Deputy Bernard Durkan has 15 minutes remaining in his slot.
Legal Services Regulation Bill 2011: Second Stage (Resumed)
I had to rush here from a foreign affairs committee meeting and, unfortunately, will have to rush back again shortly. I will be brief.
I referred earlier to the costs of the tribunals to the taxpayer and the necessity to re-examine the way we do things and the manner in which such costs seem to accumulate. As Deputy Alex White said, it gives the legal profession a bad name and creates an impression in the minds of the people that a judicial inquiry into these issues should never again be held. That is a sad reflection on our society and the way matters have progressed.
Reference was made to the multi-disciplinary proposals and the setting up of such enterprises. I do not know the answer to that question. I do not know whether it is a good idea to have people such as auctioneers, property developers or many other people within a particular practice. They might create a conflict of interest that would not necessarily be beneficial to the public good or to the interest of the taxpayer. The Minister might comment on that issue because it has arisen. For instance, all Departments have legal advisers and sometimes the legal advice is in consort with the legal advise sought outside Departments. Sometimes the advice offered within Departments is correct and soundly based and sometimes it is not, as we are all well aware, with obvious consequential costs to the State and the State agencies. That is an area we must carefully examine to make sure we do not enable something to occur that might be the last thing we had intended.
Legal costs generally is an issue that arises frequently, not only generally but in individual cases. As a non-legal person, it is embarrassing from time to time to go through some of the Bills that come from different legal firms under different headings. Suffice to say that in the times in which we live the general public have great difficulty understanding how these situations arise. Similarly, they have great difficulty understanding how, in many cases, the resolution of a particular case comes to virtually the sum total of any award that might accrue. That is extraordinary. A week does not pass that we do not see some evidence to that effect. That suggests one of two things. It could suggest there is no sense going the legal route to resolve certain issues, in which case the rights of the individual are secondary and no longer protected in the State. That is a serious situation. In the context of this legislation it is incumbent on us as legislators to ensure that does not occur, in other words, that the result of attempting to achieve one's rights through the courts should lead to a situation where the cost is such that the entire exercise was null and void or of no benefit to the complainant in the final analysis. It is a serious issue and one that must be dealt with. I know that everybody involved will be anxious to do that.
Similarly, I am aware the law society and the Bar Council of Ireland have expressed considerable concerns about the Bill. That of its nature would be normal but it is important for those organisations to carefully examine the extent to which change is necessary and the degree to which they can lend their approval because there is no sense in the State and eminent organisations like the law society and the Bar Council of Ireland to be at loggerheads. That is important in a country where the separation of powers is enshrined in our Constitution. It is of particular importance now that on all sides we recognise each other's position and the need to ensure fair play, transparency and accountability is part and parcel of the legislation we are discussing.
On the issue of arbitration in regard to fees, I do not know the answer. No matter what happens, one side or the other will feel aggrieved. A question that seems to arise is the unfairness of the level of fees charged in certain quarters in particular situations. That should not be the case. It should not transpire that to achieve one's rights or entitlements under the law one should have to forego them in terms of potential future income or whatever the case may be. The matter should not be the sole preserve of a legal firm setting out a bill for legal costs for the individual concerned, and it is not, as there is the provision for taxing and so on. Such provision is made in this legislation. Due regard should be had for reason. We have read about cases where the degree to which the arbitration of fees or taxing in that respect takes place seems to vary dramatically from case to case. In some cases it appears a senior counsel is called upon to do very menial work by way of reference to the itemised accounts. To reiterate the standing the legal profession needs to have in this kind of situation, to which Deputy White referred earlier, it is important for it to be recognised that it is not possible simply to think of a figure off the top of one's head and charge it to the client regardless of the costs involved.
I am sure Members will be pleased to hear about an interesting incident that occurred. Many years ago when I was first elected a Member of this House a constituent came to me to complain about the manner in which he had been treated by a legal firm. I could not name the firm in these hallowed surroundings but I found a way to probe the matter and I sent a gentle reminder to the legal firm in question and received a profound and offended response two or three months later suggesting it was outrageous that I should have raised the matter in this fashion and demanding that I recant and apologise. Whether the legal firm had a mischievous legal secretary or there was a hidden message, or it was a mistake I will never know but enclosed with the letter was an opinion from senior counsel indicating that the firm in question was seriously at odds with the procedures and had left itself wide open to serious action being taken by the client on whose behalf I raised the case. I thought it was a interesting incident. It reflected the outrage on the part of the person who had been accused of doing a wrong and I am not saying this applies particularly to the legal profession. It is interesting how it happened that the senior counsel's opinion was in the same envelope and no reference was made to it but it turned the other argument on its head.
We all receive complaints about conflicts of interest, particularly in regard to conveyancing, where an unfortunate solicitor decides to oblige everybody by dealing with the two sides, but that does not work out well. It is not a safe route to go. It is very dangerous. I have dealt with countless such cases, as I am sure other Members have.
When we introduced legislation to provide for legal separation and divorce, a proposal that was put forward, and to which we all agreed, was that it should be accessible to all sections of society, and the same applies to everything else. As time has progressed, we seem to have drifted further and further away from that concept. It is now only something that becomes available to those who are better off and they pay through the nose for it.
There is provision in the legislation to make changes in regard to legal aid service. I would question the effectiveness of that service following the passage of time. I am not sure it is as effective as it was intended to be. Many young practitioners get involved in it at an early stage and it is important and useful for them but for some unknown reason there are long delays, backlogs and waiting times. There is the notion that if a public representative makes an inquiry, nobody should attempt to give him or her information that would indicate by what year it might be possible for the unfortunate client to have his or her case brought before the family law courts or other courts.
I would like to go into greater detail on the issues of concern to me during the debate on the later Stages of the Bill.
I note Deputies John Browne and Robert Troy are sharing time.
Yes. I would like to share my time with Deputy Robert Troy. I welcome the Bill and this opportunity to say a few words about the legal profession. They are much maligned people and perhaps have been more maligned than politicians on occasions when criticised about their exorbitant fees and the money they have received for their work at the tribunals. I have held the view that the money paid to them by the tribunals was approved by the Government of the day. A good deal of unfair criticism has been levelled at the barristers who have worked on tribunals.
Fianna Fáil welcomes significant parts of the Bill, including those parts that introduce greater transparency and will make it easier for young people to qualify as either barristers or solicitors by ending the monopoly that the Law Society and King's Inns have on training both branches of the profession. The introduction of greater transparency is a welcome move that will allow the free information on costs that should help reduce costs and allow consumers to gauge value for money. However, these reforms give rise to a number of problems and a series of measurers are needed to strengthen them. Our amendments will reflect this. We intend to put forward a significant number of amendments on Committee Stage.
There is concern that the Bill will give rise to problems in that too much powers are being taken by the Minister unto himself. One of the great achievements of the Irish judicial system is that it is recognised internationally as being independent. Many of the new eastern European countries sought to base their new legal systems on the systems operating here.
A great benefit of the Irish legal system is that members of the public know that the State is not given any preferential treatment before the Irish courts. This is particularly important since the State is involved in many cases that come before the courts. Under the Minister, Deputy Shatter's proposals, there is a danger that the principle of independence of the Irish legal system could be questioned and this is not the image we want to portray at home or abroad.
The legal services regulatory authority quango will be made up of 11 members and, from what the Minister said, it appears that seven of these members will be appointed by the Minister. The new legal practitioners disciplinary tribunal quango will be composed of 16 members nominated by the Minister for Justice and Equality, with three members to be nominated by the Law Society and three members to be nominated from the Bar Council. Thus, the majority of its members will be nominees of the Minister. In effect, the Minister for Justice and Equality and, by extension, the Government, will control the regulation of lawyers in Ireland. This is not a great prospect. I ask the Minister to clarify this when he replies at the end of the debate.
Multinational companies that base themselves in Ireland do so in part because they know any dispute they have with the Irish State can be determined fairly before the Irish courts. If it is the case that every lawyer in Ireland will now be regulated by the Government, there inevitably will be a question mark over the independence of Irish lawyers taking cases on behalf of multinationals against the Government. A message may go out internationally that since Irish lawyers are regulated by the Government of the day, it may be preferable for multinational litigants before the Irish courts to avail of the services of English or other European lawyers. The Minister needs to consider how future Ministers for justice may abuse the enormous power conferred upon them. I have no great problem with the ability of the current Minister to deal with this - I have every faith in him - but it may cause problems down the road. The Minister should reconsider this whole area and perhaps not take so many powers onto himself but instead have a more independent basis for regulating the legal system.
The central problem with the Irish legal system is that it is too costly. It is unacceptable that citizens who wish to have their rights vindicated are prevented from doing so because of the appalling financial consequences they may face should they lose the proceedings. The Acting Chairman knows, as do people on all sides of the House, that because of the high costs involved, people are not prepared to go to the courts and they are certainly not prepared to take on Government bodies. I have seen this in my own county when local authorities and VECs make decisions against members of the public who are not in a position financially to do anything about it. The costs of such bodies are usually borne by the taxpayer or the ratepayer, but the ordinary Joe Soap is not in a position to take court cases because of the high costs.
The Minister says his Bill will fully spell out the principles that guide the assessment of legal costs, which I welcome. He also said that the key principle is that of reasonable costs for appropriate work done. However, what the Minister has not clarified is whether lawyers and their clients will be able to contract out of the requirements of this legislation. If it is the case that a solicitor is able to agree with his client that the provisions of the new Bill will not apply, then the provisions are mere window dressing. Solicitors who encounter clients for the first time, invariably when they are in a very vulnerable position, will be able to seek to persuade them to sign a separate agreement on costs. Unless the facility to contract out of the provisions of the Bill is removed, it will have a limited impact on legal costs, and I fear that people will still not be in a position to avail of legal services, as is the Minister's intention.
A major concern is that the cost of paying for this vast new quango, which is being imposed upon the legal profession by the Minister, will result in an increase in legal costs. The quangos are to be funded by the legal people themselves and, as the Minister and I both know, these costs are usually not borne by such people but are passed on to the customer. This is something the Minister needs to re-examine. Why do we need such a large number of people on these quangos, and why are the costs involved so high? The Minister should clarify how he intends to make sure the costs are not passed on to the consumer. If the cost of running the two bodies he is talking about setting up are passed on to the consumer, the whole purpose of the Bill - that is, to reduce legal costs - will be lost. The Minister needs to provide clarity on this.
I welcome the provisions of the Bill which deal with education. The Law Society and the King's Inns currently hold a monopoly on training for entry to the solicitor and barrister professions, respectively. I must declare my interest in this regard, as I have a son who is a barrister. He had to go about becoming a barrister in a roundabout way because none of the family was involved in that area, and many roadblocks were put in his way, but eventually he did qualify and is now one of the people who is making some money in this area. He is not overly happy with the Bill, but I take a different view, because the costs of barristers and solicitors are far too high at present. I felt at that time that both of the bodies I mentioned had a strong monopoly. I welcome the fact that the Minister has now decided, although different Ministers have talked about it for many years, to remove this.
The opening up of education provision will be a step towards reducing costs and ultimately broadening access to the legal professions in general. The long route to becoming a solicitor - or, in particular, a barrister - eliminates the possibility, for many people, of choosing it as a viable career. It is a welcome change.
Fianna Fáil will put forward a number of amendments that have been already outlined by Deputy Calleary. I am sure the Minister will listen to the amendments and, if they are sound and will stand up to legal challenge, include some of them in the Bill. Overall, we welcome the Bill, but there are certainly some changes required. The Fine Gael-Labour Party coalition talked about getting rid of around 140 quangos, but now the Minister is intending to set up two more. This will be very costly, and my major concern is that the costs will be passed on to the consumer.
I too welcome the opportunity to speak on this Bill. We in Fianna Fáil welcome significant parts of the Bill, including the provisions on transparency and those that make it easier for young people to qualify as either barristers or solicitors by ending the monopolies of the Law Society and the King's Inns. There are, however, areas in which we have grave concerns. Concerns have been expressed about certain provisions by many members of the public and of the legal profession.
Before I speak about these, however, I would like to follow up on a point that Deputy Browne made. When Fine Gael and the Labour Party came to power, they promised they would cull quangos. Fine Gael pledged to abolish 145 quangos in its document Reinventing Government. The programme for Government also committed to reducing the number of State bodies. Notwithstanding this, the Minister is proposing to establish two new quangos, the first of which is the legal services regulatory authority, which will be required to regulate the whole legal profession in this country. Such a quango will be large and costly, and in order to carry out the functions of the Law Society and the Bar Council it will be heavily staffed. The Minister has indicated that this body will be paid for by the legal professions themselves, but the experience historically is that most costs such as this are passed on to customers. The second quango is the legal practitioners' disciplinary tribunal, a quasi-judicial body which will preside over alleged cases of misconduct referred to it by the legal services regulatory authority. I question the need for two more quangos. The creation of this tribunal renders obsolete the Legal Services Ombudsman Act 2009, which was introduced by the then Government with the aim of having a single statutory independent body to deal with complaints. This Act was similar to the UK regulatory model, which has been also rejected by the Government in its creation of a legal services regulatory authority rather than an oversight body.
One of the greatest achievements of the Irish judicial system is that it is recognised internationally as being fully independent. As Deputy Browne said, many of the new eastern European countries sought to base their legal systems on the one operating in Ireland.
The fundamental issue is the separation of powers and the independence of our legal system. In that context, I wish to quote from a number of letters I received from various constituents about the Legal Services Regulation Bill. One letter states:
Firstly, might I say that there are many provisions in the Bill that I would welcome, however, in its current format I am extremely concerned that the Bill represents a most serious undermining of the independence of the legal profession. Such independence is essential to protect the rights of citizens and this independence is alarmingly threatened by the Regulatory model proposed by the Minister in this Bill.
Whilst the vast majority of the legal profession have no objection whatsoever to Independent Regulation of the profession, what is proposed by the Bill is in fact regulation by the Minister!
That is, in turn, regulation by the Government. While I do not in any way question the integrity of the current Minister, this legislation will be in place long after he departs office. The legislation will be implemented by future Ministers, so it is important that it is not open to interpretation. My correspondent goes on to state:
To emphasise my point I set out hereunder the proposed powers of the Minister/Government in relation to the intended Regulatory Authority.
1. The Government will appoint/remove members of the Authority [seven of the 11 members will be Government nominees]
2. The Government will determine the terms of office remuneration and expenses of the members of the Authority (Section 8)
3. The Minister is to be kept informed by the Authority of developments in relation to the provision of legal services by Lawyers and the Authority assist the Minister "in coordinating and developing policy in this regard" (Section 9);
4. The Minister approves appointment of Consultants or Advisors by the Authority. The Minister (with consent of Minister for Public Expenditure and Reform) approves the fees to be paid to Committee members, Consultants and Advisors (Sections 12 &13);
5. The Authority's three year strategic plan must be approved by the Minister and must "comply with any directions issued from time to time by the Minister in respect of the form and manner of plans preparation" (Section 16).
6. The Minister can direct the content and form of the annual report by the Authority to the Minister and the Oireachtas Committee on Justice (Section 17).
7. The Minister can request the Authority to prepare or approve a code of practice or professional code and the Authority "shall" do so. The Authority "shall" submit the draft code of practice or professional code to the Minister for consent to its publicationor approval .... with or without modifications. (Section 18). The Minister’s consent required for Authority to amend, revoke or withdraw approval for a code of practice for professional conduct (Section 18).
8. The Minister appoints a CEO of the Authority on recommendation of the Public Appointments Service for such a period of office not exceeding five years.....
9. The Minister appoints the staff of the Authority and determines their grades, remuneration, terms and conditions (Section 20).
10. All estimates, financial information and accounts of the Authority are subject to approval of the Minister. The Minister can appoint any person to examine the accounts of the Authority (Section 22).
The letter continues in that vein. The recurrent theme is the involvement of the Minister. I do not question the integrity of the current Minister but this legislation will be in place long after he leaves his position. The letter continues:
You will probably already have noted the concerns expressed in relation to the Bill separately by the three international legal bodies describing the Bill as "one of the most extensive and far reaching attempts by a Government to control the legal profession". These concerns are expressed by the incoming President of the Council of Bars and Law Societies of Europe (CCBE) who described the independence of the legal profession as "a fundamental value of European Law" and it is also a widely held view that any breach of that principle (such as enunciated in the current Bill) will most probably lead to litigation before the European Court of Justice and the European Court of Human Rights.
I could read another few pages from the letter I received but no doubt the Minister has received, heard and hopefully listened to the concerns outlined by the legal profession. Undoubtedly, he has met its representatives. I hope he will listen to the concerns that will be expressed in the amendments that will be brought forward on Committee Stage.
It is important that anything we do in this area makes it as affordable as possible for people to access legal services. As Deputy Browne said, some people cannot afford to go to court to clear their good name. To conclude on a positive note, an element of the Bill we welcome is the cessation of the monopoly on legal training of the Law Society and King's Inns. It will open a new avenue for people to enter the profession. I hope the Minister will take on board the concerns outlined in the House today as well as the concerns of members of the public and of the legal profession when the Bill progresses to Committee Stage.
I wish to declare an interest in the legislative measure before us. I am a member of the Law Society of Ireland. Notwithstanding that, I am pleased to have an opportunity to comment on this important legislation. It is a milestone in the development and regulation of members of the legal profession, both solicitors and barristers.
I accept that reform of the legal profession is somewhat overdue. I congratulate the Minister, Deputy Shatter, on this initiative as well as a number of other important initiatives he has undertaken since his appointment as Minister for Justice and Equality less than a year ago. I refer in particular to the Judicial Council Bill, which I expect to be debated later this year.
There have been several reports on the matter of structures and regulation, most of which have concluded that the current structures are somewhat restrictive and anti-competitive. The Competition Authority formed this view some years ago. In more recent times the troika has specifically adverted to the need to reform legal services. However, it is important that we consider the Bill in the context of the tangible benefits to society and the economy - the principal objects, the intended targets and the likely results. In December 2006 the Competition Authority issued its report. Of the 29 recommendations, a handful referred specifically to the Law Society. It is fair to say that all the recommendations for reform of the Law Society have been implemented.
As a public representative I have two major concerns about legal services, both of which have been mentioned by previous speakers and both of which go to the core of this legislation. They are the cost of going to court and the appropriate structures being in place when something goes wrong. On the latter point, I am particularly pleased to note a recent initiative on the part of the Law Society in the area of complaints and redress procedure. The Law Society has indicated in correspondence to the Minister for Justice and Equality that it has given up control of dealing with client complaints and has recommended in correspondence from the president of the Law Society that all such complaints should in future be made to, and dealt with by, an independent body. This represents a fundamental change in the position of the society. It is admitted by the society that this is to address a public perception, which has been echoed and re-echoed in this House for many years, that members of the legal profession should not adjudicate on client complaints against members of the society, as has been the case for upwards of 150 years. I welcome the society's ceasing to handle complaints.
While there has been a public perception that there has not been lay involvement, it is important to state that the Law Society of Ireland has been accustomed to oversight of an independent and lay nature. There is a perception, which I heard this afternoon, that self-regulation is a cosy closed arrangement operating against the public interest and to the detriment of the citizen. It is important that the House be reminded that the complaints and client relations committee of the society has, currently and for a number of years, a majority of lay members, involving representatives of IBEC, ICTU and the Director of Consumer Affairs. The appeal of a complaint decision is currently to an independent adjudicator that has been in operation for the past 14 years and is both independent and lay. That independent adjudicator has reported from time to time on the need for further reform. These reports and recommendations, by and large, have been acted upon to the benefit of the consumer and the public. There is a further appeal on the part of the consumer to the Solicitors Disciplinary Tribunal, which body is entirely independent of the Law Society of Ireland, wherein the society exercises nothing in terms of control and little in terms of influence. That entire process is subject to the authority and control of the President of the High Court.
While I accept the public perception, an examination of the reality is different. Notwithstanding that, I welcome the reform as outlined and communicated by the Minister. It is essential, in the context of these reforms, that there be open and constructive dialogue between the professional bodies and the Minister. I welcome the fact that there have been a number of meetings. It is essential that both arms of the legal profession buy into the current process.
It is widely recognised and accepted that the ECB-IMF-EU Commission deal recommends change to ensure the provision of legal services to the public at a reasonable cost. Law and justice must be accessible and available at all times. It is accepted that agreement reached with the troika will not, at this stage, be unravelled and the concept of the legal services authority will be introduced. I welcome that. I do not believe anyone, in the context of the current debate, is of the view that this proposal will be unravelled, or that the clock will be turned back.
There are a number of concerns with which I hope the Minister can deal during the debate on Committee Stage when amendments will be proposed. I do not have time to deal with them now in the detail I would like. For example, the legal difference between the definitions of misconduct and of professional negligence should be maintained. There are compelling reasons for doing so. The differences are substantive and are there for good reason.
Having been a member of such a body for a number of years, I accept that no professional body, and in particular the Law Society of Ireland, can act as regulator and representer at the same time. That situation represented an essential conflict. If I am a member of a professional body I may, from time to time, require that body to represent me. If that professional body, at the same time, regulates me that regulation must be always in the public interest. It is difficult to argue that a conflict does not exist in such a situation. I welcome the comments of the Minister, which views he has held for a number of years, and with which I agree.
I would like to see a greater level of debate on limited liability partnerships and limited companies being envisaged for the arms of the profession. I would welcome that but I am not so sure about multidisciplinary partnerships. They are not recommended by The Competition Authority. What has changed in the meantime to allow an acceleration of views that such multidisciplinary partnerships are in the best interest of the public? These issues must be dealt with in a detailed way on Committee Stage. The idea that barristers, solicitors and accountants, along with other commercial enterprises, are free to form companies and partnerships might seem, on the face of it, a good one. However, large firms can operate to the detriment of smaller firms when the best in the business can be hired to represent corporate entities in all their cases, to the exclusion of other members of the profession and, ultimately, to the detriment of the client. This can lead to a situation where an individual taking a personal injury action is unable to gain access to appropriate, or top drawer, legal representation because the cream of the profession is under exclusive contract to the opposing party. This would limit the rights of the citizen to have the best possible representation, which the Irish citizen, or consumer of services in this jurisdiction, is uniquely able to access, no matter how small the firm representing him or her. A plaintiff or defendant in this jurisdiction can have access to any barrister he or she wishes, as long as the barrister does not have a conflict of interest or other commitments. This ability is not reliant on the size or location of the firm. There are issues in this area that need to be addressed.
The matter of independence has been mentioned. An independent legal profession is an essential component of any democracy. Such independence and freedom from State control and interference is an important bulwark against abuse, be it State organised abuse or corruption. There is concern that an excessive degree of ministerial control may well be contained in the Bill. Whatever regulatory authority is constructed, it must be wholly independent. This independence is essential for those consuming the service. The process at all times must be free from State control. Having regard to the fact that 50% of litigation cases conducted in the Irish courts currently involve the State as a named party, there could well be grounds for a perception that the matter of independence could be compromised.
The proposed structure of the authority must be independent and seen to be so in every respect. On Committee Stage I hope to deal with certain issues in respect of sections 8,13 and 16 to 20, inclusive. I would not like the Government to exercise undue influence and control, as remarked upon by bodies such as the Irish Council for Civil Liberties. These issues can be dealt with to the satisfaction of the groups from which commentary has been forthcoming. Lawyers ensure the protection of fundamental rights and freedoms in society and to vindicate these rights of citizens, they must at all times be free to advise clients accordingly. The legal profession, therefore, must be independent of the State. Members of the new authority should be appointed in such a way as to ensure that independence.
We must also deal on Committee Stage with the concerns expressed about the costs of the new authority. Concern has been expressed about the levies that will fund the legal services regulatory authority. The expenses of the authority as broken down - 10% from the Bar Council, 10% from the Law Society and 80% pro rata between the society and the council - will impose a burden that ultimately will be placed on the shoulders of the consumers of the services. Measures must be introduced, therefore, to minimise costs, which is an important objective of the Bill in the first instance.
The fusion of the professions, a subject widely reported on in the Competition Authority report in 2006, appears to be inevitable. Why have we had such a rush towards this inevitability over a five year period? An unintended consequence might be an increase in costs which would drive many lawyers out of the profession and thereby restrict access to the law by members of the public.
Concern must be expressed about the rural general practice and the access of members of the public to specialist expertise when required. Society can only benefit from having a more transparent, streamlined and less costly system, as intended in the legislation. However, I must quote the oft-hackneyed phrase of the 19th century English judge Sir James Mathew who said, "Justice is open to all - like the Ritz Hotel." There are consumer concerns about costs which must be met.
I note that the Department of Finance paid €33 million for external legal advice in 2009. We have commented on all sides of the House about the extraordinary cost of legal services for tribunals. Today we read about the legal costs for NAMA in 2010 totalling €27.56 million, an extraordinary amount of money in any circumstances. The cash-strapped HSE is continuing to spend €20 million a year on external legal advisers. This is being done despite the fact that it has its own internal legal office which costs €500,000 a year. It created a national legal services department in March 2010 to provide professional advice for the organisation, yet that same organisation can spend up to €20 million a year on external legal services, even though we all know about trolleys and budgetary constraints in the health service. I call on the Minister for Health to provide a detailed report on the effectiveness of the HSE's legal advice procurement process. There are issues that need to be dealt with. I also ask the Minister for Justice and Equality to look at the tendering systems in place in local authorities, many of which have in-house legal departments, yet they are spending hundreds of thousands of euro on external legal services. I want to revisit the issue of the procurement and tendering processes for legal services for the HSE.
I congratulate the Minister on the many initiatives he has taken since he took over. Change must be progressive and inclusive. However, there are certain aspects of the Bill which give rise to concern. We must at all times be convinced in this House that we are going to reduce costs. We must ensure there is a complaints handling system that is transparent and in which people have trust. More than anything else, we need a legal profession that is independent of vested interests but also independent of undue State control and influence.
I sincerely thank the Technical Group, the Whip and her staff for arranging for me to have speaking time. I also acknowledge the presence of the Minister in the Chamber.
I have no difficulty with measures that seek to modernise the legal system and aim to provide for better and fairer delivery of legal services to the people. In fact, if we could all avoid engaging legal services or dealing with solicitors or barristers, we would definitely be a lot happier and richer and have a lot more peace of mind. Unfortunately, it is a sad fact of life that we need such services every day in one way or another, whether in buying a house which not many can do at present or perhaps appearing in court for failing to buy a television or dog licence.
Generally, leaving aside the fact that, like any of the professions, there may have been rogue operators during the boom time, legal professionals have served us well for many years. Many of them engage in pro bono work in their own time to assist people who cannot afford to pay them. This should be highlighted in the House because I certainly know many who have been very kind, helpful and thoughtful in dealing with people in difficulty who would not have enough money to engage professional services. This is very much appreciated by those concerned. However, to use the old analogy, the Minister is using a lump-hammer to crack a nut.
I would be grateful if the Minister listened to me because I have gone to the trouble of preparing what I have to say to him. He can talk when he is outside the Chamber. If he was addressing me, I would do him the courtesy of listening to him.
I have heard everything the Deputy has said. I have not missed a word.
I thank the Minister. I would like to repeat that he is using a lump-hammer to crack a nut.
I heard the Deputy say that.
That is the best way to describe the proposals contained in the Bill.
There are many problems with the Bill. It seems the Minister has reluctantly admitted there are problems with it, following the exertion of pressure from all quarters. There was no consultation and no research conducted in advance into the many proposals made in the Bill. In fact, a number of key proposals go against the recommendations of the Competition Authority in its report on the legal professions in 2006. The authority recommended that there be independent oversight, a model which would see an independent regulator overseeing the work of the front-line regulators, the Law Society of Ireland and the Bar Council of Ireland. This type of model is consistent with international best practice and is far more effective and cost-efficient. The Minister now knows that he was wrong about the independence of the legal services regulatory authority and it seems he is now going to do something to fix that. The Bill as it stands provides for a level of government control over the appointment and running of the regulatory body which will run directly contrary to the core value of independence in the administration of justice. This is not just the view of the members of the Irish legal profession. The Bill has been widely criticised by various international groups, the Council of Bars and Law Societies of Europe, CCBE, the International Bar Association and the American Bar Association. The Minister has finally realised that the system of ministerial control over the functions and appointment of members of the regulatory board was not appropriate and it seems he is now considering amendments to deal with the situation. It must be said that the person who never made a mistake never made anything and if the Minister is willing to consider amendments then this is to be welcomed.
Apart from the proposals in the Bill there are clearly other ways of dealing with regulation of the legal professions. For example, the Bar Council has suggested a form of independent regulation of the legal professions by an independent regulator of the nature and type recommended by the Competition Authority in its 2006 report. The regulator would be independent of the legal professions and of the Government. The Bar Council and the Law Society already have systems in place to regulate their members so there is no need for the Minister to re-invent the wheel. All that is needed is an independent regulator to oversee and supervise the regulation by the Law Society and the Bar Council. This would be a more efficient and effective form of regulation to that proposed in the Bill. It would also be considerably less costly. I ask the Minister to give serious consideration to this alternative proposal.
With regard to the cost of the regulatory body, the Minister was wrong about the costs of the regulatory body and he will need to go back to the drawing board. No regulatory impact assessment was carried out before this Bill was published. The establishment of this new quango without any prior assessment of the costs and the economic case for same, runs directly counter to good governance, common sense and the policy commitments in the programme for Government 2011. At a time when the nation is on its knees we cannot afford to even talk about setting up new quangos without any proper prior assessment of the costs involved. What has happened to the pre-election promises to abolish or merge quangos? It seems that the Minister's master plan is that the legal profession will have to bear the entire cost of this new quango. It does not take a mathematical genius or an honours maths student to figure out that the costs associated with the new quango will inevitably be passed on to consumers and that, ultimately, it is the public who will have to pay for the Minister's newest quango.
The county of Kerry has provided some of the nation's most distinguished solicitors and barristers over the years with the Liberator being the most famous. These proposals are daft when one thinks about it; if they had been around during O'Connell's time, he would have been regulated and overseen not by the Law Library, his colleagues or the King's Inns, but by a political appointee of Pitt the Younger or George III. What is more, he would have had to pay for the privilege of being regulated.
The Minister is also wrong about the introduction of multi-disciplinary practices. This new type of business model would see the cream of the crop of solicitors and barristers setting up in practice together. Needless to say, these practices would be concentrated in the capital, where some people think that the world stops at the Red Cow roundabout, and in the other main cities. The proposals have the potential to make the profession more elitist and prevent people entering or developing a practice by concentrating the best lawyers in a small number of large city firms. The proposed structures will undermine small solicitors' firms up and down the country who rely on ready access to independent barristers in order to be able to compete on a level playing pitch with the large city firms. These local solicitors are in and out of court every day defending people and in many cases where a client's liberty may be at stake, the solicitors need to be able to call on the best barristers to help out. Under the new system the best of the barristers may be tied into one of these new multi-disciplinary practices who may in turn be under a retainer and a contract to the main insurance firms who can afford to pay top dollar. For example, there are many fine solicitors in my native county and when they sit down with their clients to pick the best barrister team - be that at junior or senior level - to do battle in the field of the High Court in Dublin, they should have a free choice to pick who they want, as is the case now, rather than be hived off to one of those who did not make the cut into the multi-disciplinary chambers. These new chambers will make litigation more of an uphill struggle for the people of small towns in rural Ireland.
Concerns about the proposed structures have been expressed by FLAC, the Free Legal Advice Centres. For many long years FLAC has provided an invaluable service to people up and down the country who cannot afford to pay for legal advice. If FLAC says there are problems then the Minister should sit up and take heed of what it says. Legal partnerships and multi-disciplinary practices were not recommended by the Competition Authority nor by the legal costs working group or in the programme for Government. No independent economic assessment of this or other models of business structure for the delivery of legal services has been undertaken prior to the publication of the Bill.
The Minister also seems to want to merge the two professions of barristers and solicitors in some way. I am not sure whether he wants them all to be solicitors or all to be barristers or whether he knows himself. The fact that the Minister is a solicitor might have something to do with it but I do not know. However, I know that it does not make any sense to start throwing the whole system upside down without properly engaging with the professions and, more particularly, considering the implications for the public.
Cutting legal costs is a very important consideration. I will give credit where credit is due. I welcome the provisions of the Bill dealing with the actual costs of legal services and the introduction of a more transparent legal costs regime. In the current economic climate, people must be able to get value for money and it is crucial that people should be entitled to shop around for solicitors and barristers offering the most competitive estimate for any legal work. We need transparency on the fees to be charged and oversight to ensure the fees paid reflect the work actually done. I welcome those parts of the Bill dealing with costs.
The Minister will, no doubt, say the troika required him to publish a legal services Bill by October 2011. However, that does not excuse the publication of the Bill in its current format without a proper consideration and study of the public interests involved and without solid information on the costs involved and other impacts of the Bill if enacted in that form. It seems bizarre in the extreme that the Minister, a member of the legal profession, could have come up with some of the proposals made in the Bill without properly consulting his legal colleagues and also bodies such as FLAC. It seems from the general reaction to the Bill that he has alienated and antagonised much of the legal profession in the process of introducing it. He has been a respectable, hard-working solicitor for more than 35 years and is the author of a book on family law. He is certainly no slacker when it comes to taking on work and has sat on the lauded benches in front of the Supreme Court on many an occasion, as was his right. Now, however, he needs to take a step back, take a deep breath and seek wiser counsel.
What I want for the members of the public I serve is the provision of a top class legal service which will be available to all and sundry at a reasonable cost. However, it seems the Bill will not do the job it is meant to do. I, therefore, call on the Minister to go back to the drawing board. He must go back to his colleagues in the legal profession - if they are still talking to him - get the views of the public, knock heads together and sort out this issue once and for all.
One issue on which I have focused is the importance of local solicitors. The Minister is as aware as I am, as well as all Members of the House who deal with the public on a daily basis, that family firms of solicitors operate in smaller cities, towns and villages which have provided a great service for generations. Children have followed in the footsteps of their parents, be they solicitors or barristers. They have had an interest in the legal profession just like those who have followed their forebears into the political profession. The reason they do so is they know what it is like, get a liking for it, want to study it and serve in that line. I am afraid that what the Minister has proposed will centralise the legal profession in the larger cities, from which the best barristers will work. They will be debarred from operating for smaller solicitor firms. By stealth, the smaller firms of solicitors throughout the country will be squeezed out. They provide employment in their own local areas for the staff who work in their offices. They pay rates and their taxes and are a valuable part of the community. We would all be happier if we never had to go to a solicitor, but life does not work out that way. Therefore, I am afraid of the big monopoly the Minister is creating. He does not have a grasp of the implications, despite the fact that he is an eminent and great solicitor. Unfortunately, he has been based in Dublin for 35 years and is one of those who thinks everything finishes at the Red Cow.
We have all heard about the great things the Government intends to do in office. On a daily basis the previous Government was criticised, yet the solution offered when the Government took office was that it would set up a new quango. That is not right. That is not what the Government parties campaigned for. At the same time the Government seems to be very good at providing jobs for its own crowd. I could quote instances, but I will not.
I challenge the Deputy to do so.
No, I will not, but there are such instances. Even though I could say what I believe to be fact, I will not do so. Perhaps the Minister might do it to someone else, but I will not do it to him, even though he might like me to do so. He and I know there are such instances and who the people are. We all know what the Government has done. Those who follow politics-----
The Deputy was doing all right until a few minutes ago, but he is now descending into the hole he is digging for himself.
I am sorry, but I am not in the habit of interrupting the Minister. However, I am pleased I have touched a nerve. Obviously, I have hit something that is a little raw. If that is the case, well and good.
The Deputy's time is up.
In summary, I hope the Minister will take on board what I have said in good faith. He knows that much of what I have said makes sound, solid sense. I also hope he will take on board my constructive criticism. Let him imagine for one minute what he would say to me if our roles were reversed and I was setting up a quango.
I would not be reading a brief someone else had furnished to me.
I am pleased to have the opportunity to contribute to the debate on the important Bill before the House. I must comply with my legal obligation by making a declaration of interest by stating I am a practising barrister and a member of the Law Library. However, I am not speaking as a puppet, an advocate or at the behest of any organisation or sectional interest. I will express my views on certain matters which may well overlap or coincide with those of the various regulatory authorities and professional authorities. I will make suggestions where I believe improvements can be made to the Bill. I genuinely anticipate that the Minister will at least assess, evaluate and consider them in the context of formulating Committee Stage amendments. I hope he will not exhibit a closed-mind mentality to suggestions from whatever side of the House they may emanate, take the stance that he knows best or adopt a paternalistic attitude, which would be the worst of all worlds. Openness to alternative ideas and propositions could help to make this a landmark Bill, which I know the Minister wants it to be. It has a major contribution to make.
I wish to make it clear that legislation has to be introduced in line with the commitments in the programme for Government to which I personally signed up and from which let me not resile. Let us not try to play every side of the House. The commitments given and the Bill must be enacted to ensure independent regulation is introduced for the Law Society of Ireland and the Bar Council of Ireland. Therefore, let us not run away or resile from that to which we have signed up.
I have no problem with the Bill and would not attempt to argue from the proposition that these bodies should be subject to self-regulation. Notwithstanding this, there is no empirical evidence that the current system which has been updated by the Minister's own body, the Law Society of Ireland, and the Bar Council of Ireland has failed in any respect. As Deputy Charles Flanagan said, it has been forgotten that there are lay majorities in both bodies. The people concerned make an evaluation and have an input to the disciplinary process. In that regard, they have been progressive. However, the system of regulation proposed in the Bill goes way beyond what the Competition Authority recommended, a model based on the system introduced in the United Kingdom in the Legal Services Act 2007. In effect, it was an overarching regulation for both wings of the profession that permitted day-to-day regulatory functions to be reserved to the Law Society and the Bar Council. This appears to have worked well.
I will not disclose Cabinet matters, but I understood that the Minister committed at the Bill's inception to enter into meaningful negotiations with the various regulatory authorities, namely, the Bar Council and the Law Society, regarding the form of regulatory structure to be introduced. However, this commitment was not adhered to. In his reply to a request for such discussions, he stated that the regulatory structure had been agreed by the Government and was not open to amendment. He also stated that the final decision on the forms of business structure or partnership was the Government's and that it would represent settled Government policy. Once again, it was not open to discussion or amendment.
This was not how I understood the matter was going to be advanced. I will go no further, but fundamental changes are being proposed in the Bill and I am somewhat surprised by the entrenched view. At least two issues need to be addressed, but other issues are also involved. People seem to have mistaken the Minister's view of the matter. The education issue will be up for discussion.
I come from a non-legal background. The way the Bar Council and King's Inns operated allowed me, a person from a non-professional, working class background, to achieve what I wanted. No major obstacle was ever placed in my way. That I did it as a mature student made it more difficult, as most people know.
Perception often becomes reality even if it does not accord with the facts. In the Bill as drafted, 11 members of the authority will be appointed by the Government upon the Minister's recommendation. Although I understand that he is moving away from this provision, it represents a staggering level of State control over the profession. The Bar Council and the Law Society, the relevant bodies, will nominate two members each. The selection and appointment of members to the legal services regulatory authority poses an issue, but I understand the Minister is dealing with it. I accept his bona fides in that regard.
The Minister will exercise minute control over many of the authority's functions, which were outlined by a previous speaker. During the few months I was a member of the Cabinet, I learned that some provisions must be included so that the Bill complies, not with what the Minister wants, but with what the parliamentary draftsperson wants. We ordinary legal people would rather have the system simplified and I understand why the Minister might not want to be named as the person who must sanction this or exercise control over that, but the legal counsel advised. One needs to examine the Bill to appreciate the number of times that ministerial consent or approval is required. The direct ministerial involvement provided for in the Bill might only be apparent, but it could lead to the perception of a worrying degree of Government interference in the legal profession. This is not the Minister's intention, as he is a legal person of eminent renown, but I am concerned about the perception becoming reality.
The Government might not do something itself, but it is involved in cases through its agencies. No more than myself, the Minister has probably taken many cases against the State as well as acted for it. The State is involved in almost half of all litigation procedures that appear before courts, be it in regard to criminal or civil matters, judicial reviews, administrative issues, etc.
People could perceive the Bill as compromising the profession's long-cherished independence. Many people did not give this perception great credence, but I read a report of the recent international legal bodies conference, which was attended by the American Bar Association, the International Bar Association and the Council of Bars and Law Societies of Europe. While they have an interest, these are independent bodies and, at the conference, each expressed significant concerns about the perceived lack of independence and the proposals' cost. These proposals have provoked international concern and are matters of comment. Any proposed authority must be transparently independent of the Executive and-or ministerial control over the manner in which it exercises its functions, powers and obligations. I feel strongly about this issue.
The Minister has probably replied to my next point and will state that this is a different matter. Other bodies have been established to exercise control over various matters, including discipline, admissions, etc., but they do not have memberships that are as large as this authority and are not subject to the same degree of ministerial input.
A number of staff will need to be employed. Will anyone employed by the Law Society and so on form part of the legal services regulatory authority? Many of them have a great degree of proficiency in various fields. Perhaps they could be redeployed to the authority.
There will be costs. When one employs people, there will be salaries, pensions and expenses. We know the answer to this, in that the members of the profession will initially be required to pay for it, but the cost ultimately will be devolved to the clients.
The authority is to be financed by way of a levy on the profession and the costs will be substantial. The levy's proportions will depend on the number of complaints and members in each wing, namely, the Bar Council and the Law Society. There are 2,300 barristers, but there must be 9,500 or 10,000 solicitors, which is the Minister's profession. That is a ratio of 4:1. The levy will impact on the Bar Council and Law Society's finances, which they need for their various buildings, etc. The Law Society is cherished as a centre of excellence and there is great collegiality. There are many things that people do not see. For example, young barristers get help from barristers who have been around for a number of years. The collegiality and friendships are important. The Law Society continues to expand and must also spend money on training, continuing professional development and so forth, all of which are important.
The complexity of the regulatory framework will considerably increase the cost of practising at the Bar. I will not speak for solicitors, as I am not one, but I presume the case will be the same for them. The cost will represent a significant obstacle to entry into the profession. How will young people who come from a background similar to my own and who wish to be barristers be able to access their preferred profession after working hard to secure qualifications at an academic level? The Minister has professed himself as an advocate of opening up access to people from every socioeconomic background. In this light, it is ironic that his first act of reformation effectively restricts such access and makes it the preserve of the rich. In other words, we will go back to the era of elitism, which should be wiped away. People from every socioeconomic background should be allowed to access the profession. This matter must be considered.
There is a significant number of low earners in the legal profession. While there is no denying that some people are making a good living, that is not the full picture. In fact, those earning only modest sums may be forced to leave the profession, as we have seen happening in recent years. If the legal profession were as much of a gravy train as it is often portrayed, why is the exit door crammed with those who wish to leave? The additional costs for practitioners who stay on in the profession will be passed on to clients, which will have the opposite effect to the Minister's stated objective, namely, to reduce costs to the public. The general cost provisions of the Bill are generally in the public interest and amount to a noble and important objective. However, theories and objectives are one thing but all that matters is what happens in practice.
There are significant costs associated with the proposed legal practitioners disciplinary tribunal. This is of particular concern given that we already have an independent, cheap, accessible, effective and fair disciplinary process which includes a majority lay representation. That system was put in place some years ago and there does not seem to be much evidence of a clamour for change from the public. The proposed regulatory authority has several powers and functions which give rise to fundamental concerns, including its obligation to devise proposals to advance issues such as the unification of the two branches of the profession, provisions for the establishment of partnerships, including multidisciplinary practices, direct access to barristers and so on. The important question is whether these changes ultimately will be in the interest of the public.
The Bill provides for the establishment of five new regulatory bodies. The regulatory authority will have 11 members, the complaints committee of the regulatory authority will have 16 and the legal practitioners disciplinary tribunal will have 16. In addition, there will be the office of the legal costs adjudicator and the advisory committee on grants of patent and precedent. The first three of these bodies - the regulatory authority, the complaints committee of the regulatory authority and the legal practitioners disciplinary tribunal - will have 43 members between them. There can be little doubt that significant costs will arise in regard to the implementation of these proposals. I understand that the Bar Council's regulatory functions are carried out at a cost of some €200,000 per annum, with members of the disciplinary bodies, which all include a lay majority, doing the work on a voluntary basis. In fairness to him, the Minister has strongly advocated the abolition and streamlining of various quangos. Yet he is setting up, under these provisions, a parallel stream of quangos. That seems to be at odds with stated Government policy.
In regard to the proposals on partnerships and multidisciplinary practices, it is my understanding - the Minister will correct me if I am wrong - that they could be introduced on foot of proposals from the authority itself and that no further legislation is required for that purpose. Whatever emanates from the legal services regulatory authority should be subject to debate in this House. Multidisciplinary practices were considered by the Competition Authority but, peculiarly, were not recommended in its report. The independent referral Bar has been a cornerstone of our democracy since the foundation of the State and I have observed no public outcry for its abolition. There is a rule in the Bar, which is set down in the code of ethics and practice, called the cab rank rule. It states that any person who wishes to initiate legal proceedings and has a cause of action or stateable case will be represented where necessary by a barrister. I am concerned that the ability of counsel to take on cases at no cost to clients who cannot afford those services will be severely diminished or eroded by these provisions of the Bill. The cab rank rule must be preserved.
As I said, the Competition Authority specifically advised against solicitor or barrister partnerships on the basis that they would effectively reduce competition. Such partnerships will concentrate specialisation in small groups. Deputy Michael Healy-Rae made the point that increased costs and increased complications will adversely affect the ability of disadvantaged clients to access the legal system. The effect of these changes will be to undermine the Law Library - perhaps that is what some people want - and therefore undermine small to medium-sized firms of solicitors, many of which are based in rural areas, and their ability to challenge the larger firms by choosing barristers with appropriate expertise.
This State has the same population as Birmingham. Business structures that are appropriate for other countries of significant size may not be appropriate here. I say this as a word of caution. The proposed structures have only just been introduced in the United Kingdom and have not yet been assessed as to their viability or suitability. We should proceed with great caution. Partnerships of whatever kind will increase rather than reduce costs. By allowing such structures, the cost of insurance will increase, acting as another barrier to entry and continuing practice within the profession.
The Bain report investigated the issues in a Northern Ireland context and came down against these structures. Direct access to barristers is not permitted in many similar law jurisdictions, including in the North, Scotland, England, Wales, New Zealand and Australia. As a barrister myself, it is not something I would embrace. It is importance that the independence and objectivity which one has when one stands back and gives an opinion is retained. Partnerships will dilute the primary duty and first obligation of a barrister to the client and the court.
I have no objection to other provisions in the Bill, such as that the wearing of wigs and gowns be made optional. In regard to the provisions allowing solicitors to become senior counsel, it will be interesting to see how that works but I have no difficulties with it. However, I am perplexed by the apparent necessity to include in the Bill a section which provides that solicitors and barristers, on being engaged by a client, must agree as to who should be the leader in a case. If they are unable to do so, the client will ultimately make the decision. As a practising barrister, I am aware that under the current rules applied by the Bar Council, in place since June 2007, we must provide cost estimates to instructing solicitors and, by extension, to the client. Therefore, there is already a high degree of transparency in terms of costs. It did not require any legislative underpinning or sanction in order for barristers to provide that type of information. Moreover, it enables solicitors and clients to shop around in what is clearly a competitive environment.
Unfortunately, I am out of time. There are several issues I intend to deal with in detail on Committee Stage. I hope the Minister will engage with us in the spirit in which we will put forward proposals, to strengthen the Bill in the interests not only of the professions but of the clients they serve.
I propose to share time with Deputy Seamus Healy.
That is agreed.
The operation of the legal services and the manner in which they are regulated forms the basis of a critical debate. Many points have been made about the public interest, with suggestions that it is synonymous with the interests of barristers and solicitors. They are not necessarily one and the same. There also has been a great deal of reference to the Minister's motivation in this Bill. There are far more fundamental issues at stake in this debate. I would stand back and look at this very much from the standpoint of citizens' access to justice, an issue of huge and increasing concern to many people against the backdrop of economic austerity.
There is no doubt that most ordinary people are excluded from access to the legal system as it currently operates. One of the main reasons for this is the phenomenal level of costs. A system where justice is available at a particular cost is effectively a system where justice is denied. That reality must be addressed. It is indefensible that citizens in jeopardy of losing their homes are having to pay €15,000 upfront in respect of legal representation in the High Court. It is a joke. Many citizens are upskilling so as to provide legal advice and assistance to their neighbours who have been left behind by many in the legal profession. There are many who are a fine example in this regard, including those involved in New Beginnings and other solicitors and barristers who provide their services free of charge. However, there is only so much those people can do within the current system. It is a testament to the legal profession that there are 650 volunteers working in the free legal aid system. However, anyone dealing with residents or workers will know that system is stretched to exploding point and is totally and utterly under-resourced. Any meaningful reform of legal services in this State must include resourcing of the free legal aid system.
In one of its submissions on this legislation, the Bar Council states that a competitive environment already exists in this area and that legal fees have been driven down. I do not agree. As stated in today's edition of The Irish Times, €27.5 million in legal fees relating to NAMA has already been paid out. It is expected a further €2 billion in legal fees will be paid out in this regard. The issue of fees needs to be addressed.
The Bill contains some provisions which must be supported. Everyone is coming at this debate from the point of view that self-regulation has not worked and, therefore, something else is needed. Many people, in particular those in the legal profession, believe that while some oversight and regulation is needed, this legislation swings the pendulum too far. We must take on board their points. However, there is a thin line between self-regulation and defending self-interest, not alone in the legal profession but in all other areas. We must be honest.
During the Celtic tiger era there was corruption in the planning process, much of which was facilitated and defended by members of the legal profession, and billions of euro of untaxed revenue was channelled through tax evasion schemes and charitable trusts established in places such as the IFSC by top legal firms in this country, including Matheson Ormsby Prentice. Also, fraud in conveyancing and so on was at the very least facilitated by a minority of solicitors. The current system of regulation does not work. While I agree something else is required, this does not mean that what the Minister is proposing is the answer. However, these issues can be addressed by way of amendments on Committee Stage.
The main focus of this Bill is composition of the legal services regulation authority, in respect of which the Minister is given an undue role and influence in terms of his or her power to nominate seven people. This needs to be changed. I could not support this legislation based on that provision as currently drafted. The Minister has countered this argument by saying that judges are political appointees and asking what is the problem with his appointing seven of the 11 members of the authority. I do not agree with that argument which does not compare like with like. It is an unfair comparison. The Judiciary has an established role as defined in the Constitution. It was not even possible to reduce judges' pay without putting the matter to the people by way of referendum. Its powers are well delineated and defined in law. Although the Judiciary is politically appointed, the Oireachtas can, under Article 35.4.1° of the Constitution, impeach judges. There is in place a mechanism in this regard, which I believe is appropriate and is proper oversight of an independent Judiciary. I regret this mechanism has not been used more. This week and previously, I attempted to have discussed in this House the matter of judges who, prior to enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, unlawfully decided to hold family court cases relating to property disputes in camera, and to have the Minister intervene and impeach those involved, but it is not possible to have those issues discussed here. I believe judges should be answerable and accountable. In my opinion, they should be elected and subject to recall.
In its submission on this legislation, the Bar Council states that while it accepts the need for regulation, this legislation goes too far. Comparisons have been made with China and Vietnam, which in my view is, in terms of sense of proportion, well over the top. I do not believe that is a fair comparison. There is no evidence to back up the assertion in the presidential address of the Law Society Gazette that this legislation will end the independence of the legal profession and will not allow solicitors to function without external interference. There is no evidence to support this assertion and nothing that could be pointed to that would specifically prevent such independence. This does not mean I believe the Minister’s composition is appropriate. The alternative suggested by the Bar Council, namely, that there be a 13 person committee which would comprise not alone members of the Bar Council and Law Society but an array of others such as a cost accountant nominated by the Legal Cost Accountants Association, a person nominated by the Chief Justice, a person nominated by both IBEC and ICTU and various other representatives, including one nomination by the Minister, FLAC and the consumers association, is better than the Minister’s proposal. However, it is not enough. That type of regulation is far too reflective of the professional bodies and does not give enough protection to ordinary citizens or take on board their serious concerns in regard to the manner in which legal services bodies operate. We will be seeking to change this by way of amendment on Committee Stage. We want to provide for involvement of persons who work with NGOs, FLAC, the Northside Community Law Centre and other similar bodies, thus ensuring more representation of ordinary people than professional bodies. This needs to be done.
A regulatory impact assessment must be done. That the Minister is only considering this now when we are discussing the legislation is completely wrong. That exercise should have been completed prior to drafting the legislation. We are paying lip-service to reform unless we consider this legislation side by side with the resourcing of organisations such as FLAC and others. The reality is that many people looking for justice do not know where to go. They have no confidence in the current system. They fear the courts and do not believe they will get justice there. This is fuelled by measures such as the Government imposing massive fines on ordinary citizens who engage in campaigns of civil disobedience rather than on those at the top of society. We need to look holistically at this issue. The Bill as drafted must be amended, which we will seek to do on Committee Stage.
I welcome publication of this Bill which deals with legal services regulation, which is an important issue. There is no doubt that we need a roadmap for the future of legal services in this country. Regardless of whether one agrees with the Bill, it sets out at least one vision in that regard. We all know that reform of legal services is long overdue. We can no longer allow self-regulation in this area. There must be an independent system in this regard, as the current position undoubtedly is unacceptable and has gone on for too long. A number of features are required in a new dispensation, including independent regulation and an independent disciplinary procedure. Moreover, decreased costs and increased access to legal services for citizens are required. In addition, I refer to something that is not included in this Bill but which has been touched on a number of times by Deputy Clare Daly, namely, the availability of free legal aid for citizens. The current position in this regard is abysmal. There are huge delays and waiting lists for people who require such services. Apart from the initial interview, such people must wait for services for long periods of anything up to two years. For the public, it is crucial that this service be expanded. It must be properly staffed and resourced and must be available within a reasonable timeframe for those citizens who are faced with a problem. The position at present is that despite the best efforts of free legal aid staff, ordinary citizens simply have a highly inadequate system with huge in-built delays. This issue must feature to a much greater extent in this Bill.
All Members deal with the public in their clinics and have found there is grave public concern about the existing system. This relates in particular to costs, complaints and the question of self-regulation. I note the question of costs arises regularly. People believe the level of costs to individual clients excludes them from the system to a large extent. This obviously is a subject that must be addressed in a significant fashion. Moreover, the cost of activities such as inquiries and tribunals also has arisen regularly and continues to so do. Similarly, the huge costs paid by entities such as NAMA are another concern, as is the fact that many of the firms and individuals being paid significant fees by NAMA were part and parcel of the entire development bubble. However, such firms and individuals now are feeding off the recession as well and this is another concern for ordinary citizens.
One source of frustration to both the public and many Deputies is the entire question of complaints. Many members of the public who experience a difficulty find themselves in a position in which they can get absolutely no satisfaction. While one might argue there is a structure in place or whatever, most ordinary people who have a difficulty in respect of complaints find that despite their best efforts in approaching all the various agencies, they emerge on the other side having had a negative experience. They emerge without a solution to the complaint and, even worse, with the perception they were not listened to during the course of a complaints procedure. This obviously is an area that must be dealt with.
It is a pity there was not considerable additional consultation before this Bill was drafted. It is a pity that various organisations involved in this sphere, such as the free legal aid centres, the Law Society of Ireland, the Bar Council of Ireland or the Oireachtas Joint Committee on Justice, Defence and Equality were not involved in a much more thorough consultation on this Bill. Had this been the case, I believe Members would have had better legislation before them.
One area that has given rise to serious cause for concern is the question of the regulatory authority and the nomination of the majority of members thereon by the Minister. As I stated, various agencies already have raised issues in this regard on the separation of functions. I believe this is an important issue and do not believe the structure in place in the Bill is adequate. I believe there should and must be an alternative to that structure. One must have strong, proper and independent regulation in this regard and the current proposal as set out in the Bill is not satisfactory. The question of whether a legal ombudsman structure would be a better arrangement must be considered. In addition, other structures certainly must be examined because the current structure as proposed in the Bill tends to undermine the independence of the legal system and its separation from the Executive. The strong views that exist on this issue are not confined to the Bar Council of Ireland or the Law Society of Ireland but may be found among the public in general, in non-governmental organisations and the free legal aid centres. This issue is central to the Bill and must be resolved.
I note the word "quango" has been mentioned a number of times during this debate. There are quangos and quangos and if the legal profession is to be properly and independently regulated, a structure must be put in place to so do. It must do so effectively on behalf of the public and the citizens who require a legal service that is fair, adequate, accessible and affordable. Consequently, it is necessary to have in place some form of organisation. Simply to call it a quango and then dismiss it for that reason simply is not good enough. A structure and architecture must be put in place for this purpose and this will come at a cost. While I welcome aspects of the Bill, this particular section of the Bill must be re-examined. It is unacceptable in its present form and should be amended substantially during the course of the passage of this Bill.
At the outset, I wish to comment on the points made by Deputy Healy. He is absolutely correct in respect of this particular authority. A number of quangos have been targeted for abolition by the Government but this Bill proposes the establishment of a new authority. This is highly positive and I welcome the positive comments made by the Deputy.
I thank the Minister for introducing this Bill to the House.
Reforming our legal system is a hugely complicated task which is laden with responsibility. In recent decades, a number of issues relating to the reputation of the legal services have arisen primarily as a result of their involvement with, in particular, the tribunals.
This is possibly one of the most important items of non-financial legislation that will be passed by the Houses of the Oireachtas and it will form a significant part of the Government's legacy, perhaps to an even greater degree than we currently realise. I commend the Minister for Justice and Equality, Deputy Shatter, on undertaking this difficult task and on his commitment to legal reform. I also commend him on ensuring that an appropriate amount of time has been set aside in order that the Bill might be debated in the House. Fine Gael emphasised the need for legal reform both before and during the general election campaign and indicated its intention to making legal representation more affordable and more accessible for every citizen. It is commendable that the Bill has been presented at such an early point in the lifetime of the 31st Dáil.
While seeking to reform our legal services, we must surely be aware that we must not reduce all argument for change to the lowest common denominator merely because we are experiencing a financial crisis. Many Deputies referred to the fact that the impact of any changes made as a result of the passing of this Bill will be felt for years to come. It is important, therefore, that the Bill should strike a balance in order to best serve our society and our country. We have been presented with a great opportunity to reform our legal services and we must not waste it. There is no doubt that history will judge us harshly if we squander the opportunity to which I refer.
There was much discussion regarding the Irish legal system in the weeks and months preceding this debate and a great deal of focus was placed on the complications surrounding the reform and regulation of the legal profession and the Government's involvement in that regulation. It is clear that the Bill has been drafted with reform, the public interest and greater accessibility to and competition in the legal sector in mind. In that context, it is important that we should strike a balance between these aspects and the need to ensure we have an independent legal profession. The vast majority of legal professionals have enormous respect for the law, justice and the reputation of their profession. To date, their activities have been overseen by their respective regulating bodies, namely, the Law Society and the Bar Council. The Bill proposes the establishment of a new regulatory authority for both legal professions.
I welcome the Minister's recent statements regarding his commitment to form a regulatory body that will be independent. The ratio of appointees - along with certain functions that will be conferred upon this body - has been exposed to robust debate from both national and international bodies. However, I believe that the make-up of the regulatory authority has been designed not only to take account of competition and consumer focus but also to ensure a fair and proportionate regulation of the professions. The authority will be an expert group that will advise on more than legal policies and it will also make recommendations on what is best for the consumer and the industry as a whole.
We have a lamentable history when it come to Government appointees to boards and authorities. While I acknowledge the Minister's bona fides in this regard are beyond reproach, I believe that the appointment of the members of the proposed legal regulatory authority is worthy of debate and, perhaps, alteration on Committee Stage. The vesting of certain powers with the Minister of the day - such as that to appoint or remove members if necessary - may leave a door open to old ways. That door should be firmly shut. There is no place for political interference in respect of authorities of this nature now or in the future, particularly if we want to ensure genuine reform.
While I believe the Minister has placed the relevant provisions in the Bill to ensure that the new authority will be held accountable in the context of ensuring proper reform and change, to whom will his successors in office be accountable in this regard? Those in government have been forced to introduce legislation on political reform as a result of the corruption and interference of their predecessors. I am concerned that while it might close one door, the Bill may open another. If that proves the case, we will not have learned from our own unfortunate history. In that context, I fully welcome the Minister's decision to reconsider his role in establishing codes of conduct. I am of the view that we can, through this Bill, set a precedent as to how the legal profession and the Government might strike a balance in other areas. I hope the Department of Justice and Equality will be able to assess a means by which a panel of possible experts will be nominated by both professions and that there will be equal debate and eventual agreement from the Government and the professions regarding who it might be appropriate to appoint to the authority. As a number of Deputies indicated, it might be opportune to discuss using nominating bodies as an alternative to the Minister directly appointing seven members.
Legal professionals have been open to reform for some time. Despite the appearance of some newspaper articles to the contrary, those professionals to whom I have spoken in recent weeks and months all stated that reform is required. Solicitors throughout the country are struggling to keep their heads above the water and many trainee solicitors cannot secure apprenticeships. Junior members of the Bar, particularly those who have been devilling or who are at the beginning of their careers, are struggling to survive financially. This must be taken into account in the context of any reform of the professions.
It must be borne in mind that there is a level of distrust in the legal profession on the part of the public. This is due, in part, to the mismanagement of tribunal process by successive Fianna Fáil Governments and other individuals both in the context of establishing the tribunals and in being the catalyst which gave rise to a need for their being established in the first instance. I hope the Bill will serve to restore the public's confidence in the legal profession. In attempting to legislate for full transparency, advertising and the opening up of the legal services market, we will see to it that individuals will have the security of mind to allow them to make informed decisions and that they will not be concerned with regard to being charged the unfair or extortionate prices that have been associated with the legal profession in the past. What is being done here will increase people's confidence in the legal profession.
I hope that by contributing to this debate I will ensure that while ensuring the passage of this Bill we will not lose sight of the fundamental importance of a proper functioning legal system which operates in the best interest of the country and its citizens. I hope the regulatory authority will consider the long-term implications of creating new business models when it comes to multidisciplinary practices to ensure that expertise will remain fairly available to every citizen who seeks it. We do not want to replace one elitist model with another in an effort to make the process more affordable in the short term.
It is true that a one-stop-shop approach can ensure a less intimidating process. However, we also know from experience that the success of large corporations comes at a cost, namely, losing small businesses, quality produce and specialised expertise. This approach might introduce a conflict of interest for barristers in the context of directly introducing the influence of the practices in which they operate. It could also give rise to the loss of the independence of the Bar, something which has long served consumers and their rights.
There are other economic benefits to having an independent Bar. It is a resource available to all solicitors and consequently to consumers. Any legislation which may undermine these practices should only be entered into if we can safely say that it will not lead either to a loss of proper independent legal representation or to further costs for consumers in the long term. For example, under the cab rank rule all solicitors have access to a range of expertise and their choice in respect of this will be dependent on past efficiency and budget. This rule results in a competitive and independent Bar, with some 2,300 barristers competing for business. If there are five leading barristers whose expertise is in the area of environmental law, they will be in competition with each other and a solicitor can access the best possible person to do the job at a competitive price.
Should we take three of these barristers out of the equation into the more attractive and lucrative area of commercial law, we will take valuable expertise from the consumer and reduce competition at the Bar while creating a monopoly of expertise in multidisciplinary partnerships. Further to this, these proposals were not set out by the IMF or in the Competition Authority report.
Therefore, I call on the Minister to commit to carrying out, as has already been called for, economic research in the field to produce evidence this transformation of the Bar will benefit the customer enough to justify the impact on the legal profession, and to revisit the decision to include it as legislation in the Bill, instead of introducing a further amendment at a later date to reduce the risk of making such distinctive changes for change's sake.
As I mentioned earlier, I have spoken to many legal professionals and law students about their opinions on the Bill and I am pleased to note the positivity on many levels, mainly about access to entering the profession itself. I look forward to the debate on Committee Stage relating to the proposed changes to the manner in which students may qualify as legal professionals.
I would like to quote an Irish judge of the 19th century, Sir James Mathew, who was born in 1830, who said, "In England, justice is open to all - like the Ritz Hotel." I am grateful for the opportunity to speak on this topic and it is my hope the Bill will seek to make this comment completely untrue of the Irish legal system. I look forward to debating the issues raised in my speech, and many others, on Committee Stage to ensure such significant changes to our legal services serve the public while maintaining the independence of the legal professions.
I thank Deputy Farrell for sharing his time with me. I welcome an opportunity to speak on the Bill. Reforming a system as old as the legal system is a great chance to change the status quo. These reforms are necessary in order that we can continue to have a criminal justice system in which the people can believe. There is a perception in the country that the system only works if one has money. This perception comes from people who are waiting on legal aid but have to wait up to 11 months for their first meeting with a solicitor. It comes from people who do not understand the legal maze when they are sent from process to process or go to court for cases which takes years to reach a verdict. We need a justice system in which people can believe and the Bill will help to build this faith.
It is also important that these reforms make access to the criminal justice system simpler and cheaper for the majority of people. I welcome the changes in the Bill that will force members of the profession to provide information upfront on the full amount of the costs it will take to go through with cases. This will mean people will not have to fear an endless number of bills dropping in their letter boxes during and after their cases. It should also reduce costs as people shop around and go to various providers and practices to find one offering the best costs and value. I also hope it will have a positive impact on the State's legal bill as its legal costs reduce in line with these new costs.
We discussed the Bill at a recent meeting of the Brú na Bóinne branch in the Prayer Centre in Duleek several weeks ago. One of the key issues we discussed was the proposed board structure of the legal services authority. I agree with the Minister that there needs to be an independent authority at the top of the legal profession. People need to trust the profession is being regulated in a fair and balanced manner. However, the authority also needs to be trusted by the legal profession itself. I met representatives of the Bar Council on this issue and I agree with them on the concerns they have raised. Like them, I have concerns about the independence of the board if the Minister has direct control over the appointment of a majority of it. It undermines the principle of an independent board. The Minister should not have this level of control over who is appointed to be a member. This does not happen on other boards. For instance, the board members of the Medical Council are appointed by the Minister for Health but they are not selected by him, so the board is independent of the Minister and has the trust of the profession it is regulating. I ask the Minister to re-examine this provision and to continue his discussions with the Bar Council and the Law Society in order they can find a solution that works for everyone.
Another issue which arose with regard to the Bill was the lack of a regulatory impact assessment. I understand the Bill was published in October, which is almost 5 months ago. It was published to meet a target in the memorandum of understanding. It is now February and we still have not had a regulatory impact assessment. This is not good enough. The Bar Council is preparing a regulatory impact assessment, and it would be embarrassing if the Bar Council releases its regulatory impact assessment before we do. I urge the Minister to release the assessment as soon as possible to ensure it is there for everyone to read and so that people see the benefits of the Bill and why we are committed to the reform which will come as a result of it being implemented.
I welcome the Bill and the changes it will bring to the legal profession. I am very hopeful it will lead to a reduction in costs for people and for the Government. I also hope it will make the justice system more accessible to a larger number of people.
I welcome the opportunity to contribute to the debate on the Bill. One would expect to see positive provisions in a Bill of this size but I have very serious concerns that go to the core of what is proposed. My motivation for getting involved in politics in the 1980s remains the same reason I am still active today, which is that I am interested in reform. I see the potential to make significant reforms in the current political climate in particular. I see it as an opportunity and it is not something we should fear.
Much of the architecture of our built heritage is not uniquely Irish. This is equally so with institutions. Our health, education and local government systems were largely developed under British rule, as was our legal system. I am enthusiastic about reforming institutions for the better. However, we must go about it in a thoughtful, inclusive and methodical way where we anticipate outcomes and we plan for them.
Too much legislation has been enacted in an academic way which has let us down badly in practice. In recent years the only area where we have seen an attempt at radical institutional reform was the health services, and I refer to the HSE. The architecture of these institutional arrangements were doomed to fail from the beginning. It was quite easy to predict this from the outset. Not only have they been costly, they also have frustrated those working within them and those who relied on the body to provide quality health care.
What was introduced was a perception of change. Accountability passed exclusively to an unelected body. The structures or foundations underpinning the HSE remained largely intact, with a dozen or so independent administrations working differently depending on the region. Services were and are better or worse for clients or patients depending on one thing, which is their address. We all pay the price for this mistake and this most definitely includes those working in the system.
The Bill has flaws, including the absence of a regulatory impact assessment. This is the blueprint that should have underpinned the decisions of what was included in the Bill. Such an assessment was carried out in the UK and published with a Bill in 2007. It followed a lengthy consultation process. The necessity for a regulatory impact assessment when contemplating far-reaching and significant regulatory reform has been accepted and adopted in most OECD states. I doubt there is a Deputy in this House who does not want to see an end to the scandal of huge fees being paid to high profile members of the legal profession. That must be ended but what is being proposed may be equally as costly as what went previously. A rigorous regulatory impact assessment would have allowed us consider that, but that is not what the Minister intends to do. It is what this law, if it is passed without significant amendment, enables the Minister and the Government to do. I refer not just to this Minister and this Government but future Ministers. I refer in particular to the nomination to the boards and the regulatory framework. We can imagine a situation where a Government with an overall majority wanted to control the legal system in a very direct way. This Bill provides that opportunity. It enables that.
The Irish Council for Civil Liberties points out that the State is party to approximately 50% of litigation conducted in Irish courts and, therefore, independence of litigators from State control is a vital element to ensure effective and impartial administration of justice. It expresses concerns about Part 2 of the Bill which relates to the proposed legal services regulatory authority. More specifically, the proposed structure and functioning of the authority as currently proposed is not sufficiently independent of Government, the primary litigator in the State. It highlights some of the detail as to the reason the relationship being designed gives Government too much control. I will read those into the record.
Members of the Authority are appointed by the Government - section 8
Terms of office, remuneration and expenses of members of the Authority are determined by Government - section 8(11)
Members are dismissed by Government and the Minister - section 8(12)
Ministerial approval is required for the appointment of consultants or advisors in addition to approval of their fees - sections 12 and 13.
The Minister may direct the Authority as to the form and information contained in the annual report - section 17(2)
The Minister must approve strategic plans (section 16) and can request their amendment.
The Minister can request the preparation or approval of a professional code of practice (section 18) which would be subject to Ministerial approval and amendment.
The Minister appoints the CEO (section 19) and staff (section 20)
All estimates, financial information and accounts of the Authority are subject to Ministerial approval (section 22)
The Minister determines the amount of operating costs and administrative expenses of the Authority and the Disciplinary Tribunal (section 69)
The Minister also raises the annual "levy assessment notice" against the Law Society and the Bar Council (section 69)
It concludes by stating that many of these provisions considered in isolation would provide cause for concern and that taken in their entirety, the proposals in the Bill as listed grant the Government significant influence over the authority's function and constitute a potential interference with the independence of the legal profession. What is scary is not that the Irish Council for Civil Liberties is saying that but that these provisionsare contained in the Bill. We have lost our economic sovereignty. We had better be careful not to lose the independence of our legal system.
Peter Ward, chairperson of FLAC, in his contribution to the Dave Ellis memorial lecture, pointed out the obvious, namely, that there is no equal access to justice in this country. Most of us would not disagree with that. He should know because there are 650 volunteer solicitors and barristers in the FLAC centres who give of their time and expertise without any expectation of payment. Peter Ward stated that the proposals in the Bill will ultimately control the legal profession through a body whose majority are appointed directly by the Government. He further stated that that is an affront to the citizens of this country who are entitled to expect access to both a legal process and a legal profession that can be absolutely fearless and independent in pursuing their interests.
He stated also that the Government and the Minister for Justice and Equality cannot and ought not have the proposed roles in the control of the legal profession and that there is no such similar control of the medical profession which does not have a function of holding the authorities of the State to account. Others have made the same point on that. He also stated that it would be an absolute travesty of justice if the popular and understandable desire to impose greater accountability on the privileged profession were to act as a Trojan horse for the diminution of the rights of every person in this country. He said also that there is within the current Bill every possibility that new business models for the delivery of legal services will do just that: provide new business models while ignoring completely the needs of individuals to have their rights vindicated in the face of the State, the institutions of the State and those who have assumed positions of power, money and influence within the State.
The executive director of the International Bar Association expressed dismay to find a sophisticated, developed and democratic state like Ireland proposing to enact a law that resembled those in many countries with only a fragile attachment to democracy and was concerned about the message that would convey internationally.What if the International Bar Association is right? The Minister, Deputy Shatter, referred to this as scaremongering but what if it is right? What if it is not scaremongering?
The American Bar Association stated that such a law could have a chilling effect on international corporations prepared to invest in Ireland and needing assurance that they would have access to legal representation free from any hint of Government supervision. Again I ask the Minister, what if it is rightWhat if that is not scaremongering, as the Minister alleges?
The report of the Competition Authority in 2006 stressed that the body responsible for regulating the legal profession should be "independent of both Government and the profession". It was the recommendations of the Competition Authority and the legal costs working group to achieve the reductions in cost that the troika required to be implemented. This Bill goes way beyond what the troika sought. The recommendations of the Competition Authority were supposed to be the issue at hand.
The Bar Council made a detailed submission and while it is undoubtedly an interested party and may be considered to have a vested interest in maintaining the system, many of the points it makes are a cause for serious concerns. The Minister can be impartial and examine the concerns it raises. It points to the issue of ministerial control and the loss of independence. It points to restrictions on access to justice and the choice of practitioner and refers to the potential increase in costs.
Regarding the latter, the new regulatory bodies consist of the following: a legal services regulatory authority - 11 appointments plus staff; a complaints committee - 16 appointed members plus staff; and a legal practitioners disciplinary tribunal - 16 appointments plus staff. In addition, a new office of the legal costs adjudicator and advisory committee on the grant of patents of precedence may mean more appointments and more staff.
The concerns the Bar Council raises regarding the legal services regulatory authority is that the executive is effectively under ministerial control. Does the Bill provide for that? Any reading of it will indicate that it does. The costs involved in the establishment and operation of the authority, including its staff, committees, consultants, advisers and inspectors, will be borne by the profession but, ultimately, what is borne by the profession will be borne by the client. The Council has a fair point to make in that regard when we consider that 50% of legal cases involve the State, as I and others have said in this debate. We must pay attention to that. The Council states: "The proposed form of direct regulation of the legal professions by a body which is not independent of the Executive is not only contrary to the recommendations of the Competition Authority and unknown to any other comparable modern democratic State but also runs directly contrary to European and International norms which emphasise the central importance of an independent legal profession in a society which is governed by the rule of law." It goes on to state that the Council of Bars and Law Societies of Europe "considers the Bill to constitute a grave threat to the independence of the legal professions in Ireland and consequently a threat to the rule of law".
Section 97 proposes that the work of the legal cost adjudicator shall be in private. This office replaces that of the taxing master, the hearings of which have been held in public. Yet the Minister said in his opening speech that the new office will have an enhanced transparency of its functions. How can it have that when its hearings will be held in private when they were previously held in public? The needs to be changed.
The Minister in his speech made continuing references to the independence of the authority. It appears from he said that what is intended by independence is that the authority will be independent from the profession but not independent from Government. That is a serious flaw. The Minister said: "There is no hidden agenda in relation to ministerial functions or appointments under the Bill." The provisions of the Bill do not need a hidden agenda because they are set out. This is not about what the Minister intends to do; it is what this legislation will enable this and future Governments to do. There may be future Governments that are not to the liking of the Minister; the Government will not always be like this one. The Minister has to consider the legislation in terms of its longevity.
The Competition Authority report emphasises the importance of the body, which is to be responsible for regulating the legal profession, being independent of the Government and the profession. This is being said not only by people who have vested interest but by people across the spectrum.
Section 18 provides that the legal service regulatory authority has primary responsibility for preparing or approving a code of practice. The Minister must consent to the publication of any modification to the code or to any new code. He can reject or change the revised code after a consultation process. He can also order the legal services regulatory authority to publish a code or a revised code. How can one use the words "independent regulation" when this type of micromanagement by Government is provided for?
With regard to the section of the Minister's contribution on funding the new architecture, it is not enough for one to take a punt on this. The Minister needs to make it clear how this large institutional architecture will be funded, how it will play out in terms of clients and legal costs, and that it will not add to legal costs.
I checked the regulatory impact assessment that was done by UK authorities when they were preparing their legislation and noted that the issues involved were robustly examined in terms of what the result would be if nothing was done, what the result would be if a legal services authority or a legal services board were introduced and they also examined the issue of diversity, the social consequences of it and so on. That is what one would call a blueprint and that is what should have been done for this legislation. It is a disgrace that this type of a regulatory impact assessment was not done for such a large item of legislation.
On the new business models, it is essential that the operation of these are teased out. I thought the argument made by the Bar Council of a potential conflict of interest highlighted the inadequate thought that has gone into how these will play out. It is essential that is teased out and it might be possible to do so on Committee Stage.
The same all-knowing approach is being taken to this legislation as was advanced when the constitutional amendment dealing with the Oireachtas inquiries was debated. The Minister said in his opening remarks that he wanted "to put to bed the histrionics and scaremongering". The best way to do that would be to publish the regulatory impact assessment, which should deal with the issues in a thorough and professional manner without taking a cut at those who raise concerns. If there is a similar system elsewhere in the world to the one proposed, I ask the Minister to point to it.
The approach of the UK Government in this regard contrasts with the failure of the Minister to follow best practice and carry out a regulatory impact assessment followed by a meaningful debate based on the evidence disclosed by such a report. That report consisted of 86 pages and was published preceding the 2007 Act and it included estimates by PricewaterhouseCoopers on the economic and social costs of the various options.
The programme for Government 2011 refers to "Open Government" and under that heading it deals with waste and extravagance and states:
Where there is secrecy and unaccountability, there is waste and extravagance. We will pin down accountability for results at every level of the public service - from Ministers down - with clear consequences for success and failure. Ministers will be responsible for policy and procurement and public service managers for delivery.
It goes on to state: "We will require Departments to carry out and publish Regulatory Impact Assessments...before Government decisions are taken." Why was that approach abandoned in such fundamental legislation?
It seems the regulatory impact assessment is intended to be published before Committee Stage. It is at that Stage that we deal with the details of the Bill, not the broad framework. It is essential that we have a blueprint, which we do not have, before we start re-arranging the detail. We get one chance at this in terms of reform. I see the cup as being half full in terms of the report. I am enthusiastic about the opportunity for radical reform of many of our institutions. Good process is needed if we are to get good outcomes. We can point to where we have had very bad outcomes, where there has been a very inadequate process. There is serious reason for us to be concerned about this legislation.
I call Deputy Tony McLoughlin. I note he is sharing his time with Deputies Paul Connaughton and Joe O'Reilly.
That is correct. I welcome the opportunity to speak on this legislation. This Bill complies with elements of the EU-IMF deal specifically concerning the level of competition and the high cost of some legal transactions. It was found that restrictive practices within the profession have stymied competition, which inevitably sees costs increasing. The organisation of the legal profession and the costs associated with legal services in Ireland have been subject to continuous criticism by successive official reports during the past number of years. The Minister must act and he is doing so in this Bill.
It is worth noting the comments by the Consumers' Association which has stated that the legal professions had been sheltered and welcomed the transparency being introduced by the Bill. I am aware of many of the concerns expressed to Members by solicitors who are concerned at the level of control the Government would exercise over the legal profession.
Further concerns were expressed to me regarding the control the proposed Government controlled legal services regulatory authority would have over all aspects of legal professional practice, including training, entry and discipline. This authority will be appointed by the Government on the recommendation of the Minister. I suggest to the Minister that he might examine the membership make-up of the authority again and review some suggestions or alternatives on the composition of this important regularity authority.
In response to those criticisms it is imperative that we compare the existing status quo with what is proposed in the Bill. Many people criticise professionals or organisations that are, in essence, self-regulatory and that is what we have currently in the legal profession, which encompasses areas around solicitor and barrister training, adjudication of legal costs and the behaviour and professional conduct of solicitors.
As a TD, I have had to deal with a constituent who has raised the issue of legal bills involving a legal separation case and when I suggested how the appeal mechanism worked, the person expressed amazement that the body to which the person would appeal would not be totally independent from the legal profession. Needless to say, in that case there was no reduction in that legal bill.
I very much welcome the fact the Bill introduces a single streamlined complaints mechanism for all legal practitioners. Currently complaints about legal practitioners are dealt with separately according to their profession. Currently, there are four different bodies that deal with complaints about solicitors: the complaints section of the Law Society, the independent adjudicator, the disciplinary tribunal of the High Court and the taxing master. It is welcome that the Bill creates a streamlined, three-step approach to dealing with complaints about both barristers and solicitors. Complaints are initially dealt with by a complaints committee; they may then be referred to a disciplinary tribunal which may impose sanctions and, where the misconduct merits heavy sanctions, these are imposed by the High Court on foot of an application by the tribunal. The Bill defines misconduct by legal practitioners which includes overcharging, as well as fraud, dishonesty and acts or omissions likely to bring the profession into disrepute.
The authority can also investigate legal practitioners on its own initiative at any time for the purpose of establishing whether they are in compliance with the Act, the Solicitors Acts or any regulations made under these Acts. I welcome these improvements and more in the area of complaints procedures which will rightly be welcomed by the general public.
Deputy Charles Flanagan touched on the role of local authorities and the legal advice used by them. I am aware of a local authority which has engaged the same legal company for more than 40 years and been threatened with possible legal action if it considers readvertising for legal services. I acknowledge that the same local authority has sought and obtained reductions in its legal charges; however, I appeal to the Minister to engage with the Minister for the Environment, Community and Local Government to assess and research the level of fees local authorities pay, how long firms are contracted to local authorities and the level of advertising for tenders across the country annually by local authorities because in many cases proper procurement is not taking place. I understand there must be a level of continuity, but at least every five years - the duration of a council term - tenders should be sought by local authorities. I would welcome consideration of this by the Departments of Justice and Equality and the Environment, Community and Local Government.
The number of colleges providing law degrees for students has broadened during the years, which is welcome. However, this is not the case in respect of professional legal education, as the Honourable Society of King's Inns is the only provider for solicitors and barristers at this level in the State. The Competition Authority has found that the reservation of professional legal training by the Law Society of Ireland and King's Inns prevents competition in legal training and may also restrict competition in legal services. A person wishing to train as a solicitor can train only on a full-time basis and, in the case of both solicitors and barristers, in a single school located in Dublin which has no incentive to minimise its costs and hence its course fees. That is not acceptable. Therefore, I welcome the Ministers initiative in this regard.
I thank the Leas-Cheann Comhairle for giving me the opportunity to speak about this important matter. I commend the Minister for his timely overhaul of the regulation of legal practitioners in Ireland. Not only does this long overdue Bill implement commitments given under the EU-IMF agreement to remove restrictions to trade and competition, but it will also result in greater transparency in the legal profession.
Before one becomes a legal practitioner in Ireland, there are a number of complex hurdles to be overcome. It is welcome that the Minister has instituted a fairer complaints system and a mechanism for having costs reviewed and that he is now also going on to ease the path of suitably qualified people into the legal profession, which will further reduce costs. Currently, the Law Society of Ireland and King's Inns have a monopoly in training solicitors and barristers, respectively. I warmly welcome the fact that the Bill allows other bodies to be accredited by the newly established legal services regulatory authority to provide these services. There are hundreds of legal graduates who would love the opportunity to work in the legal profession but find they are blocked from doing so by an archaic entrance system which maximises revenue through costly exams and other procedures.
There is a perception that the Law Society of Ireland and King's Inns exams are putting an artificial brake on the number entering the legal profession, yet statistics from the Law Society of Ireland and the Bar Council of Ireland show that numbers have increased dramatically since 1970 when Ireland had approximately 2,000 people practising law as either solicitors or barristers. The current figure stands at 14,000, of whom 2,247 barristers are, but the real explosion has been in the number of solicitors. In 1970 there were just under 1,800 solicitors practising. Around 1998 the number had reached 4,000. The barrier of 8,000 was breached around 2009 and in just two further short years another 4,000 solicitors were added to the rolls of the Law Society of Ireland. Of the 12,000 solicitors currently in operation, 45% operate as sole practitioners, while 75% operate in firms with fewer than four solicitors. Thus, there are approximately 9,000 small firms of solicitors around the country, many of which have seen a large fall-off in conveyancing business. With business reducing and costs extremely tight, most of these firms are not in a position to take on an apprentice, with its attendant additional costs. Thus, people who have graduated in law since the demise of the Celtic tiger find they have little or no hope of completing their training under the current requirements.
I note that the council of the Law Society of Ireland agreed that it would be in the best interests of the public and the profession to support the new independent complaints structure provided for in the Bill. I urge the Bar Council of Ireland to state its feelings on the issue. People who have complaints alleging misconduct, the provision of inadequate professional service or the charging of excessive fees by solicitors must have a clear and independent mechanism for seeking redress, which is provided in the Bill. I also welcome the decision by the Law Society of Ireland that, following enactment of the Bill, all such complaints should no longer be made to that body but instead to the legal services regulation authority or, in cases in which a dispute relates to fees charged, the legal costs adjudicator. This important method of regulating costs will result in a reduction in legal costs which will bring Ireland more into line with the rest of Europe and create a more competitive environment.
Self-regulation has always been a difficult subject. It is welcome that in recent years lay members or non-solicitors nominated by groups such as IBEC and ICTU were involved in handling complaints and, since 2009, have been in a majority on the complaints and client relations committee. This reflects the fact that solicitors realised the need to address the public perception that they should not be adjudicating on complaints made against members of their own profession.
I welcome the move by the Minister to modernise the procedures and, in particular, the effort to make legal costs more predictable. The new Bill imposes a requirement for greater transparency in legal fees and will result in the development of guidelines on legal costs. It is also welcome that the charging of excessive legal costs can now be treated as misconduct under the complaints procedure. The excessive legal costs regime which has been prevalent in Ireland for many years is another major barrier to business. Reduced costs in this area will make life easier for the owners of small and medium-sized businesses across Ireland. Of course, legal costs are just one example of how the consumer has been ripped off in the past, a fact readily identified by the EU-IMF delegation, which has resulted, thankfully, in action being taken on this issue.
The new Bill represents a breath of fresh air for the legal system which, up to this juncture, was bedevilled by archaic terms and practices. I commend the Minister, a qualified legal practitioner, for having the determination to see this long overdue Bill through.
I commend the Minister for his introduction of this legislation. It merits mentioning that when in opposition he had a unique record of introducing reforming Private Members' Bills and since coming into government he has introduced a raft of legislation, much of it reforming, radical and new.
The backdrop to this legislation is provided by the recommendations of the Competition Authority, notably in 2006, the exhortation by the IMF-EU troika last year, and a plethora of other reports and recommendations. The objective of the legislation, in simple lay person's terms, is to reduce the cost of access to the law and make access easier. The Bill deals with the regulation of legal services, education and training, new business structures, complaints handling and cost adjudication procedures.
It is worth mentioning, before we talk about the much debated regulatory authority, that there is nothing in the legislation that will impinge on the professional independence of individual solicitors or barristers. Their independence remains sacrosanct in that they take a brief and act independently and with total professional integrity; they are immune from challenge in that respect. There is nothing in the legislation that will interfere with that time-honoured precedent, rightly so.
Part 2 of the Bill proposes the establishment of a legal services regulatory authority. That results from the acceptance of what is implicit in Competition Authority reports and in other recommendations from the troika and so forth that we cannot allow the legal profession to self regulate any further. That is not to suggest malpractice in the past but it is not the best method for transparency, for the reassurance of the public and to get the optimum result. If self regulation is to go out the window, it is to be replaced with the regulatory authority. An old college friend of mine, Mr. Ken Murphy, the director of the Law Society of Ireland, is in the Visitors Gallery. I acknowledge that the Law Society has accepted the principle of independent regulation of the legal profession.
In so accepting, however, it very validly comments on the proposed regulatory authority. The purpose of the authority will be to protect the public interest, the proper administration of justice and the interests of consumers and to promote competition. The questions are about the membership of the authority. The legislation provides that there will be two members from the Bar Council, two members from the Law Society and seven will be nominees of the Minister. The controversy arises from this. I am very impressed by the fact that everybody who lobbied me on this issue was at pains to accept the bona fides of this Minister in this regard. Their fears existed in the notional sense that a Minister at a given time in the future could misuse the appointment procedure in the legislation. I am confident of this Minister's bona fides but I appeal to him to consider amendments on Committee Stage that will reassure the public and, very importantly, the profession in that regard.
I made the point earlier that the professional independence of individual lawyers dealing with cases is not at issue and is not challenged in any fashion. However, it is important that it is obvious to them that the independence of the regulatory authority is also in no way compromised in terms of its membership. I appeal to the Minister to consider various models. He might examine the possibility of having the Commission for Public Service Appointments deciding on the membership or the possibility of nominating bodies making nominations to the authority. He might also examine the possibility, although it is fraught with its own difficulties, of using the Oireachtas committee procedures. The Minister has the expertise, both personally and within the Department, to examine methods whereby it can be clear that his intention to achieve independence of regulation, which is implicit in the legislation, is transparently the case and that the profession is confident about it. I ask him to consider all these matters on Committee Stage, and I look forward to his response and to discussing amendments that might emerge on that Stage. Perhaps the Minister would consider a specific nominating body from consumers, that is, people who will be the users of the law. They must be the critical consideration.
The legislation provides for the establishment of a legal practitioner disciplinary tribunal with 16 members. Again, I urge the Minister to examine the method of appointment to this tribunal with a view to eliminating any perception of a possible risk in that area. I believe he will give consideration to that point.
The Bar Council and individual barristers who have spoken to me about the Bill are concerned that if the new procedures and the regulatory authority become too expensive and too cumbersome administratively, the levies on legal practitioners will become prohibitive. That would defeat the purpose of the Bill in terms of the numbers who could reasonably enter the profession and their capacity to practise. I appeal to the Minister to reassure us on the streamlining of the authority with regard to minimising costs and to reassure us that there will not be a level of fees on barristers which would make it impossible for them to practise. This is an important point and I appeal to the Minister, Deputy Shatter, to consider it.
I am impressed that the authority can consider the issue of professional legal education and the possibility that it could be provided through other accredited authorities or institutions. I am aware from both personal experience and anecdotally from my constituents that the cost of professional training in the legal profession is excessively high. Anything that can be done to introduce competition and reduce costs in that area should be done. Deputy Penrose spoke earlier about how he was able to access the legal profession from a working class background. My information is to the contrary and that many individuals from the working class and the poorer sections of our society find it impossible to muster up the required fees for a legal education. It is important that something be done to limit those while maintaining standards. I welcome the possibility that more institutions will be accredited in that area and that it will become subject to competition.
Finally, with regard to the mixed business structures, I welcome the possibility of multidisciplinary practices with solicitors and barristers practising together. It is the Minister's intention that the sole practitioner and smaller practices will still be able to survive independently and that there will be mixed structures. I look forward to his response on that issue on Second Stage.
A number of Members spoke on an issue germane to the Second Stage debate, although it is not specific to this legislation. It is the question of legal costs for local authorities and the State. I appeal to the Minister to consider tendering in this area and annual check-ups on expenditure by authorities on legal costs. It would be a shame if this reforming legislation, the objective of which is to reduce legal costs for the consumer, were implemented but we did not conduct other exercises to reduce costs to the consumer through taxation of the legal profession.
Deputy Joanna Tuffy has 20 minutes, but she has just two minutes to speak now before Private Members' business commences.
I must first declare a personal interest in this issue. I am a qualified solicitor and have practised as a solicitor. In fact, I went into the profession quite late in that it was not my first choice. I completed a degree in English and history and came out of college at a time of high unemployment. I did various things, including a social employment scheme. Eventually I got a job as a clerical officer in the vocational education committee and I worked in the Dublin Institute of Technology, DIT, in Bolton Street.
During that time I attended the legal studies course in the DIT in Rathmines. Later, I took the entrance examinations to the Law Society. In that regard the professions are accessible. Compare that with medicine or other professions. One cannot take other routes into those professions, with the exception of the second chance to enter medicine for people who do the course in Limerick. Generally, however, one could become a solicitor without having a degree. People who have no third level education can do an entrance examination. Both professions are very accessible to people who come from different backgrounds and go into them through different routes.