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Dáil Éireann debate -
Thursday, 29 May 2008

Vol. 656 No. 1

Legal Services Ombudsman Bill 2008: Second Stage (Resumed).

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

Last evening, I made the rather obvious point that a certain momentum has been building up for reform in this area over the past number of years. I acknowledge a significant element of public disquiet in so far as the handling of complaints is concerned with regard to speed, transparency and accountability. A perception exists that matters are not as independent as they might be.

This issue formed part of an independent report of the Competition Authority published towards the end of 2006. It pointed to a pressing need to introduce reform in this area and provided the impetus for debate on the subject of regulation of the legal profession and of the provision of legal services to the citizen. This topic has been aired extensively in the print media and on the local and national airwaves. It has also been the subject matter of conferences for interested parties. This debate is ongoing. It is a healthy process which helps clarify the role and responsibilities of professionals engaged in the provision of legal services, the Bar Council and the Law Society.

The issue of regulation versus representation is also raised and a significant body of deep blue water is required between the two. One cannot act as an advocate or representative on one hand and objectively engage in a process of regulatory vigilance on the other. It is generally accepted this conflict existed and needed to be addressed. Such a difficulty arose not only in the legal profession, but also with regard to accountants, dentists and doctors. It is important to have an element of independent oversight to ensure the interest is not vested in a way that gives rise to a perception on the part of the public that matters are not being dealt with in an open way.

The 2006 Competition Authority report pointed to a need for new legislation. It made 29 recommendations, including empowering consumers by requiring the Law Society and the Bar Council to actively provide useful and accessible information to consumers about their rights and about key features of legal services, such as how legal fees are determined. This was assisted by a legislative initiative through the 1994 amendments to the Solicitors Acts which provided for an onus on the part of the legal practitioner to provide, in so far as feasible, an estimate of the costs involved. This is a requirement and has the force of law. To my mind, it has brought about welcome changes.

Another recommendation of the Competition Authority report is to extend access to barristers for legal advice to all members of the public without the necessity to engage the services of a solicitor. Further recommendations are to allow barristers to form partnerships, solicitors to form limited partnerships and to require solicitors whose clients wish to switch to another solicitor to hand over the client's file to the new solicitor in a prompt manner.

This latter issue gives rise to serious complaints and it is difficult for the public to understand the delays involved or the manner in which documentation, which may be the property of the legal adviser but nevertheless pertains to the person to whom the legal service is being provided, is dealt with. It is important the profession ensures a strict requirement that where an alternative legal firm becomes involved in a case, all the necessary papers are made available in a prompt manner and in a way which ensures the consumer of the service is not left in a position of disadvantage.

There is no doubt that the reputation of legal professionals as a whole has been damaged by a number of recent high profile events involving certain members of the profession. It is unfortunate that a small number of individuals have succeeded in damaging the reputation of the legal profession as a whole. Having practised law myself for many years, I know a great many solicitors and barristers who, without exception, carry out excellent work in an honourable manner and professional way and engage in the use of the highest possible standards. It is a cliché to state that bad apples turn up from time to time in every profession but unfortunately this is what has happened and the legal profession is not immune to such practices.

It is important that individuals who have brought the legal profession into disrepute are subject to due process and held accountable for their actions. If a myth or perception exists that people operate outside the law or that the law favours people with certain status or in certain categories of society, then it should be exposed as such. The sooner particular matters are dealt with comprehensively, the better. If criminal proceedings are to follow, let them take their course. It is essential that legal practitioners, no matter who they are or what professional qualifications they hold, are held accountable for their actions if public faith in the legal profession is to be maintained and not tarnished. It is important and absolutely essential that they be held accountable for their actions if public faith in the legal profession is to be maintained and not tarnished. Notwithstanding the rarity of such cases involving the recent high profile Dublin issues, these incidents have underlined the need for change and the urgency in proceeding with this legislation. The Bill is a good start in introducing constructive changes.

The establishment of the legal services ombudsman office follows on a long line of ombudsman offices and our experience has been positive, happy and satisfactory over the years. Emily O'Reilly, the current Ombudsman, is widely respected for the objective and professional manner in which she carries out her duties and responsibilities. Recently she was appointed as a leading light in the ombudsman association for the UK and Ireland. That is the measure of the esteem and standing in which she is held by her colleagues. Her predecessor, Michael Mills, who died recently, was from my county. I pay tribute to him for his great pioneering work as Ireland's first Ombudsman. He had the opportunity to define the role of the office, which he did with considerable skill. The recent creation of the positions of Press Ombudsman and the Garda Síochána Ombudsman Commission reflect the widely held belief that the post of ombudsman easily facilitates independence, impartiality, professionalism and expediency in dealing with matters in a way that can provide the best service to the citizen.

As I have stated in the past regarding other ombudsman posts, it is essential the legal services ombudsman's office is well resourced if it is to function in an efficient manner. The Bill proposes to place part of the burden of costs on the Law Society and the Bar Council with the Government making up the rest if there is a shortfall. It is crucial the Government honours its commitments in this regard and facilitates the smooth and efficient operation of the office. While it may be too early to pass judgment, the indications from the office of the recently established Press Ombudsman and the office of the Garda Síochána Ombudsman Commission, which was established 12 months ago, are that they are moving in a satisfactory direction from a public service point of view. Failure by the Government to honour its commitments would make a mockery of the creation of the post and it would undermine the spirit of the proposed legislation.

On the matter of costs, the Bill requires the Bar Council and the Law Society to pay an annual levy to fund the ombudsman's office. Each association will be liable to pay 10% of the approved expenses of the office and the remaining 80% will be paid pro rata according to the number of complaints made to the ombudsman regarding barristers and solicitors. This is an interesting proposal and I hope it will operate smoothly in practice. We will have an opportunity to monitor progress by dint of the requirement on the ombudsman to report to us. I greatly welcome the provision in respect of the responsibilities of the ombudsman to report to the Oireachtas.

Unfortunately, myself and my colleagues in Opposition sometimes find ourselves fighting a rearguard action to maintain the integrity and uphold the central importance of this Assembly in the face of repeated Government attempts to enforce total Executive dominance over the Parliament. The Ceann Comhairle witnesses this on a daily basis and it is an issue to which we must return with seriousness in the context of the consequences of the Lisbon treaty, under which the scrutiny by national parliaments of laws will require greater vigilance on the part of the House. It is important to ensure the committees are equipped with resources, legal advisers and specialists, particularly in the complex area of EU law. I look forward to returning to this matter next week because this anti-democratic trend has been highlighted in recent years by the creation of a host of quangos and authorities without any measure of accountability and by the Government press conference being substituted for accountability to the Legislature. The proposals contained in the Bill, which require the ombudsman to make regular reports to the Oireachtas and the Minister, are welcome.

Not only will the ombudsman be empowered to deal with complaints, under section 9 he or she will be required from time to time to make submissions in respect of entry to the legal profession. That will empower him or her in a way that no other ombudsman is sufficiently empowered currently. The ombudsman will be required to assess the adequacy of admissions policy of both the Bar Council and the Law Society and to promote public awareness of the complaints procedures of the two bodies, which is important. There is not much point in setting up an ombudsman's office if people are not aware of its existence. The office will have to be properly and adequately funded from an early date because information is knowledge and if people do not know about the office, they will not use its services.

The Law Society and the Bar Council had a number of concerns regarding the report of the Competition Authority, which recommended extreme changes to current practice in certain contexts. Both bodies made submissions to the authority's proposals with the Law Society submission being particularly lengthy. However, both have shown a willingness in the context of the authority's report, which contained unpalatable recommendations, to embrace change and both arms of the profession have welcomed the Bill. The Law Society stated recently it unreservedly recognised the system can be improved and welcomed the legislation to introduce an ombudsman, together with the non-lawyer majority on the society's complaints and client relations committee. It is often overlooked in media reportage that this committee comprises an independent lay majority, which gives a lie to the myth that the society is a closed shop controlled by vested interests.

The Bar Council described this Bill as "a progressive step in improving access to justice and the administration of justice". The Law Society recently took the initiative of providing all of its members with a comprehensive document entitled, Solicitors' Terms and Conditions of Engagement. The document prepared by the society's guidance and ethics committee reflects the spirit of the proposed legislation, which must be acknowledged. There is a clear responsibility on members of the profession to engage with their clients from an early stage to set out in considerable detail not only the costs involved but also the difficulties that might arise. The ethics committee of the Law Society has made recommendations as to how difficulties that unfortunately arise can be avoided. The document states that:

The business of solicitors' firms is to sell legal services. As with any business, the owners hope that members of the public who come to do business with the firm will have a good experience and a satisfactory result, so that they will recommend the firm to others and the business will thrive. This is more likely to happen if both parties are clear about the service that is being offered.

Often when difficulties arise between a solicitor and a client, this may be because there is a gap between the client's expectations of the level of service that was to be provided by the solicitor and the solicitor's intentions in that regard.

This document spells out in a comprehensive way the importance of the letter of engagement in the early stages from the solicitor to the client. The document states:

A letter of engagement formally sets out the terms and conditions on which the solicitor's firm will carry out work for the client. It should define the relationship between the client and the solicitor and will then form the basis of the contract between them.

So the manner of the difficulty can lead to the origin of the contract between the two parties. The document also states:

It is important that the client is clear about the role of the solicitor — what it includes as well as what it excludes — and that there is agreement between the solicitor and the client as to the extent of the solicitor's duties. It may be obvious to the solicitor, but if a client has not dealt with a solicitor before, they may simply not know what to expect.

So this letter of engagement will help to ensure there is no gap between the expectations of citizens or the consumer and the reality of what is being offered in terms of the provision of the service. It is also interesting to note that the document recommends the letter of engagement be set out in plain language. This is a difficulty that has arisen and continues to arise from time to time in a way that is unacceptable. Much of the documentation can be couched in legal jargon which is not easily understood by the client. I often wonder whether this gap between members of the profession and members of the public is evident in such a way as to ensure that both parties are not on an even keel and that the playing pitch is not even. I would go further and say this is probably one of the reasons why, for example, in the hallowed halls of the Four Courts, barristers still dress in a manner which can often be off-putting to members of the public and can in many ways be a disconcerting experience. It is important the letter of engagement is written in plain language and is capable of being easily understood by the client.

The Law Society has offered a precedent which is a simple statement of the terms and conditions on which the business will be done by a firm. If that matter is subjected to a dispute, the letter can be used as a way to resolve the difficulty. The letter has been approved by the National Adult Literacy Agency in respect of its clarity and the plain English used and is a sample of best practice. This initiative by the Law Society is welcome. The clarity brought about by such an initiative fits in well with the present reform agenda and I hope similar initiatives will be taken in the future.

This Bill will offer the member of the public who has a complaint an opportunity to deal with an office that is entirely independent and that will be resourced in such a way as to ensure there are no delays or backlogs, that the service can be speedy and efficient and that, more than anything, the service can be fair and impartial. Along with colleagues, I look forward to monitoring the office of the ombudsman, receiving the report of that office and ensuring that if there are problems of the type that might not immediately be apparent, the matter can be revisited at some stage in the future in the event of amending legislation being necessary. It is very important in the provision of legal services that the confidence of the public be maintained.

Regrettably, particularly in light of some recent high-profile cases involving a minority, this public confidence has been dented. This Bill is an essential step in restoring and maintaining confidence in a profession that has suffered from the actions of less than a handful of practitioners. The ombudsman model has served us well and I expect the legal services ombudsman will continue the legacy of fairness and efficiency created and maintained by previous and serving ombudsman office holders. I look forward to examining the setting up of the office, the powers of the ombudsman and the nature of the work when we have an opportunity to go through matters on a line by line basis on Committee Stage. I look forward to contributing at that stage.

I was telephoned by the office of the Government Chief Whip and I understand the Opposition party is not speaking. It is not that I am taking its place. As the Acting Chairman is aware, there is a tradition of moving around the House and I am glad to have the opportunity to speak in an informal sense about this Bill.

For many years, I wondered why this Bill did not come about. There is no doubt that we live in an age of ombudsmen. We live in an age when people rightly require that decisions taken by others, albeit sometimes for their good, can first be explained and then explored if they do not come out in their regard.

I shall not be long in case Deputy D'Arcy is thinking of bolting. I am only taking ten minutes. I count many people of the legal fraternity, particularly many solicitors, among my personal friends. I have always found them to be very robust, thorough and concerned with their clients' wishes and what they mean to do.

Deputy Charles Flanagan raised a very important point at the end of his speech, namely, the language contained in the letter of engagement. My gripe about the legal profession is that its members understand each other. They love each other if they are not facing each other in court. They like and speak their language. Outside of that magic circle, we often do not know what they are talking about. I am not talking about judicial decisions. I have never commented on what a judge has said or done because it is not my business to do so. However, as a public representative, I am the conduit for people who have felt that they have not been best served by the legal system. I have a particular case in mind which I shall not go into.

The cases that come to a Deputy inform his or her debate, as they should because we are sent here to put forward our points of view. I am thinking of a particular case involving a separated mother with grown-up children and now grandchildren and her business arrangement with a particular legal representative and how that was handled, or mishandled, on her behalf. She was told to be at the High Court in Dublin on such a day when the case would be heard. She went to the High Court, waited outside the court and the solicitors for both sides, who were engaged in heavy dialogue, eventually came over to her and told her it was all settled. She asked them what did they mean by saying it was all settled. They told her they had settled it. She was the person involved who was at the High Court to see she got justice, but the two solicitors had got together and decided they would settle the case and she was not brought into that dialogue at that end point. She felt she got a very raw deal.

I thought about her case afterwards, what I would do about it and whether I would write to the Law Society about it. According to the society's remit, it is well handled and a nice man is in charge of it, but the society is judging its members, which is a difficult task. Deputy Flanagan, who is a hugely welcome addition back to the Dáil — I am sure I am too, at least I will pat myself on the back if the Deputy does not — would have his own views on this matter. However, he is a member of that profession so he may not agree with what I am saying. I asked that woman why she did not tell the solicitors that the way they settled the case did not suit her. She said they just went home each in his own big car and she was left to make her way back to Athlone with the settlement arranged over her head, even though she was on the spot outside the court. I found that appalling. She had no redress.

I advised her to take her case to somebody else. She went back to her solicitor and he said he could not release the file unless she paid him some horrendous amount of money. I cannot remember the amount. He would not release her file to enable her to bring the case to another legal representative unless she handed over a huge amount of money. I thought that was wrong in itself that somebody would deal with a matter such as this in that fashion. This lady is well educated and is a woman of the world. The issue is that she was ignored as the solicitors on both sides reached a settlement and her wishes were subsumed. They told her they had it all done and dusted and that they may as well all go home.

If the office of a legal services ombudsman, the establishment of which is provided for in the Bill, is a place to which a person, such as this woman, could bring his or her gripe, then it should be a good place. However, I have a concern about it. I have had the experience of dealing with the offices of a few ombudsmen. The Ombudsman, Ms Emily O'Reilly, is doing a wonderful job. One can be truly certain that if one brings a case to her attention, it will be followed up, impartially, and that the interests of the appellant will be represented. I have also found the pensions ombudsman to be excellent. However, I have a concern about a legal ombudsman. I hope the person who gets this job will not be a legal person. It would be a distortion of justice if a legal person got that job. The office holder may have staff who are legal people, but the legal ombudsman should not have legal experience because, irrespective of how hard he or she tried, the system would become self-regulatory. Self-regulation does not work. It cannot work because under such a system the profession judges its own members.

I welcome the contents of the Bill. I welcome the idea that the letter of engagement between client and his or her solicitor is to be in plain language. I understand plain language because it is what we all understand, but those in legal practice have words which ordinary people do not understand. They use terminology which is often obtuse and it does not work to the benefit of the consumer. The term "letter of engagement" is a good one — the client engages with his or her legal representative. It is provided that the letter of engagement should be in plain language. One might ask what is plain language. It is the language one hears in one's local pub, shop, post office or on the street as one goes about one's business; it is not legal language. I am sorry if in saying that I cause offence to legal people who are present, but matters such as this need to be said.

We have a duty to the people we represent to ensure the legislation we introduce reflects their point of view and how they feel they have been treated or mistreated by the legal profession. Rather than the legal profession treating it as an onerous burden, if people say they intend to bring a case to the legal ombudsman, I would say fair dues to them, that is the person to whom they should go to get redress. However, a person will only get that if the legal ombudsman is not a legal person.

Teasing out of the provisions of the Bill on Committee Stage will be interesting. It will serve the public well and it is long overdue. I hope our knowledge of how ombudsmen operate will permeate the workings of this ombudsman's office when it is set up. I also hope it will operate for the benefit of the ordinary people who will be able to say that they went to this office and the steps to be taken were laid out for them. While the case may work out in favour of the person concerned, it may not, but I believe it may well do so. I wish the Bill every success. I hope the work of the legal ombudsman's office will be to the benefit of the public.

God forbid that Deputy O'Rourke would ever offend anybody.

That would not be in her nature.

It is pleasure to speak on this Bill. It will be progressive legislation. While it may be difficult for some in the legal profession to welcome this legislation, it is long overdue.

I very much agree with what Deputy O'Rourke said about the language used by the legal profession. It is somewhat archaic. Joe and Josephine Soap on the street, in the pub or elsewhere truly do not understand what is being said in the context of legal language. A number of people, on leaving a solicitor's office, have come to me as their public representative to assist them decipher what is being said in a legal context. It is nearly an impossibility for any of us to decipher that. The legalese that is spoken for too long and too often needs to be brought down to much plainer language. Certainly, Deputy O'Rourke was very much correct on that point.

The legal profession needs this Bill as much as the public needs it. There has been much talk of a number of high profile cases. Prior to getting to the nub of that issue, I want to make the point that the vast majority of people who work within the legal services sector, whether barristers or solicitors, work on behalf of their clients and do a good job. I do not believe there are any greater or fewer members of that profession, whether barristers or solicitors, who are any more greedy or self-serving than in any other profession, be it politics, medicine or business. That said, I have some harsh things to say about those who stray offside and move way beyond their remit in terms of the service they provide for their clients.

The separation of powers in terms of the Legislature, the Executive and the Judiciary are clearly set out in the Constitution. A massive body of administration is formed by the Government, the Courts Service and other Government agencies. People are dissatisfied with that administrative body.

Other professions have ombudsmen and professional councils. A majority of the members of the Veterinary Council of Ireland and the Medical Council are not members of those professions. Deputy Flanagan referred to committees within the Law Society of Ireland. However, I believe the majority of the members of the Council of the Law Society are members of the legal profession. The only other council which has a majority of members from within its profession is the Press Council. However, that is a discussion for another day.

Access to the Law Society and its committees is not sufficient at present. That is why the Bill will be of major benefit to citizens. People are intimidated by having to go to the Law Society or the Bar Council. One hopes it is something very few people ever have to do. Unfortunately, that need seems to arise more and more often. The procedure is too slow, cumbersome and difficult. More often than not, people need some form of legal advice, whether professional or from the citizens information service or some other source. The Bill will go a long way towards benefiting the public in availing of the legal services ombudsman.

The history of ombudsmen goes back to 1984. Since then we have had a very beneficial experience of those people who have acted on behalf of the public. We now have the Ombudsman for Children, the Financial Services Ombudsman, the Press Ombudsman, the Garda Ombudsman as well as Ms Emily O'Reilly, the State Ombudsman. People's experience of the Ombudsman is good. The office is independent, strong and accountable. For too long, structures were established which were not answerable to elected representatives. The annual report of the legal services ombudsman will come before a committee of the Oireachtas where it will be scrutinised and analysed in detail.

One will not need a lawyer to access the legal services ombudsman. It may even be possible for members of the public to receive assistance by telephone. I was pleased to read that section 27 of the Bill will render it an offence to obstruct the ombudsman in the performance of his or her duties. Too often, structures are established without teeth. It is important that obstructing the legal services ombudsman will be an offence. This measure will give the office the power to provide a truly independent advocacy on behalf of clients.

In recent years groups like the Victims of the Legal Profession Society and the Rate My Solicitor website have sprouted up in response to the public's concern about sharp practice, overcharging and other abuses in the legal profession. A profession that was once considered noble is now viewed by many with suspicion. It is, perhaps, the only profession for which the public have less respect than our own.

Programmes like "Prime Time" on RTE, which reported on overcharging and professional misconduct by solicitors, have added to the perception that the legal profession, generally, is engaged in such practices. Very good investigative media work by RTE exposed overcharging in Army deafness claims. In a number of cases clients were not only overcharged but double charged. Solicitors who had been paid by the State also took funds from awards.

This is extremely damaging to those who provide a good and important service to their clients. They are tainted by the small minority who have engaged in malpractice. This has led to a considerable lack of trust in the legal profession generally. Before I became a Member of this House I studied for Law Society of Ireland examinations. I got the opportunity to watch at close hand how the profession works. Not being a fully fledged member of the profession, I was able to watch and be objective in my views. I saw how things work and how sharp practice operates. It was an enlightening experience.

The high profile cases of recent rogue solicitors like Mr. Michael Lynn and Mr. Thomas Byrne give rise to a view in the public consciousness of solicitors and barristers getting away with serious wrongdoing. Anything which can improve on accountability and add to the protection of clients is desirable for them and for the profession generally.

That said, many of those working in the legal profession are strongly of the view that it is the form and structure of the legal profession which needs to be looked at. They believe that the form and structures currently in place are at the root of the problem. They also believe that the changes needed cannot be brought about by the Law Society. Indeed, the view is that the Law Society itself is part of this form and structure which needs to change. Solicitors have to work with the system that is there. They argue that it is this very system that is flawed. They believe that if the form and structure of the legal system was amended it would have a hugely beneficial effect on such areas as family law and litigation, to name but two.

It is, therefore, imperative that the proposed ombudsman be given the powers to look at the very form and structure of the legal profession. As currently proposed, the office of the legal services ombudsman would not have such powers. This is a missed opportunity. The legal profession is undergoing a period of fundamental change. Now is the opportunity to direct these changes. It would be a great shame and a squandered opportunity to go ahead and appoint a legal services ombudsman and not equip that person with sufficient powers to get to the very root of the problems that have brought the legal profession into disrepute.

I would like to see more detail on section 27. I hope this section will be amended on Committee Stage to ensure that sanctions for the offences listed in the section are significant. It must be made clear that the risk of obstructing the ombudsman will be a great one.

I must touch on the under-representation of the smaller legal firms. I speak as a representative of a rural constituency. The majority of legal firms in Ireland are small and made up of two or three solicitors. Yet, committees of the Law Society are, to a large extent, made up of solicitors from the big law firms in the country. This leaves the smaller firms without a voice and without a means of effecting change themselves. This is something which should be addressed and the time to do it is now, in the Bill.

Up to now the legal profession has been self-regulated and it is obvious that this has not worked. What is needed is the appointment of a person with real powers to take up cases which have not been resolved by the Law Society or the Bar Council. This effectively provides another form of redress to disaffected clients.

Another forum for the resolution of complaints is also a benefit to the profession. Any process that improves transparency and accountability in the system will help restore trust and faith in it. Currently, the only redress for anyone dissatisfied with an adjudication by the Law Society or the Bar Council is the courts. This poses certain difficulties such as getting a solicitor to act against another solicitor and a court hearing takes time. The number of people willing to follow that route, let alone fund it, is small.

Regarding the operation of the ombudsman's office, it is good procedure to allow complaints to be made by any person on behalf of another. Sometimes a complainant may be unable, through ill health, infirmity or other reasons, to do so themselves. It is also correct to have a six-month deadline for complaints to be taken to the ombudsman, following the matter being adjudicated upon by the Bar Council or the Law Society. This ensures complaints are expedited in a timely manner instead of dragging on for years.

Another positive provision is that if the ombudsman decides not to proceed with a complaint that a person is making, the person or body against whom it is being made will be notified of the decision and the reason for it. It is important that such decisions are written in a comprehensive form.

It is proposed that the ombudsman will take submissions from the complainant and investigate them in private. Any person with information may be requested to produce it and may be required to attend, if necessary, the office for that purpose. It is correct that all avenues would be opened to allow full and proper investigation of complaints. Section 27 needs to be expanded to outline what offences can be considered.

It is right that the ombudsman will be wholly independent, with the required qualifications, experience, training and expertise. Deputy Mary O'Rourke questioned whether the appointee should be from the legal profession. That can be explored on Committee Stage. If the ombudsman comes from the legal profession, an argument could be made that it is a closed shop. I believe there are many possible candidates from other professions capable of making objective decisions. There is a need to demonstrate the office's complete separateness from the legal profession.

The ombudsman will be charged with issuing an annual report and a report on the effectiveness of his or her office and the adequacy of its functions with recommendations for improving its effectiveness. However, this could be reliant on such recommendations being subsequently implemented if improvements are to be made. There are plenty of examples of agencies using up much money and man hours to issue recommendations in reports that are never implemented.

Another function of the office will be to issue an annual report on the number of persons admitted to practise as barristers and solicitors during the year and to assess, given demand, the need to ensure an adequate standard of education and training for people admitted to practise and that the number of persons admitted is consistent with the public interest in ensuring the availability of such services at a reasonable cost. Up to 90%, an enormous rate, fail the first three of the four barrister examinations. Many of these students are recent law graduates. That raises the question of whether there is a quota system in place to restrict the numbers entering the profession.

With positive amendments on Committee Stage, the Bill can be improved. I hope the Minister will take on board the positive recommendations made in the House.

Unlike other Members who spoke on the Bill, I am not a solicitor or a barrister, but I speak for the majority of people who use the legal services. Many aspects of everyday life are intertwined by legalities which are becoming more complex. To make matters worse, the famous legalese, as referred to by Deputy Michael D'Arcy, is becoming more difficult to understand. There is an argument about the bureaucracy of the European Union. One can imagine the bureaucracy and legal complexes needed to deal with 27 member states. Although spoken about thousands of times, no one has made an effort to overcome the complexities of legal speak.

In my contacts, as a Deputy, with solicitors, I find them honest and straightforward. They do a good job but I would not say they work for nothing. The public will be happy with the provisions of the Bill. The solicitors and barristers of this country will welcome this new body. Those legal practitioners who work according to the procedures will have no problem with this new body. However, as referred to by Deputy D'Arcy, there are a few bad apples in every barrel and the legal profession is no exception. A bad apple in the legal profession can create havoc for a large number of ordinary people. Many Members will know of solicitors' firms where something went wrong, for instance, title deeds being mislaid, and the misery that has resulted for ordinary families. This Bill will allow the injured parties have recourse to a more straightforward type of justice.

The person who will be the legal services ombudsman will need to have all the qualities of leadership. He or she should not be a person who is easily frightened as the legal profession will rightly ask questions. The system will need to be robust enough to defend the decisions made by the ombudsman's office. Of all the professions none is better able to make a case than the legal profession and those in legal life. I share the view that whoever is appointed to that exalted position should not be involved in the legal profession, that he or she is neither a solicitor nor a barrister. It is entirely possible to find a person with the requisite competence but who is not involved in the legal profession, is neither a solicitor nor a barrister. The person appointed should be neither a solicitor nor a barrister as the reasoning behind this Bill is the need to reassure people they do not have to go to court with the devil in hell.

I refer to the first Ombudsman, the late Mr. Michael Mills, who had outstanding qualities. We have since been blessed with persons in those roles who also have those qualities. I expect the person appointed as legal services ombudsman will have those qualities and more because he or she will be subject to tremendous pressure.

The three categories of cases for appeal to the ombudsman will be inadequate services, excessive fees and misconduct. The Bill provides for a procedure that an ordinary citizen who believes that he or she was badly served by legal advice may go directly to the ombudsman. This could be daunting for an individual even though the ombudsman is there to help the individual. Many people may require some legal help with bringing their complaint to the ombudsman. I know the Bill states that this is not necessary but many people require professional assistance even when submitting planning permission for building a house. Legal assistance could be costly. I hope the Bill will provide that the person making the complaint will not be financially worse off.

It appears that the costs of running the office of the legal services ombudsman will be borne by the Law Society of Ireland and the Bar Council of Ireland. If this is the case, I know it will be the clients who will carry the can. Those two professional bodies are paying 10%. However, like everything else in this life, it will come back to the primary producer in the end and the consumer who uses a solicitor in years to come will be paying an invisible levy to take care of contributions being made up the line. I would like to believe this will be taken note of as this Bill goes through the House.

I wish to raise another matter which is associated with this Bill but not included in it. I can never understand why wigs are still being worn in court. It is not consumer-friendly, so to speak. It reminds me of the wren boys on St. Stephen's day when people dress up. I see no practical need for wigs.

The majority of people in this country have never seen the inside of a court — this is good because it means they have had no reason to. When they need to attend court and see people dressed in those wigs they wonder what planet they are on. The wearing of wigs does not affect the outcome of the cases but I can never understand why they are worn. It is a subject that raises its head every so often but the day I see the wigs being done away with will be a good day for everybody concerned.

Section 14 provides that various periodic reports are to be made by the legal services ombudsman to the Minister for Justice, Equality and Law Reform. I am not sure in my own mind about the procedure. I acknowledge that frivolous complaints will arise and it is important that such cases are filtered out following due process. The Garda Ombudsman also receives frivolous complaints. When a claimant goes through the process and where the only option left to them is to go to the courts, has the Minister any executive powers to decide on a case? If a case proceeds to court, will the office of the legal services ombudsman pay the legal fees for the claimant? It will be appreciated that such proceedings would be beyond the financial capabilities of most people. That is not clear in the Bill but I am sure it can be clarified on Committee Stage. It is something that will be raised in the coming months.

The question of overcharging comes within the remit of the legal services ombudsman. I have no doubt that there is gross, wilful overcharging in the legal profession. Much of it never sees the light of day, although there have been a number of exposés about it on television. It can arise over simple enough matters, such as ordinary insurance claims. There is no end to the amount of money solicitors and barristers can make on the basis of charges to their clients and the insurance companies involved. I have no doubt that there is no shortage of double charging and that it is going on all the time. I hope the cases brought before the ombudsman will be made public so that people will understand the situation. If a number of high profile cases were successful, it could have a ripple effect. It would show the legal profession that it could not and should not overcharge. Hopefully a satisfactory outcome can be achieved with regard to the practices of overcharging clients and ambulance chasing.

When people decide to have windows fitted in their homes, they seek numerous quotations, but they never get quotations for medical or legal advice. If someone has a headache, they may not have time to obtain quotations for treatment, but there is plenty of time to seek quotations for legal advice. Over the years, however, I have seen very few people using the telephone to ask lawyers what they would charge for doing X, Y or Z. People will visit a solicitor to outline their case and because they have confidence in that law practice, but rarely if ever will they ask how much the legal services will cost. That has been my experience over the years but I cannot understand it because we do not have a shortage of solicitors. Given the immense amount of money being charged, even for small services such as conveyancing, one would have thought that a few telephone calls to various solicitors might be worthwhile. Surely a cartel is not being organised. I am sure it is not, but the last thing potential clients do is seek quotations for legal services. I hope this will become common practice through the Ombudsman's office.

I am delighted that before he was elevated to higher things, the former Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, decided to introduce this legislation on its own, although it was linked earlier to another Bill. This is one of the most important pieces of legislation that will pass through this House this year because of the positive impact it will have for so many people in future. Some people have told me that no matter how one does it, the legal profession will always win but I do not think so. If we get a strong, dedicated and focused person in that office, with backup from the best possible legal advice, he or she will be able to take on all the vested interests. If that happens, it will be a good day for this country. This stand-alone legislation has an importance that it would not normally have if it were merely a tailpiece to another Bill.

Many aspects of the legislation will have to be teased out on Committee Stage. In his opening statement and in a recent interview, the Minister said there will be a sympathetic approach and that consideration will be given to many of the views we all hold. There will be widespread support for the Bill, which lends itself to that approach. If most common sense views can be facilitated in the Bill, it will make for better legislation.

Like previous speakers, I welcome this Bill which will put the office of the legal services ombudsman on a statutory footing. Under the terms of the Bill, it will be possible, for the first time, for members of the public to make a complaint to an independent ombudsman, who is neither a solicitor nor a barrister, if they are unhappy with the outcome of their complaint made to the Bar Council or the Law Society. When lawyers investigate themselves, it can lead to charges of a cover-up. I am glad that the Bill provides for the establishment of a new, independent ombudsman.

Complaints made both to the Law Society and the Bar Council vary from excessive fees charged to clients, misconduct, inadequate service and bad advice to poor representation. As Deputies, we all know of instances where rogue solicitors have overcharged constituents and provided a poor service.

Some of the functions of the legal services ombudsman will be to promote awareness among the public of matters concerning the procedures of the Bar Council and the Law Society; to assess the adequacy of the admission policies of the Law Society for solicitors and of the Bar Council for barristers; and to review the procedures of the Bar Council and the Law Society for dealing with complaints made to those bodies. Those functions are to be welcomed and it is no harm that an independent ombudsman will have a remit to ensure that proper and adequate candidates are appointed as solicitors or barristers, as well as ensuring that the complaints procedures are correct.

I welcome the fact that the legal services ombudsman will have to submit an annual report on the effectiveness of his office to the Minister for Justice, Equality and Law Reform. That report will also cover the adequacy of the functions of the ombudsman's office. This is an innovative change. Given the current number of quangos, this practice should be introduced for all such bodies so that they have to provide an annual report outlining the effectiveness of their functions. This report may contain recommendations for improving the effectiveness and value for money of the office of the legal services ombudsman. We want an independent ombudsman who will function correctly within a given remit.

The legal services ombudsman will attend meetings of the relevant Oireachtas committee whenever he or she is asked to do so by the committee and shall provide the committee with such information as requested. I hope that when the ombudsman's office is up and running it will be well advertised and that the necessary details will be contained in literature produced both by the Law Society and the Bar Council.

The legal profession should have nothing to fear from the appointment of an ombudsman. If anything, the appointment should help to promote higher standards in the legal profession. It should enhance its reputation as happened in England and Wales with the appointment of an ombudsman who oversees complaints relating to lawyers and barristers. Whoever is appointed to this office needs to speak to the ombudsman in England and Wales and learn from its experiences. This will ensure that the teething problems experienced in that office are avoided in the new ombudsman's office.

Will a customer charter be put in place which will outline the turnaround time members of the public can expect in regard to their complaints? Will the ombudsman's services will be free of charge to the public?

It is good that the ombudsman's role, as stated in the Bill, will specify the numbers of persons admitted to practise as barristers and solicitors respectively during the year, and that the decisions made will be in the public interest so as to ensure that the cost of employing a solicitor is reasonable for any member of the public. Certainly, one of the major criticisms is the excessive fees that some barristers and solicitors charge. If the Bill ensures there are more solicitors and barristers and more competition within the market, that is a positive development for the public.

It is reasonable and welcome that one has up to six months in which to make a complaint to the ombudsman. Why is it that all investigations are to be held in private? Would it not make more sense, in the interests of transparency and public accountability, if some of the investigations were held in public? Perhaps the Minister could indicate when summing up whether this will be the case.

I am pleased to note that the full cost of the office of the ombudsman will be paid by both legal professions and that the State will not have to pick up the tab. That is welcome given the current rates of wastage. It is necessary to ensure high standards are retained in the law profession and in the Bar Council. It is welcome that both professions will provide the money to pay for this office because it is in their professions' interest to have a good independent ombudsman functioning in this area.

I note that if a person obstructs the work of the ombudsman, he or she is liable to a fine not exceeding €2,000. That certainly would focus the mind or any person seeking to obstruct the work of the ombudsman and it is welcome.

As Deputy Connaughton said, the Bill could be examined further and the Fine Gael Party will table amendments on Committee Stage. However, I welcome the publication of the Bill. For the first time, it will provide for an independent ombudsman who will not be a solicitor or barrister and will look at the complaints procedure in both professions. The legal services ombudsman will ensure that excessive fees charged to clients and any misconduct or inadequate service provided by solicitors or barristers will be investigated. I commend the Bill to the House.

I thank Deputy O'Rourke for rushing in to the bearna baoil when I was detained elsewhere due to other business. I assure her it is not a case of the other Opposition party, as she referred to us, not wanting to speak.

This Bill has been stripped out from the Civil Law (Miscellaneous Provisions) Bill. This was a suggestion the Fine Gael spokesperson, Deputy Flanagan, and I put to the former Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, and he took it on board. It is right that we have stand-alone legislation in this area. It is a modest reform. I would not be as enthusiastic or as over-the-top as some of the comments I have heard about it. There are many consumers of the legal profession and the question they will ask is whether the Bill goes far enough. I support it as far as it goes, but I argue that it is a modest measure.

If we were to ask the National Consumer Agency to do a survey and, as we all know, apparently, that is what it does.

Yes. It conducts a lot of surveys.

If the National Consumer Agency could take time off from the supermarkets, finding out what the rest of us already know, and conduct a survey of people who are dealing with the legal profession, it would say this is a welcome measure but that it is limited enough. The background against which one has to measure it is the Competition Authority report. That report is very instructive but I do not think anybody has adverted to it. For example, it states that the Competition Authority has concluded that the legal profession is in need of substantial reform and it goes on to spell out why that is the case. The report states that the Competition Authority recommends comprehensive new legislation, a legal services Bill, to address the competition concerns identified in its report. The legislation would establish an independent legal services commission with overall responsibility for regulating the legal profession and the market for legal services. That is a horse of a completely different colour. The Bill before the House provides for a legal services ombudsman but in terms of what was envisaged by the Competition Authority, it is a modest measure.

Part of the reason we are where we are is because of what might be euphemistically referred to as recent events.

Recent events have undoubtedly alarmed the public and have done damage to the legal profession. Like Deputy Paul Connaughton, members of the profession I have dealt with have been honourable people. I forget the phrase Deputy Connaughton used but it was to effect that they do not do it for nothing. I am prepared to go along with that too.

Some woeful weaknesses have been shown up in the system. I am not just referring to the few bad apples in the barrel, and they have been fairly dramatic by any standards. If one owes the bank €2,000, one is in trouble but if one owes the bank €2 million, one is in a stronger position. What we have witnessed recently has been dramatic, involving, as it did, two high profile cases in particular. However, there was not only two. We also had a case affecting two lawyers who seemed to be engaged in an extensive tax evasion scam in which they put money offshore and so forth. These developments have conditioned the perception of members of the public and done damage to the reputation of the profession.

In that regard, I referred to the report of the Competition Authority, which should be compulsory reading for those interested in reform in this area. However, I could also make reference to a speech to the Law Society in University College, Cork, by the Master of the High Court, Mr. Edmund Honohan SC, in which he stated that "no spinning" by the Law Society could disguise the "systemic failure" of self-regulation of solicitors. What was now needed, he added, was a "robust agency" to deal with rogue solicitors, most of whom, he said, must now realise they have been let down by a few rogue, negligent solicitors. Let us be clear that the Bill does not provide for the "robust agency" he recommended.

The Master of the High Court also stated:

It is the status of the solicitor as officer of the court that makes the solicitor's undertaking the gold standard of contractual obligations... When an officer of the court undertakes, he puts his official status on the line. A solicitor who defaults on an undertaking damages the entire profession.

Mr. Honohan's views in this matter are hotly contested by the Law Society of Ireland. The Joint Committee on Justice, Equality, Defence and Women's Rights had an opportunity to hear representatives of the Law Society on these matters and members had a useful exchange of views with them. Ultimately, however, the matter hinges on the question of regulation versus representation and whether one organisation can perform both these roles. There is a great deal of confusion surrounding this question. For example, I have a copy of a speech delivered by the president of the Law Society of Ireland, James McGuill, on 7 December last in which he stated:

Let me make another principle clear. Opinion-formers and other commentators assume that the legal profession supports self-regulation. I don't. We don't.

These comments were given considerable mileage in newspapers which ran stories to the effect that Mr. McGuill had spoken out against self-regulation. He did not do anything of the kind. The text of his speech shows he used language which seems to indicate he is against self-regulation but this is only because of his perception that the existing arrangement is not self-regulation. The current arrangement is, however, one of self-regulation. Later in his address, Mr. McGuill stated:

We don't, and won't, promote self-regulation. As we have pointed out repeatedly, it is fundamentally misleading to describe the current system of regulation of solicitors in Ireland as "self-regulation".

Even though it is acknowledged in terms of the common language used by most people that the system we have is one of self-regulation, the president of the Law Society of Ireland has stated it is not self-regulation because some outside elements are involved. As everyone else accepts, the system is still essentially one of self-regulation. The nuance of what Mr. McGuill said was, therefore, missed in the media. This is not the only place in which the media missed the nuance of certain comments. For example, I have a copy of a report from The Irish Times in which the former Taoiseach, Deputy Bertie Ahern, is quoted as stating in the Dáil:

I am not satisfied that self-regulation, as it has been operated over the years, is the best model. . . Total self-regulation does not provide the impression that the public interest is best served in a transparent way, notwithstanding the fact that the overwhelming majority are doing a good job.

While I agree that the overwhelming majority are doing a good job, the comment that self-regulation is not the best model is testament to the extraordinary skill of the former Taoiseach who had a habit of saying something and allowing a nuanced message to go abroad, in this case that he was opposed to self-regulation. Later, he also implied the Government would do something about it. As so often in the case of the former Taoiseach, one had to read the small print to learn that this was not what he meant. The purpose of the Bill his Government introduced was not to end self-regulation but to establish an office of legal ombudsman with the duties described in the Bill. While I welcome this step, albeit against the background of my comments, it is more modest than ending self-regulation.

A great many people worry about the acquiescence of the House to the concept of self-regulation by the professions and note the scams that have taken place in recent years in the financial industry and business, including the beef industry. These could not have happened without the acquiescence, negligence or complicity of professionals. Whether in the accounting or legal profession or some other profession, many people profoundly question whether self-regulation is acceptable.

Although the Government invoked the assistance of the Competition Authority in examining the legal profession, scant regard has been paid to the authority's conclusions. The authority concluded that "the legal profession is in need of root and branch reform reflecting the important need to create a modern system of regulation that is proportionate, accountable, transparent, flexible and reflects the needs of consumers". The Ceann Comhairle was an honourable member of the honourable profession. I do not believe any Member would question the Competition Authority's description of the current position. Its recommendations are not generally included in the Bill, however. For example, it recommended the establishment of a legal services commission which would be "an independent, transparent and accountable body, involving a wider group of stakeholders than the current model of self-regulation." The former Minister did not take on board this view. It would be helpful to hear from the new Minister the reason this recommendation was not taken on board, given that he failed to do so in his address to the House last night.

I have long since been persuaded that when it comes to writing persuasive English, Irish civil servants have no competitors in the western world. They are much better, even than civil servants in the neighbouring island, at making the most of a rather small reform. Their capacity to exaggerate it and present it in plausible English is limitless and I pay tribute to them. However, I would still like to hear the Minister tell us why the Competition Authority has been thrown out the window. He may state that some modest concessions have been made by the Bar Council and the Law Society, which is true, but we are certainly not going anywhere near what was recommended for this Bill.

We spoke about "recent events", which is a euphemism for the fraud that has been perpetrated on clients and financial institutions by a small number of solicitors, as well as the fraud perpetrated on the taxpayer by those other solicitors who were salting money offshore. As a TD, I am just as concerned by the routine dereliction of duty by some solicitors. Constituents come to me with complaints that would be regarded as minor in this Bill, but they are big complaints from where they are standing. The difficulties they encounter in a few cases with their solicitor can be an impossible mountain for them to climb. They cannot even get their files back from the solicitor. One would need a JCB to get a file back from a solicitor who is not diligently attending to it. Many ordinary people have had this experience with members of the legal profession. It is that routine dereliction of duty that concerns me as much as the few bad apples in the barrel that have recently gained such public notoriety.

An ordinary person with a minor claim that has been negligently attended to will get nowhere with a complaint to the Law Society. Such a person would not know how to access the Bar Library and make a complaint if the Bar Library was involved. I hope that whenever the ombudsman is appointed, he or she will devise a code of practice to deal with the average citizen who is not getting satisfaction or value for money from a member of the legal profession. Up to now, it has been very difficult for a client to get satisfaction in cases of negligence.

The Competition Authority states:

If a client wishes to switch solicitor, for example in response to poor quality of service, the solicitor has the right to withhold the client's file until the client has paid the solicitor's bill, even if the bill is disputed. As a practical matter, full payment may not be possible to achieve in a short space of time and, in the interim, the client is disadvantaged with possibly serious consequences. For example, a consumer who believes that his/her current solicitor is putting his/her case in jeopardy, or is failing to act in a timely manner, cannot take his/her business elsewhere.

This special protection for solicitors against bad debts does not exist for any other profession in Ireland and is an unnecessary restriction on competition between solicitors and on consumers' rights.

Consumers of legal services, especially small infrequent buyers, are in a far more vulnerable position than the solicitor who can self-supply legal services to remedy any injustice he thinks might be done to him. We in this House have all met constituents who believe that their case is not being acted on in a timely manner or is being negligently handled and who feel that they do not owe money as alleged by their solicitor. Even if we intervene, it is extremely difficult to get the file back. I hope that a code of practice will be designed to deal with the average punter who finds himself or herself in that quandary.

The Minister stated last night that the Bill will establish a legal services ombudsman which will oversee the handling by the Law Society and the Bar Council of three classes of complaint against solicitors and barristers, namely, inadequate service, excessive fees and misconduct. I welcome that. If the ombudsman is enabled to discharge his duties in those three areas, this Bill will be worthwhile. We have all experienced it. I challenge even the newest Members of this House to say that they have not encountered one of these causes of complaint. Members talk about it privately among themselves. If redress is to be provided in this Bill, that would be welcome.

I referred to the remarks of the master of the High Court, when he spoke about the gold standard of contractual obligation, which he claimed was the solicitor's undertaking. As Members of the Joint Committee on Justice, Equality, Defence and Women's Rights, we had the opportunity to hear representatives of the Law Society make a well argued and worthwhile submission to us on this issue. This again arises from recent events, in which a couple of solicitors were able to raise a mortgage several times on the same property. They used that gold standard of contractual obligation as a means of levying finance for their own purposes. The key point is that the system of solicitors' undertakings, without which it would be difficult for society to function, is in respect of the solicitor giving an undertaking on behalf of his client, not on behalf of his own business. If we are to permit a situation where a solicitor can resort to that in furtherance of his own private enterprise, we are inviting the kind of difficulty that has become notorious in the media in recent times.

I worry that the Bill does not go far enough to address this central issue. In our society, access to justice is dependent, in most if not all cases, on the consumer resorting to the services of a lawyer. As Deputy Paul Connaughton said, they charge well for it in most cases. In saying that, we should be prepared to acknowledge the lawyers who do tremendous work pro bono on occasion. We should give credit for that, of which there have been exceptional examples. In any event, no one is complaining about lawyers being rewarded for their services like anyone else but about where, as identified in this Bill, excessive fees are charged. There are, on occasion, excessive fees charged and worse, they sometimes do not come to light. What about the abuse of the redress scheme where a small number of solicitors’ companies were charging their clients and at the same time taking a percentage from the settlement when it emerged?

A grand old tradition.

It is prominent in the news for a short time and then dies away. One suspects there is a similar situation with regard to the Army deafness cases. One must be fairly naughty before one is struck off by the Law Society or the Bar Council. How much time have I left?

Three minutes.

That is exceptionally well timed. I am getting better at judging it all the time.

The Deputy is long enough at it.

Deputy Rabbitte will get everything perfect.

The Master of the High Court referred to what he described as an abuse of privilege. He referred to the use of mumbo jumbo by lawyers of the "it's the law, you wouldn't understand" variety to keep a client at bay or to seek to over-complicate issues, perhaps to justify a higher fee. There is a certain amount of mumbo jumbo associated with all professions but access to justice and certainly access to the courts can be an intimidating prospect for many citizens. People who never expected to find themselves in courts, and did not particularly want to, find the court environment intimidating. It is mysterious to the average citizen when the barrister, with whom a relationship of some kind has been established, must run away to present in a different court. The game playing that goes on in the round hall mesmerises ordinary people. It would be no harm if the Bar Library and the Law Society came further in understanding that the days when the professions lorded it over the average citizen are gone and there is no need for the mystique and mystery that surrounds the process. The citizen is paying for it either through taxes or directly in fees. If citizens could get an intelligible, accessible service that they could understand, delivered in a fashion they could understand, they would have a higher perception of the profession.

The profession has behaved honourably, by and large. I commend those who have done work in the public interest for no payment. It is regrettable that there have been instances that threatened to damage people's confidence in the profession. It is timely that the House addresses that subject.

Cuirim fáilte roimh an mBille fán Ombudsman um Sheirbhísí Dlí 2008, agus roimh an cuspóar atá aige. Tugann an Bille aitheantas sa deireadh thiar nach féidir le heagrais atá gafa le gairmeacha dlí déileáil i gcónaí i gceart le gearáin i gcoinne baill na n-eagras sin, An Cumann Dlí nó an Bar Council. Tá sé nádúrtha go mbeadh bá ag lucht dlí le lucht dlí. Tá an bá chéanna ag An Garda Síochána le gardaí, agus ag dochtúirí le dochtúirí agus araile. Tá gá le bealaí neamhspleácha a aimsiú chun déileála go héifeachtach agus go gasta le gearáin. Caithfear chomh maith bheith cothrom le gach taobh páirteach sa choimhlint nó sa ghearán. Tá ár sochaí tar éis roinnt de na céimeanna sin a ghlacadh maidir leis na gairmeacha eile agus tá súil agam go leanfaidh muid ar aghaidh leis na hathruithe atá le teacht.

Tá sé thar am don Bhille seo. In ainneoin an fháilte atá curtha roimhe agam, d'fhéadfadh sé a bheith i bhfad níos foirfe, cé gur céim chun tosaigh é. Déileáileann an Bille le gairm a bhaineann le daoine a chleachtann an dlí, dlíodóirí agus abhcóidí. Mar an gcéanna leis na gairmeacha eile ar nós An Garda Síochána, dochtúirí nó cuntasóirí, baineann an caidreamh idir dhaoine ag obair mar dhlíodóirí nó abhcóidí agus an pobal le ceisteanna tábhachtacha. Déileáileann siad le saibhreas nó daibhreas, sláinte nó tinneas, nó le saoirse agus daoirse. Mar aon leis na gardaí, déileáileann dlíodóirí le ceisteanna móra i dtaobh saoirse agus sealúchas.

Tá go leor scéalta cloiste agam thar na blianta faoi chásanna inar bhuail dlíodóir nó abhcóide bob ar an chliant. Uaireanta ní bhíonn a fhios agam an d'aonghnó nó de thaisme a tharla sin. De gnáth, níor míníodh don chliant sna cásanna sin cad go díreach a bhí ar siúl nó cén toradh a thiocfadh as an seasamh a d'iarr siad ar an abhcóide a ghlacadh. I gcásanna eile, níor thóg an abhcóide nó an dlíodóir an treo a bhí á lorg ag an chliant. Is trua go dtarlaíonn sin. Go minic, is i gcásanna mar sin a bhíonn fadhb ann. Bíonn fadhb ann nuair nach mbíonn dlíodóir sásta an scéal a mhíniú. Cuirim fáilte roimh an mBille, ach tá leasuithe le teacht.

Sinn Féin welcomes the Legal Services Ombudsman Bill. Sadly, whether it is the Garda Síochána, the legal profession or the medical profession, we know too well the dangers of leaving any profession to its own devices. Sinn Féin welcomes the change in our society that tries to ensure an independent complaints process for the profession to ensure both the profession and the public are protected. The danger of allowing professions to operate without independent and transparent systems to ensure that the highest standards and accountability are inherent is that it undermines public confidence in that service and the profession.

At the extreme, the absence of independent mechanisms to receive and rule on complaints can risk and ruin lives. There have been a number of cases highlighted in recent years and protests outside these gates by victims — as they put it — of the legal profession. They have come together to try to ensure that what we are addressing today is set up. They also seek redress for the complaints made in respect of their experiences of the legal profession in this State. For example, the Irish Medical Organisation should have struck off Dr. Neary from the register a lot sooner than it did. The fact he had chosen three members of the IMO who assessed him speaks volumes about the need to ensure complaints bodies are independent of the sectoral organisations of which the subject of a complaint is a member.

The seeming inability of the Garda Síochána complaints board in the past to find against members of the force and its frequent refusal to investigate complaints never surprised me. I welcome the new body though I would have preferred it to be much more independent and stronger. A well known specific example, which illustrates the need for an effective complaints mechanism, is the despicable double charging of victims of child sexual abuse by certain members of the legal profession as highlighted by a number of previous speakers. There are many other lesser known but equally grave examples.

My office is receiving an increasing number of complaints and requests for assistance in respect of improper, unethical and incompetent conduct by members of the legal profession. The people concerned have run out of options in seeking justice. I believe this is only the tip of the iceberg. I am sure all 166 Members of this House have received complaints from members of the public in regard to their treatment by members of the legal profession. In general, the legal profession is above reproach but there exists within it, as in all professions, those who would do it down. They are the ones we are trying to weed out. We are trying to ensure the highest possible standard is attained by the legal profession, barristers and solicitors, within and outside the State.

Some members of the legal profession are profiting from the vulnerability of people who must access their services. This is creating great hardship and distress for people who have been pursuing justice and recompense for years at great financial and emotional cost to themselves. A person wishing to take on the legal profession in this State needs a great deal of money. Many people have lost their holdings and farms in an attempt to undo a wrong or perceived wrong on the part of practitioners in our justice system.

Many people have been denied access to legal recourse to pursue their complaints or to appeal against unethical solicitors owing to their inability to find another solicitor who is willing to take their case. This is happening across various professions. It is difficult to find a garda who will make a complaint against another garda. If this were not so, there would have been no need for the Morris tribunal. Also, it is difficult to find a solicitor who will give evidence or make a complaint against a solicitor. The same applies in respect of a doctors.

Members of the House have called for the introduction of a whistleblowers' charter to protect those who want to expose, without having to suffer any consequences or risk of being sent to Coventry by their fellow practitioners, members of a profession who are guilty of misconduct. This culture must change. It is hoped the findings of the Morris tribunal will result in such change in the Garda Síochána and that the advent of the legal services ombudsman will result in a change in attitude in the legal profession.

Not alone are people finding it difficult to find a solicitor willing to take on a case, they are also finding it difficult to obtain free legal aid. The free legal aid centres, FLAC, are not in a position to handle some of these cases owing to under-resourcing, means test results or because they are precluded by law from doing so. Mar a dúirt mé, cuirim fáilte roimh an córas neamhspleách atá molta sa Bhille seo, a chinnteoidh go mbeidh muintir na gairme dlí freagrach trí oifig an ombudsman um sheirbhísí dlí. Tá sé thar am go dtarlódh a leithéid. Is comhartha é go bhfuilimid ag dul sa nua-aois. Molfaidh mé leasuithe ar an Bhille seo ar Chéim an Choiste chun a dhéanamh cinnte de go n-úsáidfí "fear an phobail" — an teideal a bhí ann nuair a cheapadh Michael Mills — in ionad "ombudsman" i nGaeilge. Déanann an teideal "fear an phobail" cur síos níos fearr ar an ról a bheidh ag an duine a oibreoidh sa phost nua seo. Beidh an "fear an phobail" ann thar ceann an phobail. Tá sé sin le bheith molta. B'fhéidir gur chóir dúinn an teideal a athrú ó "ombudsman" go "fear an phobail" nó "bean an phobail".

The introduction through this Bill of an independent body in the form of the legal services ombudsman to hold legal professionals accountable is both welcome and overdue. On Committee Stage, I will table amendments with the aim of improving the Bill to ensure we have the most effective and, crucially, the most independent ombudsman possible.

Section 5 outlines the eligibility criteria for appointment to the position of ombudsman. Sinn Féin will table an amendment to this section to ensure that not only current but recent members of the Law Society of Ireland or Bar Council are ineligible for this position. Measaim gur chóir go mbeadh spás ama de dhá bhliana nó cúig bhliain i gceist, ionas nach féidir leo siúd atá ag cleachtadh dlí faoi láthair bheith ainmnithe mar ombudsman. Ba chóir dúinn féachaint ar sin. Ba cheart dúinn tréimhse ar leith a shainiú ionas go mbeidh ar dhaoine obair eile a dhéanamh idir an dá linn. Beimid níos fearr as muna mbeidh duine atá gafa leis an tseirbhís ainmnithe mar ombudsman. Ní chóir go mbeadh an cumadh ar an scéal go bhfuil bá ag an ombudsman don ghairm ina raibh sé nó sí ag cleachtadh roimhe sin.

Section 11 governs the appointment of the staff in the office of the legal services ombudsman. It also provides that prior to seeking the consent of the Minister for Justice, Equality and Law Reform and Minister for Finance to appoint a new staff member the legal services ombudsman must first consult the Bar Council and the Law Society of Ireland. I find this provision bizarre. The recently established Garda Ombudsman Commission under the Garda Síochána Act 2005 does not and should not have to consult with the Garda Síochána before appointing its staff. I fail to understand why the legal services ombudsman should be any different. Section 11, as currently drafted, can only serve to reduce the potential for public confidence. Perhaps the Minister when replying will explain cén fáth go bhfuil an foráil seo sa Bhille.

Section 15 makes provision for the legal services ombudsman to produce annual reports on admission policies of the Law Society of Ireland and the Bar Council. These reports must contain the number of people admitted to practise and set out how this matches the demand for services. We have been long of the opinion that the Judiciary is not representative of Irish society and has long been disproportionately made up of people from wealthy backgrounds. In the interests of justice, it is imperative this situation be reversed. It is crucial the legal professions begin to include a fair representation of people from working class backgrounds. With this in mind, I will also table amendments to section 15 to ensure the legal services ombudsman reports provide a breakdown on admissions policy under a number of different headings, including socioeconomic background, gender, ethnicity and so on with a view to establishing quotas if the admission quotas are not reflective of society, which I believe is currently the case. We must set targets to achieve change in our legal services to ensure we are judged by our peers rather than by our masters, which I have never accepted.

Deputy Connaughton suggested that the wearing of wigs and gowns should be prohibited. They are a hand-down from a previous jurisdiction and a previous part of Irish life and they should be prohibited once and for all. One is not being judged by one's peers if the person at the bench believes he or she is above another because he or she wears a wig and a gown. It is high time we modernised our society, including the Bar.

Section 21(7) appears to limit the retrospective powers of the ombudsman regarding complaints determined by the Law Society or the Bar Council to no more than six months prior to the commencement of the section. This is in contrast to section 6 which gives the ombudsman certain discretionary latitude. The retrospective powers provided by this section should be clarified. If one compares section 21(7) with section 6, one can see that clarity is required.

I will also be tabling a number of standard amendments to ensure the democratic accountability of the ombudsman. I welcome the fact that the ombudsman will be in some way answerable to the Dáil, through a committee, with regard to costings and so forth. However, all the ombudsman's reports to the Minister should be open to scrutiny by the Joint Committee on Justice, Equality, Defence and Women's Rights to ensure that the ombudsman is working correctly and that we are getting the correct response from the Bar Council and the Law Society with regard to his or her recommendations.

I remember when the then Minister for Justice, Equality and Law Reform, whose name is hard to remember because he is no longer a Deputy, set up the Garda Ombudsman Commission, he argued that it had to have three members. He maintained that it could not function properly without three members, but an ombudsman's office is now being set up with just one person. Obviously, the new Minister took on board the advice that many people gave to the effect that one person is a lot more effective in terms of making adjudications.

Another issue which I am interested in examining and on which I will do some research before Committee Stage is the term of office of the ombudsman. There are various terms of office and we should standardise them. In this case, it is six years plus a subsequent term and a further term if so required, which means that somebody could theoretically be in this job for most of his or her working life. I do not think that should be the case; two terms would suffice. Whether six years or five years is appropriate I do not know but we should consider standardising the terms of office of all ombudsmen across the board.

I have major concerns about section 27 because its provisions do not go far enough. The section refers to the obstruction of the work of the legal services ombudsman. Basically, if one obstructs the ombudsman one is liable, on summary conviction, to a fine not exceeding €2,000. Given the fees charged by some solicitors and barristers, I do not think they would care too much about €2,000 and would forego such a sum. In this case, because of the seriousness of what the ombudsman will be addressing and the fact that we want to improve public confidence, the ability to strike a person off the register and rule him or her out of practising should be included as a punishment for obstructing an officer appointed by this House to work on behalf of the public as a whole. It is important that the seriousness of this is reflected in the Bill.

Measaim go bhfuil an chuid is mó den méid atá le rá agam ráite agam anois. Cuirfidh mé roinnt leasoithe ar Chéim an Choiste. Tá sé tábhachtach a léiriú go dtugann Dlí-Chumann na hÉireann agus Comhairle an Bharra tacaíocht don Bhille seo. Táimid ar fad ag tarraingt le chéile sa chás seo. Tá gach éinne ag iarraidh a chinntiú go mbeidh an reachtaíocht seo, agus an "fear an phobail" nó ombudsman um sheirbhísí dlí, chomh éifeachtach agus is féidir ionas go mbeidh muinín ag gach éinne sa chóras dlí ina iomlán.

As the Ceann Comhairle knows, I am not a legal professional but if there was such a thing as reincarnation, I would like to come back as a lawyer. There are several things I would like to attend to and several scores I would like to settle and I would enjoy——

We cannot all be perfect.

Absolutely. Hindsight usually gives us that entitlement. I think I would enjoy it and I am sure the Ceann Comhairle would as well.

When I was a very young, green and a raw recruit in this House I remember, on behalf of a constituent, engaging or locking horns with a famous legal firm. I was fairly trenchant in my attitude and was not the shrinking violet type, as befits a public representative. After some considerable time I received a written response from the legal firm concerned, which was very trenchant and challenging and was supposed to set me back and make me reconsider my position. However, enclosed with the letter, whether by way of mischief, omission or error, perhaps mischievousness on the part of the legal secretary who might not have been on good terms with the firm, was an opinion from senior counsel. Obviously the letter had been referred to the senior counsel for an opinion as to whether this was the right road to take in dealing with this upstart of a politician who dared to poke his nose into this particularly restricted area. I have to say — I know that the Ceann Comhairle would have had a good laugh — I had a really great laugh at that because I knew what to do next, having received the opinion of senior counsel.

We suffer in this country from what I would call post-colonial deference to professionals and professional opinion. It comes from our colonial past. Various speakers have referred to the legal, medical and teaching professions, among others. With all professionals, whether rightly or wrongly, we seem to take their opinion as read. As the public becomes more well versed at reading the English language and reading all languages, there is less of a tendency on their part to accept without question the opinion given, whether from a lawyer, doctor or any other profession. That is correct and is as it should be. Every human being has a certain amount of intelligence and has the right to ask a question. Even if the question appears to be frivolous or badly phrased, the individual still has the right to an answer.

Before relating another case from some years ago, I must say that the vast majority of lawyers and solicitors are decent people and do a lot of work pro bono, as Deputy Rabbitte said, which we hear very little about. However, there are some cute so-and-so’s out there as well. I remember a case involving a young couple who bought a house. It was not a great house and it needed a lot of refurbishment. They were living in a mobile home at the time. We moved their case on by encouraging the local authority to grant them a loan. It was a little difficult but they could just about afford to buy the house — it is great that young people can aspire and be able to buy their own homes. However, between the time the deposit was paid, the contracts signed and the conclusion of repairs which had to be done before closure, house prices dramatically increased. The vendor took advice from his lawyers who told him he had the right to increase the price, notwithstanding the existence of a contract. They basically told him he should charge the couple more, which he duly did. As a public representative, I had to lock horns with that particular legal firm. I still remember the name of the firm, but we are precluded from naming such people on the record of the House. Previously in the House, perhaps ten or 12 years ago, I did not name the firm but gave its address and telephone number. At least I had that privilege. I consider the way the legal eagle advised the vendor to be sharp practice. The vendor could do what he did legally, but the fact that one can do something legally does not necessarily mean it is right.

One of the problems we have in society is secrecy. Family law has an in camera rule. If a Member of this House asks a question about it, we are told it is in camera and how dare one suggest one might offer assistance, advice or information. Whenever we surround ourselves with secrecy, we also tend to surround ourselves with an armoury to protect whatever it is we think we have. It does not make any difference how this affects the public and this is a mistake. It leaves itself open to all types of possibilities, none of which is in the interests of the public or, ultimately, the profession concerned. Deputy Pat Rabbitte made reference to another case.

With regard to the restitution payments in respect of those in institutions, if one inquired of a particular firm — I will not say in which profession — one was told it was a confidential matter and the information was covered by the Data Protection Commissioner. This is utter rubbish. It is not confidential and the Data Protection Commission has no function in the matter of any activity by the Members of this House in determining what is happening in respect of their constituents and whether their constituents are getting fair play. It is merely a fig leaf to hide behind when somebody does not want to give an answer.

The firm would write to the family of the individual concerned and ask whether permission had been granted to the public representative to inquire on their behalf. When we come to this type of situation, I ask myself whether it is really progress. All we are doing is allowing the creation of barriers around groups of people who do not want to be questioned and never intended that their activities would be questioned.

The question of discipline applies to all professionals. In this case, the ombudsman will be responsible. Deputy Ó Snodaigh was correct that, originally, an ombudsman triumvirate was to be established. Now, it will be one ombudsman which is an improvement. When one spreads authority and alleged responsibility, one does not get accountability. The more people with equal responsibility in an area, the less chance of ever getting anybody to be accountable for the operation of that show. It is sad but that is how it is. Everybody is responsible and nobody is responsible.

I do not know how the application of discipline will work in this situation. It should and could work but I do not know if it will. Other speakers referred to complaints against the Garda and I know gardaí are in the front line in the fight against crime. It is difficult to admit something has gone wrong and that it needs to be stopped. It tends to be seen by public representatives as a reflection on the entire profession, which it is not. If something goes wrong in any profession at any time and it comes to our attention, somebody's job is to raise the matter and see whether it can be attended to. They should ask what is the problem and say "Let us deal with it".

The next part is important. What happens with regard to discipline? What action is taken and who takes it? This is where many of the difficulties we have at present arise. The chain of command does not work. The reason is that if a whistleblower makes a report to his or her superior, the superior may have a weakness or an issue he or she does not want to be aired and may not be in a position to take any action. This moves it to the next level. At what level in the chain of command should action be taken?

The presumption is that whoever reports should report to his or her superior. What is happening is that nobody takes any action and nothing happens because if one does act, one's own position is weakened. The person thinks somebody will be waiting for him or her in the long grass at a later stage. What happens then? One must produce an ombudsman or somebody like an ombudsman at the top of the pyramid, who will state he or she is responsible for operations being run in the manner in which it was intended. It remains to be seen whether it will work.

At present in our society, to ensure the public gets some semblance of fair and honest representation, we must put in place structures such as the ombudsman to deal with situations nobody else is willing to deal with. Politicians cannot deal with these issues any more not because they are in an invidious position and are afraid to, but because nobody will take any notice. People consider it a personal affront. I do not want to discuss past cases from recent years. Other speakers referred to recent history. Nobody wants to accept that one has the right to make a complaint even on one's own behalf. This is a sad reflection on our society. It is the way we have gone and are going and we must do something about it.

All Members of the House deal with constituency queries and will know that fees have become a major issue in family law. I hope younger Members of the House will never have reason to have recourse to these areas. When we discussed these issues in the House a number of years ago, they were all supposed to be extremely simple, but they have become complicated and extremely expensive. They require references from professionals from all corners, all with an opinion. The sanctity and volumes of fees charged for what to the rest of us seem to be simple issues are truly amazing.

The legal services ombudsman has a major task ahead. Will the ombudsman be able to monitor the ongoing processes and procedures and to intervene without reference from a complainant? For example, Ireland has more regulators than Texas had following the US civil war. We have a regulator for everything. They are supposed to identify what needs to be regulated, ensure everything is running smoothly and make sure everything is done in accordance with their plans. They should have the foresight and insight to deal with an issue before it becomes an issue and, hopefully, that will happen.

Debate adjourned.
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