I call Deputy Dowds, who has 16 minutes remaining.
Legal Services Regulation Bill 2011: Second Stage (Resumed)
In my earlier remarks I stated that while many aspects of it are good I am concerned that it could lead to decreased competition and increased costs. One of the issues I addressed in my previous contribution was the provision of legal services to NAMA, tenders for which precluded firms with a turnover below €25 million, which, in effect, restricts to a few the number of firms eligible. This issue is not addressed in the Bill. This measure undermines the fundamental principle under which barristers operate. In other words, their first duty is to the court. Currently, barristers work for a wide range of solicitors firms and are not normally dependant on any one employer. Under the new regime, where a conflict arises, the barrister must weigh up his or her concern for his or her job, duty towards employer and duty to the court. A number of barristers do pro bono work, which as self employed practitioners, they are free to do. An example is the work done by President Mary Robinson who, when acting as a barrister, took a case to the European Court of Human Rights on behalf of a separated woman denied a legal separation because she could not afford access to the courts.
It is worrying that in the aftermath of the Enron scandal and the United States in particular shying away from multidisciplinary practices and the conflicts of interests they inevitably generate, we are rushing into establishing such practices. The Bill proposes to split the Bar, which will inevitably increase costs, particularly for younger members. Currently, junior members pay reduced but considerable fees to the Bar Council for access to the facilities of the Law Library. If more senior barristers leave to form partnerships, join multidisciplinary practices or firms in-house, this will inevitably result in increases in fees for junior members who remain practising at the Law Library.
Access to the Bar was for many years a closed shop. However, this changed considerably during the past decades, with people from every walk of life now practising at the Bar. This legislation may result in access to the profession once again becoming the preserve of the elite. The reality for anyone wishing to work as a barrister is four or five years in college, a year studying at the King's Inns and a minimum of one-year unpaid pupilage. Young barristers are lucky to earn even the minimum wage in the first five years of practise. Given the current economic climate, many will struggle to make a living long after that. The introduction of partnerships may result in a reduction in the number of pupilages available. For example, of the 1,850 people in the UK who qualified as barristers in 2011 only 460 obtained pupilages which allowed them to practise.
The Bill proposes to introduce five new regulatory bodies which will have to be paid for by the profession, three of which, the legal services regulatory authority, the complaints committee and legal practitioners disciplinary tribunal will consist of 43 appointed members, with the regulatory authority having a chief executive and a substantial staff to perform its functions. Barristers will be levied to pay for the new bodies, which will add another layer of costs, thus forcing many younger members out of the profession. New entrants will have to be from a well heeled background if they are to survive long enough to establish a practice. This problem also occurs in other areas of life, including working with NGOs.
The number of complaints against barristers as compared with solicitors is small, in the main because barristers do not handle clients' money. There are usually between 30 and 40 complaints per year against barristers. Approximately one in four complaints are from colleagues at the Bar. I am not against independent regulation. However, the structure proposed in the Bill appears unnecessarily bureaucratic and costly. The Competition Authority recommended independent oversight regulation. Is there any reason this cannot be tried first? The Bill has created uncertainty at the Bar and among those considering joining the profession. Neither the Competition Authority nor the troika have recommended the changes to the profession outlined in the Bill. In those circumstances, would it not be worthwhile carrying out an independent analysis of the implications of this Bill for the profession and the general public before proceeding further?
I would appreciate if some of the points raised in my contribution can be considered in terms of improving the Bill.
I welcome the opportunity to contribute to the broad debate on this Bill. I hope the Minister will listen to the genuine concerns of citizens of this State and members of the legal profession who have served this country well. We are honoured to have had many great and visionary people serve in the legal profession. While a small minority of people have damaged its good name, the vast majority have done an excellent job. Some people involved in the legal profession in Northern Ireland have paid the ultimate price, including Mr. Pat Finucane and Ms Rosemary Nelson who stood up for human rights and justice and suffered the consequences for doing so. It is important that such people are remembered in this debate.
Northside Community Law Centre, which is an independent law centre, has served its community for more than 36 years through the provision of free legal services to individuals and groups in the local community. It, like me, recognises the need for changes to the legal profession to make it fit for purpose in the 21st century. However, we are concerned that particular provisions of this Bill will adversely affect the independence of the legal profession, will result in decreased access to justice and will, in practice, lead to higher legal costs.
The independence of the legal profession is crucial. Northside Community Law Centre is concerned that the provisions in this Bill allowing for ministerial-State control of the proposed new regulatory authority will result in a serious diminution of the independence of the legal profession. An independent legal profession is an essential feature of any democratic State or nation which allows members of the legal profession to challenge the organs of State to ensure fair and just exercise of executive and legislative functions.
I am concerned about the proposed provisions in regard to the selection and appointment of members of the authority and the control which the Minister will have in regard to many of its functions. I am also concerned that these will provide the Minister for Justice and Equality with too great a reach into the regulation and oversight of the activities of the profession and may be vulnerable to abuse. I am further concerned about the costs of the authority and the system of regulation provided under the Bill to the profession and, ultimately, to clients. It is important to note that any measures that result in further costs being passed on to clients will adversely affect access to justice, in particular for those on low incomes.
I am concerned that the partnerships and multidisciplinary partnerships to be introduced by the Minister on foot of proposals from the authority will seriously affect access to justice for people on low incomes. Partnerships of barristers and of solicitors and barristers and multidisciplinary practices, MDPs, will destroy the independent referral bar and would be contrary to the best interests of the public and the administration of and access to justice and competition. They are likely to lead to an increase in costs and conflicts of interest and to affect adversely the ability of disadvantaged clients to access the counsel of their choice, which they can have under the current system. Moreover, the so-called cab rank rule will go and the ability of independent law centres such as the Northside Community Law Centre, Coolock, to instruct counsel to take on cases at no cost to clients who cannot afford to pay will be seriously eroded. This will damage access to justice and I also am concerned that partnerships of whatever kind will not lead to a reduction in costs. These are the major concerns expressed by the Northside Community Law Centre, Coolock. I take this opportunity to thank and commend Colin Daly and his staff there on the excellent work they have done right across the north side of Dublin and in the broader community, as they have served us well.
When one considers the details of the legislation, one notes the Bill provides for the establishment of a new regulatory authority, a complaints procedure and a legal costs adjudicator. The new authority will have 11 members and will report directly to the Minister and relevant committees. The law governing legal services has been reformed at regular intervals since 1954 but as this Bill presents one of the most far-reaching and important attempts, it therefore is critically important for the Minister to get it right. For the first time, barristers will be covered and organised by specific legislation as heretofore legislation has concentrated on solicitors.
The memorandum of understanding between the Government and the EU and IMF commits to removing protections to sheltered sectors and this applies to the legal profession. When the previous Government met to establish a deal with the EU and IMF, there was some surprise at the specific wishes from the troika in this regard. It later transpired that the EU Directorate General for Competition, DG COMP, was given specific briefings by the Irish Competition Authority with regard to its wishes for competition across sectors and this was pushed through to the troika by the relevant officials. It would appear the Government is behind schedule on this issue as reforms were to have been in place by the last quarter of 2011. However, the Bill had only been published at this time and the Government is likely to come under pressure to speed up this element. It should be noted, however, that the current Bill goes far beyond the requests of the troika and the Competition Authority in respect of the establishment of authorities and numerous practices. Therefore, it is important to note the most controversial elements of the Bill are included at the Government's behest as opposed to outside influence.
The Bill also contains progressive elements as regards training and access to the profession by ending the monopoly currently enjoyed by the King's Inns on the training of barristers. I welcome such sections and do not make that point lightly. I strongly welcome the sensible measures included in this legislation and this provision opens up more opportunities for others to study and access courses leading to qualification. However, on closer inspection, elements of the Bill have been poorly structured. The Government was obliged to take the unusual step of issuing an erratum slip due to confusion and omission in respect of sections 77 and 78. It also should be noted that the table of laws to be repealed by the Bill is incomplete at this must be corrected at a later time.
As for opposition to the Bill, it has been evident since the outset of the debate that the Bar Council of Ireland and a number of leading law firms have expressed grave doubts about the Bill and its objectives. This is a legitimate concern which should be listened to. There are questions over the separation of powers. The Oireachtas, the Executive and the Judiciary-legal profession are the three pillars of the State. Great care always has been taken to ensure these operate independently of one other and without fear or favour to another pillar, which is essential. While the Competition Authority and the troika suggested an independent regulator to oversee the current work carried out by the Law Society of Ireland, the Bill proposes to set up a completely new authority that reports to the Minister. This suggests that Irish law firms or barristers are not entirely independent of the State. A Minister may be considered to hold authority over this board and its decisions may be reflective of the desires of the Government. The fear exists that this will in the first instance reduce the willingness of the legal profession to take action against a Minister or the State and second, may encourage multinational firms to seek law firms operating out of the United Kingdom to handle any cases in which the State is to be challenged.
I will provide a list of key issues regarding independence for the Minister's benefit. First, the Minister will appoint the authority. Second, the Minister will sign off on any advisers to the authority. Third, remuneration and expenses of the authority are to be decided by the Government. Fourth, the strategic plan of the authority must be approved by the Minister. Fifth, the Minister must approve any code of practice or amendments to same and sixth, the Minister may examine the accounts of the authority at any time. The Government argues that this question does not arise as the Minister only has control in a reporting capacity and will not be in a position to exert influence over the profession at large. While it is possible to see the Government's point of view, the Bill presupposes that all Ministers always will act in good faith. The Bill opens the door to potential abuse should a Minister in the future choose to do so. It might be argued that a solicitor seeking to question a Minister about activities - Members should think of former Ministers for Justice such as Ray Burke or Sean Doherty or back to other parts of our history - might find himself or herself open to additional investigation and red tape from a body that is controlled by a Minister and populated by people appointed by that Minister. Therefore, the issue cannot be entirely disregarded.
In respect of the cost of the authority, the new authority undoubtedly will incur significant costs to run. The Government had promised to reduce the number of State bodies and authorities but this in effect will see the establishment of a new and large authority. The cost of running the authority is to be passed on to the legal profession. However, in reality this cost will be passed on to the consumer and could mean higher legal costs will ensue, which is the precise opposite of what the Bill is intended to achieve. The authority itself appears to be an unwieldy body and it can safely be assumed that staff currently performing a similar function in the Law Society of Ireland will be transferred to the new authority. Further new staff also will be required and as a result, compliance costs are set to rise significantly - some estimates suggest by between €10 million and €20 million. A simple and effective solution for the Government would be to propose a statutory cap on compliance costs to ensure the new system costs no more in compliance than the current regime. By doing so, the authority automatically would be incentivised to keep down costs but in its absence, there is no real reason for the new authority to control compliance costs. Although efficiency will be a major concern for the new body, it is clear that with 11 board members and in excess of a further 30 members of committees, this will be a body of many layers but not a lean or highly efficient one.
As for the legal costs adjudicator, this new role will replace the former High Court Taxing Masters in respect of the issue of costs. However, under the Bill the function of the adjudicator will be broadly the same and it is difficult to discern how the adjudicator will differ on decisions from the sometimes exorbitant costs that were perceived to be a problem under the regime of the High Court Taxing Masters. It also is intended that meetings before the adjudicator will be held in private and some would question this from a transparency perspective. In respect of solicitors' costs, the Bill provides that once a solicitor has been engaged, he or she must provide a client with a detailed set of costs. This is a positive step that will allow clients to plan for the costs involved. However, this will only occur once the solicitor actually is engaged. While this is not a problem for clients with some resources, most ordinary people will need an accurate prediction of costs before they can decide to engage a solicitor. Therefore, the Bill may fail to improve access for many citizens or allow them make an informed choice on the best solicitor or the cost of an action.
As for the State legal services, I note one of the biggest consumers of legal services is the State itself. Costs are a direct consequence of what a legal professional considers to be a fair market rate and therefore, the level of fees the State is willing to pay to engage legal services has a direct trickle-down impact on the cost of all services. A major problem exists in that the Government still does not tender for a large proportion of this work and without doing so there must be serious concerns with regard to value for money. That is a legitimate point in respect of State legal services.
New business structures are proposed by the Bill in the form of legal partnerships and multidisciplinary practices. These new structures tend to work against small firms or single solicitor practices and will only benefit the larger firms. The big boys and girls rule again. One of the problems Irish law firms face is the idea of current partnership rules. As things stand, partners to a law firm have unlimited liability for that firm. For this reason, most partners in firms ensure the family house is in the name of a spouse rather than their own and so on. This has been dealt with in other countries by the introduction of limited liability partnerships. Most English law firms currently selling services into Ireland operate on this basis and find it an attractive means to recruit new partners and emerging talent.
The idea of a multidisciplinary practice does not hold much weight as there would be serious questions as to why an engineer, for example, would want to partner a solicitor who has unlimited liability. Given the circumstances from which Ireland has just emerged, it is equally reasonable to question the wisdom of promoting such multidisciplinary practices. Independence within professions provides a certain amount of ongoing oversight for clients. However, would it have been wise during the housing boom to have a solicitor, engineer and auctioneer form a multidisciplinary practice? The aim of transparency, as contained in the Bill, could find itself lost if such practices were to emerge on a large scale and the consumer were to be severely limited when making choices on who to engage for what services.
These are my concerns in respect of this Bill. I will listen to my colleagues when I make my final decision on the Bill. It is important we have a comprehensive discussion on the Bill, and I welcome some of the main sections in it. However, I urge the Minister to listen to the constructive views of many of my Independent colleagues in this House who have spoken on the legislation. We have listened to all sides. I have an open mind on the issue. I just want to ensure we have a quality legal profession in this country that serves the interests of the State and its citizens.
I hope to be able to share time with Deputy Ó Ríordáin, but he is not here, so I will lean ar aghaidh and we will see how we get on.
He is probably up in Dublin North Central.
I am sure he is representing them quite well. The legal profession is one that does not deserve sympathy, in my view, but it is certainly one that requires understanding. I entered Blackhall Place in 2009 and I hope to graduate at some stage this year, delayed a little bit by my election to this House. I therefore have a small but insightful view into the legal profession, although not as cumulative as that of the Minister.
Of those who entered Blackhall Place with me in 2009, the majority will be qualifying this year and then joining the dole. The legal profession has taken a huge hit over recent years, and people who have spent years after their degrees studying for FE1 examinations and going through Blackhall Place will be looking at a very difficult legal and professional landscape. That preponderance of unemployed legal professionals will probably do more to increase competition in the legal profession than this Bill will ever do on its own.
Several issues have been raised since the Legal Services Regulation Bill 2011 was published. The tone of the debate from the beginning has probably been a little bit unfair and has not been very conducive to a constructive debate in many instances. Some of the criticisms of the independence of the proposed regulatory authority may be based on facts, but comparing it to totalitarian regimes was not very constructive. The Minister has pointed out that he is open to amendments on the issue and he is certainly open to looking at it correctly. The problem with the authority, along with so much else in the public sphere, is related to perception. If it is not seen to be right, public confidence in it can be undermined. I take the Minister's word that he is open to amendments and I thank him for that. I expect a satisfactory conclusion can be reached on the matter.
From my time in a solicitor's office, I know well that a referral to the Law Society was treated extremely seriously. It was not seen as an easy option whereby a lawyer went before his friends in the network, who then let him off. It was something a person did not want to happen. From a public representative point of view, however, people have come to my constituency offices and told me that they think the Law Society is absolutely incapable of being a fair adjudicator on people's disputes against solicitors, and that they would be loath to report a solicitor to his own profession for guidance. We are again going back to the issue of perception. The Law Society has recently acknowledged that public perception and has changed its view on regulation. It is now of the opinion that an independent regulatory authority should be the body to deal with complaints. I welcome that because it will only help to enhance the reputation of the solicitor profession and will enhance public confidence in the legal profession generally.
The issue of costs in the Bill has received widespread welcome across all the professions and from those commenting on the Bill. A new office of legal costs adjudication is to be set up which will provide a new level of transparency, supervision and scrutiny, which again is vital. If people complain about solicitors or barristers, it is invariably about costs. There is a lack of understanding about the way in which costs are calculated, the hourly rates charged, the issues in respect of section 68 letters, and the work done behind the scenes about which the customer does not know. There is a complete lack of trust in some instances between the practitioner and the client. I think this new body, which will be independent and which will adjudicate on costs, represents a very welcome step. It creates a formal structure whereby it will be seen that both sides are getting a fair hearing. It will certainly enhance the reputation of the legal profession.
There has been a bit of an overreaction to the issue of multidisciplinary practices. We really have to see it in operation before we can see how it will affect the legal system. Deputy Finian McGrath spoke about an auctioneer, engineer and solicitor working together. I think it is a highly unlikely probability that this would be the example, but we have to see it in operation. A solicitor and barrister working together in a multidisciplinary practice does not seem to be an issue, but I note that over the years, there has been a gradual erosion of the distinction between barristers and solicitors. I know that many solicitors are entitled to audiences in front of any court. In fact, the Minister himself is an example of those solicitors who have often exercised that right. There really is no necessity now in law for the existence of two separate professions. By working together, we could see a blending of the roles. That is not necessarily a bad thing.
Section 30 calls for a number of reports to be prepared by the new regulatory authority, one of which is on that issue of the unification of the barrister and solicitor professions. The Minister will certainly get an interesting reaction from the two professions when that report is issued. We will really see a fuss if the proposal is to merge the two professions.
I also welcome the report into the education and training of legal practitioners. I could not fault the training I received in Blackhall Place, but it was the only option I had and there was no other alternative to become a solicitor. There was only one authority and it was a very expensive privilege to go there. In fact, I am still paying off my education costs from Blackhall Place. It will be interesting to see whether there is a way of making that more affordable and easier for people to get through.
As a public representative, I am aware that one of the issues which most frustrates people relates not necessarily to those who practise law but rather the law itself and the way it is administered. Citizens are put off by the fact that it can take so long to exercise remedies granted by the Dáil or pursue legal opportunities for redress. Delays in this regard can be enormous and one can spend years waiting for a decision. If one is seeking a financial settlement, one can be obliged to wait a number of years before a judgment is handed down and then one can be obliged to enter into an entirely new legal battle in order to have it enforced. Many cannot understand the long, drawn out process which obtains. In ways, it does more to hamper people in having their rights vindicated. More than the efforts of any legal practitioner, it also affects their confidence in the legal system. The issues of enforcement, cost and delay which arise in vindicating rights granted by the Oireachtas are worthy of further consideration at a later date.
The work of the Courts Service is still very much paper-based and involves old methods of operating such as filing, stamping, etc. So much of this work could be done by electronic means. I was not that old when I took up a position in a solicitor's office and was certainly of the view that it would be quicker and more efficient to do the work to which I refer either online or by other electronic means. The modernisation of the administration of the court system and also justice would go a long way towards reducing costs.
I thank the Minister for his attention and being present in the House to take the Second Stage debate on the Bill. I look forward to the Committee Stage debate, particularly to discussing the amendments that will be brought forward.
I welcome the opportunity to contribute to the debate on the Bill and thank the Minister for being in attendance in order that he might take on board the points being raised.
Having a properly constituted legal profession is a must in any republic. People need to be confident that the Judiciary and the legal system are even-handed and representative of them and can be trusted. We did not need to be informed by the troika that there were problems with our legal services. I congratulate the Minister on his reforming zeal in this regard. Among those who do not come from legal backgrounds, there is a perception that the law is practised by an elite, the members of which attended certain schools, possess a particular mindset and flex their muscles when anyone suggests there is a need for reform in the way in which they do their business. This was brought into stark focus late last year when, approximately one week before a referendum on the holding of Oireachtas inquiries was due to take place, a letter was sent to The Irish Times by a number of former Attorneys General. The individuals in question became very excited about this matter and indicated that granting the powers being sought to the Oireachtas would interfere with the independence of the Judiciary.
If we in this republic are serious about reform, there cannot be any sacred cows. Everything must be tested and investigated and capable of being renewed or reformed. I hope the Judiciary and the legal profession will understand that what the Government is doing represents an attempt to bring the profession into the 21st century, make it more accountable and ensure it is more real to the people. The profession must be rooted in society and should not be the preserve of those who come from particular backgrounds or were educated in certain schools. Such individuals tend to dominate the corridors of the Four Courts and other courts throughout the country and are of the view that they are the only citizens who have authority in discussing these issues.
A previous speaker referred to the Northside Community Law Centre. Many Deputies have engaged in consultations on the Bill and a number of concerns have been expressed which I know the Minister will take on board. It is only reasonable that we should ensure that anything we enshrine into law in this House will not need to be corrected at a later date. The common criticism of any attempt to reform the legal profession relates to its independence. In that context, concerns have been expressed about the independence of the proposed new regulatory authority, the way in which members of the authority will be appointed and the control the Minister will have in respect of many of its functions. If there is a myth in this regard, it must be exposed because we do not want accusations, suggestions or arguments not based in reality to be made. There is a need to deal definitively with the position of the proposed regulatory authority which will have overarching responsibility in this area. If there are concerns, they must be dealt with. In addition, if there are questions on the independence of the authority, they must be addressed. We cannot be seen in introducing reforms to be creating further problems. There is certainly a need for further consideration of this matter.
Previous speakers referred to access to justice and the establishment of multidisciplinary practices. Concerns have been expressed to the effect that such practices will not lead to an opening up of the legal profession but will, in fact, result in it becoming even more closed off. Access to the law and justice and fair representation is crucial in any republic, as is the concept of citizens being considered equal under the law. If one walks into the Four Courts, essentially what one will see is people wearing pinstripe suits being responsible for individuals in tracksuits being sent down. The grotesque reality is that the greatest crime one can commit in the State is to be poor. Poverty is the only thing we ever seem to criminalise; the statistics from any of the major prisons bear this out. Statistics for literacy levels among those who inhabit penal institutions also underpin what I am saying. All that we ever seem to become excited about are crimes committed by those who come from certain backgrounds or who are in certain desperate situations. Access to law and legal representation is, therefore, key in the matters to which I refer.
I ask the Minister to re-examine the position on multidisciplinary practices to determine whether they will improve access for those of lesser means or of if they will create an unintentional barrier to such access. I do not believe there is an option in terms of waiting to see how it all works out. Access to the law and legal representation is so fragile that there is an acute perception among those in certain parts of society that they cannot obtain justice, that justice does not serve them and that this republic does not cater for their needs. If we are seen to introduce a new strand to the legal profession which, essentially, will compound that perception, the reform being attempted in the Bill will only make matters worse. As a result, people's views on their ability to obtain fair play will be completely undermined.
While I congratulate the Minister on what he is trying to do - he is certainly taking on certain vested interests which, as we have seen, do not like to be challenged - it is of paramount importance to ensure we do not do anything which could undermine the overall objective of the Bill. We must also ensure the independence of the proposed new regulatory authority cannot be questioned and that the multidisciplinary practices, if they are to be established, will be constituted in a way which will not inhibit access for those of lesser means to proper representation. That is the least anybody could expect in a modern republic.
I do not come from a legal background, but certain aspects of the Bill are extremely controversial.
In the Programme for National Recovery the Government set out to reform the legal services market, establish independent regulation of the legal profession, improve access and competition, make legal costs more transparent and ensure adequate procedures for addressing consumer complaints and all of these are laudable. Like other Deputies, I have been contacted by members of the legal profession with their concerns. They feel many provisions of the Bill in its current form would be detrimental to the judicial system not only for those working in it but for those who avail of it before the courts. I am not sure so I come to this wondering how I will end up thinking about it in the long run.
The Bill proposes a regulatory model which is far more expensive than necessary. The Law Society points out that at a time of economic distress and when in excess of 1,000 solicitors are unemployed, the cost will inevitably be passed on to the client. It states that it will be deeply ironic if a legislative measure designed to reduce costs to the consumer actually increases them.
Criticism has also been made of the unacceptable level of control the Government would have. I know the Minister disagrees with this, but it is stated that Ireland would be unique in Europe. The proposed regulatory authority would be Government controlled, with Government control over entry, training and discipline, and there is a perception the authority would be subservient to the Government. There are also concerns that this measure is not democratic and will not contribute to democracy, and that there will be a negative impact on the rule of law in Ireland and the independence of the legal profession.
Opinions on the Bill vary from one extreme to the other. Dr. Mark Ellis has stated it is one of the most extensive and far-reaching attempts by a Government to control the legal profession, and that the Law Society and the Bar Council will find themselves no longer truly independent. In the article I read he examined international similarities with what has been proposed and referred to countries such as China, Iran, Gambia and Vietnam. All four countries appear to have a similar mechanism to the one proposed in the Bill. Essentially, their governments control the legal profession. He also comments on the unilateral and arbitrary exclusive discretionary authority the Minister for Justice and Equality has identified for himself and himself alone, and on the fact that the Minister's approval and consent would be needed for every aspect of the governance provided in the Bill.
Lawyers will tell us the Competition Authority's report failed to unearth any anti-competitive practices, so they claim the Bill and the model proposed in it is fundamentally different from that in the report. The Law Society states that the Bill constitutes a significant threat to its independence as the ultimate decision maker.
Does it go against the core principles of the European legal profession and international norms? I read what former Chief Justice, Mr. Ronan Keane, had to say. He welcomed many aspects of the Bill but expressed misgivings. He accepted the need for regulation but stated that it should not take a form that would damage the profession and be damaging to the interests of those availing of legal services. He also raised the question of how truly independent the authority will be in carrying out its work. The Bar Council claims consultation with it was very limited with no meaningful discussion with the Minister. The Minister says otherwise. Where do the requirements of the troika come in? Is it being used inappropriately as a big stick?
Reading through all of this makes it difficult to establish the truth. Other speakers mentioned perception and how lawyers and the legal profession are viewed in the country. Generally they are not held in high esteem. This is due to the obscene salaries a certain number of them receive from tribunals of inquiry. They also seem to speak a language different to that which we speak. Exorbitant rates are charged and cases are delayed which means more money. There is an aspect of looking at the profession almost as a necessary evil.
The roles of solicitors and barristers cause confusion. Having worked as a guidance counsellor I know how daunting it was for students working their way through the various entry processes, dealing with the changes that occurred over the years and the length of time before qualification. There is also the otherworldly air conveyed by the legal profession. Its members are seen as the high rollers of society. Unlike other professions only certain sections of society come in touch with them, whereas everybody will come in touch with a teacher. I am not maligning them; I am examining how they are viewed by many people in Ireland. We know there are people who have not been best served by the law or the legal profession.
I commend the work of the criminal legal aid scheme. These lawyers must be distinguished from those advising the Government or working for the likes of NAMA at very excessive salaries. I have been told the high fees attributed to individual legal aid solicitors are actually those earned by an entire firm and not an individual. The legal aid scheme is suffering and has experienced cuts of more than 30% over the past two years. There is a real danger, as has been expressed by people in the legal profession, that as with health a two tier system may evolve for those who can afford to pay and properly finance their defence and representation and those dependent on a shoestring legal aid budget. There has been a considerable increase in the demand for legal aid services due to the economic downturn. There is a greater need for them and there will be longer waiting times with additional costs. I commend New Beginning for the work it does and has offered to do for those in mortgage distress.
I have spoken to people at the lower end of the profession. They exist on a pittance and find it very difficult to continue with their training. These young trainees wait for hours hoping work will come their way and they certainly are not making vast sums of money. I hope their role and issues can be addressed.
I tabled a priority question on the community courts and I remember the answer given by the Minister. I still find it hard to get my head around the fact that funding will not be diverted towards a system of community courts which has been found to work and prevent the revolving door for certain sections of society and certain crimes. However funding still goes to a system which does not produce results and does not keep people out of courts and jail. Green Street Courthouse is sitting idle. I know the Minister agrees with the idea of restorative justice and he has spoken about it. Community service is in place and this is the last piece of the puzzle. I am not calling for extra funding but rather a diversion of funding from what does not work to a system that has been shown to work in other places.
To return to the independence issue, the legal profession accepts that it must be independently regulated. This means regulated independently of the profession and of the Government. Looking at it from the outside, it appears that what is being proposed is not strictly independent. It was described as one of the Minister's creatures; I do not know. The Government will be solely responsible for the appointment of the majority of the 11 members of the authority, at least seven, with no specific qualifications required for these seven. The Bar Council will nominate four which the Minister has discretion to accept.
The Deputy is wrong on both issues.
I am glad to hear this and I thank the Minister for clarifying it. It is central to many issues about which people are concerned.
The Minister will have an officer at the meetings. There is no doubt the new system concentrates much control and power in the Minister. I acknowledge what he stated about the Government appointment of judges not undermining their independence. He also stresses that the Bill clearly prescribes that the regulatory body must act as an independent authority. However, here we have had much experience of Government appointees to various bodies and the way this has been abused. We have had people with multiple appointments with the accompanying multiple allowances and expenses. I fear - I hope I am completely wrong - that this could be a lucrative number for Government appointees. I do not want to take from some of the very excellent appointments that have been made, for example former Senator Martin Mansergh with regard to the Justice for Magdalenes case.
The Minister stated the Bar Council and the Law Society have been rather silent on the benefits and opportunities which the Bill would extend to their members and instead have spent their time persuading barristers and solicitors to oppose it to maintain this privilege of self-regulation. In his speech the Minister stated he has been contacted by others who have many positive things to say about the Bill.
I am very much in favour of oversight of solicitors and barristers. I am in favour of an independent complaints system, but it should be independent of the profession and the Government of the day; it should be truly independent regulation. Above all there should be a properly regulated scheme of fees that is fair and transparent. There should also be transparency in how fees are agreed. There are positive aspects to the legal costs regime. These include the new office of the legal costs adjudicator, the way increases in costs will be relayed to the client, time given to the client to consider this, the way the bill of costs is provided, the explanation to the client of the procedures and the provision for a written agreement between the client and the legal practitioner on the amount and the manner of payment. The Law Society and the Bar fear they are losing power but that might not be a bad thing.
There is a further aspect in need of reform, namely, the inordinate delay in cases coming to court, with cases stretching on for years. Again, there is a perception of time wasting. So much time can be spent in court yet parties can then come to a agreement which might have been avoided in the first place.
Deputy Ó Ríordáin mentioned the pin-stripes and the track suits. He worked in the area I represent so I am very much aware of that. Some young people seem to know the law inside out in ways they should not. One would prefer to see them using that knowledge into a more positive way.
There remain questions on the independent aspect and I hope they will be addressed. There are positive points in the Bill and there is no doubt our legal profession must come into the 21st century.
I am sharing time with Deputy Tom Hayes. During the course of this debate some members of the Opposition have acted as advocates of the legal profession without really questioning what has been said to them by these practitioners. They should stand back for a while and ask themselves what the public perception of the legal profession is at this point. Phrases such as "too costly", "closed shop" and "not accountable enough" would have been said to them before this legislation was published. Members of the Opposition may become blinded when they want to attack the Minister and the Government and they take what is said to them as gospel. What this Government is constantly striving to achieve, and what people constantly look for in all aspects of public life, not only from the legal profession but in the health and education services and Government itself, is greater transparency and accountability, and better efficiencies. One must ask oneself whether these three cardinal points of what we are doing in government are blocked or in any way obstructed by what the Minister is doing in this legislation. Clearly, they are not. We should support this Bill.
I have heard words being thrown around by members of the legal profession to the effect that we are somehow obstructing constitutional freedoms. That is rubbish. We are not interfering in any way with people's constitutional rights in this legislation. I pose two questions. Are people confident right now that if they complain about a member of the legal profession they will get a fair hearing? Let us bear that in mind. Will the new legislation improve that confidence? That is difficult to answer. As both representatives of the people and as ordinary citizens these critics may believe they would get a fair hearing at present. Some people do not have much confidence in how the system works but they would like to give the Minister the benefit of the doubt in order to see whether the new system will improve matters. However, we know that members of this profession, like those in any profession, will say "No" to this legislation because there is a fear of change.
There is enormous resistance to change in any profession. I do not say this to have a go at the legal profession. In 2006 the Medical Practitioners Act was introduced to change the way the Medical Council worked, making it into a lay council rather than one dominated by the medical profession. All the arguments I now hear coming from the legal profession I heard five and six years ago coming from my own profession. There is the same muddying of the waters, attempting to link an independent judicial approach to self-regulation. We have had self-regulation in recent years but people still believe the system has not served them as well as it might have. For that reason we must ensure this legislation is as strong as possible in order to fulfil the cardinal rules by which we stand - transparency, accountability and efficiency.
I have read the same reports members of the Opposition mentioned. Most of what I heard quoted comes from the Law Society Gazette, arising from a conference that was held on this issue. It is disgraceful to have statements included that claim the Minister was “not accountable to any other”. If members of the legal profession can state the Minister is accountable to nobody they clearly have no understanding of democracy. The Minister is accountable to the Cabinet and the Oireachtas. That makes him more accountable to the people of this country than many of those who speak of the so-called lack of accountability.
Prior to this, being self-regulating, the legal profession was accountable to itself. All the charges its members now make against the Minister might have been made against their own body during that time, namely, they would look after themselves, it was a closed shop, and all those other points. From the point of view of having openness, transparency and accountability this legislation will improve matters because the Minister cannot act like a dictator; he is accountable. Some of the charges I have read, made by contributors in the Law Society Gazette, claim that the constitutional checks and balances which characterise a democracy will be shut down because of this legislation. The writers claim the Minister will control education, licensing, rules of conduct and adequate practice of law. I ask those members of the legal profession, who controls all those issues now. They need to look in the mirror because it is they who control education, licensing, rules of conduct and adequate practice of law. Do they remark to themselves this is unconstitutional and undemocratic? Of course they do not. The Minister will not control these matters. He is setting up a new regulatory body that will take those responsibilities away from the current self-regulating regime and give them to a more democratic forum. That is the way to look at it.
The legal profession must be more open-minded about what is going on in this regard. I am disappointed in the way the attacks have been mounted and by some of the comments I have heard. I am surprised to hear members of the Opposition parrot many of these points freely in this Chamber without questioning what has been said to them. That is not what one would expect to happen in this democratic Chamber. The concerns, fears and anxieties expressed by the legal profession about constitutional checks and balances are exactly the same as those that were expressed by non-legal professionals. That is what we must deal with in this Chamber. I do not believe for a moment this is undemocratic. That being granted, in a debate in a Chamber such as this one can take on board what is being said and ask whether one can improve matters. That is the entire point of the way we deal with legislation.
For example, the Minister could make appointments to the board for a longer period, perhaps five or six years, because if people were to serve longer they might not be interested in serving twice or three times and might be more independent in how they operate. The Minister should place a report on the competency of the members of the regulatory body before the appropriate Oireachtas committee for consideration. There is no need to drag the actual individuals in but a report on their competency would be useful.
Other statements made in this Chamber were simply wrong. The Competition Authority did not state this legislation was wrong and we need to put that on record. A Member of the House stated the United Kingdom had looked at the same type of legislation and had rejected it. It did not. We may share the same system of common law but the UK has nine different regulatory bodies with an ombudsman to oversee all. What we propose is one regulatory body that would oversee all members of the legal profession in this country.
Members of the legal profession brought in experts from the United States, the UK and Europe but in their criticisms the experts do not make a case for their accusations. They state their opinions but do not give the background detail one would expect for the stand they make. That concerns me. It is a little like a doctor saying one has some problem but when one asks the reason one is told, "That is why". People expect a little more than that.
On multidisciplinary issues and groups coming together, this is happening in many other jurisdictions. Different groupings of the legal professions with different expertise come together and work in practices and this arrangement appears to work well in those countries. Even some of those who come from other jurisdictions who have criticised this legislation would recognise that access to the legal profession in their countries is difficult and expensive. The Minister has taken the right approach, and given what he has said all along, he will try to improve the transparency of the legislation. We are heading in the right direction to improve access to the profession.
Deputy Finian McGrath stated the multidisciplinary approach was wrong during the Celtic tiger era. The problem then, however, was that barristers and solicitors were representing both sides in cases. For example, solicitors acted for the sellers and buyers in the sale of houses. That is when things went wrong because due diligence was often not carried out. That has nothing to with the multidisciplinary concept provided for in the Bill. The Deputy has used the wrong argument to criticise the Minister. If Members think this approach will not work, they need to be specific about why they think that. I believe it will improve the law because many people do not understand the complexity of the law. It is a much better approach to get more complex legal issues dealt with in a one-stop-shop.
It is rubbish to suggest rural solicitors will be wiped off the map because they deal with simpler, run of the mill issues. The general practice of the legal profession is dealt with by them. People are confident in their local solicitors and the group practice approach will not affect that. The multidisciplinary approach could help people involved in business or those who need to undertake complex cases because they would prefer to access all the necessary expertise in the one location.
I am grateful for the opportunity to contribute to the debate on this important legislation which will impact on one of the oldest and most influential professions in the country. The Bill will overhaul the current regulation of legal practitioners. This regulatory reform comes as part of our commitment to the EU and IMF and I broadly welcome the legislation as a huge step forward for this profession. The need for this reform comes as a result of the restrictive and costly nature of our legal profession. For many years, groups, both national and international, have criticised the costs of the profession and have called on governments to act. I am happy the Government and the Minister have finally decided to tackle this issue.
This Bill will establish a new legal services regulatory authority, a legal practitioners disciplinary tribunal and an office of the legal costs adjudicator. These new offices are being established in an effort to tackle the main problems facing the legal profession, including the handling of complaints, restrictive entry mechanisms, rigid business structures and, perhaps most important, lack of transparency. The legislation has caused a great deal of debate among legal bodies as well as among legal practitioners themselves. A number have strong views but I am sure the Minister is well aware of them.
Given the importance of this legislation, it is worth acknowledging the extensive time that has been provided to debate this legislation. At the very least, it demonstrates the Government's willingness to listen and to allow various views to be debated. I am happy that reform in the areas of costs adjudication and the streamlining of the complaints system have been widely welcomed by professional bodies and practitioners alike. This Bill will not only increase competition in this sector but it will provide for a fairer and more transparent complaints system. Many people have been sceptical about the closed off, self-implemented complaints handling system over the years but I have no doubt that changes provided for in the legislation will increase belief and confidence in the legal profession.
However, parts of the legislation have proved more controversial, in particular, the establishment of the legal services regulatory authority and the level of involvement of the Minister in appointing members to the authority. Opponents have argued that this level of involvement could compromise the independence of the profession. Whether that is true or not, I am concerned about the international criticism of this section of the legislation, notably by the American Bar Association, the International Bar Association, and the Council of Bars and Law Societies of Europe. Given the nature of our economy and the delicate nature of our recovery, I have concerns that this aspect of our international reputation could impact on foreign direct investment, which the State badly needs, as it begins to improve and expand again. Many companies, when seeking to invest overseas, generally look for stable democracies where they can enforce their rights and, if needs be, enforce their rights against the state. If these companies are under the impression that the state is in a position to manipulate the legal system, significant doubts could be raised about investment and the Minister needs to clarify the changes he proposes.
I have no interest in harping on about the way in which the authority is being established. The Minister is well aware of the criticisms in this area but I would like a provision inserted in this Bill that would reassure those overseas that the authority will operate independently and will not be influenced unduly by the Minister or his office. This is important because I believe this reassurance is needed truly to protect our international reputation as one of the best small countries in the world to do business. We should be proud of this and we prove week in, week out that this is happening.
I welcome the accreditation of other bodies aside from the Law Society and the King's Inns in the education and training of legal practitioners. The current monopoly on education and training removes incentives to innovate and minimise costs and severely restricts the numbers qualifying each year. This increase in competition will reduce costs, which are crippling many students looking to enter the profession. Those wishing to train as a solicitor face annual fees as high as €8,500, while those looking to become a barrister face an enormous annual fee of almost €13,000. These charges are a massive barrier to a large number of highly educated and enthusiastic young graduates looking to practise law. Both the OECD and the Competition Authority have called for changes in this area and I have no doubt that what has been proposed by the Minister will satisfy their requests accordingly.
The reform of the complaints and disciplinary system is another vital element of this legislation. This aspect of the legal profession has been too secretive and closed off to the public for too long. The reforms introduced by the Minister in this area will make the process more transparent, which is welcome.
I broadly welcome the Bill. I hope the Minister will take on board the concerns I mentioned. I also ask that he give consideration to the possibility of proposing a draft list of amendments in advance of Committee Stage to provide committee members and professional bodies with the appropriate time to analyse them.
I thank the Minister for the time he has given to the preparation of this Bill. It has cleared up many of the inaccuracies that have been stated.
I welcome the opportunity to discuss the Legal Services Regulation Bill. It was published on 12 October 2011 and is designed to overhaul the regulation of legal practitioners in Ireland. It implements a commitment under the EU-IMF agreement to remove restrictions to trade and competition in the legal profession. It establishes a new Legal Services Regulatory Authority, a Legal Practitioners Disciplinary Tribunal and an Office of the Legal Costs Adjudicator.
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. The IMF-EU agreement contains a commitment to implement the recommendations of these reports, which have found that restrictive practices within the profession have stymied competition, thereby increasing costs for clients. Problematic elements include the handling of complaints, restrictive entry mechanisms, rigid business structures and a lack of transparency in the adjudication of legal costs.
This partly stems from the organisation of legal services in Ireland between two professions, barristers and solicitors, which are restricted in the way they can organise themselves. Both professions are self-regulated by their representative bodies, the Law Society and the Bar Council.
This Bill seeks to overcome these problems along five dimensions: the regulation of legal services, education and training, new business structures, new complaints-handling procedures and a new costs adjudication mechanism. Some of these, such as the reform of costs adjudication and a streamlined complaints system, are uncontroversial and have been widely welcomed by stakeholders, including the legal profession. Others, such as the proposed legal services regulatory authority and the introduction of new business structures, are controversial. The Bill includes a requirement that further policy examination be carried out by the authority on the matter.
The Bill prescribes substantial reform, which takes account of the recommendations of the reports of the Competition Authority and the legal costs working group. As mentioned, the commitment to reform the legal services market is an integral part of our EU-IMF commitments. However, it is also a pledge that the Government made in its five-year Programme for National Recovery. That pledge is to establish independent regulation of the legal profession, improve access to justice and competition, make legal costs more transparent and ensure adequate procedures for addressing consumer complaints.
In particular, the Bill establishes a new legal services regulatory authority which will have an armoury of functions and powers that will enable it to engage in comprehensive regulation of the legal profession and the legal services market. It creates an independent complaints procedure whereby consumers will no longer have to complain directly to the Law Society or to the Bar Council to obtain redress. It sets out the principles that will guide the assessment of legal costs, the key principle being reasonable costs for appropriate work done. It requires legal practitioners to notify clients in a more detailed and intelligible way about legal costs - this is an ongoing requirement and legal practitioners are required to notify clients of any matters that may increase legal costs. The Bill establishes a new office of the legal costs adjudicator to provide a modern and transparent legal costs adjudication service. It promotes alternative dispute resolution to save costs, and it lays the groundwork for the establishment and operation in the State of new business models for providing legal services by means of legal partnerships and multidisciplinary practices.
Yet again the Government is delivering on its promises and commitments. This Bill is in part fulfilling our pledge in the Programme for National Recovery as well as our EU-IMF commitments. As a result I have no hesitation in commending it to the House.
I welcome this Bill. It is probably the first innovative legislation to deal with legal services in a long number of years. Those of us who watch television would have seen the legal drama, Garrow's Law, a few months ago which was about a 17th century barrister. One wonders if there has been any change since that time in the way legal proceedings are conducted. We still see the wearing of wigs and gowns. There has been no real change to the structure of the legal system in almost 200 years. I welcome this Bill. I also welcome the fact that it is modern, flexible and forward thinking. It is a review of the Irish legal system, bringing it from the 19th century into the 21st century to deal with a more modern economy.
I also welcome that the Bill will introduce much more transparency. Some members of the legal profession are concerned about the change in regard to the body that supervises them, which is made up of legal people, to which the Minister will now make his own appointments. They are concerned that those appointments may be contaminated, as it were, but who is to say that their own board is not contaminated? We read in the newspapers regularly of solicitors who have been brought before their own board and have lost their robes, as one might say, because of improper practices. I welcome what the Minister is trying to do with regard to the regulatory body.
The Bill is very consumer friendly. We, as consumers, have been nervous about dealing with the legal profession because its members spoke in a language many of us did not understand. This brings me to the main thrust of what I want say about the Bill and it is an issue about which I feel strongly. The Minister is very much a reforming one but he also needs to grasp the nettle and take account of the language in which the Bill has been produced. It has been produced by legal people for legal people and not for ordinary consumers. I cite the example of section 39, which I will not read because when I read it previously by the time I got to the end of it I was half asleep. There are 217 words in it, in one sentence. I attended a media course recently at which I was told that I should never use a sentence that is longer than eight words. How can anyone possibly understand a sentence of 217 words? I will bring this Bill to bed and fall asleep half way through the first sentence, so it will take me a long time to read it. I know the Minister is very much a reforming Minister and I implore him to examine the language used in the Bill.
When I talk to business people, they tell me the core factor with regard to legislation is that it takes them a long time to understand it. I am grateful that when I came in here I learned there was an explanatory memorandum. I call it the Ladybird version of the Bill. It is extremely helpful. I ask the Minister to examine if the language used in the legislation could be made more user friendly for ordinary consumers in order that we can understand it and not have the legal profession dominate in terms of the legal jargon used. When I was away I heard words used to describe something said in a language that the Minister probably would not understand. The words were: "wan bokis we it guc whit toot mo blac toot tim yu kilem hemi sing out”, which means a piano. If we could incorporate more user friendly language into our legislation it would be a real sign that we are trying to reform and it would help people to understand it. I welcome what the Minister is trying to do but let us go a little bit further.
I wish to make a few points on this legislation. I agree with the previous speaker's comments on the jargon and terminology that is often used by lawyers, but it will be difficult to frame laws in terms that are not legal. There might be great difficulty in simplifying some of the terms used in legislation. I compliment the Minister for Justice and Equality on his handling of this debate. There has been plenty of time for discussion. He has been present in the Chamber for most if not all of the debate.
I am struck by the fact that many of the previous contributors have referred to the somewhat hysterical coverage in the legal press about the potential implications of this legislation. To say that some of it - in fact, most of it - is over the top would not be an exaggeration. This Bill, and the whole area of reform of legal services in this country, has been on the agenda for many years, and I commend the Minister on grasping the nettle and trying to introduce reform. The centre-piece of reform of the legal system must be concern for the people who consume legal services, those who need to contact a solicitor or barrister for whatever reason. That is at the core of what the Minister is trying to do. This legislation implements the Competition Authority report that was published at the end of 2006.
It is natural that the professions themselves are somewhat resistant to change. As somebody who aspires to be a member of one of those professions, I come across a number of people who are strongly resistant to change, but there are many legal practitioners, particularly of the younger variety, who are quite supportive of large tracts of this legislation, although they may not be in a position to express that support forcefully. I think it was Deputy Hayes and Deputy Twomey who spoke about the need in 2012 to ensure no profession is self-regulated. Both strands of the legal profession are self-regulated, but there can be no place for self-regulation as we progress.
Another criticism of the legislation is that somehow the Minister, or some future holder of that position, could manipulate the legal system and that he and his successors are not accountable. Not only is the Minister accountable to the Cabinet, but also any holder of that position is accountable, ultimately, to the electorate. He is far more accountable than any of the people who currently occupy positions of regulation within the legal professions.
The basis for the introduction of this new legislation is an attempt to reduce legal costs, which was part of the memorandum of understanding with the troika. Legal costs in this country are particularly high, and any legislation that seeks to reduce those costs is certainly to be welcomed.
I believe improvements can be made in a couple of areas of the legislation as it is currently drafted. The first of these is the appointment of the board of the regulatory authority. Considerable criticism has been voiced that too many of the appointments will be made directly by the Minister, whoever the Minister happens to be. There is a mechanism that exists at present - the Public Appointments Commission - to appoint board members and fill other positions in regulatory and State authorities. That mechanism should be used to appoint people to the board of the legal services regulatory authority.
I have spoken to the Minister and others about the issue of barristers' fees. I am quite friendly with many young, qualified barristers who find it hard to break into the profession and hard to make a living from it. This is one criticism I would level at the bodies that govern the legal profession at present. They correctly point out that there are no barriers to entry to the profession in that people can apply and be accepted, but there are real barriers when it comes to the practice of law. One of the fundamental barriers for newly qualified barristers is actually getting paid for the work they do. There is no shortage of work but there is certainly a shortage of pay, from what I can see. I ask the Minister whether it might be appropriate to insert a provision in the legislation to allow barristers to sue for their fees. A more suitable way of dealing with this might be to have the regulatory authority itself establish a mechanism whereby some sort of arbitration can be arranged between solicitors and barristers with regard to fees and the non-payment of fees. That might be a better way of handling it.
There is a concern, which I hope the Minister can address, that this legislation will introduce an additional layer of costs for practitioners. This could have a detrimental impact, particularly on small solicitors' practices in provincial Ireland, and ultimately those practices may have to pass on the costs to consumers or may not be in a position to continue trading. This is a fear that exists. I ask the Minister to address this issue when summing up.
On the whole, I thoroughly commend the Minister on the way he has engaged in this debate in the House. We have had plenty of time for discussion and he has been present for virtually all of it. He has made a good intervention in reforming the way our legal professions operate and how they will operate in the future, and I commend him on that.
I welcome the opportunity to speak on the Legal Services Regulation Bill. This Bill will significantly reform our legal system, and the overall effects of its measures should be examined. The Bill has received criticism for being rushed through with little time for consultation. This is understandable given the timetable of the EU-IMF programme which required the introduction of the Bill in the third quarter of last year. I am satisfied we now have time to discuss the proposals in depth. These proposals will affect everything from how legal costs are decided to how barristers and solicitors conduct their business, and I am hopeful they will have a positive effect for consumers. There are, however, a number of issues that have not been addressed, including that of competitive tendering for State contracts, and others that require amendment. I know the Minister is open to constructive amendments and I welcome the process of engagement that is to occur on Committee Stage.
Legal services in this country are often perceived to operate in the form of a cartel, with excessive fees charged by a small elite group of barristers and dominant law firms that kill competition. This view was reinforced in the years of the Celtic tiger and the tribunals. In an age of austerity, however, people are less willing to accept the status quo, and this Bill challenges it. The changes proposed may be feared by those whose interests are threatened. Indeed, there are many who would do anything to ensure that nothing changed.
In seeking change, the interests of the public must be put to the forefront of debate. The needs of the consumer and of society are consistent with an independent legal system free from interference from Government and from the self-interest of those whom it is supposed to regulate. I highlighted previously the fact that up to last year, not one barrister had ever been discharged in the history of the State. This was a fact I found quite surprising. People simply do not have faith in the professions to regulate themselves. While I welcome the end of self-regulation, the mechanism that is to be put in its place must be consistent with independence. I know this is the Minister's intention and that, in ensuring this, certain amendments will be necessary for the sake of clarity. For instance, I welcome the removal of the Minister's consent requirement for a code of practice for the Bar Council. I would also welcome clarity on how the new regulatory authority is to be appointed, and I would certainly like to see the values of diversity and gender balance reflected in it. The process by which a person can be removed from the authority must also be examined. The Minister will consider these issues and I welcome that.
The Bill is quite strong on the issue of costs, as it should and must be. Justice, after all, has not always been blind. Her eyes have been open to manipulation, money and greed. For that reason I welcome the transparency to be brought to the costs structure. This issue comes to the fore all too often when one hears of the excessive fees charged to the State and to the private individual. Fees affect access to justice. The wealthy can hire whomever they please to attack or defend a position of interest; the same access is not necessarily afforded to the less well off.
Only last week I read about the National Consumer Agency's survey on solicitor's fees. The results were quite disappointing. The survey highlighted significant disparities in fee charges, vagueness as to what was included within a charge and an overall lack of clarity on the ability of a consumer to compare and contrast quotes on certain matters. I understand that the National Consumer Agency has called for more work to be carried out to enable people to make a fully informed decision before hiring a solicitor and I support this call. However, while I am very critical of many aspects of the profession, I certainly do not refer to all firms, solicitors and barristers. I am well aware of the great work carried out pro bono and of the support that organisations such as the free legal aid centres give to a wide variety of individuals. Unfortunately, when one reads about the Taxing Master having to reduce incredible fee charges, it becomes difficult to defend a system that allows this to happen. It is also a bit rich to hear certain barristers and solicitors speak on social justice and equity of access. Their “deep concern” for their fellow man is quite touching. I compliment them on their golden hearts and brazen necks.
The sheer volume of money that some lawyers make is quite obscene. If reduced fees were charged, perhaps more money could be made available for the courts system generally. Although this would not be a comprehensive answer to the question of properly resourcing the courts, I am sure it would help. The courts system needs to be properly resourced. In my constituency of Wicklow, family law cases are being significantly delayed and court buildings such as the Wicklow courthouse are not being used because they are in desperate need of refurbishment.
It is a symptom of a wider problem. A number of court registrar positions remain vacant and I note that a recommendation of the legal costs working group has not been included in this Bill. There has been failure to increase the civil jurisdictional limits since 1991 and that has led to a situation where more and more cases are unnecessarily heard in the higher courts, with attendant increased legal costs. However, this could be dealt with as a separate matter.
On the subject of the courts system, I welcome the Government's decision to introduce legislation this year on the establishment of a judicial council. I also call for the establishment of the permanent civil court of appeal that is promised in the programme for Government. In a reply to a parliamentary question from me, the Minister said he did not envisage a referendum on this issue taking place before the autumn of this year. He also stated that it was his intention to finalise examination of the detail and to progress the matter at the earliest suitable opportunity. Perhaps he would give us a more certain date as to when he expects to proceed on this matter.
Another issue that is strangely absent from this Bill is competitive tendering. This subject was examined by the Competition Authority but it does not appear to be addressed by this legislation. The State is the biggest customer of legal services. It spends almost €500 million on legal fees, according to studies from the legal costs working group and the Committee of Public Accounts. The bizarre situation has arisen whereby the State is not statutorily obliged to engage in competitive tendering for these lucrative contracts. While directions are issued by Departments within a circular, these do not have legally binding force. It is not clear why this was not included in the legislation. I understand that a reduction in the legal spend was achieved last year but, while this is welcome, it is not a reason for not introducing competitive tendering.
Furthermore, the European Commission has issued a proposal for a new EU public procurement directive. The results of the evaluation of the impact and effectiveness of EU public procurement legislation state that legal services ought to be included in the full application of the directive. It is strange therefore, given that this legislation will likely come into force in 2014, that this is not incorporated in the Bill. It would benefit the consumer and, perhaps, younger lawyers who might be able to avail of contracts therein.
While I have criticisms of the Bill and of areas outside its reference, I hope the matters I have raised will be dealt with comprehensively. The legal system is archaic and while its criers and ushers may now be part of the recent past, more needs to be done. In a submission to the justice, defence and equality committee, the Free Legal Advice Centres, FLAC, put forward its views on the Bill. I support some of its recommendations, including the changes it proposes on the objectives through the addition of the word "diverse" to the objective that looks to "encouraging an independent, strong and effective legal profession". I also support the incorporation of the UN's basic principles on the role of lawyers and the additional function for the proposed legal services regulatory authority of the promotion of understanding of law and the legal system.
I largely support the general principles outlined in the Bill but I am anxious that the scales of justice be rebalanced carefully so that the benefit to the public can be realised. Like other Deputies, I thank the Minister for being present to listen to all the contributions to the debate. I am very hopeful about the conclusions he will reach.
I welcome the opportunity to speak on this Bill. I compliment the Minister on his attendance throughout this debate, if one can call it a debate. It must be pointed out that for almost two hours no Member from Sinn Féin or Fianna Fáil has been present and no Member from the Technical Group has been present for the past hour and a half. This is unprecedented. Yesterday, when I spoke on the motor taxation Bill the sitting had to be suspended for an hour and a half because no Member of the Opposition was present. I am a new Deputy and I was told that in the last Dáil the Fine Gael Party made it its business to be a responsible opposition party. Its Members were always present in the House for debates. All debates are important but this is crucial legislation.
Yesterday was a bad day for the Opposition with the announcement of 1,000 jobs for the north east. There has also been significant progress on the programme for Government over the past 11 months. However, it is remarkable to see the Opposition throwing in the towel before the first anniversary of the formation of the new Government. Outside the House, Members of the Opposition are more than capable of endeavouring to curry favour with various groups, the legal profession in this instance, making commitments and pledges, trying to suggest they would act differently and saying they are making their voices heard in the House. The reality is that there is no such attempt. As they did when they were in government, they are misleading the people. Fianna Fáil, in particular, is showing itself to be a party that is only interested in its own self-interest. When it comes to matters of legislation, its members have no interest in trying to assist debate. It is unprecedented.
However, that significantly reduces the possibility of me being heckled in the course of my contribution. I will endeavour to enjoy that experience. One of the most significant events in the past couple of hundred years of our history has probably been the loss of our economic sovereignty. That happened more than a year ago with the introduction of the EU-IMF programme, which we are working through. It is important to acknowledge that large elements of that programme were, and should have been, included in any new Government's programme to change our country for the better.
The Bill is long overdue and most welcome. Like others, I have received many representations from members of the legal profession. Many of them are friends and, for the most part, their arguments have been extremely measured. One must acknowledge that representative bodies - in this case the Law Society of Ireland and the Bar Council of Ireland - have an obligation to make arguments that best serve their members. Governments and Ministers for Justice have an entirely different mandate, which is to represent all of the people and work for the common good. In that regard, the objectives of the Bill clearly work towards looking after citizens. Many of the fears expressed by members of the legal profession will prove to be exaggerated as the benefits of the Bill work through.
The programme for the restoration of economic sovereignty is made up of many small parts coming together. No one could suggest, given the economic position we are in, that the Legal Services Regulation Bill in itself will make a great difference in restoring our economic sovereignty, but the cumulative effect of many measures will allow the economy to recover.
There are many areas in which costs affect competitiveness, but legal costs are among the more vague. People involved in business cannot determine how they will accumulate. There is no doubt that when people are seeking to establish a business, or to maintain a business and give employment, any barrier must be removed or amended and the process made as straightforward as possible. In the past 12 months we have seen a significant improvement in our competitiveness across a broad range of areas. I hope the Bill will allow a far greater degree of transparency in pricing.
Members of the legal profession deal with people at their most vulnerable. Medical professionals deal with people who are ill, but clients of that profession are, largely, covered by the health care system or private insurance and the issue of cost does not, generally, stray across the more serious medical procedures. This may not be true to the same extent for dentistry or general practice. In my constituency office I frequently meet people who are going through difficulties and their most frequently asked question about engagement with the legal profession is how much the process will cost. I know the National Consumer Agency has strongly advocated pricing display for the legal profession. The exact determination of a legal process can be difficult, given that the outcomes vary so greatly, but more progress should be made on the issue of legal costs to the client. To get an up-front quote for legal work by a junior or senior counsel is extremely difficult. There is often a polite suggestion the quote will be forthcoming and that costs will be determined, but I have never seen anything approaching a price list. Consumers, particularly more vulnerable persons who may feel intimidated in other ways by the high degree of technical knowledge and skill required by lawyers, need this process to be more straightforward.
On his recent very successful visit to the United States the Taoiseach remarked that the factor that most influenced a country's rating by rating agencies was stability of government and the degree to which government was willing to tackle areas that caused difficulty. In this regard, the Bill is welcome. Three of the four previous speakers, in commending the Minister, used the expression, "grasping the nettle". The Minister may have felt the sensation of a sting from members of his own profession, but he is to be commended for allowing this reform in one of the many areas in which reform is long overdue. He is to be commended, particularly in the light of some concerns expressed by his own profession. He has dealt with the matter urgently and transparently. I commend the Bill to the House.
I am sharing time with Deputy Michael Creed.
Deputy Dara Murphy referred to nettles. Consumed in the right way, they are good for us. We should bear this in mind.
Boiled, stewed and drank, rather than grasped.
A proper functioning democracy needs a legal profession. We inherited one and it is probably 200 years since its structure was looked at. The problems associated with the image of the legal profession are not unique to Ireland. Wherever one goes, one finds certain perceptions about barristers, lawyers and other members of the legal profession, some fanciful and some well founded. Attempts to reform the profession, as the Minister is endeavouring to do, are bound to ruffle feathers, which may not be a bad thing. However, I have spoken to colleagues and friends in the profession who broadly welcome the Bill, as no one could argue with the need to reform it.
An independent regulatory authority needs to be established and the profession should be competitive. Not everyone agrees, however, that there should be a schedule of costs. There should be and it should be transparent. If it is our intention to sell the country as a place in which it is good and easy to do business, we must realise that how the legal system works and how legal costs are structured are important aspects of doing business. People who come to invest in Ireland, as well as our own people, deserve a legal structure that does not complicate matters for them.
While it is accepted that it will not give the Minister power to interfere directly with the legal profession or the Judiciary, the structure for appointing people to the regulatory authority has caused concern among members of the profession. The regulatory body for it will differ from that for the medical profession. The structure by which the Medical Council was established keeps a complete separation between the authority to approve nominations and the Minister. At no time could a Minister with a particular bias influence the composition of the medical regulatory authority.
There are a couple of other areas that I would mention. On costs and tendering, one of the matters that have disbarred many talented young barristers from embarking on a career as lawyers has been that they have had to spend a great deal of money in the first instance to train and then spend a long number of years working virtually for nothing, devilling on behalf of others and gaining experience, at a time when in most other professions people are earning and on a pathway to an improved income. That has proved to be a serious impediment to those who have tried to embark on that type of career.
As regards the tribunal, it, no more than the regulatory authority, must be seen to be totally independent so that when a complaints procedure process is initiated, neither the State nor the legal profession can have any influence on it at all and the legal profession has its own channels of representation to defend, or otherwise, its position. On having a structure in place, much of it, in fairness, centres around costs. Sometimes it centres around double representation and a conflict of interest. If the Bill does all it can to separate those potential problems, then it will do good work.
The second obligation of this Bill is, as some others have stated, to comply with the EU-IMF working programme on reducing costs. As others have also stated, this will not affect the balance of payments significantly but it does have an impact on potential start-up businesses and potential investors if they see that the legal costs system is not prohibitive and that it is easy to navigate.
I would broadly welcome the Bill. As I stated at the outset, any Bill that contains so many fundamental reforms is bound to upset people for a while, but it is a matter of people coming to terms with it. The intention and spirit of the Bill is to reform the matter and make it more fit for purpose for the 21st century. I heard somebody else - it might have been the Acting Chairman, Deputy Tom Hayes - suggest publishing a list of amendments in advance of Committee Stage, and I think that is a really good idea. It would give Members time to consider them in order that when we get to Committee Stage, Bills are not merely rushed through. I commend the Bill to the House.
I welcome the opportunity to say a few words about this legislation, which I substantially welcome. It is overdue in the sense that a review of the structures under which the legal profession operates and under which citizens consume legal services is long overdue.
This Bill is not about the Minister for Justice and Equality or a future Minister. It is not really about solicitors or lawyers either or about judges. It is about consumers and citizens. By and large, the Bill, with the promised amendments to which the Minister alluded, will serve the citizens of this country better than they have been served to date by the current structures.
The rationale for the legislation is widely understood. There are commitments in the programme for Government about greater regulation of the profession, greater transparency with regard to costs, complaints, etc. That is logical enough and I will refer to that in more detail later. However, there is also a background in respect of the terms and conditions of the troika bailout and there was, previous to that, the reports of the Competition Authority and the legal costs working group about the affordability of legal services to consumers. In that sense, the Bill is understandable in its rationale and, clearly, is a welcome step with the amendments that the Minister has promised.
The truth, I suppose, for the legal profession today is that many practitioners at various levels, be they solicitors or barristers, like all other sectors of the economy are feeling the chill winds of the economic downturn. Many have seen their businesses collapse. There is an exodus from the profession and large numbers in the profession are unemployed.
I suppose, like in other areas of society, the profession is to some degree tarnished by the excessive greed of a minority of practitioners and by the criminality of some of the practitioners as well. In that area, the issue of regulation comes centre stage. I welcome the fact that the regulation of the profession in future will not be a self-regulatory model and that there will be in the new regulatory authority with a majority of non-legal persons. The point made by one of the previous speakers, Deputy John Paul Phelan, about the requirement for dealing with it at arms length and using the public appointments commission is something upon which the Minister might reflect. It would address some of the concerns about the excessive reach of the Minister for Justice and Equality and his capacity to interfere in the regulatory process. However, the Bill is overdue.
The point was made by previous speakers that in the history of the profession of barristers, not one has been debarred under their self-regulatory model. This strikes one as somewhat unusual in the history of the profession. All of us are familiar with complaints from constituents about feeling short-changed by the legal practitioners, and I welcome this model of regulation.
On the issue of competition, I hold the fundamental view that the surest way of guaranteeing real competition is for there to be easy access to the profession in terms of qualification. The current model is bedevilled by the fact that there are too many gatekeepers along the way. There is not an opportunity for seamless progression, from entry into studies to qualifying, as the case may be, as a solicitor or barrister without the good will of existing practitioners, be they solicitors' offices or barristers. That is something that needs to be addressed. Regrettably, it is not addressed in the Bill in its current format. That is a weakness we must explore on Committee Stage.
The colleges are packed with law students. There are thousands of qualified law graduates who, through no fault of their own, cannot proceed to practise law because they cannot get an apprenticeship. I understand the economic downturn and that if one takes on an apprentice, one must pay him or her, but that is a weakness in the training system that must be addressed. If we entice persons into pursuing a legal career by going to college to study law, we must be able to guarantee them a seamless progression from that date of entry to a point where they can practise law. That is not there at present. It is a significant weakness in terms of competition because real competition is guaranteed by new blood coming into the profession and, as I stated, there are too many gatekeepers in the profession at the moment.
I am conscious that I make this point in the presence of a barrister but I think the opportunity has been lost for real reform, to have a unitary profession and do away with what is, by and large, a self-serving distinction between solicitors and barristers. In essence, it is about speciality. One advocates well in court and the other, the solicitor, draws up a will or does conveyancing. It is a self-serving differentiation. By and large, they are similarly legally qualified in terms of their basic training. In terms of barristers, there are junior counsel and senior counsel, and I am not sure these archaic distinctions are worthy of continuance in a legislative proposal that seeks to be radical and reforming and to embrace changed circumstances in the country. In some respects, opportunities were lost in terms of where the legislation could go.
I get the distinct impression from engaging with the representative bodies that they are not entirely comfortable with the idea of debating and making their point with politicians. It strikes me as something of a superiority complex. I must comment on the discussion on this legislation in the Law Society Gazette, which bordered on hysteria, did a disservice to the national interest in terms of the critical economic times we are in and damaged the society’s case, given it has some points which are worthy of consideration. However, the manner in which it flagged these issues to an international audience, and compared us with jurisdictions that have a tenuous grasp of democracy and of democratic legal systems, over-egged its case and reflects very poorly on the Law Society.
I have concerns about a number of specific aspects of the Bill. Coming from provincial Ireland as I do, I am concerned about the proposal to provide for multidisciplinary practices and legal partnerships. Although I may be subject to correction, provision for this was made previously but it was not enacted under existing legislation at the Minister's discretion, but it is proposed in this Bill to enable such multidisciplinary practices. What I understand from this is that the best legal firms in this city and the larger cities will have partnership arrangements with the best barristers. If I am a client seeking legal services in provincial Ireland, my home town solicitor may not be in a position to access the best advice on my behalf from a barrister because barristers will be tied by virtue of a commercial arrangement with other solicitors' practices. That is fundamentally uncompetitive in a Bill that talks about introducing greater competitiveness to the profession. It is an issue which causes me great concern and which I look forward to taking up with the Minister at a later stage.
I wish to raise two other issues which are not dealt with in the Bill but which are a cause of concern. I noted in recent media coverage that, notwithstanding the best efforts of this Minister and the previous Minister, it has proved to be virtually impossible to rein in the runaway costs of the legal aid system. I understand the constitutional requirement that everybody is entitled to legal representation and people of low income must have that provided for them by the legal aid system. That is as it should be. However, that system being abused by repeat offenders ad nauseam is grossly offensive to taxpayers. The Minister needs to address this issue, obviously in consultation with the Attorney General, because it is a runaway cost. I note from recent media coverage that the best efforts of the Minister have again been thwarted in respect of his endeavours to bring that cost under control. He might deal with this in his response.
A related matter is the State's own requirement for legal services and the fact a closed shop exists at present. When the State seeks legal services, we know automatically it will be one of three or four large solicitor practices in this city that will provide them. That is not as it should be in a competitive environment and in the context of legislation that is focused on greater value for money for the State and consumers and taking costs out of business. This matter needs to be addressed. There should be tendering for legal advice, perhaps involving a panel of practices which would pre-qualify. This area should be opened to greater competition, in particular competition outside of this city. There are many fine practitioners across the length and breadth of the country who would be equally capable of doing a good job for the State at a very competitive rate.
At the outset, I wish to state that I am a member of the Law Library and a barrister-at-law. However, I also wish to state categorically that I appear today on behalf of my constituents in Clare, not on behalf of the Bar Council or of barristers.
I commend much of what Deputy Creed said. There are undoubtedly many problems with legal services in this State, including problems with how the solicitor profession is run and problems down at the Law Library. These are problems which previous Governments for decades, generations and even perhaps centuries have shied away from dealing with. I commend the Minister for dealing with this issue head-on. However, there are elements in the Bill about which I have grave concerns as a representative of the constituents of Clare.
There was a report last week in the Irish Examiner which stated a price survey by the National Consumer Agency shows that some solicitors are charging up to six times more than others for the same basic services. That is a matter of great concern to me, as I am sure it is for my constituents and the Minister. At the end of the reform process which is envisaged in the Bill, will it be the solicitors who charge six times more or those who charge six times less who will still be operating? It is unclear from the Bill which it will be, and I fear it will be the solicitors who charge six times more.
As Deputy Creed said, there are many solicitors in small-town Ireland who operate with very low legal overheads. On the other hand, there are large solicitors' firms, predominantly in Dublin but also to a lesser extent in Cork, Limerick and Galway, which operate with far greater overheads, and which, by and large, charge a lot more per hour for the same work. That is why the great majority of people go to very small firms rather than the "big five" with their legal problems, such as conveyancing. I fear the proposal to allow multidisciplinary bodies will force those small firms out of operation because, when a complex case is brought to them in, say, Scarriff, Kilrush or Ennistymon, they will not have access to former Attorneys General at the Bar or to senior counsel. Instead, a person with a complex case will have to go to one of the big commercial firms and pay the large overheads. While I acknowledge something has to be urgently done about the fact some solicitors' firms charge six times more for the same work than others, I fear the Bill as it stands does not address the problem and does not make clear that small firms will be able to survive.
Undoubtedly, fees paid to counsel over the years, particularly counsel engaged in tribunal work, have cast the legal profession, in particular the Bar, in a very bad light. Nobody in this House, and very few even in the Law Library, other than of course those who receive those fees, could stand over them. That does not change the fact there are many barristers who do not earn as much and in fact earn very little.
Even in places like Clare, there are people who wish to become barristers. Even in places like Clare, there are people whose ancestors and family are not of the legal profession but who believe they can and would like to become barristers or lawyers, and who believe they have the right to do so. I fear the Bill, in introducing multidisciplinary teams, will actually privilege the children of privilege. What determines how one gets into one of these great multidisciplinary teams? I believe it is the same factors that determine who gets into chambers in the United Kingdom.
Do we wish to return to the days before the foundation of the State - in fact, up to very recently - where only persons of privilege could aspire to becoming barristers and senior counsel? I do not suggest for a moment that this is the Minister's intention. However, my former Labour Party colleague, who is also my colleague at the Law Library, Deputy Willie Penrose, spoke from these benches about his personal experience of becoming a barrister notwithstanding his, by his own proclamation, humble background. People like Deputy Penrose and me are quite rare at the Law Library. It is rare to sit in court in Limerick and hear a working class Limerick accent other than in the dock or giving evidence. It is certainly very rare to hear somebody with that accent addressing the court from the barrister's benches. The same is true in Clare and in Cork. This Bill does nothing to address that, even though it is an issue we would all agree should be addressed.
A recent report in The Irish Times noted that the number of barristers leaving the Law Library is increasing, with a further sharp increase expected this year. However, it is not the children of privilege who are departing. The people whose families can provide them with the independent means to survive the first five to ten years before they begin earning a decent income, and subsequently perhaps too great an income, are not leaving. Rather, it is those from ordinary families, who must make their own way in the world, who are being forced to leave the legal profession. That is not healthy for the profession, no more than it is healthy for society.
Contributors from both sides of the House spoke of the importance of the independent referral Bar. Members may not be aware that there is a group of lawyers who do not operate the taxi rank rule, namely, those lawyers who represent the Minister for Justice and Equality in immigration cases. They are not available to applicants because they represent the State and only the State. In fact, they must undertake not to take work from applicants in order to work for the State. I have grave problems with what that says about our immigration system. The membership of the authority that will govern the combined professions will be appointed by the Government, albeit from non-legal backgrounds. Moreover, the complaints committee, as proposed in section 50, will be appointed by the authority, the authority having been appointed by the Government, with the approval of the Minister.
If I or one of my constituents - there are barristers among my constituents, as there are among the Minister's - have the audacity to take a case against the Minister and fall foul of his chosen legal representatives, how will I or they achieve a fair hearing? This potentially offends the most basic principles of justice. Nemo iudex in causa sua, or let nobody be a judge in his own case. The Minister’s appointees could end up adjudicating in a dispute between the Minister’s chosen legal representatives and somebody who has the audacity to challenge them. No professional is perfect, as the Minister would acknowledge. That is a cause for concern.
We have been told that the reforms envisaged in this Bill are necessary because of the bailout agreement with the troika. That agreement states:
The Government will introduce legislative changes to remove restrictions to trade and competition in sheltered sections, including the legal profession, and establishing an independent regulator for the profession and implementing the recommendations of the legal costs working group and outstanding Competition Authority recommendations to reduce costs.
I have no problem with an independent regulator, but I have serious concerns about a regulator that is dependent on the Government. If the Minister wants to enhance competition in the profession, he could begin by looking closer to home. For example, to operate in the criminal legal aid scheme, barristers must inform the Bar Council that they are willing to accept instructions, which notice is then conveyed by the council to the Minister's officials. However, there are, both in this State and in the North, barristers who can practise without being members of the Law Library or being subject to the Bar Council. That is a small anomaly which could be worked out.
A similar scheme applies in regard to civil legal aid and is relevant even to competition law. For instance, in a case involving the Netherlands, the European Court of Justice recognised the importance of properly taking into account considerations relating to the sound administration of justice in any competition law analysis of rules relating to the organisation of advocates and those providing legal services. In Northern Ireland an independent referral Bar operates whereby any small town solicitor from Cookstown or elsewhere can go to the leading lights of the Bar Library in Belfast, just as any small town solicitor in this State can go to the leading lights of the inner Bar in Dublin. The Bain report in the North recommended that allowing barristers to form associations would, by bringing them together in larger units, be a move away from this competitive model. For example, barristers specialising in certain aspects of law in which there is a limited number of suppliers in the North could group together to form a local monopoly. The same could happen in this State.
The proposals in this legislation do not address the problems they seek to address and will instead create further problems. The measures are being presented to the House as though they are necessary because of the bailout deal with the troika. That is not the case. Pitt the Younger once said:
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
I do not mean to suggest that the Minister is set upon a reign of tyranny. However, this is not a personal matter and he will be succeeded in office by others. The law must be framed for more than one scenario. The legal profession should not be beholden to any Minister or enslaved to the meeting of targets, as larger legal firms are. It is primarily smaller legal firms and independent barristers who take the pro bono cases on which our justice system relies.
I listened with great interest to Deputy Michael McNamara's contribution. He gave a strong description of the role privilege plays within the legal profession and the difficulty for new entrants, particularly those not from a legal tradition, in breaking into the profession. The Deputy will have more understanding and appreciation of this than I given his work in the area. If even half of what he described of the culture of the legal sector is accurate, it offers a strong condemnation of the way in which this industry and section of society has developed and of the role of those involved in regulating it and making sure it operated in a transparent and fair manner. If, as stated by Deputy McNamara, privilege plays a role in determining the jobs and prospects of people in and trying to access the profession then the current system must be changed. Much of what is contained in this Bill aims to deliver this type of change.
Debate on the Bill has been over-heated and some of the commentary on it has been strong and expressed in a particularly definitive language. That the Competition Authority felt obliged to comment on the Bill as being reasonable legislation of the type normally introduced in a democratic society indicates its view of the debate which took place.
I will comment on some of the issues touched on by other Deputies. The Minister has already stated that he will bring forward amendments to the Bill during its passage through the Houses. When on the Opposition benches, the Minister, Deputy Shatter, had extraordinary success in terms of having his ideas taken on board by the Government of the day and implemented through legislation. I am sure he, as Minister, will show the same spirit having listened to what others have had to say on this Bill.
Concern has been expressed about the independence of the regulatory authority. I was disturbed to read in a newspaper report this week the allegation that the Government was required to contact the IMF to provide a statement in regard to protecting the future independence of legal bodies. I am certain that this Government would not bring forward a Bill which would seek to subvert that independence. There is ample opportunity in the process to allow for clarification of provisions in this regard or to make that point explicitly clear.
There is a clear difference between appointment of a person to a body and such person then being beholden to a Government. If the Government of the day is not entitled to appoint people to perform functions for it, then who is? What is the role of Government but to appoint people to perform functions which it believes are in the public interest and are set out in legislation. That said, the Minister has signalled his intent to discuss this matter further as the Bill progresses through the Houses. I am sure that where necessary, procedures and protocols in respect of how people are paid, appointed and can be dismissed, as required in the national interest, will be put in place.
I will comment on a point made by Deputy McNamara in regard to implementation of multi-disciplinary teams. As someone who spent 11 years working in such teams in other parts of our economy, I fail to understand why, if they work well in so many other different parts of our economy and society, they should be precluded from implementation in other areas. The pooling of expertise and knowledge across industries and services works. I cannot see why a similar model would not work in the legal profession. However, we must ensure this does not act as a barrier to entry. I acknowledge there is some weight in that concern. One of the benefits of a market that is allegedly perfect in economic theory, which I am sure this one is not, is that it in theory allows freedom of entry. Freedom of entry, even in theory, is of great benefit and should be protected and enhanced. What I would not like to see happen is movement towards a system which would further weaken the real freedom of entry which we hope people enjoy. I know, having worked in such teams for many years prior to my election to the Houses of the Oireachtas that they work well in many other parts of the economy. They deliver entry and allow people of merit and value to gain work. I am sure the same can happen in the legal profession. We also need diversity of practice in our legal services in the future. Alongside these multi-disciplinary teams we need to ensure there are, for want of a better phrase, sole traders who can provide a service to the State and citizens. We need to ensure this type of diversity of practice is protected.
On the cost of regulation here, there is no doubt but that the model of self regulation has not worked in crucial areas of our society. We now need to move away from this model in every respect. We also need to ensure that when that regulation is substantial, as will be the case in this regard, it does not generate an incentive for any cost to become an unreasonable cost which is then fed to the people in the industry who more often than not will pass it on to the those people availing of their services. Many people have welcomed the greater clarity, procedure and protocols being put in place in relation to cost, certainty of cost and the components thereof and ensuring all of this is done in a transparent manner. I am sure that the Minister would also want to ensure that as costs decrease and become more transparent there will not be an incentive for costs to increase further owing to implementation of regulation.
I heartily welcome this Bill. The Minister will address all issues of concern. The Minister and his officials must be complimented on the breadth of complex legislation which has emanated from the Department of Justice and Equality. Setting the complexity and ambition of this Bill against what is also proposed in the area of personal insolvency, it is clear the Government's commitment to examine if practices are restrictive and need to be changed is being delivered on. I look forward to further debate on this legislation.
I thank Deputies on all sides of the House for their contributions to the Second Stage debate on this important Bill. The debate has provided us with an opportunity to consider the shape and content of the Bill in some detail, while taking account of the views of various stakeholders, including those of consumers and the legal profession as represented by the Law Society of Ireland and the Bar.
I regret some of the hysterical reaction to the Bill. I find it extraordinary that people should suggest it has any intent other than to provide for independent regulation of the legal profession and that it should be suggested that there is some secret Government plot to take over the legal profession. I practised as a lawyer for 35 years. I spent many of my early years in free legal advice centres. I was a director of the Crumlin centre and as chairman of the free legal advice centres campaigned for legal aid for civil cases when none existed. I come from a law practice that over the years has taken on a substantial amount of work pro bono, some of it from the free legal advice centres. Some of it resulted in constitutional actions or cases successfully taken against the State in the European Court. Consequently, I come from a background in which I greatly cherish and recognise the importance of having an independent legal profession and the role it plays within society. I also recognise the decency and honesty of the vast majority of members of the profession both within the solicitor’s profession and at the Bar, while also recognising there are small numbers of individuals who have besmirched its name.
While this is from where I come, I also come from a position in which I believe the profession for many years has been in need of substantial reform, has been resistant to reform and used every means at its disposal to dissuade Governments from implementing any fundamental reform. The Administration is determined to introduce essential reform as part of the programme for Government. The legislation before Members today would have been introduced by the Government without the EU-IMF agreement. While the Government might have had an additional few weeks in which to prepare it, it would have been brought forward because, as Minister for Justice and Equality, I am determined that the legal profession be modernised, that we will move from self-regulation to independent regulation, that we will have greater transparency in legal costs and that the consumer will be central to how we proceed, not simply the vested interests of the individual professions. I make this point as a lawyer.
I do not know, when my term as Minister for Justice and Equality concludes, whether I will find myself back engaging in legal practice. While this is a matter I have not addressed, were I to do so, either as a rural or an urban solicitor, I would fear nothing contained in the Bill in the context of my independence in acting as a lawyer or with regard to the possibility of a legal practice being financially viable. It is important is to make this point because many strange things have been said both about Government motives and the impact the Bill may have. Somewhere along the route, some of those within the legal professions who have stridently opposed the Bill appear to have lost sight of the fact that self-interest does not always coincide with the public interest. This is a crucial point to make.
I have listened attentively to the contributions of Deputies and one certainly could not be in any doubt about the extent to which both legal professions have extensively lobbied Members of the House which is, of course, their right. Nonetheless, I find it disappointing that a large number of Second Stage interventions neglected to seek or reflect alternative views such as those relating to the protection of consumers and other constituents who have no vested interest and are not an organised group. Many of the speeches delivered were readily identifiable from the briefings widely distributed by the two professions to Members of the House. While individual Deputies, of course, were entitled to rely on such briefings, where was the consumer in their considerations? I refer to the consumer of legal services, the consumer who wishes to see greater competition, the consumer who seeks greater transparency in legal costs and the consumer who might benefit from a one-stop shop in which he or she could receive advice on a complex matter at a single location from perhaps his or her solicitor and accountant. The consumer has been substantially absent from many of the contributions heard in the House on the Bill. I state clearly this does not apply to all Deputies but an extraordinary number of Deputies entered the House, not having heard speeches delivered by other Members, and unknowingly repeated them from a brief that was readily identifiable to anyone who sat through the debate. The consumer is central to how the Government will proceed.
I was interested in comments made concerning another group which is central to the debate. Where do young lawyers stand in all of this? I refer to those newly qualified solicitors and barristers who do not have a background in the legal profession. They do not have daddies, mummies, uncles, aunts or cousins who are well known solicitors and barristers. Many such individuals have qualified in recent years and the options open to them to practice are so limited that after a few years of starving, they are leaving the profession. What consideration has been given by most Members of the House to the alternative mechanisms for delivering services the legislation will permit or the opportunities they provide for newly qualified young lawyers who, either themselves or their families, have spent large sums of money or may be in debt to qualify as legal practitioners but who currently have no outlet for their professional expertise?
It is also remarkable how little attention was paid to the views of the Competition Authority. While it was mentioned during the course of the debate today, it hardly featured outside otherwise. The Competition Authority has declared its general support for the substantial provisions of the Bill. It went to the trouble of making clear the reason it believed the Bill was in the interests of consumers. I note its views, not merely the view it has expressed on the Bill but through its reports dating back many years that have sought reform of the legal profession, have hardly featured in this debate. It is not its role to lobby Deputies and provide them with scripts; others clearly have done this. However, the authority made recommendations in the interests of consumers in the protection of the public interest. The Bill is focused on implementing those recommendations with merit, some of which had been studiously ignored by the legal profession, more particularly by the Bar than by the solicitors' profession which I acknowledge addressed a number of the issues raised by the authority.
The perspectives brought forward by Deputies have served to vindicate the fact that the Bill provides a balance between public and professional interests and strike that balance in an appropriate manner. The interests are iterated in the statutory objectives of the new legal services regulatory authority to be found in Part 2, section 9 of the Bill. For the first time in national legislation, these objectives commit to supporting the proper and effective administration of justice, encouraging an independent, strong and effective legal profession and promoting and maintaining adherence to what are described as the professional principles. Those who entered the Chamber to suggest the Bill threatened the independence of the legal profession appear to have missed the fact that this is the first legislation of which I am aware that gives statutory recognition to the importance of having an independent legal profession. This is the first time this value and importance attached to the legal system in our democracy are fully and properly recognised in a major statute.
Similarly, the Bill commits to promoting and protecting the public interest and the interests of consumers in the provision of legal services, while also promoting competition in the provision of these services. Members' discussion of the Bill has underscored the need to keep these objectives in balance. In that light, I will take account of the exchanges in the House in fine-tuning the Bill. I have never seen a Bill of this magnitude published by a Government and introduced to the House that did not require some fine-tuning and amendment. That is part of the democratic process and what makes meaningful debate in the House. I intend to bring forward timely and appropriate amendments on Committee Stage to address a number of issues.
In working towards an appropriate balance of the professional and public interests in the delivery of legal services I have been greatly encouraged by the decision taken by the council of the Law Society of Ireland on 20 January, namely, that the Law Society of Ireland recognises that "it would be in the best interests of the public and the profession" if complaints were no longer to be dealt with by the society but by the new legal services regulatory authority to be established under the Bill.
When it was first published, the Law Society of Ireland clearly opposed this very important reform. I commend it, having reconsidered its initial stance, for being willing to put aside the complaints procedures it has used and developed in the past 150 years in order that public perceptions of impartiality can be enhanced to the utmost degree. That is the value of debating issues, reflecting on initial stances and re-evaluating what is in the public interest. I thank the Law Society of Ireland and recognise that it has changed its perspective on the Bill. What it has done is a recognition of the public interest.
Unfortunately, I am not aware of the Bar Council of Ireland stating its position on this far-sighted step by the Law Society of Ireland, although it is my hope it will similarly embrace the independent complaints structures set out in the Bill. I remain confident that the council will ultimately recognise the obvious merits of an independent complaints procedure which is not merely in the public interest but also in the interest of the professions.
The independent complaints procedure will uphold the highest standards of professional conduct and it should apply equally to and be accepted by barristers as well as solicitors. Such an independent structure will enjoy a commensurate and the optimal level of confidence among the general public. The current Bar Council of Ireland complaints structure, although administratively compartmentalised, cannot achieve these attributes to the desired degree, as they are operative within the council's own domain. In their zeal to undermine the independence of the new legal services regulatory authority some have conveniently overlooked the reality that a representative body engaged in self-regulation tends not to be perceived as independent in carrying out its functions, as it essentially flies in the face of the well known legal principle, nemo iudex in sua causa , no one should be a judge in his or her own cause.
It is curious that a body which has sought to undermine the provisions of the Bill, by an allegation that the legal services regulatory authority will not be sufficiently independent, remains blind to the fact that the general public does not regard as independent the disciplinary structures run by that same body. That is why the debate which has taken place has been somewhat curious. When it came to regulation, the position of both the Law Society of Ireland and the Bar Council of Ireland was essentially one in which they wished to retain self-regulation and instead they attacked the Bill on the basis that the legal services regulatory authority would not be independent. They both seemed to lose sight of the fact that no one outside their hallowed corridors perceived their regulatory procedures to be independent.
I hope the wisdom of the Law Society of Ireland travels in the direction of the Bar Council of Ireland and that the council will recognise it is in public interest to have an independent complaints and disciplinary system in which there can be public confidence. There can be no perception that it is simply barristers adjudicating on barristers and solicitors adjudicating on solicitors when allegations of misconduct are made. I would have thought the principle nemo iudex in sua causa was widely recognised, understood and utilised by both legal professions when representing their clients in court cases. How they could be blind to the relevance of this principle with regard to their own complaints and disciplinary structure is difficult to fathom.
I will be bringing forward amendments to the complaints process, as outlined in Part 5 of the Bill, with a view to providing greater clarity in respect of the appointment of members to the complaints committee and the legal petitioners disciplinary tribunal, as well as the manner in which complaints will be dealt with by the authority, the complaints committee and the disciplinary tribunal. I see merit in having a greater role for the authority in settling complaints, as far as possible, by agreement between the parties or by mediation, particularly when the complaints do not relate to very serious matters but are clearly of concern to the complainant. It is important that this facility be available before the more formal processes of the complaints committee and the disciplinary tribunal come into play. This is in the public interest and the interests of those who believe their affairs have perhaps not been dealt with appropriately by a lawyer from whom they have sought assistance.
Having welcomed the deepening consensus on the Bill's independent complaints procedure in cases involving professional misconduct, it is worth recalling that the modernised legal costs regime provided for under Part 9 of the Bill has been welcomed by both the Law Society of Ireland and the Bar Council of Ireland. It has also met with the approval of Deputies across the House during the debate. The Bill has been welcomed by the Competition Authority, the National Competitiveness Council, consumer groups and a number of legal academics. When contributing to the debate in the House, I do not think a single Deputy made reference to the support expressed by the National Competitiveness Council, or by some legal academics, at least one of whom spoke at a conference organised to address issues relating to the Bill. Therefore, we already have a solid basis for a working consensus on the Bill and two of its key provisions, namely, the modernised legal costs regime and the independent public complaints procedures. I call on the Bar Council of Ireland to join in that consensus.
Having recognised the virtuous balance between professional and public interests already realisable under the Bill in terms of its respective legal costs and complaints provisions, I would like to turn to the concerns expressed by Deputies and the professional bodies about the Bill's potential impact on the independence of the legal professions. A number of these concerns have been directed at the impartiality of the new legal services regulatory authority and the modalities for its appointment, while others have been critical of the regulatory interface with the Government. It has been contended by some that the Bill could augur an era of improper interference with the independence of the two legal professions. As I mentioned at the outset of the debate, the objectives of the legal services regulatory authority are predicated, inter alia, on having “an independent, strong and effective legal profession” and adherence to “the professional principles” by legal practitioners who must act with independence and integrity, in the best interests of their clients and maintain proper standards of work. Moreover, they must comply with the duties rightfully owed to the court and, subject to professional obligations, keep the affairs of their clients confidential. These are all absolutes under the legislation. There can be no Government interference in that regard.
The legal services regulatory authority to be established under the Bill shall be "independent in the performance of its functions", having the necessary powers and functions to achieve this. Its independence will be protected under the Bill. This independence will be underpinned by the independent complaints regime and the independent legal practitioners' disciplinary tribunal. All of these entities will be beyond Government interference. Clearly, the guiding principles of independence permeate the Bill's key provisions, particularly those relating to the legal professions and the new regulatory architecture. The inclusion of these independence principles and their related objectives at various points in the Bill would not have made sense if there were a hidden or ulterior motive to usurp or undermine the independence and integrity of the legal professions.
Under this Bill, every lawyer will remain an officer of the court who is free to exercise independent judgment in the performance of his or her professional service, to provide legal services and to represent anyone in court proceedings in the absence of any executive control or pressure. All lawyers will remain completely free to champion fundamental rights under the Constitution and to sue the State before the courts without fear of executive disfavour, disadvantage or disapproval. They will also be free to sue the State in courts outside this jurisdiction such as, for example, the European Court of Human Rights and the European Court of Justice.
One of the criteria for promotion to the status of senior counsel under the Bill is a record of professional independence. What is interesting about the provision contained in the Bill in this regard is that not only will it implement a recommendation of the Competition Authority to facilitate the appointment of solicitors as senior counsel in the same way as solicitors in Northern Ireland and the remainder of the United Kingdom can be appointed Queen's counsel, it also - for the first time in statute - sets out a regulatory procedure for the appointment of senior counsel as opposed to having this based on something inherited from colonial times. The latter system emerged centuries ago under the guise of the lawyer central to providing advice to the King or Queen of England in particular matters. Essentially, there is nothing in the Bill which acts as a barrier of any description to a lawyer - be he or she a solicitor or barrister - representing an individual or a group of clients in respect of any matter relating to any legal issue.
I was interested to hear it suggested - this is reflected in the submission from the Bar Council - that the Bill creates some huge barrier to members of the Bar, in particular, undertaking pro bono work. The theory here is that barrister partnerships or multidisciplinary practices will not take on such work. The strange thing is that there are solicitors’ practices throughout the entire country and the fact that solicitors can operate as partners has never acted as a barrier to their taking on pro bono work. It is difficult, therefore, to fathom the logic how barristers acting in partnership would be prohibited from taking on this work. If one is running a business and one wants to offer one’s services free of charge to a person one believes to be in need and whom one feels one has an obligation to help, it is a simple matter of one making a decision to do so.
The independence of the Bar, the cab rank rule, etc., are all terribly important. If solicitors in a legal practice operating as partners can undertake pro bono work, I do not understand why allowing barristers to operate in the same way would create some unique barrier in the context of their also undertaking such work. Neither do I believe that the establishment of multidisciplinary practices will prevent people from taking on the type of work to which I refer. If those who are members of multidisciplinary work wish to take on pro bono work then, hey presto, they can do so. This is a voluntary thing and there is no mystery or magic attached to the fact of whether people are single practitioners.
The theory relating to the cab rank rule and members of the Bar being available to everyone, regardless of income, in respect of every type of legal case is interesting. However, it does not reflect the reality in some instances. The reality is that one cannot force people to take on cases if they do not wish to do so. There is also the fact that individuals receive things such as retainers. I have an abiding memory of what happened some years ago in respect of the tobacco industry when a number of litigants were considering suing that industry as a consequence of its concealing the dangers of developing cancer as a result of tobacco smoking. Substantial litigation in respect of this matter was entered into in the United States where, incidentally, lawyers are not separated into solicitors and barristers, and much of it was done on a pro bono basis in the hope that it would be successful. The fact that the lawyers involved were advocates and that they met their clients directly did not seem to inhibit them in the context of taking on pro bono work. That is just be way of an aside.
A great deal of the litigation pursued in the United States went extremely well. However, we have a different legal system here. Individuals were considering suing the tobacco companies here and the latter were in something of a panic about it all. I well remember being informed that a number of prominent senior counsel in the Bar Library had been paid very large fees by way of retainer in the event that their services should be required by the tobacco industry and also in order to take them off the park in the event that some individual suffering from cancer who alleged that his or her condition was the result of tobacco smoking wanted to instruct one of them. The cab rank rule does not quite dictate that every barrister in the Bar Library will be available to every litigant, regardless of his or her income. Let us not be under any illusions about that.
In my initial contribution to this debate on 16 December last, I reaffirmed that there is no hidden agenda in respect of ministerial functions or appointments under the Bill. I also invited constructive suggestions which might enhance the Bill's regulatory framework in this regard, within the Government's stated policy objective of independent regulation. I am more than happy to reiterate my invitation to all concerned to table constructive amendments, including in respect of the Bill's generic provision - based on legislative precedent - for a range of ministerial consents. In December I indicated that I would be removing the need for ministerial approval for any codes of practice which the legal services regulatory authority proposes to apply to the legal profession. I am actively considering other instances in the Bill where similar amendments might be made and where, having reflected on the contents of the Bill, I see no benefit or public interest in certain actions of the regulatory authority requiring ministerial consent.
I have also confirmed publicly that I am considering possible amendments in the context of creating an appropriately independent procedure for the appointment of members of the legal services regulatory authority. There are various models of reference by which this might be achieved. One of these is the possibility of advertising through the Public Appointments Service and another relates to the option of drawing from a pool of nominating bodies in respect of appointments to the new authority. I also intend to bring forward an amendment on Committee State in respect of section 8 in order to make provision to stagger the appointment of members of the authority. This would be similar to the provision contained in section 10(7) of the Property Services Regulation Act 2011. Such a measure would ensure continuity in the expertise and effectiveness of the authority, while safeguarding against the unilateral removal or roll-over of its entire membership in one sweep.
I am also considering other aspects of the regulatory authority and its governance. Although these aspects were made subject to standard legislative provisions on establishment, powers and functions in preparing the Bill, I am satisfied that they can be enhanced in order to allay any fears or perception regarding the possible imposition of any undue administrative, financial or other dependencies on the new regulatory authority. Similarly, staff appointments would be better made by the regulatory authority itself under a public competition carried out by the Public Appointments Service rather than under the process of ministerial appointment which applies to civil servants generally. The latter process would be inappropriate in this instance. There is a useful precedent in this regard in the context of appointments to the Human Rights Commission and this will be reflected in the legislation we will be publishing in respect of the amalgamation of that commission and the Equality Authority into a single human rights and equality commission. While I do not wish to downplay their current concerns about the future, it will be open to staff of the existing legal representative bodies - who would obviously possess the relevant skills and experience - to offer to apply for positions advertised by the new and independent legal services regulatory authority.
I am also persuaded by the view that the power to supervise and inspect compliance with the regulations relating to solicitors' accounts should remain vested in the Law Society. Under the Bill, the society will continue to have ultimate administrative and financial responsibility for the solicitors' compensation fund. This refinement of the Law Society's proposed functions with regard to the fund can better incentivise compliance by solicitors in public and professional interests while avoiding the imposition of any burden on public resources. If such work undertaken on behalf of the Law Society disclosed any misconduct this would be dealt with by the independent disciplinary system prescribed in the Bill. If at a future stage the legal services regulatory authority were to recommend direct access to barristers for contentious business the issue of inspecting barristers' accounts would need to be considered and addressed.
A number of arguments have been put forward on the potential costs of the new regulatory authority and their possible imposition on consumers as an additional burden, and quite a number of Deputies referred to this. Much of this argument has been fallacious in that it has studiously ignored the fact that legal practitioners already pay substantial fees in support of duplicative frameworks encompassing disciplinary committees and their attendant adjudication appeal and tribunal structures. These costs are already being levied on legal practitioners as well as being passed on to consumers. The Bill will transpose some existing supervisory and disciplinary structures, in the case of barristers for the first time in legislation.
The relevant regulatory costs should logically transfer from the existing structures to the new regulatory architecture. It seems many of the Deputies who contributed to the debate on this aspect of the matter were oblivious to the fact that it is estimated that €11.5 million is spent at present by the Law Society on its regulatory functions and this money is effectively levied from solicitors who no doubt have regard to it in determining levels of legal costs charged to their clients.
With regard to legal costs generally it should be remembered the mere existence of downward pressure on legal costs due to the current economic recession does not in itself represent sustainable structural reform of what the EU, IMF and some Deputies have described as the sheltered professions. The Bill recognises the need for a longer-term solution and puts the relevant change, transparency and redress measures in place so legal services can be provided in keeping with a modern, competitive, recovering and open economy.
The negative campaigning against the Bill conducted at international level has merely provided a platform for external lawyers or other parties to undermine Irish legal practice and its international reputation in a way discouraging to potential foreign investors. It is quite clear that some of those from outside the State who commented on the Bill have not carefully considered the full detail of the Bill prior to making the comments they made, nor have they managed to distinguish between the representative and regulatory functions exercised individually by the Law Society and the Bar Council.
I remain conscious of the need to achieve greater competitiveness in tendering and procurement of legal services whether by the State or private enterprise. This is an issue to which some Deputies correctly referred. We must prevent from occurring again situations such as that experienced under NAMA where a prohibitive €25 million turnover criterion was applied in the procurement of legal and financial advisory services to the exclusion of many viable prospective providers and the exclusion of the vast majority of solicitors' firms throughout the State. Such an approach was detrimental to the State and contrary to the public interest.
The tendering for legal services by State bodies is, as Deputies are aware, under active review by the Committee of Public Accounts and by my colleague the Minister for Public Expenditure and Reform, Deputy Brendan Howlin. These are matters to which I may return on Committee Stage subject to developments. Consideration was given in the preparation of the Bill to including express provisions to address the issue of tendering by the State and State bodies for legal services, and it is an issue that will be addressed in work being undertaken by me and the Minister, Deputy Howlin. It is merely a question of the appropriate legislative mechanism by which we address it and the further work being undertaken by the Committee of Public Accounts.
At the broader sectoral level, the Bill provides greater flexibility and opportunity for the provision and consumption of legal services. Therefore it can provide for legal partnerships as referred to earlier in which there is a mix of legal practitioners in a firm. It can also provide for multidisciplinary practices in which there is a mix of professional legal practitioners - barristers and solicitors - and others such as tax consultants or accountants. Such change is not something that can be rolled out instantly. The Government recognises that prudential safeguards will need to be put in place for professionals and consumers. Under section 75 of the Bill the authority will carry out a public consultation and evaluation process and then report to the Minister on the manner in which these models for delivery of legal services should be formed and operated. It is only when this process has been completed that the relevant provisions by way of regulation or codes of practice or otherwise can be framed.
I listened with great interest to what some Deputies stated about the threats posed by multidisciplinary practices. Such practices are now being established in other jurisdictions, where a great deal of work has been done on how one deals with regulatory matters and ethical issues with regard to such practices. No one in the legal profession should be threatened by the possibility of barrister partnerships, legal solicitor partnerships or multidisciplinary practices. As many at the Bar are well aware, in the legal profession are what I describe as virtual partnerships between some members of the Bar and solicitors whereby some members of the Bar regularly get work from one or two identifiable practices on whom they are dependent for their income, and solicitors regularly interact with a very small number of members of the Bar. This does not happen on all occasions.
A speaker today referred to the fact that not all members of the Bar are in the Law Library. Barristers operate in group practices in parts of rural Ireland. They cannot advertise that they do so, but to all intents and purposes they are partners save in name. They can share expenses but not income.
With regard to some young barristers who starve at the Bar, would their position not be far better secured, their economic future protected and the value of their education used in the public interest if they could be employed directly in a solicitors' firm or a barrister group practice which would give them a guaranteed income in a proper business model while ensuring through codes of practice and statute that everyone still had to comply with what we have described as the crucial principles applicable to the legal profession? I have received substantial support from newly qualified members of the Bar, some of whom are desperate to try to keep themselves together financially, from newly qualified solicitors and a number of individuals who see new opportunities to use their expertise in the provision of legal services which are not available to them at present.
A key point to be made about the legislation is that it does not prevent any solicitor operating a one-man or one-woman practice; it does not prevent members of the Bar continuing to operate as single practitioners out of the Law Library; and it does not prevent solicitors continuing to operate in partnerships. The Bill does not prescribe whether we have a very large or very small law firms. At present we have what are known as the big five solicitors' firms. We also have middle-range firms, small partnerships and individual solicitors throughout the country. They are consulted by clients and provide legal services. The Bill simply creates additional models through which legal services can be delivered to the benefit of the public. Ultimately they will benefit members of the legal profession, particularly those trying to find their way and earn a living, who do not have relations, parents or cousins who are members of the Bar or members of the profession. I am not at all convinced by the stark proposition that the new business structures to be enabled under the Bill will wipe out existing legal practices as a result of cherry-picking by well-placed legal practitioners or specialists, thereby leading to a diminution of access to justice. There are legal practitioners who would readily refute the contention that the current architecture of the legal profession is a flat paradigm, void of any circles of access or influence and with no dominating players in the field.
I emphasise that although the Bill introduces change and permits new business models, it does not impede the existing practice models applicable to barristers or solicitors. Barristers who wish to do so can continue to be self-employed and work from the Bar Library. What is being proposed is an alternative structure in which legal services can be provided using the innovative business technologies now in play, with greater competitiveness and the support of early national economic recovery. A substantial number of individual and partnered legal practices are already using these technologies, pushing out the traditional boundaries of the legal domain. Across the common law jurisdiction, new legal business technologies are being rolled out under new laws providing new legal commercial opportunities and career options. We in this country must respond to what is happening in the global environment. We cannot continue to operate legal services as they were operated in the 19th century, with no change. We cannot continue to be blind - as some would wish me to be - to developments that have taken place across the water in England against which law firms on this island are competing with regard to certain types of commercial work.
Our Second Stage debate has been useful in making up in part for the compressed timeframe in which this Bill has had to be promulgated by way of response to an acute economic crisis that is being addressed under the EU-IMF-ECB programme. I reiterate the Bill would have been published, addressing all the reforming measures without its being party to the programme, but it was the timeframe detailed within the programme that required it to be published at such speed, within a short time of this Government taking up office. The debate has also provided an opportunity to fine-tune our perspectives on the more generic legislative provisions which have been drawn from in preparing the Bill. As outlined, and in light of my Department's ongoing work on the Bill, there will be a number of constructive amendments that can be put in train for Committee Stage.
I also acknowledge and thank those bodies and individuals who furnished very detailed submissions to my Department with regard to possible amendments, changes and developments of the Bill to fine-tune its provisions, ensure we address all the important issues we wish to address, and ensure that when we establish the legal services authority, it will be competent and able to fulfil its duties, undertake its work and meet the onerous obligations imposed on it under the terms of the legislation.
As I signalled, there is an ongoing opportunity for Deputies to put forward constructive proposals, which I welcome. Although a preliminary regulatory impact assessment had been in preparation for the Bill, because of the prescribed timeframe from the EU-IMF, it did not prove possible to complete it for publication when the Bill was published for this debate. The development of that regulatory impact assessment is further advanced and will continue against the backdrop of the amendments I propose for the Bill. It will be made available for timely consideration in advance of Committee Stage. Deputies will be aware that the relevant guidelines specifically allow for regulatory impact assessment to follow a Bill in such exceptional circumstances as applied in this instance.
Substantial positive progress has already been made towards achieving an appropriate balance between the independence of the legal professions and the Government's stated policy objective of independent regulation. At this juncture we have reached a point where we can realise the key reforms to be delivered under the Legal Services Regulation Bill. Even though there is opposition from the professions to aspects of the Bill, it is interesting to note it now seems both the Law Society and the Bar accept independent regulation, as opposed to self-regulation. The only matter at issue appears to be the modalities for the appointment of individuals to the new legal services regulatory authority. The Bill provides for an independent legal services authority, an independent complaints framework and an independent legal practitioners disciplinary tribunal. These are being buttressed by the functions and powers of a modernised office of the legal costs adjudicator, with the support of transparent legal cost principles and procedures.
I welcome and appreciate the engagement on Second Stage of the Bill and I look forward to Committee Stage. I will make my proposed amendments to the Bill available to Deputies sufficiently in advance of Committee Stage to facilitate their due consideration. It is clear from our exchanges and from what I stated this morning that the Government is well on the road to facilitating a workable convergence of the relevant, professional, consumer and other interests in regard to the new legal services architecture. A number of key actors have chosen to reciprocate this approach, which remains open to all comers. There are no remaining obstacles to the perfection of this Bill and its timely reforms other than that of opposition to the very idea of independent regulation.
I welcome that the majority of speakers in this House, even when they had issues with aspects of the Bill, appeared to support the concept of independent regulation. This did not apply to all. Some of the contributions showed ambiguity as to whether the speakers supported independent regulation and simply wanted to copperfasten that independence or whether they were harking back to self-regulation and their arguments were more of a Trojan horse to undermine the Bill. The substantial majority support in this House was for the intent of the Bill.
I thank Deputies for the detailed consideration they gave to the Bill. I look forward to a constructive Committee Stage and hope we will see this legislation enacted during the course of this year, with the very important reforms that have been so badly needed for so many years in place, in the public interest, in the interest of consumers, and in the interests of the legal profession.