a modest level. However, this issue can be re-examined on Committee Stage.

Deputy Jim O'Keeffe identified the thinking behind the requirement in the legislation that the Law Society disciplinary committee and its sub-committees should be chaired by solicitors. He shares the concern that the chair of such committees should be up to the task of handling difficult points of law and procedure that are likely to be raised in the normal course of its business. The skills and experience to deal properly with these challenges are likely to be found in lawyers. Whether the chair should be confined to solicitors alone, even if, in this context, they can be expected to be in ready supply, is a matter that can be revisited.

In his opening contribution, the Minister of State, Deputy Fahey, referred to further matters that are likely to be included in the legislation by way of Government amendments to be tabled on Committee Stage. The amendments under development cover a number of areas, including anonymity for certain participants in civil proceedings in special circumstances; the wards of court legislation and, in particular, the provisions requiring that wards receive regular visitations by court appointed visitors; the banking arrangements for the collection of fines; the conferring of functions on county registrars by way of regulations made under the European Communities Act 1972; the adjustments to the levels of maximum stake and prize in slot machines under the gaming and lotteries legislation; technical adjustments to material relating to the legal services ombudsman; and technical adjustments to the legislation on the classification of films and videos. Other matters may arise in the development of these amendments.

In any event, the Minister looks forward to a rewarding debate on the details of the Bill on Committee Stage and any additional proposals brought forward by himself or other Members. I thank Members for their contributions and I commend the Bill to the House.

Question put and agreed to.