Amendment No. 1 is in the name of the Minister. Amendments Nos. 1, 23 to 26, inclusive, and 36 to 38, inclusive, are related. Amendment No. 37 is a logical alternative to amendment No. 36, therefore, amendments Nos. 1, 23 to 26, inclusive, and 36 to 38, inclusive, will be discussed together.
Legal Services Regulation Bill 2011: Report Stage
I move amendment No. 1:
In page 10, to delete lines 9 and 10 and substitute the following:
“ “code of practice” means a code of practice issued under section 20*, and includes part of such a code;”.
The Government amendments being tabled relate to Parts 1 and 2 of the Bill. These will deal with key definitions and terminology, as well as the Legal Services Regulatory Authority’s oversight and review of codes of practice applicable to solicitors and barristers in the State.
It is my intention to bring forward further amendments to the Bill for the resumption of the Dáil Report Stage after the summer recess, and I would also anticipate that this will happen for the ensuing Seanad Stages. This will be done to provide Members with more ample opportunity to consider the amendments concerned.
It is the Government’s overall intention that the Bill should complete all Stages for enactment by the end of November so the new regulatory authority can become operational early in 2015.
Deputies will also wish to be aware that, along with officials of my Department, I will be availing of the period following today’s deliberations to progress further the ongoing consultation process with the Bill’s stakeholders, including the legal professional bodies, and to consider those submissions that continue to be received. This has been a very consultative process to date with various amendments being accepted on Committee Stage, as Deputies will be aware, and that will continue.
That process will also provide an opportunity to deal with the remaining key issues of concern some of which continue to be aired by Members of both Houses and by the interested parties concerned. I will, therefore, be coming back to the Houses on any key remaining issues such as the proposed new legal services models, including legal partnerships and multidisciplinary partnerships, as well the possible introduction of limited liability partnerships. This is a process I have undertaken since my taking up of the justice and equality ministerial portfolio as I am anxious to hear the various views on this important and reforming Bill. This is a working approach that can meet with the approval of all sides of the House. Detailed work on the Bill continues on that basis, including with the Offices of the Attorney General and of Parliamentary Counsel.
I want to turn specifically to our first amendment. This concerns the definition of a code of practice. This is part of a suite of amendments relating to codes of practice on which I will elaborate further when we reach the relevant provisions. This particular new definition, like others, for consideration sets the basis upon which the Bill will be applied. Deputies can be assured therefore that because these and other definitions have fundamental and cross-cutting implications for the entire Bill, they will be kept under review right up to the Bill's completion. As Deputies will appreciate, further amendments may arise as we work through the Bill and depending on the various amendments tabled it may well be necessary to return to some of these definitions.
I will be happy to consider any ongoing views the Deputies may have in this regard so that we can ensure that the relevant definitions mean what we want them to say and that the Bill does precisely what we want it to achieve.
The amendment provides for a change in terminology from code of conduct to code of practice. This is an outcome of further consideration of the Bill with the Parliamentary Counsel. There are various forms of code currently applied in regard to the legal professions, so we have to comprehend them in the Bill. For example, under the new and independent professional conduct regime of the Bill, reliance will be placed on such codes where they prove to be of relevance. In this first amendment the relevant definition is in the form of a simple and linked reference to section 20, that being one of the sections which we will later consider under a separate amendment.
It is intended that in adopting this particular amendment and the one to follow on the definition and application of codes, the Bill will distinguish between two types of codes governing the practices and behaviour of legal practitioners, namely, the "codes of practice" of this amendment which will be new codes published by the legal services regulatory authority under section 20 and the parallel "professional codes" which we will also define by amendment as those codes that are drawn up, for example, by the Law Society and the Bar Council, but which may be amended by the authority under section 21. This revised approach meets a number of concerns expressed previously by Deputies and some stakeholders about the clarity and application of this part of the Bill.
Splitting the provisions in this way between two distinct types of code is a mechanism that can help ensure there is no confusion between the codes that may be produced by the authority in the future and the codes that have already be drawn up or may be drawn up in the future by the legal professional bodies – the latter, it should be noted, are not being erased by the Bill.
Although for technical reasons it is part of the next grouping and we can speak about it again, Members will see we have also provided for a revised and expanded definition of a "professional code". This was found to be necessary when it was pointed out to us by the Law Society that there is a wide range of documents that currently govern and guide the behaviour of lawyers. As the legal professional bodies use a variety of titles and descriptions for these professional codes, the term has to be defined adequately in order to comprehend them as necessary for the purposes of the Bill and its regulatory functions. As the various forms of code govern how lawyers both conduct their business and are held to account, it is essential that they be in the frame of this provision.
It is proposed, under Government amendments Nos. 36 and 38, to delete the current section 20 of the Bill entitled "Codes of Practice" in its entirety and to replace it with two newly drafted sections on the same topic. Having read some of the Opposition amendments being proposed today, the main elements of this new and amended approach will be welcomed.
These main elements are as follows. As I have already highlighted, by way of clarifying the new codes regime under the Bill, the amendments to this section distinguish between "codes of practice" of the new legal services regulatory authority and the "professional codes" emanating from the legal professional bodies themselves.
Reflecting the Government's previous public undertaking in response to initial concerns expressed at the time of publication of the Bill about the independence of the new regulatory authority, there will no longer be any ministerial role under the amended provisions in the processing or approval of codes. This meets the previously iterated concerns of the professional bodies, Members and other stakeholders. It arose because in initially drafting the Bill under the very tight deadline of the troika programme a routine statutory formula for the ministerial approval of standards was used. However, I am glad to say that this amendment puts the independence of the oversight and application of codes, from any ministerial interference, beyond doubt.
It is important to note that the existing codes of the legal professions are not being wiped out by the new Bill but are being left in place subject to their being compliant with the objectives of the Bill when enacted.
Rather than create a cumbersome and costly approvals structure for each and every code already in place in the professional bodies, the amendments provide that the bodies will furnish the new authority with copies of all of their existing codes within one month of the authority's establishment – in any event, under section 12 of the Bill the authority has a general function of keeping these codes under review.
While leaving the existing codes of the professional bodies in place subject to the provisions of the Bill, the proposed new sections will provide that the legal services regulatory authority will have the power to issue new "codes of practice" for the purpose of setting or improving standards for the provision of legal services in the State and that the authority will have the power to amend or revoke such codes. New or amended codes will be published in Iris Oifigiúil.
Section 21, should it be accepted today, will allow the authority to issue a notice to a legal professional body to amend one of its own "professional codes", should it be of the opinion that it would operate to hinder a legal practitioner from complying with an obligation under the Act, that it would frustrate a key objective of the authority set out in section 12, or that the issuing of such a notice is otherwise necessary for the maintenance or improvement of standards in the provision of a legal service.
In its oversight of the codes applicable to legal practitioners, the Legal Services Regulatory Authority will be able to make distinctions between different classes of legal practitioner, such as solicitors, barristers who are members of the Law Library and other barristers who choose to base their practise outside of the Law Library.
While the underlying principle will be that the codes of practice issued by the legal services regulatory authority should take precedence, consultation with the legal professional bodies and other interested parties will be a prerequisite for the issuing of new codes and such parties will also have recourse to the High Court to seek an amendment to, or revocation of, a code in the event that the code under question is considered to be "oppressive, unreasonable or unnecessary". That provision for recourse to the High Court is there should it prove necessary.
It should also be noted that in our configuration of the regulatory regime on codes we are doing no more than that being done under the comparator legislation in England and Wales where the Legal Services Board has similar powers of intervention in relation to the compliance of codes with the objectives of the legal services legislation in that jurisdiction. That is an interesting point for us to note. The reach of the board in this regard extends right down into the authorised bodies for the regulation of solicitors and solicitors and includes resort to the High Court.
The original section 20 of the Bill has, therefore, been found wanting in a number of ways, not least of which has been the need to remove any ministerial consents, and that is now being met by the amendments being put forward today. The amendments I am tabling to section 20 today, in the form of the two new sections which will replace it, have been carefully crafted in the intervening period - I acknowledge the debate on this that took place on Committee Stage - since the publication of the Bill with the assistance of advisory and Parliamentary Counsel. The amendments take account of the various legal, policy and drafting concerns to achieve a workable balance in relation to the authority's functions as an independent legal services regulator to draft and amend codes on the one hand, and the legal professional bodies ongoing application of their own historical codes on the other. This represents a key intersection between the new authority and the legal professional bodies and I believe the right balance is now being struck in the proposed new language of these amendments.
I assure Members that the regime relating to the codes will not be arbitrary or indiscriminate in its application. The new provisions have firmly rooted this power of the authority to deal with professional codes by reference to the specified objectives of section 12 of the Bill in furtherance of the authority's obligations to regulate the provision of legal services and to ensure the maintenance and improvement of standards in the provision of such services.
As regards the remaining Opposition amendments Nos. 23 to 26, inclusive, and 37, in light of the comprehensive approach now being taken by the Bill on codes and the substantive amendments that have now been introduced to enhance this aspect of the Bill, and my belief that the issues that were raised on Committee Stage have been dealt with, I do not see the merit in or value of these amendments.
The Minister has said a lot there. In her response, I ask that she clarify why it was necessary to replace the code of practice with the code of conduct and to define the difference between a code of practice and a code of conduct and what the effect of that will mean to the legal practitioners.
My fear is the same.
Perhaps we will let the Minister respond to Deputy Collins and I will come in then.
The only problem, Deputy, is that because it is Report Stage the Minister only has two minutes on a second reply.
I want to be fair to the Minister and allow her to consult her briefing note before I come in with my point.
The amendment provides for a change in terminology from "code of conduct" to "code of practice". This is an outcome of further consideration of the Bill with the Parliamentary Counsel. There are various codes currently applied in respect of the legal professions and we have to comprehend them in the Bill. For example, under the new and independent professional conduct regime, reliance would be placed on such codes where they may prove to be of relevance. In amendment No. 1 the relevant definition is in the form of a simple and linked reference to section 20, which is one of the sections we will consider later under a separate amendment. It is intended in adopting this amendment and the one to follow that the Bill will distinguish between the two codes governing the practice and behaviour of the legal professions. The code of practice in this amendment will be the new code published by the legal services regulatory authority under section 20. The parallel professional codes will be defined by amendment as those codes drawn up by the Law Society of Ireland and the Bar Council of Ireland. The point is to distinguish those drawn up by the regulatory authority and the professional bodies.
The issue is that the Law Society and the Bar Council wish to continue to have their codes of practice along with that of the new authority. This is linked to their indemnity insurance. As bodies corporate they need to be able to stand over their codes of practice. The concern is that there is a change of language in the first amendment from code of conduct to code of practice yet the new section refers to a code of conduct. There seems to be some confusion around the definitions. Perhaps during the recess the Minister could consult with the Law Society and the Bar Council to clarify these issues.
My next question is on a linked matter. Is it the Minister's intention to accept the proposals of the Law Society and the Bar Council to the effect that they would be able to continue to have their codes of practice in parallel with the new authority? Is that the intention? There is some confusion about the matter.
It is clear from what I have said already that the codes of practice in place at present will continue. However, given that we are introducing a new independent regulatory authority and given the functions the new authority will have, it is also clear that the new authority will have a function in respect of codes of practice. I think I have spelled that out. If an area of major concern and disagreement arose between the regulatory authority and the bodies there is recourse, at the end of the day, to the High Court on both sides. Effectively, this is a recognition that we will have an independent authority. One would expect in the context of the power that is being given to and the remit of the new independent regulatory authority that it would have a role in respect of codes of practice. It has been accepted that within a month of the authority being established the codes of practice will be given to the authority and they will continue.
Of course as the work of the legal authority carries on it will make its views known if certain issues arise, for example, in respect of standards or other issues. I believe I spelled this out when I spoke earlier. Likewise, one can assume that there will be changes over time in the codes of practice of the Bar Council and the solicitors' body. Of course they are perfectly free to continue to develop their codes of practice. The section points out that there is a role for the regulatory authority. It is carefully dealt with and is in no way arbitrary. It provides for a situation where the regulatory authority might have a concern or wish to have further discussions in respect of some aspect that may emerge about which there could be a concern.
The Law Society circulated its observations on the Minister's amendments. The Minister probably got a copy of the document as well. Clarification is required on the matter. I appreciate we are debating amendment No. 1 but it is linked to the removal of section 20 and its replacement. What the Minister is proposing is far broader in terms of a code of practice and oversight.
We are not going to deal with the replacement of section 20 today; we will do so after the summer recess. Will the Minister avail of the summer recess to engage in dialogue with the Law Society and the Bar Council on these matters to clarify them? I appreciate that the Minister wants to ensure that new regulatory authority has oversight and can ensure that professionalism and standards are maintained. The Minister must ensure that but I am asking for a balance to be struck with the needs of the two bodies corporate to deal with indemnity insurance and to demonstrate, as any body must, that their standards are at a level that protects them. This balance needs to be struck. This is a reasonable point made by the two groups. I call on the Minister clarify these matters during the summer recess.
I welcome the amendments the Minister has proposed and I note what she has said in her opening comments. It is important to put on the record of the House that there has been substantial engagement with the two professional bodies as well as with others in the context of this Bill and this has led to a substantial number of amendments being made on Committee Stage. This is an important point because I note that many of the contributions of Members opposite tend to be based on their briefings by the Bar Council and the Law Society. There is nothing wrong with that. It is perfectly correct that the views of the two professional bodies be taken account of. It is perfectly correct for them to have an input into ensuring that we have, at the end of the day, effective and good legislation which achieves its objectives. However, there is a risk of our focusing too much on the vested interests and ignoring the public interest. The public interest requires substantial reforms in this area. The public interest is on occasion not in accord with the cases made by the vested interest groups. As a practising lawyer I have been well aware of this over the years. There have been suggestions made in some quarters that I have some animus, in some shape or form, to the Bar Council, for example. Of course I do not; that is nonsense. The Bar Council operates under the motto nolumus mutari, that is, no change or nothing should ever change. I can recall in this House the considerable resistance to the possible appointment of solicitors to the High Court and Supreme Court. It was predicted that civilisation as we know it would collapse. A rearguard action was fought against that reform. Yet, it has been in place for many years and the administration of justice has continued.
Following the Minister's opening comments I wish to make the point that there must be consultation. It is a difficult issue. However, in the context of the public interest, reducing legal costs, providing greater competition, providing for the public greater access to legal assistance and providing new business mechanisms to allow Irish legal practitioners to compete internally and externally, there are vital reforms in this legislation to which there is resilient opposition, in particular from the Bar Council.
I note that following recent changes there has been some suggestion that we are now in a new era of relationships with the Bar Council. I and my officials had an amount of engagement with the Bar and with great regularity we briefed the Bar Council on the reforms.
However, if these reforms are to be implemented, backbone is required to stand up to vested interests. I have a concern - I do not expect we will reach it today - about the first sign of the Bar Council contaminating the provisions of the Bill and undermining reforms or amendments, in particular amendment No. 48. One could debate whether amendment No. 47 was required also but particularly amendment No. 48 which deals with a public interest issue. We will come to it at a later stage.
Before the Leas-Cheann Comhairle rules me out of order, I wish to deal specifically with the code of practice and code of conduct issues. There are, as the Minister properly said, different provisions in place that apply both to the solicitors' profession and the Bar in respect of codes of practice and codes of conduct, or whatever one may wish to refer to them as. It is clear from my work in this area that the codes are deficient. I do not want to take up the time of the House today by going into areas the legal services regulatory authority may address when it is put in place in the context of codes of practice, but it is important to draw attention to some provisions - I am using this as an example - in the code of conduct for the Bar Council of Ireland which was adopted on 25 July 2011 and contains a number of key provisions. I want to illustrate briefly some of the numbers and then the gap. That is why the amendments the Minister is tabling are important.
It is important that, where codes of conduct or codes of practice of the professional bodies are deficient, this issue can be addressed by the legal services regulatory authority. For example, in the context of the code of conduct I have mentioned - I do not want to go on at great length about this - it effectively provides for barristers a code of conduct largely focused on their engagement in court proceedings, their representing of individuals before the courts and giving advice. In that context, there are a number of key provisions, one of which - I intend only to refer to about four - is the duty to be independent and free from influence, especially such as may arise from their personal interests, or external pressure in the discharge of professional duties. They have a duty to ensure that, in the context of their legal practice, barristers shall at all times uphold the standards set out in the code of conduct and the dignity and high standing of the profession and their standing as members. That is all of what I describe as general application.
There is also a particular provision in the code of conduct that applies particularly to court cases which states barristers may be justified in refusing to accept instructions where a conflict of interest arises or is likely to arise or where they possess relevant or confidential information or where there are other special circumstances. The only point I want to make and the reason for raising it is that the code of conduct, as one goes through it - I do not want to detain Members of the House - is, as I said, primarily about court proceedings and court actions and giving individuals, as appropriate, advice about their individual circumstances, but curiously it does not deal with something else, or, if it does, I have not been able to identify where. Whereas the code of conduct elaborately deals with court issues, it does not deal with, although I presume it is implicit in it, the conduct of barristers when they are asked to conduct inquiries into matters where court proceedings are not involved. I expect it is implicit that, where there is a conflict of interest, a barrister should not take instructions to conduct an inquiry into a particular matter. I presume this is understood. Where there is a conflict of interest, there are elaborate laws that state anyone who cannot just be subjectively unbiased, but also where there could be the appearance of bias should not adjudicate on matters. That applies, of course, to members of the Judiciary and administrative tribunals. It is my understanding that it applies to statutory and non-statutory inquiries conducted by judges and barristers.
Why am I raising this issue? Because of the number of occasions on which people are requested to engage in the conduct of inquiries, it is important that the code of conduct set out very clearly what the obligations are in that context. I am very conscious that, in the context of representations received during my time in the Department on the legal services Bill, one of the most active groups within the Bar in making representations on the Bill, through the chairman of the Bar Council - I recall one member of this committee being present at meetings I held in the Department - was the professional practice committee. It was absolutely clear that members of the professional practice committee were resolutely opposed to practically all of the reforms contained in the Bill that would impact on the Bar. They were not happy with the idea that disciplinary matters would be dealt with by an independent legal services authority. They are certainly not happy with multidisciplinary practices. They are not happy with the idea that one might have barrister partnerships. There is a specific provision in the code of conduct relating to the Bar that, for example, prohibits a barrister from operating out of an office within a firm of solicitors. The vision of the Bill of providing alternative business structures for delivering legal services is one to which members of the professional practice committee are opposed.
My concern about all of this derives from the fact that I find it extraordinary that a member of the professional practice committee should have taken it upon himself to pronounce judgment in the Guerin report, something that has affected me personally. It is something I am concerned should not happen in the future because I do not think it is compatible with an objective review or inquiry into any matter that an individual who is opposed to legislation that a Minister is processing through the House be placed in a position in which he effectively make a pronouncement. Even if there is no subjective bias - I am not suggesting there is - there is the appearance of it and a conflict of interest of a nature that should have resulted in Mr. Guerin concluding it was inappropriate for him to take that position.
It is important in the context of the codes of conduct that the codes that apply cover all issues where there could be conflicts of interest and where, in the context of members of either profession, there are provisions in place which could act as a barrier to the objectives of the Bill being complied with. This is a public interest issue and it is important, given all of the lobbying that takes place behind the scenes and some of the commentary engaged in by some of those with a vested interest, which diverges substantially from dealing with the technicality of the Bill and heads towards being of a personalised nature, that Members of the House stand back from it and look at the public interest. The public interest lies in greater competition for legal services, alternative business structures through which they can be provided and which are being developed in various other countries and ensuring, regarding those who have a vested interest in maintaining the legal profession in the architecture we inherited in 1922 and who resist any reform or change, it is always remembered. It is not. I appreciate that there is a desire to avoid controversy and that there may be a desire to ensure criticisms are not publicly voiced.
I am well aware that in the past six weeks or so the Bar Council, in particular, has gone into overdrive to turn the clock back to 2011 and to try to effectively oppose every substantial reforming measure that could change the manner in which barristers undertake their work.
I know there are senior members of the Bar who go to any length to achieve that objective. I also know that among the junior members of the Bar there are many individuals supportive of this reform, but because of the nature of the Bar and the fact that they do not want to be on the wrong side of their seniors, they will not put their head above the parapet and say so. However, they would say this is a public interest issue, and if it comes to a question of vested interests or the public interest, it is of crucial importance that we stand by the public interest.
When I came into the Chamber I had not intended to speak on these amendments, but much of what Deputy Shatter said has prompted me to speak. The Deputy addressed the specific and the general in his contribution. I might agree with much of what he said with regard to the general. I support the Bill, as I expect all my colleagues on the Government backbenches will, the objectives of it and the reality that it is time for reform of legal services provided in the State by solicitors and members of the Bar. The effect that some of the reforms proposed in the Bill will have has been greatly exaggerated. There are many at the Bar who are opposed to these proposed reforms. They have been very vocal in their opposition to them, as they are entitled to be. Equally, there are many at the Bar who are less opposed and even supportive of some of the proposals. I would not like to impute support for all of the proposals to very many, but certainly they support some of them. I support the proposals, although with reservations about multidisciplinary practices, simply because we do not know what will happen and it may be better not to make decisions until we know what will happen. I would not like to impute support or opposition to this Bill to all members of the-----
We are dealing with Report Stage, which is confined to the amendments, not to the general principle.
I am also replying to what-----
No. One does not reply on Report Stage; one must speak to amendments.
I will speak to an amendment regarding-----
It is a pity the same approach was not taken five minutes ago.
I was not here. I am only in the Chair now.
I am glad to see the Ceann Comhairle back in the Chair.
Fairly serious points were made. On the code of practice and on the specifics, there is an important rule of law, nemo iudex in causa sua, that nobody should be a judge in his or her own case. It is very difficult to be objective about one's own case. Regardless of Mr. Guerin's report, we must bear in mind that Mr. Guerin was appointed by the Government, not by himself, and the Government set out his terms of reference - he did not set them out. If there is a problem with his appointment or terms of reference, it is a problem that the Government should be called upon to address. It is slightly unfair to make those points about him in this Chamber when he accepted an appointment to do a job-----
The Deputy cannot make a Second Stage speech on this; he must stick to the amendments. We are not talking about appointments.
I am replying to fairly serious points that were made in the Chamber.
I am sorry; the Deputy is not entitled to do that on Report Stage.
Very good. Then I cannot say anything further.
Okay. I am sorry about that, but the Deputy must understand that we are dealing with amendments on Report Stage which are entirely separate.
Everybody is clear about what we are dealing with, but unfortunately latitude was-----
I am sorry, but I cannot comment on that. I can only deal with the position as it stands in accordance with the Order of the House. Does any other Member wish to speak to the amendments?
I will reply unless somebody else wishes to contribute.
It is the-----
I have been told that the Deputy has spoken twice already. I am afraid that is his number.
If the Ceann Comhairle is going by the minutes-----
If I am going by the rules, I have to stick by the rules.
-----I would not be in the ha'penny place compared to my esteemed former ministerial colleague.
The Deputy is allowed to speak only twice on Report Stage.
That is fair enough.
I call the Minister.
I thank Deputies for their contributions. I repeat that there are a number of critical elements within in the provisions I am proposing in the form of codes. I want to make the point again about balance. We are discussing the role of the new independent regulatory authority in regard to the professions. What I am proposing in order to achieve the type of balance about which Deputies are speaking is that, for example, there will be redress to the High Court for people affected. It is important that this be included as a provision.
There is a consultation process on codes. The codes that the Bar Council and solicitors have will continue, but the codes of the new statutory body take precedence, and that is essential. If we are serious about independent regulation and a regulatory authority, that precedence must be there, and it is there. There is a system of High Court redress if it needs to be used. I put it to the Opposition that I do not see this balance in its amendments, and I would question that because its amendments seem to be predicated on self-regulation and maintaining the status quo. In the amendments I put forward today there are powers for the authority and a balance that respects the integrity of the professional groups, the importance of their role in Irish society and the importance of the work they do, but also give strength and empowerment to the new independent legal authority, which is essential. The balance that has been described in the amendments does that, and that is what we want to achieve today. We are establishing a new independent regulatory authority, and that authority must have powers. Those powers must respect the integrity, the standards and the professional codes that are in place already and that will be developed, but the new authority must take precedence.
I want to make it clear also that public interest is what we are talking about here. That is critical. It is about the public interest. Deputies on all sides of the House are aware of that, as I am. It is also about the effectiveness and efficiency of regulatory oversight of the legal professions, and that is the dominant theme of this legislation. Those are the themes I fully intend to see through to the enactment of the Bill. Any consultations that will continue over the next few weeks and months before final enactment are merely to carry through to a final and fair conclusion the consultations that have already commenced. I certainly will continue those. The Bill has gained from the consultations that have already taken place, which have been substantial, as was pointed out by the former Minister. There have been many discussions and changes on Committee Stage. Opposition Deputies made many points and they will note from the amendment I brought forward today on the role of the Minister, which was a critical and key discussion, that substantial changes have been made in the amendment to ensure the independence of the new legal regulatory authority. That independence is clearly very important. The balance that is struck in the amendment in regard to the codes of practice is the right one. Deputy Mac Lochlainn has asked me to reconsider it. I repeat that I believe the balance in the amendments today is the right one. We are not in an era of self-regulation but an era in which we are establishing this new independent body, which must have the appropriate powers. As I have said, I do not believe the amendment the Deputy has put forward recognises that we are beyond that era of self-regulation.
The Government amendment recognises that balance. If there is to be a new regulatory authority, clearly it must, as set out in the title, have authority and powers that will make a difference in the public interest. This is what we are striving to achieve by way of these amendments and this discussion. I hope there is clarity following this discussion in regard to the role of the independent legal authority with regard to codes of practice and the ongoing work of the relevant legal professions on their own codes of practice. The amendments set out clearly that where a disagreement or an issue arises in regard to standards or if there is ambiguity and the legal authority feels it necessary to intervene, it has the authority to do so. There is still in place a mechanism such that where disagreement arises there is recourse to the High Court. I believe the Government amendment seeks to put in place the right variety of balances.
Amendments Nos. 2 to 6, inclusive, are related and will be discussed together by agreement.
I move amendment No. 2:
In page 10, between lines 25 and 26, to insert the following:
“ “legal advice” means any oral or written advice—
(a) on the application of the law (whether the law of the State, another state or the European Union, international law, or a combination of these) to any particular circumstances that have arisen or may arise in relation to a person, and
(b) as to any actions that might appropriately be taken by or on behalf of a person (whether the person referred to in paragraph (a) or another person) having regard to the application of the law to those circumstances,
but does not include an opinion on the application of the law provided by a person to another person in the course of—
(i) lecturing in or teaching an area of the law, as part of a course of education or training,
(ii) writing or editing a book, report or article, or
(iii) carrying out research in an area of the law, for the purpose of enhancing the other person’s knowledge of the area concerned;”.
Government amendments Nos. 2 to 6, inclusive, provide for the definitions of "legal advice", "practising barrister" and "qualified barrister", which are, like most of the definitions under this Bill, inextricably linked in defining the scope of the new regulatory regime and should not be read in isolation. Together they converge by way of defining the scope of the Bill. This is an objective we must achieve in a manner that is not so broad as to bluntly implicate anyone who has a legal qualification or a barrister at law degree, or so narrow as to omit persons who are offering legal services and need to be regulated and held accountable for reasons of public interest, or those who might be qualified but seek to avoid regulation by passive or more creative means.
While this is the first time we are regulating barristers under statute in this jurisdiction, other common law countries have similarly sought to define the legal professions and the parameters of the provision of legal services for regulatory purposes. In the development of our definitions in a way that best suits the needs of regulation in this country, we have examined those similar measures that have emerged in jurisdictions such as those of the UK, Australia, New Zealand, the USA and Canada.
Amendment No. 2 is a new provision which sets out the parameters of what is to be considered “legal advice” for the purposes of the Bill. This is important in ensuring that there is clarity about what type of legal advice is covered by the Bill, whether it be provided by a solicitor or barrister or in a partnership setting. At the same time, the definition excludes certain ancillary areas of legal advice provided, for example, in the context of lecturing or teaching; writing or editing a book, report or article; or carrying out research for the enhancement of knowledge. This definition is among those, including "legal services" and "qualified barrister", contained in this Part of the Bill which have now been carefully crafted to ensure that any person who is a qualified legal practitioner, be that a solicitor or a barrister, or offers legal services such as the drafting of legal documents, advocacy or litigation will be subject to regulation under the Bill.
The proposed amendments relating to legal services clarify that these are services provided by a person, whether as a solicitor or a barrister. Again, this is an important baseline for the governance of the provision of legal services under the Bill which covers both professions. This is obviously one of those areas that we will have to ensure is carefully monitored in the progression of the Bill to enactment. For example, it would be an essential demarcation where lawyers are providing legal services alongside non-lawyers providing other services in a multidisciplinary partnership.
The amendment providing for a new definition of "practising barrister" again reminds us that the governance of the barristers' profession has not been the subject of legislation up to now, unlike the solicitors’ profession which has been subject to the Solicitors Acts. This amendment offers to replace the existing definition in the Bill. In so doing, it seeks to further clarify what constitutes a practising barrister under the Bill and is, understandably, predicated on the related definition of what is a qualified barrister. I will refer to that one in due course.
I have already outlined in the previous grouping the two types of code that will be comprehended by the Bill. For technical reasons, the definition of "professional code" sits with this grouping. Suffice it to say that the existing definition in the Bill is too narrow as it does not encompass everything that would normally be taken into account in deciding what might constitute appropriate or inappropriate behaviour by a lawyer. The revised definition seeks to remedy that shortcoming and, therefore, replaces the earlier definition of "professional code" with one that is sufficient to give the legal services regulatory authority the scope it requires to set and improve standards in the provision of legal services or to discipline a legal practitioner where this is found, under the relevant procedures, to be necessary.
Returning to barristers, currently there are a number of different types of practitioner who consider themselves to be providing the services of a barrister. Some of these are members of the Law Library, thereby coming under the aegis of the Bar Council, while others, even though they might be called to the Bar, do not choose to work from the Law Library. By means of this amendment and other related definitions, it is intended to comprehend those who are considered to be qualified barristers and who practise or hold themselves out to do so. Under the Bill, therefore, in addition to those barristers who operate under the Law Library-Bar Council framework, those who operate outside it and meet the requirements of the Bill will also be regulated. At the same time, this provides an alternative to the more traditional Law Library model which had been considered, in competition terms, to be restrictive and conducive to market concentration in the provision of legal services.
I should remind Deputies at this point that the Bill makes it an offence to practice as a barrister outside the stated parameters. This will place the profession of barrister on a similar footing to that which already applies to solicitors under the Solicitors Acts, where a statutory offence is similarly in place. Again, in the amendment providing for a definition of "qualified barrister", we are comprehending those duly qualified barristers who provide legal services to the public, whether that be within the traditional Law Library model or outside it. At the same time, the proposed text excludes certain persons from so acting - for example, a person who has been struck off or disbarred.
As in the case of other organisations, the Law Society of Ireland has briefed the Opposition on this legislation. One of the points made by it is that the new definition is overly prescriptive and may lead to difficulties. Perhaps the Minister will clarify the purpose and effect of the new definition and whether it will have a knock-on consequence for the provision of legal services and advice for the proposed multidisciplinary practices.
I support what the Minister is trying to achieve by way of these amendments, but I would like clarification on one matter. Amendment No. 6(4)(b) states: "a person provides legal services as a barrister where he or she does one or more of the following:". While the functions on the list are regularly provided by barristers, they are also services regularly provided by solicitors. Solicitors regularly appear in relation to proceedings before a court, tribunal or forum for arbitration, whether in the State or in another jurisdiction, or the Personal Injuries Assessment Board. They regularly represent another person before these courts, tribunals, fora or boards.
They regularly prosecute or defend proceedings on behalf of another person, advise people on the conduct of proceedings and represent and advise other persons for the purpose of arriving at a settlement. They regularly draft documents for other persons in contemplation of litigation and they provide legal advice. They draft legal documents and represent or act for another person in circumstances where legal rights or obligations of a person are being or are likely to be created or in dispute. I appreciate that the intention of the legislation is quite clear but I wonder whether the wording is such that a solicitor providing these services is doing so as a barrister. All solicitors are persons so, when they are before a court, tribunal or other forum representing clients, are they providing legal services as barristers given the definition that is being introduced? I accept that this is not what the Minister seeks to have happen but it seems from the wording it is being achieved inadvertently. I would like clarification on it.
I will answer Deputy Collins's question first. It became apparent since the publication of the Bill in 2011 that there was a lack of clarity on the persons to whom the Bill should apply. We needed to set out who, among all the people in the State who have legal qualifications, ought to be subject to the authority's regulatory regime and be subject to the payment of the levy that will fund the new bodies. We do not want the Bill to apply to legal academics, such as writers, but we want it to apply to those barristers who are taking new and innovative approaches to their practice, which may be outside the Law Library. For those reasons, this set of amendments on key definitions is necessary.
Deputy McNamara's question highlights the point that we have not had definitions and regulation in regard to barristers. That is why they are set out in this Bill. They are already set out for solicitors under the solicitors legislation. However, we are setting them out now for the first time in respect of barristers. That is why this section is specific but, clearly, it applies to both.
I have no objection whatsoever to what the Minister seeks to achieve with this legislation. I agree entirely with it but the simple reality is that "a person" provides legal services as a barrister when doing one or more of the specified tasks. The last time I checked, I had never met a solicitor who was not a person. When a solicitor provides the listed services in accordance with the definition in the Minister's amendments, he or she is providing legal services as a barrister. The legislation does not refer to "a person who is not a solicitor" providing legal services as a barrister; that is not the definition included. I appreciate that there is absolutely no possibility of what I am saying being considered by the Minister or her officials — they are discussing this — but my argument is that the amendments refer not to "a person who is not a solicitor" or "a qualified barrister" but simpliciter to "a person". This will cause difficulty in the future unless there is an amendment or unless the Minister can explain why it will not.
The point is that, in regard to solicitors, the matter is already long defined. There was no question of unravelling that definition, which is in the Acts already. The definitions we are including today on barristers are consequent to our having examined the legislation in quite a number of other countries. This is not unique to Ireland. What is to be included is a straightforward definition of the work barristers do. We are saying solicitors are already dealt with in legislation and there is no need to repeat the definitions pertaining to them. It is long-established practice that, where an issue is already covered in legislation, it is not repeated in new legislation.
The Deputy's points highlight that there have not been definitions or regulation in regard to the role of barristers in this country. That is what this Bill is achieving. It ensures independent legal regulation by an independent authority. That is the essence of the Bill. It is in the public interest and in the interest of setting out the independent authority. The definitions are necessary because they had not been included in legislation before. The definitions pertaining to solicitors are well established under the solicitors Acts.
On a point of order-----
There is no point of order allowed in replying.
I am not replying but making a point of order. The Minister is introducing an entirely new definition of what it is to be a barrister. I support her entirely in that but, as she said, it is novel. This is being done on Report Stage. Should this section not be recommitted to Committee Stage in order to insert something entirely new that has not already been dealt with?
That is not a matter for the Chair. This matter has been ruled in order and it arises from Committee Stage proceedings. It is in order from that point of view.