I wish to make a further point in my remarks about access to the professions. In my experience the Law Society of Ireland has many mature students, including people who have reached retirement age, who then train as solicitors and this is to be commended as there should not be any limitations on who can enter a profession. It is preferable for entry to the professions to be as open as possible.
When proposed legislation is to have a significant impact on some of the stakeholders and when that legislation is controversial, it is crucial to have proper consultation with the stakeholders. There should have been consultation with the stakeholders prior to the publication of this Bill. I refer in particular to the Bar Council of Ireland and the Law Society of Ireland. It is all very well to say that consultation can take place once the Bill has been published but the Minister has already decided to take one route, which is with regard to the Competition Authority. The Competition Authority report recommended a model of a regulator with oversight of the regulation by the professional bodies. The Minister's proposals will make for a significant change and he should have entered into consultation before publication of the Bill.
In that regard, in the United Kingdom following the publication of the Clementi report, the UK Government responded by publishing a White Paper in October 2005 entitled, The Future of Legal Services - Putting Consumers First. A draft legal services Bill was published in May 2006, along with explanatory notes, a regulatory impact analysis and commissioned research from PricewaterhouseCoopers on the cost of the proposal. The Bill was then submitted for legislative scrutiny to a joint committee of the Houses of Parliament established specifically for that purpose. This committee made 50 recommendations on the draft Bill and the Bill was introduced in 2006 and enacted in 2007. The Legal Services Board was established in 2008. This is the way to go about it. There is talk of a need for genuine participation by Members of the Oireachtas in drafting legislation. I acknowledge that the Minister has proposed that committees may consider the heads of Bills but I ask the House to consider the way this type of legislation was dealt with in the UK and that is what should happen here. Let us imagine what would have happened if the Bill had been presented to a committee of the Houses where there could be 50 recommendations made by the committee on amendments. Instead, the Minister has brought the Bill straight into the House. He referred to amendments but we have no idea how much consultation or engagement he envisages on the amendments or how much he will take on board from the various stakeholders.
First, the Minister should have held consultations beforehand, because the Bill moves on significantly from the Competition Authority report in that it does different things to those proposed in the report. Second, I recommend that in future legislation of this nature, which will radically affect stakeholders, should be dealt with in the way it was done at Westminster. That seems to me a model for dealing with such legislation. In this country there has been no pre-regulatory impact assessment or analysis of costs, whereas in the UK a report was carried out by PricewaterhouseCoopers on the cost of the proposal. I urge the Minister to take his time with the legislation and to engage with the interested parties.
It is all very well to go along with what has become part of Irish discourse and to dismiss what certain groups say on the basis that they are vested interests. We are all vested interests in society but we all have something to contribute and to say. If one chooses law as a career, one cares about the law as well. One cares about the independence of the legal profession and that things are done in the best possible way. I will refer to the competitive angle later.
As the Minister is aware, concerns have been expressed about a number of proposals. One issue of concern is the proposal on multidisciplinary legal practices and legal partnerships. Concerns have been expressed by the Bar Council about them and also by FLAC. Again, the Bill deals very differently with the situation compared to how it was done in the UK. The Competition Authority took a particular line on allowing multidisciplinary practices for reasons of competition but it did not carry out analysis. My understanding is that the equivalent UK legislation was different. Not only does the Bill say there should be an investigation into whether there should be multidisciplinary practices but it provides in the legislation that there must be multidisciplinary practices. Legitimate concerns have been raised by FLAC and the Bar Council.
I do not think the system is ideal and should not be reformed. It should be reformed; perhaps more radically even than what is proposed in the Bill. The view has been expressed that the current system based around sole practitioners in the Bar makes barristers accessible to the general public, whereas adopting the "bigger is better approach" could reduce access to services and potentially distance people's access to barristers as compared to the way they currently have access through solicitors to individual barristers. That legitimate fear has been expressed. Perhaps the Minister should consider amending the legislation so it could be paused. Let us see what the independent regulator decides in terms of whether the new system will work and what are its benefits and drawbacks and then legislation could provide for the necessary changes.
Reference has been made to the independence of the proposed authority. It is not just the Bar Council and the Law Society that have raised fears about the lack of independence of the proposed authority. The Council of Bars and Law Societies of Europe has raised concerns, as have the International Bar Association and the American Bar Association. In a recent opinion piece in The Irish Times, Ms Carol Coulter expressed concerns. She contrasted what the Minister proposes with the regulation of the medical profession. She indicated:
Of 56 operative sections in the Bill as a whole, 21 require ministerial approval. The extensive powers proposed for the Minister are unprecedented in Irish law and in sharp contrast with the law regulating another important profession, itself the subject of a recent extensive overhaul.
Other people have made similar criticisms. For example, Prof. Colin Scott, professor of EU regulation and governance at UCD, comments on the issue. He takes a different approach to that proposed by the Minister in the Bill. He suggests: "The debate is not about whether there should be a public regulator, but where the balance lies between the regulator and self-regulation." The Competition Authority opted for the oversight regulation model, which seems to be the model in many other countries.
The Minister has made much of the fact that the Law Society has recently changed its policy on the handling of complaints procedures. The Law Society recently wrote to the Minister in that regard. It notified him of a major change of position decided on by the society's council on 20 January 2012. The council decided that it would not seek to have the society retain control of the handling of clients' complaints for reason of the need to address the public perception that solicitors should not adjudicate upon complaints about members of their own profession. It maintains the society has the highest of standards for the handling of complaints by members of the public but the change would be for reason of public perception. That is not a new statement by the Law Society. In a recent address by the president of the Law Society, Mr. Donald Binchy, outlined:
I would submit that, insofar as the public is concerned about these matters, its concern is in the main that complaints against solicitors should be handled independently of the Law Society. Insofar as there may be a public demand for change, I would submit that that is where the demand lies, and also in the area of costs.
I concur with that view from my experience as a public representative more so than a solicitor. That is the area about which the public is mainly unhappy in terms of the professions regulating themselves, in particular on the issue of solicitors' fees, which is the area I have dealt with. It is not just a matter of public perception. The public has legitimate concerns. I provided assistance as a public representative to a couple who were charged an outrageous fee for a conveyancing matter. Their difficulty was that they could not get another solicitor to represent them in their complaint to the Law Society about the person who had charged them the excessive fee. When they raised the matter themselves the reduction they got was minimal. Having experience as a solicitor, but in my capacity as a public representative, I helped them put forward a submission to the Law Society in appeal. It was only at that stage that a significant reduction was made to the fee for the people concerned, who were my constituents. Even then I thought the Law Society could have gone further. I still felt the people were being charged an excessive amount.
Section 68 is not sufficiently enforced even though it is drummed into one when one is training with the Law Society. I have much anecdotal evidence from people I know and constituents that people are not given a section 68 letter when they engage a solicitor. They are not given any indication and then suddenly they are landed with an excessive bill. As a public representative I advise anyone going to a solicitor to make sure they ask at the outset what the cost will be or on what basis the fees will be charged. There needs to be more awareness and more education of the public in terms of their rights in that regard. That is something the Law Society could perhaps examine. There is no section 68 applying to barristers. I welcome the fact that barristers are required to do something similar under the Bill. It is important that clients of solicitors and barristers, including solicitors who engage barristers, are clear on what fees will be charged or how they will be worked out from the start.
The regulator will consider the question of education. The Law Society and Bar Council do a good job in terms of the education of solicitors and barristers, but some elements could be improved. When I was a solicitor, the education I received was too intense. More time could be spent on training solicitors in the reading of titles, etc. The Law Society is better placed to train solicitors at that stage of their education. Someone might attend a university, institute of technology or so on to learn about the law. I did not learn about the law, as I did a different degree, but I studied for the Law Society's entrance exams. When one begins one's apprenticeship as a solicitor, one learns about the practical implementation of the law. I am not sure that a straightforward college could provide the same quality of training as is provided by the Law Society. Would a college spring up just for this purpose, who would be involved and from where would the expertise come? While improvements are necessary, so is caution.
A more radical step taken by the Bill is the proposed unification of the two professions. A report on unification is to be carried out by the regulator, but that unification is not legislated for in the Bill and no presumption is made prior to the investigation in terms of the outcome, the merits of the idea, how it would work, its pitfalls, how it should be phased and so on. I favour unification. My opinion is not set in stone, but the idea should be investigated.
The public is used to watching legal dramas from the US where everything is more informal. There is too much pomp and ceremony in how barristers operate. The clothes, dinners and so on make the Bar off-putting to wider participation by people from different socioeconomic backgrounds, including solicitors. I was always scared stiff whenever I was sent into the Four Courts because the manner in which everything there was carried out was daunting. Some archaic elements, for example, the Master's Court, need to be re-examined.
Competition is not the be all and end all. The Minister might not be aware of it, but there was cut-price conveyancing in my area of west Dublin during the Celtic tiger housing boom. It probably destroyed some solicitors. I never made money in the short time that I practised as a self-employed solicitor. I was always at a loss and the cost of insurance was crippling. This is another issue that needs to be examined.