Civil Law (Miscellaneous Provisions) Bill 2006: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

Amendments Nos. 1, 2, 5 to 9, inclusive, 13, 23 to 25, inclusive, and 27 are related and may be discussed together. I hope that is not overly complicated.

It is somewhat. It is customary for Members to receive a groupings list.

The groupings are being circulated to Members. They should consider them briefly and I will happily accommodate any proposals to change the groupings. The first group comprises amendments Nos. 1, 2, 5 to 9, inclusive, 13, 23 to 25, inclusive, and 27.

Seanad amendment No. 1:

Section 1: In page 10, subsection (4), line 13, to delete "23 and 24” and substitute “27 and 28”.

The amendments in this group are drafting amendments only. While they originated in the Seanad, they are designed to improve the drafting style or to adjust the language for greater precision. There is no more to it than that.

In so far as one can tell, the Minister of State's statement is accurate and I have no reason to oppose them.

In line with the other speaker, I am satisfied to proceed along the lines advocated by the Minister of State.

Seanad amendment agreed to.
Seanad amendment No. 2:
Section 1: In page 10, lines 21 and 22, to delete subsection (8) and substitute the following:
"(8) The Employment Equality Acts 1998 to 2007 andPart 16 may be cited together as the Employment Equality Acts 1998 to 2008.”.
Seanad amendment agreed to.

Amendments Nos. 3 and 4 are related and are to be discussed together.

Seanad amendment No. 3:

Section 10: In page 14, between lines 3 and 4, to insert the following new section :

"10.—Subsection (5) of section 32A (inserted by section 180 of the Criminal Justice Act 2006) of the Courts (Supplemental Provisions) Act 1961 is amended in paragraph (b) of the definition of “relevant district” by substituting “subparagraph (1), (2) or (2A) of paragraph 3 of the said Schedule” for “subparagraph (1) or (2) of paragraph 3 of the said Schedule”.”.

Amendments Nos. 3 and 4 are designed to put in place a system to facilitate the signing of warrants where the person whose function that would normally be, namely, the District Court judge assigned to the district, is not available.

Section 32A of the Courts (Supplemental Provisions) Act 1961, which was introduced by the Criminal Justice Act 2006, established a process whereby a district judge can, even though outside the District Court district to which he or she is assigned, exercise the powers to issue arrest warrants, search warrants and other related warrants that relate to his or her District Court district. While that section has been operating well enough as far as it goes; a difficulty has been encountered where the district judge assigned to a District Court district is not just outside the district in question but for the moment inaccessible within the normal turnaround time required.

In order to provide a workable system to deal with that circumstance, these amendments propose that the President of the District Court should be able to establish a panel of district judges who, on a temporary basis, would be able to exercise the warrant-making powers in question. This power would normally be exercisable by the judge permanently or temporarily assigned to the District Court district in question; and the appropriate member or members of this panel of judges will be able to exercise that power concurrently with the assigned judge. The aim is to provide a degree of flexibility in this important matter while at the same time ensuring that there is sufficient certainty as to who can exercise what powers in respect of a particular district.

These are common sense, necessary amendments for which we argued as the Bill progressed. They are agreed.

We are happy to accept them.

Seanad amendment agreed to.
Seanad amendment No. 4:
Section 13: In page 15, between lines 17 and 18, to insert the following new section:
"13.—Paragraph 3 (as amended by section 37 of the Courts and Court Officers Act 1995) of the Sixth Schedule to the Courts (Supplemental Provisions) Act 1961 is amended—
(a) in subparagraph (1), by substituting “temporarily assigned by the President of the District Court to another district or districts” for “temporarily assigned by the President of the District Court to another district”,
(b) in subparagraph (2), by substituting “assigned by the President of the District Court to any district or districts” for “assigned by the President of the District Court to any district”,
(c) by inserting the following subparagraphs after subparagraph (2):
"(2A) Without prejudice to subparagraph (2), the President of the District Court may, in relation to any district, temporarily assign for a period not exceeding 6 months one or more district judges (whether or not any such judge is permanently or temporarily assigned to another district or districts) to exercise, in relation to that district, the powers specified in subparagraph (2B).
(2B) A district judge who is temporarily assigned to any district under subparagraph (2A) may exercise any of the powers of a district judge to which section 32A applies for the time being conferred on him or her by law whether he or she is in or outside that district.",
(d) in subparagraph (3), by substituting “temporarily assigned by the President of the District Court to any district or districts” for “temporarily assigned by the President of the District Court to any district”,
(e) by inserting the following subparagraph after subparagraph (4):
"(4A) Where a district judge is temporarily assigned to any district under subparagraph (2A)—
(a) in case there is for the time being a district judge permanently assigned to that district — he or she shall, in relation to that district, have, while so temporarily assigned, concurrently with that district judge, all of the powers of a district judge to which section 32A applies for the time being conferred on that district judge who is so permanently assigned,
(b) in any other case — he or she shall, in relation to that district, have, while so temporarily assigned, all such powers of a district judge to which section 32A applies as would for the time being be conferred by law if he or she were a district judge permanently assigned to that district.”.”.
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 14: In page 16, line 16, after "his" to insert "or her".
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 14: In page 16, line 41, after "his" to insert "or her".
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 28: In page 26, line 36, after "2002)" to insert "of the Court Officers Act 1945".
Seanad amendment agreed to.
Seanad amendment No. 8:
Section 31: In page 28, line 3, to delete "as substituted" and substitute "inserted".
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 33: In page 28, line 29, to delete "as substituted" and substitute "inserted".
Seanad amendment agreed to.

We come to Seanad amendment No. 10. Amendments Nos. 11 and 12, 14 to 16, inclusive, 18, 19 and 28 are related and may be discussed with amendment No. 10.

Seanad amendment No. 10:

Section 34: In page 28, before section 34, to insert the following new section:

"34.—The Solicitors (Amendment) Act 1960 is amended by the insertion of the following section after section 6:

"6A.—(1) For the avoidance of doubt it is hereby declared that the Society have, and always have had, a power to investigate alleged misconduct by a solicitor.

(2) If subsection (1) would, but for this subsection, conflict with a constitutional right of any person, the operation of that subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect."."

This series of amendments is concerned with the process for investigating complaints against solicitors. For many years the Law Society has investigated allegations of misconduct arising either from complaints made by clients or routine inspections of solicitors' practices. However, there is no express provision in the Solicitors Acts giving the society the power to investigate misconduct on the part of a solicitor. Its power to investigate alleged misconduct is implied in various existing provisions. Amendment No. 10 removes any doubt arising from the absence of an express provision by declaring in the new section 6A(1) that, for the avoidance of doubt, the society has and always had the power to investigate complaints of misconduct against solicitors. Section 6(2) is a standard provision which is made when existing statutory provisions are being amended for the purpose of the avoidance of doubt and where the removal applies retrospectively.

Amendments Nos. 12, 14 and 16 clarify that the Law Society has the power to investigate alleged misconduct by a solicitor, whether a complaint was made to the society by a client of a solicitor or where the alleged misconduct comes to the attention of the society in the course of carrying out its regulatory functions. The amendments remove any possible doubt that the society's powers to investigate misconduct extend to complaints generated internally by the society itself, as well as to complaints made to it by clients.

Section 9 of the Solicitors (Amendment) Act 1994 provides for the receipt and investigation by the society of complaints made by clients of excessive charging of fees by solicitors. The section obliges the Law Society to take all appropriate steps to resolve the complaint by way of agreement between the parties. The effect of amendment No. 15 is to empower the society to continue to investigate a complaint under section 9 and, if justified by the results of this investigation, to proceed with disciplinary sanction against a solicitor for overcharging, notwithstanding the fact that the solicitor and client may have resolved the matter by agreement. Otherwise the public interest would not be served by facilitating the frustration of a Law Society investigation by way of the solicitor coming to an agreement with the client — perhaps by a financial settlement.

Section 19 of the 2002 Act provides for the extension of the solicitors' disciplinary regime to alleged misconduct on the part of apprentice solicitors. Amendment No. 19 replicates for apprentice solicitors the provisions proposed in amendments Nos. 10 and 12. Section 19 of the 2002 Act commenced on 1 January 2003; accordingly, subsection (2) of the new section being inserted by amendment No. 19 provides that the amendment will have retrospective effect to that date.

The Law Society is required by section 7 of the Solicitors Act 1960 to bring the report of the Solicitors Disciplinary Tribunal to the High Court in cases where the tribunal has found that there has been misconduct and where it leaves the question of the sanction to be decided by the High Court. Amendments Nos. 11 and 18 clarify that the society is entitled, on bringing a report of the tribunal to the High Court in regard to a finding of misconduct against a solicitor or against an apprentice solicitor, to make submissions to the court. Currently, the right of the society to address the High Court in such matters is not expressly provided for in the Solicitors Acts, although this has been the practice for many years and the practice is regulated in court rules. Rule 8 provides that the society may seek such an order for sanction as it deems appropriate and reasonable having regard to the findings of the tribunal. Recently, the High Court considered, as a preliminary point, the right of the society to address it on the sanction to be imposed in a particular case. The purpose of amendments Nos. 11 and 18 is to make such an enabling provision and remove any possible future doubt.

Amendment No. 28 adds the Solicitors (Amendment) Act 2002 to the Long Title of the Bill consequent on amendments Nos. 17 and 18.

I am more puzzled by this group of amendments and would like to hear about their origin from the Minister of State. When the Bill started out in life, it included, essentially, many of the sections that have since become the Legal Services Ombudsman Bill. By agreement, these sections were stripped from the Bill at the time to comprise a stand-alone Bill for all of the reasons we know. It seems that this group of amendments ought to be included in that Bill. I am puzzled to know why we are here dealing with amendments that have to do with complaints against members of the legal profession, specifically solicitors, when we are dealing with a different Bill designed precisely for that purpose. Is it that this is an afterthought on the part of the Minister? Does it arise from representations from the Law Society arising from what have been euphemistically referred to as recent events? Why are they being dealt with in this Bill and not the Legal Services Ombudsman Bill? It is also somewhat surprising and the first time I have become aware of it. I thought the Law Society was supposed to be doing this for a very long time. The Minister of State seems to be saying it may be doing so but that there is no statutory basis for it and that he is now providing such a statutory basis for the society for the avoidance of doubt.

I also wonder about the retrospective element. Is it feared that there will be a challenge to it? Subsection (2) of amendment No. 10 seems to anticipate or wants to protect against solicitors who might challenge it. I refer to where a question of constitutional rights might be at issue. It states: "If subsection (1) would, but for this subsection, conflict with a constitutional right of any person, the operation of that subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect". That is a somewhat unusual belt and braces provision. While is not unique, it is unusual. We are dealing with the power of the Law Society to investigate alleged misconduct by solicitors. Is it just a belt and braces measure to deal with cases where a constitutional right may appear to have been infringed, or does it anticipate a challenge on that basis?

On the face of it, the amendments ought to be included in the Legal Services Ombudsman Bill. When a miscellaneous provisions Bill such as this is put together, there are widely diverging areas of civil law encompassed in it. If one were a practitioner, it is not exactly the most convenient way to go about our business but I am intrigued as to why the amendments are not included in the Legal Services Ombudsman Bill.

I was given this job a few days ago when it became known that Deputy Flanagan could not be here. When I looked at the Bill, I discovered that it had began its life as the Legal Services Ombudsman Bill. Sections had been removed and we were left with bits and pieces, so to speak, of which there are not many. On the completion of almost the first full year of this Dáil, there has been little legislation. This is exactly what it states, a miscellaneous provisions Bill. There is very little in it.

I take issue with the section on apprentices. It is fine in Dublin city where there are a certain number of positions with the major firms, but there are smaller practices of one or two in the country, with people falling over one another to get into a practice. The Minister of State is giving the Law Society the power to investigate an apprentice. An apprentice is not an employee and the person in charge of the practice is effectively supervising his or her work and bringing him or her up to speed on the day-to-day workings.

I do not know whether providing that apprentices can be subject to disciplinary action by the Law Society is the best way to go. If the intention is to do this, I question why it was not in the Legal Services Ombudsman Bill 2008 so that it would be the legal service ombudsman, rather than the Law Society, who could investigate such matters.

I welcome the section that removes the age limit for jurors — it was an issue I pressed in my capacity as equality spokesperson for Fine Gael — so that a person has the opportunity to serve up to the age of 70. I also welcome that they are not obliged to do so, that there is a choice. If somebody chooses to be relieved, this is possible on the grounds of their age.

Deputy Rabbitte is correct that the original elements of the Bill that became the Legal Services Ombudsman Bill are now a separate Bill. However, the Solicitors Acts were due to be amended by this Bill originally, hence the fact that they are still in this Bill.

My information is there was no particular lobbying by the Law Society. As I mentioned in my original comments, Mr. Justice McKechnie raised it as a preliminary point. It was a concern he had about the implicit power of the Law Society and the tribunal. Therefore, it was thought prudent to include these amendments.

The retrospective point Deputy Rabbitte makes is a reasonable one. However, I am informed that it is not unusual for retrospective power to be included in legislation of this nature. In any case, it could be argued that the implicit powers of the Law Society in the previous legislation would have been challenged by now had there been a question. The persons who are investigated in these circumstances would have access and the resources to challenge any power which they felt wasultra vires.

On the points made about apprentices, it has been possible to investigate an apprentice solicitor since the 2002 Act. Following on from the concerns of Mr. Justice McKechnie, we are clarifying the point so there is no doubt and that what was an implicit power will now be explicit, with retrospective effect.

As I understand it, the Minister of State's net point is that this group of amendments essentially amends the Solicitors (Amendment) Act 1994 and, therefore, they are more appropriate to this than to the Legal Services Ombudsman Bill.

It is interesting that there has been no input, according to the Minister of State, from the Law Society. In other words, if it has been operating on the assumption that it has had these powers, implicit or otherwise, over the years, I wonder what its view is about the fact that we are now giving formal expression to them in this new law. Perhaps it is six of one and half a dozen of the other that it is in this Act, but it does not ring true with me that this was an afterthought as the Bill progressed through the Seanad. Something must have sparked it. Something must have caused it to emerge now, otherwise it would have been in the original Bill. Whether it is allocated to the Legal Services Ombudsman Bill or this one may be a matter of no great import.

I can only take the Minister of State at his word that he has professional advice that the retrospective element is perfectly consistent here. It just occurred to me that there must be some reason for taking care to ensure provision for such retrospection.

Deputy D'Arcy seemed to have a reasonable point on apprentices. I did not know that type of responsibility could attach to an apprentice. I would have thought that if an apprentice was found to be allegedly involved in some kind of misconduct or miscreance, that would be a matter for the partner in the company or the master, rather than the apprentice.

To reiterate, the reason this was not in the original Bill was that the judgment of Mr. Justice McKechnie raising the preliminary point about the concern of the implicit nature of the powers in the original Act——

Is that a recent judgment?

It is a recent judgment, since the publication of the Bill. In fact, the Bill predates this Dáil and, therefore, the events to which I think Deputy Rabbitte is referring — the concerns about individual solicitors — post-dated the publication of the Bill.

In any case, I made the point to Deputy D'Arcy that the power to investigate apprentices is in the Solicitors (Amendment) Act 2002. That has already been an implicit power in the same way as regards fully qualified solicitors. The purpose is to put everything on a level playing field arising from the concern expressed in the judgment to which I referred.

These points were brought to the attention of the Department by the Law Society but it would be stretching it to say that it lobbied for this particular point. It simply brought the matter to our attention and it was discussed in the normal way.

Seanad amendment agreed to.
Seanad amendment No. 11:
Section 34: In page 28, before section 34, to insert the following new section:
"34.—Section 8 (inserted by section 18 of the Solicitors (Amendment) Act 1994 and amended by section 10 of the Solicitors (Amendment) Act 2002) of the Solicitors (Amendment) Act 1960 is amended—
(a) in subsection (1)(a), by the substitution of “the High Court, after consideration of the report and the submissions (if any) made to it by the Society under subsection (1A) of this section” for “the High Court, after consideration of the report”, and
(b) by the insertion of the following subsection after subsection (1):
"(1A) The Society may make submissions to the High Court in relation to—
(a) the opinion of the Disciplinary Tribunal as to the fitness or otherwise of the solicitor to be a member of the solicitors’ profession, having regard to the findings of the Disciplinary Tribunal, and
(b) the recommendations of the Disciplinary Tribunal as to the sanction which in the opinion of the Disciplinary Tribunal should be imposed, having regard to their findings, to any finding of misconduct on the part of the solicitor previously made by them (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and to any order made by the Court under the Solicitors Acts 1954 to 2008 in respect of the solicitor.”.”.
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 34: In page 28, before section 34, to insert the following new section:
"34.—Section 2 of the Solicitors (Amendment) Act 1994 is amended by the substitution of the following subsection for subsection (2) (inserted by section 12 of the Solicitors (Amendment) Act 2002):
"(2) References in sections 10, 10A (inserted by section 13 of the Solicitors (Amendment) Act 2002), 12 (inserted by section 14 of that Act) and 22 of this Act to complaints made to or received by the Society include references to any complaints made to the Society by the registrar under section 14B of this Act, and those provisions of this Act shall have effect accordingly.".".
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 34: In page 29, line 19, to delete "subsection 8(1)(da)” and substitute “subsection (1)(da)”.
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 35: In page 29, before section 35, to insert the following new section:
"35.—The Solicitors (Amendment) Act 1994 is amended by the insertion of the following section after section 14:
"14A.—For the avoidance of doubt it is hereby declared that the power of the Society to investigate alleged misconduct by a solicitor may be exercised whether or not the Society receive a complaint in relation to the solicitor.".".
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 35: In page 29, before section 35, to insert the following new section:
"35.—The Solicitors (Amendment) Act 1994 is amended by the insertion of the following section after section 14A:
‘14B.—Notwithstanding anything in this Part the issue by a solicitor of a bill of costs that is excessive may constitute misconduct.'.".
Seanad amendment agreed to.
Seanad amendment No. 16:
Section 35: In page 29, before section 35, to insert the following new section:
"35.—The Solicitors (Amendment) Act 1994 is amended by the insertion of the following section after section 14B:
‘14C.—The registrar may make a complaint to the Society in relation to a solicitor alleging—
(a) a contravention by the solicitor of any provision of the Solicitors Acts 1954 to 2008 or any order or regulation made thereunder, or
(b) any conduct by the solicitor tending to bring the solicitors’ profession into disrepute.’.”.
Seanad amendment agreed to.
Seanad amendment No. 17:
In page 30, before section 36, but in Part 3, to insert the following new section:
"36.—The Solicitors (Amendment) Act 1994 is amended by inserting the following after section 26:
‘26A.—(1) Subject to subsections (2) and (3), a contract between a solicitor and a client of the solicitor that any description of civil liability incurred—
(a) by the solicitor arising from his or her practice as a solicitor in respect of the provision of legal services to the client be limited to an amount specified or referred to in the contract, or
(b) by a partner, clerk or servant or former partner, clerk or servant of the solicitor arising from that solicitor’s practice as a solicitor in respect of the provision of legal services to the client be limited to an amount specified or referred to in the contract,
shall be binding on and enforceable by—
(i) if paragraph (a) is applicable, the solicitor and the client, and
(ii) if paragraph (b) is applicable, the partner, clerk or servant or former partner, clerk or servant of the solicitor and the client.
(2) Nothing in subsection (1) shall affect the operation of—
(a) section 40 (as amended by section 31 of the Restrictive Practices (Amendment) Act 1987) of the Sale of Goods and Supply of Services Act 1980, or
(b) Regulation 6 of the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. No. 27 of 1995).
(3) The amount referred to in subsection (1) in respect of a description of civil liability the subject of the contract concerned shall be not less than the minimum level of cover, as specified from time to time in regulations under paragraph (b) of section 26(4), for indemnity against losses arising from those classes of claims which fall within that description of civil liability and, accordingly, any such amount which is less than such minimum level of cover shall, by virtue of this subsection, be deemed to be increased to such minimum level of cover, and such contract shall be binding and enforceable accordingly.
(4) Section 7 of the Attorneys and Solicitors Act 1870 is repealed on the commencement ofsection 36 of the Civil Law (Miscellaneous Provisions) Act 2008.”.”.

Solicitors at present carry on business either as sole traders with unlimited civil liability or as partnerships with collective and individual unlimited civil liability. The provisions of section 7 of the Attorneys and Solicitors Act 1870 restrain a solicitor in seeking to limit his or her liability in a contract agreed with a client. This puts Irish solicitors at a competitive disadvantage in commercial law against UK law firms, which may limit their liability by contract with clients consequent on the repeal of the 1870 Act in the UK some years ago.

UK law firms which are active in Ireland in commercial law matters limit their liability as a matter of routine. The anomalous nature of the current position becomes especially apparent when in substantial projects an Irish firm of solicitors must join with other professional advisers to provide a multidisciplinary team and the other advisers can limit their exposure while the Irish solicitor cannot. In practice, this acts as a disincentive to an Irish firm to organise or lead a consortium of advisers since the primary responsibility for services provided by the consortium will often have to be accepted by the leading firm.

Section 26 (a)(1), in amendment No. 17, will update the existing 19th century statutory provisions, which the UK has repealed, to take account of current commercial and competitive realities. The change will bring Irish law in line with current UK law and allow Irish law firms to seek and do business in competition with foreign law firms on equal terms. It will address the anomalous situation where an Irish and a UK firm agree a limit on liability which can then be enforced by the UK firm, but may not be enforceable by the Irish firm owing to the continued application of the Attorneys and Solicitors Act 1870.

Section 26(a)(2), in amendment No. 17, clarifies that the existing consumer protection provisions in the Sale of Goods and Supply of Services Act 1980 and the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 will continue to be available to clients of solicitors in the event that they make a contract which limits their solicitors’ liability. In addition, section 26(a)(3), in amendment No. 17, includes a safeguard for the client’s protection in the form of a provision preventing the enforcement of such a contract to the extent that it falls below the general statutory minimum amount of professional indemnity cover required of solicitors which currently stands at €2.5 million. This safeguard would especially continue to protect the interests of non-commercial clients of solicitors in areas such as conveyancing.

With the globalisation of business, I could not but agree with the amendment. The major architectural firms in conjunction with legal firms and Irish building interests are now putting together packages. We would like legislation which puts an Irish firm at a disadvantage to a firm from the UK or Belfast to be repealed and we agree with the amendment.

I would never criticise a Minister or Minister of State for agreeing to an amendment or changing his mind as a Bill progresses through the House. However, in the case of this Bill, as is frequently the case with justice legislation, much of the ingenuity is inspired by the Department and the Minister. The question of why seemingly significant matters are added on Report Stage in the Seanad arises. I heard it said recently that the Department of Justice, Equality and Law Reform has produced as much legislation in the first year of this Parliament as the other 14 Departments together, which is a worthy track record in making it up as one goes along. Under the previous regime, we frequently had amendments longer than the original Bill. One wonders what is the cause of this and whether legislation gets adequate scrutiny before we find it enshrined in law.

The work on this legislation is of some significance for commerce. The new freedom conferred on solicitors allowing them enter into this type of contract seems significant. If it is the case that we are at a competitive disadvantagevis-à-vis other common law neighbouring jurisdictions, then it should be attended to. It is too long since I studied this law, but the Minister of State, Deputy Barry Andrews, will be able to tell me which other contents of the 1870 Act might be repealed in addition to section 7. I presume the Minister of State and the Department are satisfied that the repeal of section 7 alone is adequate. We have spent a good deal of time removing from the Statute Book legislation which is out of date and so on. The existing legislation which is relevant for commerce seems to be dramatically out of date.

I am not sure what to add to Deputy Rabbitte's comments that he is more familiar with the legislation from 1870 than the current legislation and I wonder how long ago he studied it.

The legislation is older anyway.

In any case the legislation is considered on its merits and whether it was added in later on is beside the point. Irish solicitors are entitled to a level playing field. As Deputy D'Arcy correctly said, they are competing for services throughout Europe and we wish to be in a position of equity with our closest trading partner. I commend this amendment to the House.

Seanad amendment agreed to.
Seanad amendment No. 18:
Section 36: In page 30, before section 36, but in Part 3, to insert the following new section:
"36.—Section 19 of the Solicitors (Amendment) Act 2002 is amended—
(a) in subsection (3)(d), by the substitution of the following for subparagraph (iv):
"(iv) their opinion as to the fitness of the apprentice, having regard to their finding or findings, to be admitted as a solicitor either at any time or until the apprentice has satisfied the Society or the President of the High Court as to such fitness,
and the Society shall bring the report before the Court.",
(b) in subsection (5), by the substitution of “The High Court, after consideration of the report of the Disciplinary Tribunal and the submissions (if any) made to it by the Society under subsection (5A) of this section” for “The High Court, on consideration of the report of the Disciplinary Tribunal”, and
(c) by the insertion of the following subsection after subsection (5):
"(5A) The Society may make submissions to the High Court in relation to the opinion of the Disciplinary Tribunal as to the fitness of the apprentice, having regard to the finding or findings of the Disciplinary Tribunal to be admitted as a solicitor either at any time or until the apprentice has satisfied the Society or the President of the High Court as to such fitness.".".
Seanad amendment agreed to.
Seanad amendment No. 19:
Section 36: In page 30, before section 36, but in Part 3, to insert the following new section:
"36.—(1) The Solicitors (Amendment) Act 2002 is amended by the insertion of the following section after section 19:
‘19A.—(1) For the avoidance of doubt it is hereby declared that the Society have a power to investigate alleged misconduct by an apprentice.
(2) The power of the Society referred to in subsection (1) of this section may be exercised whether or not the Society receive a complaint in relation to the apprentice.
(3) If subsection (1) of this section would, but for this subsection, conflict with a constitutional right of any person, the operation of that subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect.
(4) In this section ‘misconduct' has the same meaning as it has in section 19 of this Act.'.
(2) This section shall be deemed to have come into operation on 1 January 2003.".
Seanad amendment agreed to.

Seanad amendments Nos. 21 and 22 are related and may be discussed with amendment No. 20.

Seanad amendment No. 20:

Section 43: In page 35, before section 43, but in Part 6, to insert the following new section:

"43.—Section 6 of the Juries Act 1976 is amended by deleting "and under the age of seventy years".".

As Deputy D'Arcy mentioned, these amendments are designed to bring about an important change to the law on juries in the State. At present, the maximum age limit for sitting on a jury is 70 years of age. Persons older that this are simply ineligible. People between 65 and 70 years of age can exercise a right to excuse themselves. The maximum age for sitting on a coroner's jury is 65.

These amendments remove the upper age limits for eligibility to sit on a jury. This amendment, when first proposed on Committee Stage, attracted cross-party support. I am grateful to the Labour Party for proposing amendment No. 21 in this group, which removes the upper age limit for coroners' juries, an amendment which the Government supports. We are all agreed these changes are worthwhile, so as to reflect the increasing role and contribution of older people in society and the fact that the mandatory retirement age has been raised. The changing demography of our population shows an increasing age profile as more and more people continue to live longer, healthier lives.

Keeping the right of excuse on age grounds will ensure that any person more than 65 years of age does not lose an existing right and can be excused from service as of right if he or she wishes. The approach serves to make the possibility of jury service available to older people, while at the same time ensuring that the availability does not impose a burden in any individual case.

Amendment No. 22, the bulk of which was in the Bill already as passed by this House, replaces provisions in the Juries Act 1976 dealing with people described at present as "incapable persons". The new language approved already by this House replaces the current rather infelicitous expression with a provision better designed to exclude those for whom, because of inability to read or some enduring infirmity, it is not practicable to sit on a jury. This restatement in amendment No. 22 is necessary for drafting reasons so as to incorporate the necessary provision to abolish the 70 year old age limit.

I welcome these measures. I met a senior retired civil servant recently and I told him I had just finished tabling the equivalent of amendment No. 21 and that he would in future be able to sit on the appropriate jury. He inquired if I was in my right mind. The point is that if one is in one's right mind, one should have the opportunity to serve. Some older people wish to carry out an act of good citizenship. There are now a greater number of persons of 65 years of age and over than 30 years ago. The amendment is positive, allowing older people to participate, and will benefit society from the contribution of experienced people with time on their hands and an interest in this area. Can the Minister of State say with regard to the capacity of one to excuse oneself from service, if there provision for a person over 65 years of age who chooses not to serve?

I welcome some of these amendments, especially those removing an upper age limit. I published a Bill to give effect to this change. The extent of this has been taken on board.

That said, I am not entirely happy with the wording relating to "incapable" persons. I know of many business people who have survived and thrived in business despite not being capable, at this stage, of reading. They would be excluded from serving on a jury. In this day and age, to have a prohibition on deaf people serving on a jury is regrettable.

If we look at other jurisdictions, the United States has removed the restrictions on deaf and blind people serving on juries — all US courts now allow deaf and blind people to serve on juries. Clearly, there would be practical issues to overcome but by doing so — having an interpreter or a signer for people — we would ensure that a deaf or blind citizen is allowed to play their full role as a citizen. Deafness or blindness is not a sufficient reason to prevent persons from serving on a jury.

I do not know if a recent court case taken by Ms Joan Clarke and FLAC is concluded. It reinforced the position I am taking. I advocate that we amend this amendment to allow people who are deaf and blind serve. I welcome that the upper age limit has been removed as it was high time this was done. That part of the language is progressive but we are falling behind in the latter part of amendment No. 22 in particular.

I welcome the comments of the Deputies. The capacity for a person to excuse oneself continues in the new Bill.

With regard to Deputy Ó Snodaigh's comments, the new language refers to an enduring impairment and removes the reference to an insufficient capacity to read, deafness or other permanent infirmity. That language has been removed and is replaced with "an enduring impairment". It goes on to say "such that it is not practical for them to perform the duties of a juror". That language clearly indicates that if it is practical for a deaf person, a person who cannot read or any people in the other categories of impairment to serve on a jury, they shall do so. I hope this answers the Deputy's concerns in that regard.

As the judgment is reserved in the FLAC case, it is inappropriate for me to comment on it.

Seanad amendment agreed to.
Seanad amendment No. 21:
Section 47: In page 36, before section 47, to insert the following new section:
"47.—Section 31 of the Juries Act 1976 is amended by deleting "and under the age of sixty-five years".".
Seanad amendment agreed to.
Seanad amendment No. 22:
Section 51: In page 36, to delete lines 32 to 36 and in page 37, to delete lines 1 to 6, section 51, and substitute the following new section:
"51.—The First Schedule to the Juries Act 1976 is amended—
(a) in Part I, by substituting—
"Other persons
Persons who have—
(a) an incapacity to read, or
(b) an enduring impairment
such that it is not practicable for them to perform the duties of a juror."
for—
"Incapable persons
A person who because of insufficient capacity to read, deafness or other permanent infirmity is unfit to serve on a jury.", and
(b) in Part II, by deleting “and under the age of seventy years“.”.
Seanad amendment agreed to.
Seanad amendment No. 23:
Section 58: In page 41, subsection (1), line 25, after "Irish," to insert "as".
Seanad amendment agreed to.
Seanad amendment No. 24:
Section 58: In page 41, subsection (1), line 30, to delete "as the Director of Film Classification" and substitute the following:
", in English, as the Director of Film Classification and, in Irish, asan Stiúrthóir Aicmithe Scannán”.
Seanad amendment agreed to.
Seanad amendment No. 25:
Section 63: In page 45, lines 25 to 28, to delete all words from and including ""health" in line 25 down to and including "2001)" in line 28 and substitute "‘health insurance contract'".
Seanad amendment agreed to.
Seanad amendment No. 26:
Section 67: In page 49, line 39, to delete "severe" and substitute "undue".

This amendment is to a provision of the Bill that amends the Legal Aid Act 1995 regarding the powers of the Legal Aid Board to waive or reduce contributions payable by the board's clients for its services. Deputies will be aware that the Legal Aid Board does not provide a free service; it requires its clients to pay a contribution.

At present, section 29 enables the board to waive all or part of that contribution. The motivation behind the changes to section 29 contained in the Bill is simply to put beyond doubt concerns which the board has regarding its own power to waive or reduce the contribution payable by one of its clients in circumstances where that contribution has been assessed at a level above the minimum. At present, the board's conclusion is that it does not have this authority. Once this amendment is passed, it will unambiguously have this authority.

Concern was also raised in both Houses regarding the application of the "severe hardship" standard as the criterion governing whether a contribution could be reduced or waived. The choice of language in the original amendment was informed by the language in the current legal aid regulations; this amendment proposes to replace that term with "undue".

This latter expression is more widely found in legislation generally and does not have the extreme connotations which might have been conveyed by, or read by some into, the term "severe". It also better reflects the reality of how the board would operate such a standard. The intention is not to set the standard unreasonably high, while still providing that it would not simply apply in all cases, since it might be said that any request for a contribution would involve some hardship to a person on a modest income, in so far as it would reduce their immediate disposable income.

I compliment the Seanad on removing the word "severe" and replacing it with "undue". Certainly, facing into this economic downturn, there will be a challenge. The Free Legal Advice Centre will have much more work on its hands with regard to lending institutions taking repossession of properties. The term "severe hardship" was too narrow an interpretation and "undue" will make the service accessible to many more people. Whoever came up with "severe hardship" was certainly intent on not letting it be available to as many people as practicable.

I question the interpretation of "undue". My reading of what the Minister of State is saying is that the free legal advice centre will be the body interpreting "undue" on an individual or case by case basis. If that is the case, I appeal for the service to be made available to as many as is practicable. I am not saying it should be made available to everybody but within the last number of months an amount of work has been coming to my clinics and office relating to people with financial difficulties because of the economic downturn and other matters. In the spirit of this debate, the free legal advice centre should make its services available to the many rather than the few.

I concur with the sentiments expressed by Deputy D'Arcy and do not want to repeat them. This has been a very important reform in society for people on low incomes and it provides very valuable access to justice for them. I take at face value what the Minister stated about the amendment before us in terms of first satisfying the board itself that it has the power, in certain circumstances, to waive or mitigate the normal expected subscription.

"Undue" is a less onerous hurdle than "severe". I welcome its introduction in terms of dealing with the issue, which is significant. The issue was significant even at the height of the boom, as access to justice in Ireland can be expensive. People who find themselves in circumstances of having to endure low incomes have this as pretty much their only route to it.

There are solicitors and barristers who take casespro bono. However, such cases are usually exceptional, high profile or involve important issues. They are not the everyday route to the courts.

Will the Minister of State indicate what is the general picture in terms of backlogs, waiting times and so forth? Although the position differs from county to county, one has the impression that the free legal advice centres are under a good deal of pressure, that waiting times are unreasonable for a certain type of case in which time is of the essence and that some of the centres find it difficult to respond as quickly as one would like.

I will be brief as the two previous speakers covered most of the issues I wished to address.

Will the Minister of State explain the difference between the adjectives "severe" and "undue"? Why not dispense with adjectives and use only the word "hardship"?

With a downturn under way in the economy, more people will seek access to free legal advice centres. Given the decision to substitute the word "severe" with "undue", I presume the workload of the centres will increase. A commitment is needed to ensure they are properly funded to deliver justice and the service many in financial hardship seek.

If one were to remove the adjectives "severe" and "undue", one would be left with the word "hardship" which could describe any number of circumstances. An attempt must be made to ensure the hardship being experienced is objectively causing a difficulty for the individual. As I indicated, we do not want to achieve a reduction in a person's immediate disposable income. Rather, we want to ensure the service is available to persons in a difficult financial position. That is the reasoning for the inclusion of the words "severe" and "undue".

The Legal Aid Board will continue to decide what is "undue" hardship. This gives it a degree of robustness in terms of its independence. The availability of free legal aid will not be affected by the proposals.

While I do not have figures to hand on waiting times for legal aid, I am sure the Department will undertake to provide them for Deputy Rabbitte.

Seanad amendment agreed to.
Seanad amendment No. 27:
Section 68: In page 50, line 6, after "shall" to insert the following:
", in so far as they relate to the solicitor for any party to the proceedings pursuant to the certificate,".
Seanad amendment agreed to.
Seanad amendment No. 28:
Title: In page 9, line 18, after "1994," to insert "THE SOLICITORS (AMENDMENT) ACT 2002," .
Seanad amendment agreed to.
Seanad amendments reported.