Legal Services Regulation Bill 2011: Discussion

The purpose of this part of the meeting is to discuss the Legal Services Regulation Bill 2011. I welcome all our guests. Thank your for giving of your time and expertise to help us in the work we are about to undertake. As you are aware the Bill has passed Second Stage in the Dáil and has been referred to the committee. We have had the opportunity to discuss the heads of other Bills previously but in this case the time is not available. The committee has taken the opportunity to hold this discussion for two or two and a half hours because various groups had points to make and it was not possible to do this prior to the full publication of the Bill. The delegation is welcome today. The format of today's meeting is that each organisation will make brief opening remarks and this will be followed by a question and answer session. We have a lead questioner session whereby individual members will engage with individual groups initially.

Before we proceed I draw the attention of witnesses to the position on privilege. Please note that you are protected by absolute privilege in respect of the evidence you are to give this committee. However, if you are directed by the committee to cease giving evidence in respect of a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise nor make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Members should also be aware that under the salient rulings of the Chair, Members should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

I call on Ms Noeline Blackwell of the Free Legal Advice Centres to make her opening statement.

Ms Noeline Blackwell

I thank the committee for giving us this opportunity to speak. When the Bill went through Second Stage in the Dáil I noticed several references to the perspectives that had been brought to the debate at that stage. This included the perspectives of the representatives and others. However, the Minister stated that he would have preferred to see a wider range of perspectives. I trust what we bring to this is a somewhat different perspective. We have circulated a submission and speaking notes to members of the committee.

Our perspective is as a human rights organisation, an independent organisation founded more than 40 years ago. During these 40 years it has delivered free legal services to members of the public to advance their understanding of the world they live in and to ensure they can understand their rights and responsibilities. Through a network of volunteers and with great assistance from Citizens Information Board centres we operate more than 80 mainly evening clinics run entirely by volunteers. With this service and a telephone information line we give legal information and advice to more than 24,000 people per year. That was the figure last year but we are likely to exceed that number this year. At another level we operate out of one office in Dublin and we try to ensure that the benefit and protection of the law is available to people through various areas of research we undertake, including the areas of finance rights, social welfare rights, etc. Our work depends on the small staff in that office and on funding from a variety of sources.

Our perspective is informed by ourselves, our work and our volunteers, all of whom are legal practitioners, as well as what we hear from the people who contact us. Our funding comes from Government and members of the legal profession. We are grateful to the legal profession and to the Government for this. It also comes from philanthropy. Not only do we get money from the legal profession we also get the work of our volunteers. These are the perspectives we tried to bring to an analysis of the Bill.

Free Legal Advice Centres, FLAC, is a human rights organisation that understands the frustrations of many people when they are dealing with the law. We have produced a submission of some 20 pages which members of the committee are welcome to discuss with me but I am keen to highlight four main issues. One area which did not arise on Second Stage relates to the principles that should inform the legal regulatory authority. Those principles are set out. This is useful and it represents an innovation to have them set out. However, upon examination these principles do not entirely match the best international legal principles as set out in the basic principles for lawyers of the United Nations. Three or four of our first recommendations relate to bringing these principles in line with best international principles. This will help to ensure not only that we consider the best interests of the client but that we set out what those best interests should be. These include the principles that lawyers should maintain the honour and dignity of their profession and that they should uphold human rights and fundamental freedoms.

We also referred to the regulatory structure. The committee will note from our submission that we suggest something specific. We believe the structure of the authority must be not only fair and independent but it must be perceived to be independent. It must also be competent. We have suggested a range of stakeholders whom we believe could bring both independence and competence. They would remove any perception of Government interference as well as any perception of over-dependence on the legal professions.

The third area we focus on is the question of costs. We challenge the Minister, the committee and the Oireachtas to examine more closely the question of costs. We maintain there will be greater transparency on costs if the Bill is implemented but that is all. It will not actually reduce costs. Over and over, no matter which way one has cut the cake, legal costs, especially in the area of litigation, have frustrated and prevented people from having access to the laws they needed. We draw particular attention to the work of our organisation in which we engage in a small amount of law which is of benefit to the greater number of people. We particularly draw attention to the potential for limiting costs in cases of great public importance through protective costs orders and multi-party actions.

We have views in respect of the proposed new business structures. There is an understanding in the Bill that some new business structures are to be implemented and it is only a matter of how. With respect to the Minister and the committee, we propose that the committee should ask the Minister whether these are the correct business structures to be implemented. They are not the only types of business structures. For example, there is no consideration of the question of co-operatives which may be more suitable structure for us. The business structures proposed have the potential to increase costs, especially for small, non-regular consumers of legal services. Naturally, we are discussing the structure of the Bill without the benefit of the regulatory impact assessment or the amendments proposed by the Minister. We would be pleased to return to the committee after the amendments are published if it is of use to the committee.

Thank you very much, Ms Blackwell. Clearly, you were here before because you kept within your time very well. You managed to include a good deal in a short period. I invite the representative from the Law Society of Ireland to make a presentation.

Mr. Donald Binchy

I thank the Chairman and members of the committee. I wish to put on record that the Law Society of Ireland is by no means opposed to reform. We welcome much of what is contained in the Bill. The society recognises that there is a need to address certain key concerns in the public domain about the legal profession. In particular, there is a need to introduce changes to bring about more transparency and predictability in the measurement of legal costs and also to modernise the system for independent assessment of legal costs where they cannot be agreed. The Bill addresses these issues comprehensively and while significant additional obligations will be imposed upon solicitors under the provisions of the Bill, the society nonetheless welcomes those provisions of the Bill relating to costs which, it believes, will benefit the public and solicitors alike and which will help to secure key objectives of predictability, transparency and costs reduction.

There has been a fundamental change of position by the Law Society of Ireland. On 20 January this year the council of the Law Society of Ireland decided that it would be in the best interests of the public and the profession to end the so-called self-regulation whereby for perhaps 150 years client complaints about solicitors were made to the Law Society of Ireland. To address a public perception that the Law Society of Ireland should not adjudicate on client complaints against its members, we decided that all client complaints alleging inadequate professional services or misconduct should in future be handled by an independent body, subject to significant changes in the Bill to ensure that the independent body adheres to fair procedures and subject to an effort to ensure that the vast majority of complaints are resolved by agreement, as is the case at the moment. From the outset, following publication of the Bill the Law Society had very significant concerns that the form of regulation proposed by the Bill would amount to an undermining of the independence of the legal profession from Government notwithstanding some text in the Bill recording the need to protect this independence. The Law Society was far from alone on this, as seen from the analysis of leaders of the legal profession throughout the world, the former Chief Justice of Ireland, the Irish Human Rights Commission, the Irish Council for Civil Liberties, free legal advice centres and others.

For his part, the Minister has responded by giving several assurances that he has no wish to interfere with the independence of the legal profession and that amendments will be tabled to ensure these concerns are addressed. We await sight of the Minister's amendments and included in the 100 page submission we made to the Minister last month are detailed suggestions in this regard. Members of this committee also received copies of the submission. Many provisions of the Bill will require significant modification or elimination if the independence of the profession from Government control, which is essential in a democracy to protect the public and not the legal profession, is to be ensured.

Another very deep concern of the Law Society is the cost of implementing the provisions of the Bill. Under the Bill as it stands these are to be borne in their entirety by the legal profession. At this juncture it is important to record the profession of solicitor is a very important contributor to employment in Ireland. It is estimated that between solicitors and support staff the profession employs approximately 25,000 people directly, not to mention indirect employment.

The profession has had to adapt to enormous changes not only in the manner in which services are delivered but in almost every area of law in the past 25 years. That it has done so successfully is beyond question. The existence of a modern and dynamic solicitor profession is an essential prerequisite to foreign direct investment in Ireland, the success of the financial services centre and the conduct of commerce generally not to mention access to justice by ordinary people throughout Ireland. However, at present as in every other sector of the economy the profession is struggling for economic survival and any significant increase in overheads will at best have to be passed on to clients and at worst may be the straw that will break the back of many solicitors' firms.

It is essential that however it is achieved constraints are put in the Bill to ensure no increase in the current cost of regulation. The Law Society's submission contains key proposals in this regard. All of the additional cost of regulation of the profession must ultimately be passed on to the public. It would be truly ironic if measures supposedly designed to reduce legal costs instead have the effect of increasing them.

The Bill proposes to transfer most of the society's regulatory functions to the authority, which will mean if the Bill is passed as initiated the work of most of the staff of the regulation of the Law Society will be transferred to the authority. The Bill as published makes no provision for the staff of the regulation department whose work will transfer to the authority to have their employment transferred to the authority. This is unusual, as the Law Society's research indicates this is the norm in this jurisdiction when establishing a new regulator or transferring regulatory functions to a new body. No reassurance has been received from the Minister that the Law Society's staff will transfer automatically to the new regulator. The publication of the Bill has had a devastating effect on the staff of the Law Society as a consequence of the fear that the majority of staff members will be made redundant while new staff, civil servants recruited by the authority, will take their work.

Aside from the terrible human cost of unnecessary mass redundancies, any failure to transfer existing staff to the authority would result in a wholly unnecessary and perverse rejection of unique specialist expertise to the detriment of the authority, the public and the profession. Furthermore, unless the staff currently employed by the Law Society in handling complaints are transferred directly to the employment of the new authority there will be a significant redundancy bill to be paid by the Law Society which will add to the cost to be borne by the profession and ultimately by the public.

Certain provisions of the Bill are a cause for great concern with regard to client confidentiality and legal professional privilege. I refer specifically to sections 15 and 17 which would require the disclosure of confidential client information to certain authorities and would also enable the Minister for Justice and Equality of the day to obtain access to client information, all of which is wholly inappropriate and contrary to the public interest. These provisions of the Bill should be omitted.

With regard to legal structures the Law Society is most concerned that nothing should be done to reduce access to justice for members of the public. The Law Society supports the concept of the independent bar which has over the years ensured the greatest possible access to justice by all citizens regardless of their circumstances. It is essential that any change in the structures through which legal services are provided should not diminish this access in any way. It is for this reason the relevant sections of the Bill should not be implemented until such time as the necessary reports have been prepared and informed debate has been held and informed conclusions drawn.

I am concerned there may be an ill-advised drive to push through this legislation without proper consideration for its practical implications and its interaction with the existing legislation. At present there is a substantial and complex body of legislation applying to the practice of law by solicitors in Ireland including the Solicitors Acts 1954 to 2011 as well as a myriad of statutory instruments. The Law Society is preparing detailed drafting amendments to address these issues as best as possible. It is essential that adequate time is allowed to discuss this exercise if the new law is to operate successfully. Therefore, now that Second Stage of the Bill has been completed I urge that time is taken to draw breath and ensure not only are the policy issues outlined above properly addressed but that the Bill when passed will serve the public and the legal profession as a model of clear, well drafted and well considered legislation. I thank the committee for its attention.

I thank Mr. Binchy. I invite Mr. Conor Maguire, the representative of the King's Inns, to make his opening statement.

Mr. Conor Maguire

I am chairman of the council of King's Inns and I am joined by Ms Mary Faulkner, dean of the school of law at King's Inns, and by our registrar, Ms Marcella Higgins.

Our interest in the Bill, and our primary concern today, is with the implications of the proposed legislation for legal professional education. The core functions of the King's Inns are to admit persons to the qualification of barrister thereby enabling them to be called to the bar by the Chief Justice, and to provide a course of professional education that ensures each person called to the bar is appropriately qualified to represent and advise clients in civil and criminal proceedings.

King's Inns is a charitable non-profit making organisation receiving no State subvention for the delivery of its main courses. I want to emphasise we are not a representative body for the barrister's profession; that is the Bar Council. We circulated our written submission dated 14 March 2012 which explains how King's Inns is governed, the powers that have been conferred on it at common law, various legislative provisions on the admission of barristers and the disciplinary function it exercises over its barrister members.

The professional course, leading to the qualification of barrister, was reformed in 2004 following an extensive consultation process and analysis of cutting edge teaching methods used in similar courses in England, Scotland, Northern Ireland and Australia. It has proven itself as a hugely successful innovation in Irish legal education and is highly regarded by students and former students. The annual average number of entrants to the professional course between 2000 and 2011 was 159 of whom an annual average of 59% were law graduates and 41% did not hold a law qualification prior to obtaining the diploma in legal studies at the King's Inns.

Underlying the professional course and its structure is a belief that the education of advocates is most appropriately achieved through academic study at a third level law school or equivalent institution, followed by dedicated professional training by a specialist provider. The professional course at King's Inns comprises an intensive, practical and interactive approach that seeks to bridge the gap between the academic study of law and the practice of law. The course is presented in two forms, as a one year full-time course or as a two year modular course which is particularly attractive to those in full-time employment and not in a position to attend a full time course over a year.

The decision to admit a person as a barrister is not merely one of attaining a certain educational standard. It also entails considerable responsibilities in law and, of course, it is critical that the public can have confidence in the probity of those so admitted. This requires the undertaking of an assessment of fitness, which is discharged by the benchers. Thus, it has exceptionally happened that persons who have passed the relevant examinations may be refused admission to practice because they have not established themselves to be fit and proper persons to practice.

The experience of King's Inns and its ability to draw upon the assistance and expertise of the practising bar and Judiciary has enabled it to provide all of these services in a highly cost-efficient manner. We are committed to ensuring the highest standards of professional education of barristers. We believe that we achieve this and that we are best positioned to continue to do so.

The aspects of the Bill in which we have an interest are identified in part 3 of our submission to the committee. For example, the question of the roll of practising barristers arises. Throughout the Bill, reference is made to a new roll of practising barristers to be kept by the Bar Council. While the Supreme Court office has, since 1927, maintained a list of those who are called to the Bar by the Chief Justice, the only comprehensive roll of persons admitted as barristers is maintained by King's Inns. The Bill provides that every person providing legal services as a barrister must have his or her name entered on the new roll. However, the term "legal services" is defined broadly. The definition of relevant terms will need careful consideration. The legal position of certain qualified barristers following the enactment of the Bill will undoubtedly be anomalous. The resolution of these issues will require some complex adjustment of the legislation.

I will turn to the constitution of the legal services regulatory authority. Subsection 8(4) identifies the membership of the authority. For reasons already addressed in the written submission, King's Inns should be entitled to nominate two persons to the authority and seeks an amendment to section 8(4) to this effect. It is critical that the interests of professional legal education are represented on the authority. Having regard to the educational and regulatory functions discharged by King's Inns, we are in a position to provide the authority with valuable assistance in the course of its work.

Regarding the admission requirements for the barristers' profession, subsections 9(2)(a)(i) and (iii) of the Bill assume the Bar Council has a role in the determination of the content of the educational course required to be undertaken to be called to the Bar and in the determination of admission standards, policies and arrangements. Education and admission requirements are determined by King’s Inns, not the Bar Council. In consequence, King’s Inns is the body that determines the criteria for accrediting foreign legal practitioners and the movement of persons as between the solicitors’ and barristers’ professions. The Bill needs to be changed to reflect this fact.

Subsection 30(1) of the Bill requires the authority within one year of its establishment to provide a report on the education and training, including ongoing training, arrangements for legal practitioners, including the manner in which such education and training is to be provided. Subsection 30(4) of the Bill provides that a report on the unification of the separate professions will be provided by the authority within two years of its establishment. Logically, however, the review of legal education should take place following the review of the professions. The structure and content of professional legal education will necessarily follow, rather than shape, the relationship between the professions.

This concludes my opening remarks. On behalf of the benchers and the council of King's Inns, I thank the committee for this opportunity. We would be pleased to help in any way that we can.

I propose to invite the Bar Council to make an opening statement before we take some questions.

Mr. David Barniville

I am chairman of the external relations committee of the Bar Council. Present are Mr. Paul O'Higgins, SC, and chair of the Bar Council, Mr. Colm Ó hOisín, a member of the Bar Council and chair of our alternative dispute resolution, ADR, and arbitration committee, and Mr. Tony McGillicuddy, a junior counsel and member of the Bar Council.

The committee provided us with the opportunity to make a written submission. In general terms, that submission sets out our position on the Bill. I thank the committee for the opportunity to attend this meeting, to summarise aspects of our submission and to answer the committee's questions.

We started our submission by trying to counter the perception of the Bar. More than half of its members have been in practice for less than ten years and more than a third of its members have been in practice for less than five years. It is a young, vibrant and enthusiastic profession. It is also a highly competitive one, particularly in the current economic climate. This has led to reduced fees across the board.

We made a detailed submission on the Bill to the Minister in December. For the assistance of the committee, we have attached a copy of that submission. We also commissioned an economic analysis of the Bill, which we will provide to the committee and the Minister. An analysis was appropriate, as no regulatory impact assessment, RIA, of the Bill has yet been prepared by the Minister. It was important that some economic evidence be laid before the committee and provided to the Minister to inform their and Parliament's consideration of this legislation.

We set out our position on reform on page 4 of our submission. We support reform that has as its objectives the modernisation of the profession and any measure that ensures legal services are delivered in a fairer and more appropriate way to citizens. Since the Bill envisages fundamental reform, time should be taken to debate the proposals carefully. There should be an informed and considered debate on each provision, particularly those provisions that seek to implement far-reaching and fundamental reforms. We wish to stress the Bar Council's position on the Bill, in that both the Bill and its analysis must be in the public interest and not in the interests of members of our profession. I am sure the committee and Parliament will adopt a similar position.

We support a number of the legislation's provisions, in particular, and like the Law Society, those that address legal costs. Generally, these provisions are in the public interest, although we have a number of quibbles with them. We agree with the Bill's fundamental objective in this regard, namely, legal costs should be transparent so people who engage barristers and solicitors to carry out legal services for them will know the cost of those services in advance. This has been the Bar Council's position since June 2007, when we required our members to provide estimates of their fees in advance.

An impression may have been given elsewhere that we object to independent regulation. This is not the case, but we have concerns about the type and cost of the regulation provided for in the Bill. First, the legal services regulatory authority lacks independence from the Government, given the extent of ministerial involvement in the exercise of the powers and functions of the authority. The Minister intends to amend the Bill to deal with this issue. Although those amendments have not been made available yet, we will happily assist the committee in considering them. More than just the Bar Council have raised this issue. As Mr. Binchy of the Law Society stated, concerns have been expressed by numerous bodies, including by some of those present. For example, the Free Legal Aid Centres, FLAC, the Northside Community Law Centre, the Irish Human Rights Commission, the Irish Council for Civil Liberties and various international bodies have expressed concerns.

Second, the cost of the proposed regulatory authority is a core concern. One would normally expect the preparation of an RIA on legislation such as this Bill, yet there has been none. The economic analysis prepared for the Bar Council by Compecon, the principal of which is Mr. Patrick Massey, a former member of the Competition Authority and director of competition enforcement, shows that the cost of the new regulatory authority will be significant. We are happy to answer questions relating to the economic report, which we attached to our submission.

Third, the Bill provides for direct regulation of the legal profession, a form of independent regulation that was not recommended by the Competition Authority in its extensive 2005-06 study. It recommended independent regulation, but not of this type. We have indicated in our submission to the Minister, and now confirm to this committee, that we support the independent regulation recommended by the Competition Authority in its 2006 report.

We believe that the type of regulation proposed in the Bill is not efficient, effective or in the public interest because it is likely to increase the cost of the provision of legal services. This means that costs will either be passed on to clients or, as Mr. Binchy stated, that will be the straw that breaks the camel's back for many practitioners, particularly junior practitioners who are struggling as it is to pay the costs and expenses of practice. We provide figures in our submission which show that the cost of regulation of the type envisaged in the Bill is approximately €5.3 million to €8.6 million more than is the current cost and is significantly more than the cost of the type of regulation recommended by the Competition Authority.

Our fourth concern is that access to justice and competition will be adversely affected or impaired by the new business structures proposed in the Bill, namely, the multidisciplinary practices and legal partnerships. We believe these practices give rise to serious access to justice issues, on which we have elaborated in our submission to this committee and our detailed submission to the Minister. We also believe that these new practices, which the Competition Authority considered but did not recommend in its 2006 report, will impair access to justice and may lead to reduced rather than increased competition. We have set out our reasons for this in our submission. We believe these practices are likely to make the profession more elitist and may well be to the advantage of leading senior members of the profession and to the detriment of those at the lower end of practice. We also believe they are likely to adversely affect the positions of small solicitors firms around the country which look after the interests of ordinary clients.

We have not ruled out the introduction of these practices but we believe the Bill should provide the new regulatory authority with the expressed power and function to properly investigate and research whether they are in the public interest. If found to be in the public interest, they can then be legislated for. This has not happened and the Bill does not make provision for it to happen. It simply states that these new practices will be introduced. We have attached to our submission a list of sections of the Bill to which we have proposed amendments. For the assistance of the committee, we have drafted a series of amendments dealing with key areas of concern for us. These are summarised in the final few pages of our submission.

On independent discipline, the Bar Council and its members do not fear the introduction of independent disciplinary procedures or structures. We do not handle client moneys, have less direct interaction with the public than do solicitors and fewer complaints are made against us, largely because we do not handle client moneys. What we do object to and fear is the likely excessive cost of the type of disciplinary structures that are proposed in the Bill, which we believe will disproportionately affect members of our profession and will not be in the public interest.

As I stated, we have submitted a series of amendments which accommodate our concerns. We are happy to engage further with the Minister on those amendments and to assist this committee in whatever way we can.

I thank Mr. Barniville for his submission and for being brief and to the point. We will now engage in a questions and answers session. I invite Deputy Anne Ferris to put her questions to the delegation from the Free Legal Advice Centres, FLAC. I ask members to be brief.

I will be as brief as possible. I have a number of questions for Ms Blackwell whom I thank for attending on behalf of FLAC. Ms Blackwell spoke of the structure of the authority in her submission and set out the associations-people by which FLAC believes persons should be represented. In this regard, she stated that people should be represented by two members of the Bar Council, two people from the Law Society of Ireland and so on. She also stated that representatives from the business, consumer, voluntary and community sectors should be included. I agree with that recommendation.

Does Ms Blackwell believe these appointments should be made by the Minister-Government or by the Public Appointments Service?

Ms Noeline Blackwell

Appointments will ultimately have to be made by the Minister but they should be, as applies in respect of nominees from the Bar Council and Law Society, based on nominations from the sectoral groups, including FLAC. Our reason for including the deans of law schools, who are not included as a specific stakeholder, is because legal education is a huge part of this Bill. This goes to the King's Inns point. We believe that these groups should be permitted to put forward nominees but that there should be a competence test or assessment in this regard so that people are not nominated just because they want to be put out to pasture by a particular group and so on.

The Bill provides that members could be removed if in the opinion of Government they had a significant conflict of interest or if a member's removal appeared necessary, which in my view would be open to abuse. What amendment would Ms Blackwell propose in this regard?

Ms Noeline Blackwell

We suggest that in this regard the Minister examine existing areas such as the Medical Council, An Bord Pleanála or the Teaching Council which have in place structures which allow for the removal of a person who is not performing but in respect of which there are checks and balances. The structures in place in the Medical Council and so on are such that they are not directly linked to the opinion of the Minister in that there must be stated misconduct and a process of examination prior to removal of a person. This ensures better security of tenure. This is not only about the perception of bias. It goes to the checks and balances needed in an independent legal profession.

I agree because a particular Minister could make an appointment but that appointee could then be removed by another Minister without there being any substance for such removal.

Another issue of concern for me is that of costs, which was touched on by Mr. Binchy and Mr. Barniville. Ms Blackwell stated in her submission that there is a lack of clarity around costs in the legal profession. The National Consumer Agency carried out a survey last month which showed great disparity in legal fees depending on in which part of the country a person lives. For example, the cost of making a will increased from €50 to €300 depending on where a person lived. The lowest quote for taking out a grant of probate was €950 in Munster. This increased to €6,150 in Leinster. Mr. Binchy and Mr. Barniville alluded to the fact that certain changes in the Bill could result in increased costs for legal services, which would be passed on to the consumer, with which I would take issue.

The cost of legal services should be the same in Munster, Leinster or Connacht. How would Ms Blackwell propose this issue be addressed?

Ms Noeline Blackwell

Certain provisions in the Bill will be of great assistance in terms of increasing people's knowledge about costs. People are constantly complaining to FLAC about legal costs. I am sure members experience this in their constituencies too. The Bill provides guidance in regard to what information around costs must be given to people, which we welcome. Costs adjudicated by the new legal costs adjudicator will all be published, with anonymisation where necessary, for family cases. The legal costs authority would have the power to publish guidelines, etc., which will be of great assistance, and people will know if costs will come to €500 or €300. They will also know if there are legitimate cases where the cost could be either of these figures, depending on the amount of work involved.

The legal costs adjudicator should have a much stronger remit and a requirement to be clear and give people much more information. Many people complain about costs until they understand what they are being charged for. We believe the legal costs adjudication proposals are probably great for big bills but if somebody is wondering why they are being charged €550 instead of €500, it is probably too complex. Mediation can also get very complicated but perhaps there could be a Small Claims Court type of process. Information is key to allowing people to understand better where they are going. If people know the range for a will is €50 to €500, they can make up their own mind about where to go.

This is a once in a generation piece of law reform and it is a pity that some issues are not addressed at all. The fact that somebody may end up spending an entire day in court for one small case which may be heard at 4.30 p.m. means there are inefficiencies in the court system, particularly with litigation. It is a shame this Bill is not being used to address such inefficiencies. Similarly, there are long Legal Aid Board waiting lists for the State-funded legal aid service. That does not seem all that relevant but it is, as if one's other half is waiting for a legal aid appointment for eight months, one could be back and forth to court on a number of occasions, with fairly useless and wasteful experiences ensuing. The inefficiencies could also be addressed.

Although they will not be forced to do so, we have real concerns that barristers will be free to go into limited partnerships, which will make it harder for smaller practitioners in particular to avail of ad hoc partnerships that can be built up between solicitors and barristers. Clients of small practices may potentially spend more in going to larger practices. An appeal must be taken from an administrative authority like the Financial Services Ombudsman to the High Court at a risk of three sets of High Court expenses, which is unnecessary. Such cases should be dealt with in the Circuit Court, for example, as that would save much time.

People bringing cases in the public interest should have protection against large costs bills, as in all these cases the law is not clear, and nobody knows what the outcome would be. People will not bring cases because of a risk of losing so much. Seven years ago the Law Reform Commission proposed a system of class actions that would reduce costs not just for litigants outside the State but potentially for the State in a big way as well. Ultimately, we feel little is being accomplished when there is so much potential in this time of law reform to increase the level at which legal services are tackled, particularly litigation services.

Some of the points were made in the submission, which is welcome.

I read with interest the point about public interest cases. We probably all know that cases are taken vexatiously by people against local authorities, for example, so we should be careful to take that into consideration.

Ms Noeline Blackwell

I have a short reply. With many of those public interest cases, the judge will at the end not award costs because the case was taken in the public interest. We are saying mechanisms should be put in at this stage to ensure an application could be brought at a much earlier stage, and we could determine if the case is genuinely in the public interest and so should be protected against significant cost orders.

I thank Ms Blackwell and the delegation from FLAC for the work done over its 40 years. I pay tribute to the solicitors and barristers who have given their time and services freely to people living in Ireland.

I thank the witness and share her concern about the potential damage from this Bill to public interest cases. Ms Blackwell mentioned in her submission and her remarks a co-operative model but how would that differ from the proposed multidisciplinary practices?

Ms Noeline Blackwell

We can say for certain that the model presented would not work for independent law centres that are not-for-profit organisations. It may well be that there is a much wider range of potential models out there, and all of them should be looked at. We do not see the evidence base for this particular model of partnership, with limited liability companies not considered. This model is being advanced but there are other models which might suit other people differently. They may genuinely increase people's access to the law but this model would do nothing to increase people's access to the not-for-profit sector.

Deputy Calleary is engaging with members of the Law Society.

I thank all the groups for attending. There is the issue of the independence of what we currently have as opposed to what the Minister may introduce by amendment, which is the new regulatory authority. I share these concerns and everybody agrees about the independence of that board. The Law Society is proposing that the President of the High Court would be involved in the selection of this board but where would the consumer interest come in that process?

Mr. Donald Binchy

In that context, the President of the High Court is independent of government and the legal profession. Therefore, if the appointment is confirmed by the President of the High Court rather than the Minister, it would not be possible for any given Minister responsible for justice to skew the membership of the authority or put people on it who may be designed to do his or her bidding rather than functioning independently.

We are five months on from publication and it is extraordinary that we still do not have a regulatory impact assessment. There would be such an assessment for putting on a bandage, never mind reforming legal services. All we can do is work from the example provided by the Bar Council.

The Minister has made an argument relating to costs and potential increases in the area, indicating that the cost of the regulatory operation currently will simply transfer from the Law Society of Ireland to the new authority. He has argued there will be no increase in costs and everything will be fine and dandy. We take on board the concerns expressed about staff, who have been left in complete abeyance, and that is not the right way to treat people. Does the delegation agree that the cost of the Law Society's operation will transfer seamlessly to a new operation without an increase? For example, in the Bar Council regulatory impact assessment, it is anticipated that the proposals would increase the costs of regulating the legal profession by between €5 million and €8 million. Is it anticipated that the current costs will remain the same when the move to the new regulatory authority comes about?

Mr. Donald Binchy

I do not believe that is possible, even with the best will in the world. There are a number of set-up costs, including buildings and new staff for the authority. There is also the cost of the board itself. Under the terms of the Bill the authority is charged with commissioning four reports and the cost of those must be borne by the legal profession. Those reports relate to education, multidisciplinary practices and fusion. The cost of all those reports must be borne by the profession, and that cost does not currently exist. The point we have made is that those reports are an aid to the formulation of Government policy, at least indirectly, and in no other walk of life would bodies have to contribute from their own pocket to the formulation of such policy. Those are two costs that do not exist at the moment. Additionally, the loss of voluntary work that is currently provided by volunteers from the solicitors' profession in the conduct of regulatory activities would mean that such work would have to be undertaken by permanently employed staff in the new authority.

There is the possibility of judicial reviews of actions taken by the new authority. This is a new regulatory framework. We have a regulatory framework that is well established and everybody knows how it should operate. Judicial reviews have been taken over the years to establish the parameters in which the framework operates. All of that goes back to square one in the context of a new Bill with many uncertainties. There is something very disturbing about the possibility that the legal profession could be required to pay the cost of judicial reviews taken against the new authority where it has acted in error. Those are several additional headings, not to mention the fact that the absence of any constraints on the authority's operations will almost inevitably give rise to increased costs. The regulatory structures of the Law Society operate within constraints that the Law Society knows that its members are paying for the regulatory costs. An independent regulatory authority, unless it is specifically subjected to the equivalent constraints, will operate with a blank cheque. Significant measures are required to ensure costs do not increase beyond their existing levels.

Under the current legislation, 21 of the 56 sections require ministerial approval for them to be initiated. The Law Society has made proposals in its document and should be complimented on how far it has come to meet the common wish. How many of its amendments and changes require ministerial approval?

Mr. Donald Binchy

I will ask my colleague, Mr. Murphy, to deal with the Deputy's question.

Mr. Ken Murphy

We have not calculated that but the number is considerably less. One of the aspects that we find most disturbing is the concentration of power, and we are not personalising or directing this comment towards any Minister, in the office of the Minister for Justice and Equality. International leaders in the legal profession who are familiar with systems in other jurisdictions say it is unprecedented. It is not simply a question of the appointments system for authority members who may be, to an extent, officially appointed by the President of the High Court. The thrust of the society's submission is that the lay members and representatives of the public should be recruited by the Public Appointments Service through an objective and transparent system as happens with appointments to the Legal Services Board in England and Wales.

With regard to the question of the Minister's powers, I will be fair and say that he has said that he is operating from a blueprint for other legislation that is probably inappropriate for the regulation of the legal sector, so it would appear that he intends to reduce the powers involved. We will examine the proposal closely to see if it is consistent with best international practice in terms of the true independence of the new authority from the Government. One of the indicators will be the extent to which it is subject to ministerial power and approval. It is excessively so in the Bill as published.

I have a final question and the Bar Council of Ireland may respond, if it so wishes. It is the contention of many people, including the Minister and the Competition Authority, that the society has been dragged kicking and screaming towards reform and has ignored reform. The Competition Authority's submission included an interesting quote from Alexander Graham Bell: "Sometimes we stare so long at a door that is closing that we see too late the one that is open." What is the society's response to the contention that it has reacted in an ostrich-like fashion to the demand for reform in legal services, reform with which we all agree?

Mr. Ken Murphy

We would not agree with that at all. The legal profession has been the subject of constant legislative change. Mr. Donald Binchy referred to the Solicitors Acts 1954 to 2011. Practically every few years, more change is required of the profession by the Oireachtas to adjust to the modern world. Despite the legal profession's reputation for conservatism, which I do not deny, the reason it has been such a success throughout the world and history is that it adapts very well to change. The profession has constantly and successfully adapted to change in Ireland and continues to do so now.

I call Deputy Farrell who is going to engage with the delegation from King's Inns.

I thank the group for its submission and opening statement and I appreciate having seen it in advance. I have a couple of questions on the roll of barristers which is quite broad and to which, therefore, I am not seeking very specific answers. Why is there a requirement for a different roll? We already have three rolls maintained by King's Inns, the courts and the Bar Council, respectively. The purpose of the Bill is to give individuals accessing the new authority the ability to see the availability of practising barristers. I presume that provision is to enable individuals who wish to avail of legal services effectively to select or review a barrister. Why does King's Inns wish to keep that comprehensive roll of barristers when the Bill sets out a roll of practising barristers?

Mr. Conor Maguire

Elements of the Deputy's question relate to the practising profession and are a matter for the Bar Council. I am a practising barrister and if I trespass into the Bar Council's domain, it is because I know a certain amount about practice.

First, it is important to realise that the Bill fails to recognise how a barrister becomes such, is called to the Bar and what being called to the Bar means. The Chief Justice calls people to the Bar and that entitles them to practise in the courts. The function has developed because every court is supposed to regulate its procedures in the interests of the public and the proper administration of justice.

Second, once people reach that point, King's Inns admits them to the degree of barrister-at-law. It is not a degree in the ordinary sense of the word but means that the person is fit to be called to the Bar. People are fit, not just in terms of having reached the academic qualification but also because they have met the standards that are required of somebody who should be holding themselves out to practise. If one starts on that basis, one rapidly reaches the point at which a roll of people who have been called to the Bar becomes necessary. This is the roll of barristers. The Chief Justice keeps a roll in the Supreme Court.

Third, once somebody has been admitted to the degree course of barrister-at-law and is entitled to call himself or herself a barrister, that person can only be removed by King's Inns or the benchers of King's Inns. This means disbarment. Where the Bill gets mixed up on barristers is that we have a category of people who are supposedly practising as barristers and who are disciplined by the new disciplinary system or removed from the roll of practising barristers, yet they are entitled to call themselves barristers and hold themselves out as barristers for the public. Our complaint, if that is how the Deputy wants to characterise it, is that the Bill fails to recognise the existing system. Of course it can be adapted in the way that it should be adapted. It goes back to the legality of the situation, which is that the Chief Justice calls a person to the Bar. I do not know if I have answered the Deputy's question.

I thank Mr. Maguire. I have another question on access to education for those who wish to qualify as barristers. I reviewed the group's submission. It refers to the various changes that have taken place, particularly in the last ten years or so, in terms of part-time courses and so forth. One of my questions is about the provision of the barrister-at-law degree outside Dublin. This is a small country but there are large pockets of population in the west and south, and people there wish to access the barrister-at-law degree. It is difficult for them to do so, however, because of the costs involved both in terms of accommodation and transport to and from Dublin, particularly if they are not working in Dublin. Does the witness envisage a time that this could be examined, whether it be through decisions made by his organisation or perhaps the opportunity to evolve into an awarding body type of arrangement with other educational institutions? My other question is linked to that. Is there a historical reason that the King's Inns is not subvented in any way? Will the witness explain the reason for that?

Mr. Conor Maguire

I will deal with the last question first. It is historical in the sense that it has been like that for a long time. The point is that it is a registered charity and a not-for-profit institution. That remains the case down to the present. The numbers might be high in terms of the fees that are charged but one should look at what is being delivered.

The Deputy referred to the changes that took place in 2004. There was a fundamental change in education in King's Inns in 2004. That took place as a result of a root and branch examination of the way education was delivered. A couple of fundamentals emerged clearly from that. A great deal of research and consultation was conducted over a wide geographic area, and there was discussion with practitioners and academics in this and other jurisdictions. What clearly emerged was that if one is providing a professional educational course, one must divide up the academic course.

Under the way the King's Inn course is structured, the principal course is the professional course which leads to being admitted as a barrister. That is really a skills-based course. There is an assumption when one does the entrance examination for the course that one already has the academic knowledge, be it through King's Inns which has its own diploma course or through some of the other institutions and universities. There are 50 accredited degrees which entitle one to sit the entrance examination for King's Inns.

What is supplied by King's Inns at that stage is a very focused and intensive course. It was set up as a one-year, full-time course with a very high demand of attendance. The students work in focus groups. I do not wish to get into the minutiae of the course but basically one might start by giving an opinion in the morning, go on to do something else on the same issue and present it in court in the afternoon, being filmed as one does it to see what one's skills are. Negotiating and all of the skills that are involved in being a barrister are taught on an intensive basis. If one takes that as a given, the question of transporting it and putting it in a number of places in this jurisdiction really does not stack up.

The Law Society offered a course for a while in Cork, and indeed we were thinking of doing something similar, but it is well acknowledged that it did not work out. The issue is the concentration of resources to deliver this course which is so focused on the end product. One can understand why somebody in Galway, Limerick or Donegal would find it hard to do the course and come to King's Inns. That is the reason we set up the modular course. It is a part-time course that is taught largely at weekends. There are also certain periods during the year when one must attend for ten days or so. It is largely a part-time course designed to suit people who either have to travel for it or who have full-time jobs and must keep their job while they are doing the degree.

Are there any final questions?

Those are all my questions. My only other observation on section 9(2)(a)(i) and (ii) has been covered by the King’s Inns with regard to the obvious defect in the Bill. I am sure that will be dealt with by the Minister.

On how many occasions have the benchers of the King's Inns exercised their legal power to disbar anybody in recent times?

Mr. Conor Maguire

Recent times is the operative part of the question, and once is the answer. The Deputy must understand our regulatory situation in this regard. Generally, the Bar Council exercises the disciplinary functions in respect of practising barristers. The question of disbarment can arise from that and it did on one occasion in very recent times. It is the ultimate sanction as one can no longer describe oneself as a barrister. It is the residual function that exists in the King's Inns. People might say we have only disbarred one barrister but the number of times people come before the disciplinary process in the Bar Council is something its representatives can answer. It is many more times.

Also, sometimes reference is made to the jurisdiction in England with regard to disbarment. However, if one looks at the breakdown of the figures, the number of self-employed barristers who are disbarred there is quite small. It is just 20 in recent times. If one takes that figure on a per head of population basis, it is not very anomalous. It is the ultimate sanction.

I had not intended getting involved on this section but if I understand Mr. Maguire correctly, the King's Inns deems somebody to be a fit person after an appropriate period of study. The Chief Justice, presumably on the basis of a list forwarded to him or her, subsequently calls these fit persons to the Bar.

Mr. Conor Maguire


Once called to the Bar, under the current regime the Bar Council supervises their day-to-day compliance with what is perceived to be the professional standards one expects. Mr. Maguire said the Bill fails to recognise the existing system, which is as I have outlined.

Mr. Conor Maguire


Is that not a self-serving system in a sense? One either is or is not educationally qualified to be a barrister. Was the real opportunity lost in the legislation to do away with this self-serving distinction between a barrister and a solicitor or attorney? The person has a legal qualification and if one is looking for somebody to draft a will, one should get the best person to do so. If one is looking for a courtroom advocate, one gets the best person in courtroom advocacy. This distinction between barrister and solicitor is self-serving. In terms of reform and consumer interest, there is a missed opportunity in the legislation to take on that real reform.

Mr. Conor Maguire

The Deputy is referring to the unification of the professions. That is an approach one could take and one could say it has been taken in the United States, where one has attorneys in the first instance. However, do we really want to go down that route? Very specialist skills are involved in being a barrister in court. One could change the entire court system, root and branch, but if one has a court system that is adversarial, one will want expert advocates to perform their roles for either party, the plaintiff or the defendant, and in defence of the plaintiff's rights, be they in property, human rights or criminal cases. That is a very defined skill.

In a way one gets a reversion to the old system even in the United States. They train first to be attorneys but then one finds there are groups of attorneys who are trial lawyers, so one is going back the full circle to having the distinction between people who go to court, on the one hand, and people who do not. This is something King's Inns looked at in 2004, and these are the answers we arrived at. There is an alternative system but it has not been shown to be any better.

What is the view of King's Inns on mandatory reporting? The Bill sets out within one year of establishment to provide a report on education and training. What would the view be if that was to become an ongoing process required by legislation as opposed to an internal rule within the new regulatory authority? It would be one year every three or four years. What function of the new regulatory Bill has an assessment of the educational requirements set out by the King's Inns in terms of the methodology and examinations set forward?

Mr. Conor Maguire

I do not want to make up an answer on the hoof because the proposition the Deputy is suggesting does not appear in the Bill. In principle, however, there would be no problem at all about having a system that required a review of the education that is provided. Our courses will stand up to any such review.

On the question of the anomaly we saw in respect of the one year or two years, where a person must take the first one first and it does not logically stack up if the education is reviewed before deciding whether to amalgamate the professions, that is a straightforward suggestion. We will certainly look at, co-operate with and comment on any proposal for a review process.

Point 13 of the submission states the legal position of certain qualified barristers following enactment of the Bill would be anomalous and that there is a need for complex adjustment of the legislation. Could we get a layman's explanation of that?

Mr. Conor Maguire

It is intricate. It concerns how legal services are defined and what a barrister is. A barrister who is holding himself out to provide those legal services is a practising barrister and must be on the roll of practising barristers and can be removed from the roll of practising barristers. A person could be removed from the roll of practising barristers as contemplated in the Bill while finding he is still entitled to call himself a barrister. We must bear in mind that the broad definition of legal services includes the provision of financial advice which, normally speaking, would not be the sort of definition we would be looking at.

It is like the recent insolvency Bill, where we had a lot of financial advice, so we can follow that.

I thank all those who have given submissions. They have been very helpful to us in making sense of this detailed Bill. A number of themes have emerged that were picked up in the Bar Council submission that have also emerged from other submissions, including the submission from the Competition Authority. One of those key points is the need for independence in the regulatory authority, not only from the professions but from the Government. The Competition Authority also picked up on that. The Bar Council's submission suggests the authority should report to the Houses of the Oireachtas instead of the Minister, and I agree with that.

The second theme addressed by others is the multidisciplinary partnerships envisaged in the Bill. We heard from FLAC and others that they may have a negative effect for consumers, apart from the effect they may have on practitioners, in that they are likely to drive up costs and restrict access for consumers by concentrating specialisations in particular firms. As a barrister myself, I have a concern about that. Are there other jurisdictions where we have seen multidisciplinary partnerships operate? What do we know about them from other jurisdictions before we embark on them here?

Mr. David Barniville

Multidisciplinary practices have recently been introduced in other jurisdictions. They have recently been introduced in Britain from the start of this year. Other jurisdictions expressly exclude barristers from multidisciplinary practices such as the Australian states and territories, many of which still have the divided profession of barristers and solicitors. We understand from recent information we have received from there that it is likely that when the common Australian bar association rules apply to all states, barristers will be excluded from participating in multidisciplinary practices largely for the reasons referred to in our submission and partly for reasons of independence. There is a concern that multidisciplinary practices compromise the independence of the advice given by the lawyer and, in this case, by the barrister involved in such practices. There have been international examples of multidisciplinary practices that have gone spectacularly wrong, Enron being one of them.

We feel the Bill gets it wrong in the order in which it deals with multidisciplinary practices. The Bill says there will be multidisciplinary practices and legal partnerships in 30 months but, in the meantime, for these structures to come in, the new regulatory authority will do a report on the issue, but the report is not to determine if we should have a multidisciplinary practice or a legal partnership structure but how it should be allowed. The Bill therefore gets things the wrong way round.

The new regulatory authority should certainly have as a specific function the examination of whether these multidisciplinary practices are a good thing for this country. Are they in the interest of the public? It is not about whether they are good for the profession; the issue is whether they are good for the public. We have no difficulty with this. In fact, we have proposed, and drafted an amendment based on it, that the new regulatory authority will have as one of its principal functions the carrying out of a detailed study looking at what happens in other countries and studying them properly, taking submissions, considering the position from the consumer groups, public interest law groups and professions, and concluding whether these are in the public interest in Ireland. We think they are not and that the current system has served the public well in terms of public interest law.

We do not think these are a good thing. One would have thought we should at least check how they are operating in other jurisdictions before they are introduced here. They have just been introduced in Britain and people will have a better idea at the end of the year how they are working there, although Britain is a very different jurisdiction from this country. What works there does not necessarily work in a country with a population the size of Ireland.

Mr. Paul O’Higgins

Particular attention has been paid to the circumstances of a jurisdiction our size, and the Bain report in Northern Ireland that concluded that arrangements appropriate to a jurisdiction the size of England were not necessarily appropriate to us. If there is a multidisciplinary practice where a solicitor or barrister is in practice in partnership with an accountant, it is the accountant's ethical duty to inform the authorities if he discovers tax evasion is being indulged in by a client. It is often the lawyer's obligation to preserve privilege on that and no one has looked at that sort of anomaly in our jurisdiction.

We have a perfect chance to look at the way in which things get off their feet. There is a danger that if they are brought in otherwise, particularly in relation to barristers, it could disturb the equilibrium so that barristers would no longer be available to smaller firms in the numbers in which they are now.

I wish to raise two points on multidisciplinary partnerships. We have been talking about multidisciplinary practice. Are the same criticisms to be made about the new model of legal partnerships, where it is envisaged that two or more legal practitioners, at least one of whom is a barrister, will work as a partnership?

Mr. Paul O’Higgins

Yes, pretty much so from our point of view.

Mr. David Barniville

That specific issue was also looked at by the Competition Authority. The Competition Authority in its report started by looking at legal partnerships and concluded that there were possible access to justice arguments that might exist in relation to legal partnerships. When they then went on to look at multidisciplinary practices, it was stated that while there were problems with legal partnerships, the potential problem with multidisciplinary practices were even worse. The same arguments apply.

I have two other points. One relates to the cost of the new regulatory structure, and the representatives from the Bar Council have pointed out the flaws with the levy model and propose to put forward an alternative method of financing a new regulatory structure. Will they outline their alternative, what is the better approach?

Mr. David Barniville

My colleague, Mr. Ó hOisín, will answer.

Mr. Colm Ó hÓisín

Our key point, as Mr. Barniville has stated, is that we are not against independent regulation. We are in favour of it, but it is a question of what form it should take. The view taken in the Bill is of a legal services regulatory authority, a costly large regulatory system and we are suggesting a different type of regulation - oversight regulation - which would be more efficient and less costly. Obviously the professions would be levied to meet the cost of regulation but none the less the cost would be significantly less. It is important to look at the Clementi report on legal services in the UK, which was published some time ago, and in its comprehensive review it came down strongly in favour of oversight regulation. In its 2006 report, the Competition Authority was not in favour of a very large organisation or quango, for want of a better word, to take everything under its control. We think the public interest is best served by a body that is efficient. It is in the public interest that costs be appropriate.

Mr. David Barniville

Let me add, that the Bar Council expects that the profession will be required to fund the new organisation. It is a question of the size of that funding, how extensive it is and how it will impact ultimately on the provision of legal services to the public.

The key issue identified by the Competition Authority is the cost of legal services. There has been some criticism of the Bill in that it does not go far enough in terms of tackling high costs in the legal profession. Should more be done? Ms Carol Coulter in her article in The Irish Times on Wednesday, 21 March identifies inefficiencies in the legal system that have an effect on knocking on costs, for example inefficiencies in running court times so that not just legal practitioners but gardaí and others are sitting around, with significant overtime costs as a consequence. There is also the issue of the law terms. There is nothing directly in the Bill about identifying vacant courtrooms and so on. Has the Bar Council proposals to deal with those issues of cost that would reduce costs overall?

Mr. David Barniville

Mr. McGillicuddy will deal with that.

Mr. Tony McGillicuddy

The Bar Council has made a very detailed submission already to the Ministers for Justice and Equality and Public Expenditure and Reform on reforms that could be implemented in the criminal justice system. We are quite happy to provide that information to the members of the committee if that would be helpful.

Mr. Tony McGillicuddy

That will be done shortly. In our submission last October we identified at least 15 recommendations, including using video link for court hearings, reform of the listing systems and ensuring that gardaí did not have to wait all day for cases to be taken. We would support the mooted court of appeal, which I think is in the programme for Government. We support arbitration and mediation and hope to develop our own centre to deal with it.

We echo the concerns expressed on legal costs. There is a difficulty that no matter what changes are introduced, if young practitioners, solicitors and barristers are lucky to take on a legal case for a client, yet the case is not taken for two years, the energy and capital the person has put into starting his or her practice may be exhausted and if they do the case, it may take another two years before they are paid for it. We are very conscious of that difficulty and we have proposals on it in respect of the criminal justice area, which we will share with members. We will be delighted to return and interact with the committee on those or any other matters of reforms. We will support initiatives in that regard. Barristers, and the legal profession in general, do not have an interest in cases being delayed. We would be happy to engage with Oireachtas Members and provide our input to the reform of structural deficiencies.

The committee members would be very interested in suggestions that save money and in squeezing out inefficiencies in the system.

Mr. Tony McGillicuddy

We will provide that submission to the committee secretariat.

Mr. Paul O’Higgins

In relation to Ms Carol Coulter's article, it was mentioned that one might find 60 barristers in court on a day waiting around for cases that are not reached. Let me emphasise that no barrister gets paid for any of that time. It may be a cost on the system, but it does not put money in the barrister's pocket either.

That is shocking.

To follow on from the question to Mr. Maguire about disciplinary procedures in the Bar Council, has he figures on the number of cases?

How many cases of disciplinary proceedings have been taken against barristers in the past number of years? I understand that one case was sent to the benchers, but how many had their knuckles wrapped?

Mr. Paul O’Higgins

The number of complaints about individual barristers is generally low; it is less than 40 complaints per year. The number of barristers found wanting is relatively small. That ignores a number of issues, some of which are very important to the barristers' disciplinary code.

In respect of the most serious complaints, that is dealings with clients' money, barristers cannot - absolutely cannot - deal with clients' money. The one case which Deputy Calleary mentioned resulted in the disbarring of the barrister, where he did do that. The second point, which is much more fundamental because it goes to the whole nature of what it is to be a barrister, is that our main disciplinary system is summary. There is no cause shown and there is no opportunity to contest. A barrister has no lien on papers and so on and is used by a solicitor in a case and can be simply axed from cases as they go if the performance of the individual is not one that commends itself to the client or the solicitor. That cannot happen where one is an employed person. One may be taken off a case but one must be paid a salary or wages. A barrister is simply done away with full stop. It may happen during a case and it may happen after the case has finished, where the barrister effectively becomes unemployed because the ultimate disciplinary sanction has been imposed on them. It is not quite like other situations. That is the most lethal and frequently exercised form of discipline in a job that operates in a very free market without security of any description.

We are operating in the dark without an independent regulatory impact assessment of the proposed legal services regulatory authority. There are stark findings that the increase in costs for the legal profession, both barristers and solicitors, could be anywhere between €5.3 million and €8.6 million. The once-off transition costs could be between €5 million and €7 million. I am sure the legal profession would not be charitable enough to cover all those costs. They would be passed on to the consumer. Can Mr. Ó hOisín go through those headline figures briefly?

Mr. Colm Ó hOisín

The costs of between €5.3 million and €8.6 million would be annual figures. There would also be a once-off cost of between €5 million and €7 million. Those costs would be on top of the existing costs of the Law Society of Ireland and the Bar Council of Ireland. An average of between 30 and 40 complaints are made against barristers every year. Our system for dealing with those complaints costs approximately €130,000 per annum and is accompanied by a great deal of voluntary effort. According to a report compiled by our economist, the new regime will represent an increase of between 14 and 18 times on the current cost per barrister. The overall figure will be approximately €1,000 per annum, which might not sound like very much but is a significant amount of money for many practitioners at the Bar. It would represent a 25% increase on the subscription fees they pay to the Law Library. For many people who are operating on a marginal basis in their early years in the profession, it could mean the difference between staying in practice and leaving the profession.

A proper analysis of the economic benefits of the changes that are being proposed should be an essential aspect of any change or substantial reform of this nature. Bigger is not necessarily better when it comes to regulation. One wants to have a system that is efficient. Under the current system, there is an independent lay majority on the barristers' complaints board. The prosecution of those complaints happens via the professional practices committee. A huge amount of voluntary effort, which obviously costs nothing, is involved on the part of members who are involved in the process. Under the new system, everybody will have to be employed. Although the people on the committees that will be in place will not be full-time employees, a significant cost will be associated with the operation of that system. Our regulatory impact assessment suggests that the body will employ approximately 80 people. It will be a substantial quango. It will be comparable to other regulatory bodies like the Commission for Communications Regulation and the Commission for Energy Regulation. Mr. Pat Massey, who is an economist, has examined the average salaries that are paid to people on such bodies. He went into that sort of detail to come up with the figures the Deputy mentioned, which seem credible. For all of those reasons, we think the cost that will be landed on our members' desks will have to be passed on to the consumer.

How would that compare with the oversight model in terms of costs?

Mr. Colm Ó hOisín

That is a very good question. There is a model for an oversight regulator. In relatively recent times, an oversight body for auditors and accountants has been put in place. The cost of that is less than €2 million per annum. The front-line regulation is done by the professional accountancy bodies. We feel that type of model would work a lot better in this instance. Mr. Pat Massey has looked at that. Although an increased cost would be associated with that, because an independent regulator would be a new body, it would be substantially less than the cost of the model being proposed by the Minister.

Would there be any transitional costs?

Mr. Colm Ó hOisín

Some transitional costs would be involved. They would be much smaller because the number of employees of the oversight body would be significantly smaller.

I invite Ms Isolde Goggin of the Competition Authority to make an opening statement. I thank her for her patience.

Ms Isolde Goggin

I thank the Chairman and the members of the committee for inviting us to attend this meeting. I am joined by Ms Carol Boate, who is the manager of the Competition Authority's advocacy division; and by Ms Kathryn MacGuill, who is a case officer and economist with the authority.

We are here because of the report on the legal profession that we published in 2006. In that report, we concluded that the profession was in need of substantial reform. Many restrictions on competition were operating to the detriment of consumers. I refer, for example, to restrictions on how one could become a solicitor or a barrister and to restrictions on the degree of competition between lawyers. We noted that consumers seeking legal advice and retaining lawyers were not being given relevant information to allow them to choose between competing service providers for the one who best met their needs and ensured they got value for money. We reported that consumers faced obstacles when they wished to switch solicitors.

The 29 recommendations that we made in our report were aimed at improving competition for the benefit of consumers. I am delighted to note the retrospective enthusiasm for those recommendations at this stage. I do not remember them receiving such a warm welcome from the legal professions when the report was published in 2006. In fact, many of them were completely ignored, just like the recommendations of the OECD in 2001, the Fair Trade Commission in 1990 and the Restrictive Practices Commission in 1982. The enthusiasm for reform that we are seeing now is better late than never.

One of the major recommendations in the 2001 report was that an independent regulator be established to replace the prevailing system of self-regulation. We feel there is a conflict of interest between a body being responsible for representing a profession and it being responsible for regulating a profession. When that happens, it tends to lead to suppression of the interests of consumers and regulation in the interests of the profession itself. The separation of representative and regulatory functions, as proposed in the Bill, is a very normal method of regulation in a democratic society. It applies in many other professions and in many other countries. It brings a greater accountability to the legal profession. This is part of a global trend that we are seeing in many other places. We expect that it will lead to consumers getting a more modern, flexible, responsive and transparent service.

I understand that copies of the report were sent to all Deputies. I am sure they already had enough to carry home with them. Our submissions can sometimes be slightly misrepresented. If we do not recommend something, that does not mean we think it is a terrible idea. We felt that some things were desirable from a competition perspective while recognising that they raised wider issues. Not everything can be covered in a single report. We decided it sufficed to say that matters such as legal disciplinary partnerships, multidisciplinary partnerships and unified professions deserved further study. We could see the advantages of many of those proposals from a competition point of view.

In the case of non-solicitor ownership of practices, for example, we were aware that when similar arrangements were provided for in other professions, such as the opticians profession, there was an explosion in the availability of capital and prices came down. There was greater choice and greater accessibility. It is much less of a mystery to the consumer to be able to go into very accessible high street opticians shops rather than having to go into some kind of magic den as used to be the case. It is a much more user-friendly service to be able to look into the shop and check the prices, etc.

We believe this legislation will have many benefits for consumers. We are pleased that lawyers will be required to give meaningful fee estimates, that excessive costs will be considered professional misconduct and that harmful pricing practices, such as junior counsel charging two thirds of the fees of senior counsel, will be brought to an end.

We also envisage that some of the changes to the profession will work to its benefit in the long run. I refer to people being given direct access to barristers, new business models being formed and employed barristers being able to represent their employers in court. Mr. O'Higgins pointed out that the ultimate sanction for a self-employed individual is to be taken off a case whereas employed barristers are safer. If I had employed barristers making a hames of a case for me, I do not think they would feel safe for very long. In fact, I would not have hired them in the first place. Much of the difficulty in this regard is that other consumers do not know how good or bad such a person is.

It has also been recommended that the introduction of a new legal profession of conveyancer be considered. Very good statistics in the UK show that improvements can be made by carving out a very simple end of the legal profession. Perhaps one should not have to go the whole shebang and become a lawyer in order to work in conveyancing. If we provide for the profession of conveyancer, not everybody will have to switch to that profession in order for prices to come down. The suggestion is that the very existence of that service would encourage other people to reduce their prices.

There has been a great deal of debate about the perceived threat to the independence of the legal professions as a result of this legislation. While in some cases the issue has been over stated - we are not like China or Zimbabwe - we recognise that improvements could be made to preserve its independence and in terms of questions about how appointments are made and inviting suggestions about representatives of certain bodies such as the universities or going through the Public Appointments Service. Some improvements could be made that would preserve the independence of the regulator from the Minister. There are some areas where there is a great deal of ministerial and operational activity, such as approved codes of practice. They could be reconsidered. On the whole, various academic lawyers and scholars who have looked at it have been far less concerned about these provisions and how they might operate in practice.

An issue we wish to raise which is not about the form of regulation or the type of body is concerns about the adjudication of costs. The Schedule to the Bill contains a list of factors that need to be considered by the legal costs adjudicator. We would look at it and see a reason to justify increases in fees. In particular, the complexity, difficulty, novelty or specialised nature of the issue is listed, all of which are nearly the same. It appears as if one could rack up one's bill a little for each issue and possibly a big bit for each, therefore we would like that issue reconsidered and a more simple method of adjudicating costs based on the work done and the level of expertise. There is also a mention of the importance of the matter to the client. That raises alarm bells to the extent that one is saying the more desperate a client the more he or she will be willing to pay. That may be a matter of perception but it is something that could be changed.

We see the Bill as bringing substantial benefits to consumers in terms of transparency, that is, the ability to know what they are getting, which is a major issue, value for money in terms of knowing what they get, not necessarily that everything has to be the cheapest possible, and that they are paying a fair price for it. Opening up access to the professions would bring many benefits to people trying to enter the profession which is very difficult. One of the factors influencing that is the fact that as a barrister one cannot get a job. The main way a person enters a profession is that one gets a job and practises as a barrister. Overall we would see independent regulation and new business models as greatly benefitting consumers.

I thank Ms Goggin. I invite Mr. Meegan from Mandate to make his presentation.

Mr. Michael Meegan

I thank the Chairman and members of the committee for affording me the opportunity to make a presentation. Members of Mandate employed in the Law Society of Ireland in the complaints department, the client relations department and the solicitors disciplinary tribunal are all administrative staff. I am mindful of the many issues the committee has to consider in the course of its work. However, I ask that serious consideration be given to our submission. All Members are aware, especially at this challenging time, just how traumatic it is for someone to face the prospect of losing his or her job. Our members are in that place. Members of the committee can save them and their families from terrible hardship. We request that the Legal Services Bill be amended to provide for the transfer of members to the new authority established under the provisions of the Bill. That is nothing more than already exists for staff and employees in the private sector. Within the private sector staff are protected when something like this happens under the transfer of undertakings Act. We ask that be recognised within the Bill.

As a union we can only speak for our members. However, to assist the committee, we would point out that the two optional types of amendment we propose could easily be modified. If the Minister and the committee decided, the definition of staff could be expanded to include all administrative staff or all staff, including executives with decision making functions. The proposed amendments are available as Appendix 1 and Appendix 2. The original section in the legislation is reworded to provide for the transfer of members of Mandate. Appendix 1 is the New Zealand legislation, copies of which were supplied for all Members of the committee.

New Zealand, like Ireland, has a common law system. The Legal Services Act 2011 transferred staff from legal aid centres into the Ministry of Justice. We believe this legislation has a more modern and comprehensive wording than in either previous Irish legislation or the Legal Services Bill 2011. Both countries share a broadly similar social culture, economic interest in technology and agribusiness as well as similar sized population. It is a legitimate comparison to make with the Legal Services Bill 2011, which suggests the jobs carried out by our members will be filled by civil servants.

We note that the Minister has suggested that he is minded to amend this to "open competition". As yet, no wording for such an amendment has been published by the Minister and we earnestly hope that he will take into account our submission and the views of the committee before doing so.

Appendix 2 is the Irish Horseracing Industry Act 1994. We have selected this legislation to illustrate an example of transfer of staff being provided for in recent Irish law. Ironically, the New Zealand Lawyers and Conveyancers Act 2006, effectively sets up a law society of New Zealand to regulate solicitors and barristers, almost the same system the Bill seeks to remove. If the Law Society's regulation department is larger and more efficient than the State's investigation of Anglo Irish Bank, surely it worth at least asking the question, would it not be simpler to incorporate a higher level of accountability? This could be achieved by the committee acquiring or agreeing with the Law Society powers to appoint independent investigators to examine the Law Society's practice and procedures as well as its performance. It is worth noting that at no point in the preparation of the Bill did anyone from the Department visit and examine how the regulation department actually works. That is extraordinary. The Law Society's regulation department costs approximately €11.5 million per year to operate. It is a highly developed complex system refined continually in many years, yet we are to believe that it can be more successfully replaced at the stroke of a pen. Where is the Civil Service equivalent of an environmental impact statement?

Much of what is asserted as independence is simply ideology. What independence are we really speaking about? From the point of view of our members, the argument as to whether the Law Society's investigation of complaints is truly independent seems to arise from a public perception in the media on programmes such as the RTE Radio 1, "Liveline". The hard cold truth is that it is not in the Law Society's interest to have problem solicitors and its work is selflessly in the public interest, despite the general media perception. This is not a perfect world and complaints will continue regardless of whether the Law Society or a new authority investigates complaints. The real issue is transparency and accountability. Judging by the numerous other independent authorities, it is an open question whether this is simply another expensive bureaucratic quango replicating a system that could more easily be modified.

In our view, independent authorities over time are likely to disappoint. We believe there has been a trend towards high sensitivity in any criticism or public scrutiny. Performance of these bodies is difficult to evaluate. Might the new legal services regulatory authority in time also become inscrutable? That appears to be the view of the Parliament of New Zealand, which has not chosen this course.

We draw to the attention of the committee that the Bill has had a devastating effect on our members who have dedicated many years of their lives to working for the Law Society. Our members have husbands, wives, partners, children and families. All of the financial troubles that affect the people members meet in their constituencies are to be found in common with our members. In truth, many of them know that if the committee and the Minister do not help by redefining the legislation, they will face economic ruin and a certainty of living on social welfare, while others will take their place, carrying out almost exactly the same tasks.

We draw to the attention of the committee that Mandate is largely a private sector union. Our members, who have a combined 186 years of service, work very hard to the highest standard. Mandate and the Law Society have a professional relationship which includes exceptional flexibilities. If the committee and the Minister accede to our members transfer, they will be committed and dedicated to ensuring the success of the new authority.

Thank you. I now invite Deputy Calleary to put his questions.

I thank Ms Goggin for her submission. There is no doubt that transparency and change of practice may bring benefits and result in reduced costs. However, there is nothing in the Bill that will reduce costs, as Ms Blackwell, who has no agenda in this regard, has said. How does Ms Goggin respond to the regulatory impact assessment prepared by the Law Society of Ireland for her predecessor? That assessment showed there could be an extremely high increase in the cost of running both professions, an increase that would ultimately be passed on to consumers.

With regard to the Mandate presentation, I note that Mandate wrote to the Minister on 11 November outlining its concerns. Has Mandate received any response or had any engagement with him since then?

Ms Isolde Goggin

On the costs, it is a bit like the retroactive enthusiasm for reform of the legal profession. In a previous incarnation, I used to do a lot of work on regulatory impact assessment and I found it very hard to get anybody to take the slightest interest in it. I have never heard so much enthusiasm for it as I have heard in this room today. The purpose of a regulatory impact assessment is to assess regulations. I have not seen any assessment of the regulators in place currently nor have I seen any assessment of the cost to consumers or the cost to the economy of the restrictive practices that are in place now and that have been in place for many decades. Therefore, I do not think we are comparing like with like. We do not have a good understanding of the costs to the economy imposed by assessments, but there are costs.

It is notoriously difficult to put a figure on the benefits of competition. Going back a few years, who could have predicted that allowing competition in airlines would cause airline prices in Europe to fall by two-thirds and route frequency to rise by 80% in 20 years? It is the job of Departments to undertake regulatory impact assessments, although I understand that where this is not possible due to reasons of time, it is not a requirement. I presume this is the case here. Much depends on how the new legal services regulatory authority carries out its job. We do not know how efficient the current bodies are either. Therefore, we talk about starting with the current level of staffing, but that may not be the appropriate level. I had a quick look and it struck me there is a very high level of support staff and support costs.

My real concern would be the issue of legal costs and whether they will reduce. Based on the competition angle, I would say "Yes", but if based on the legal services and the cost adjudicator aspects, there are issues that would cause us serious concern. If everything in the Schedule currently remains, it is possible costs will rise. This is something we feel needs to be changed.

Is the Competition Authority concerned that choice will be restricted in the new models? For example, to get a barrister currently, one must go through a solicitor. Now, some barristers will be housed within special multidisciplinary practices and unless one goes to that practice, one will not get that barrister. Will that restrict choice?

Ms Isolde Goggin

We have not come to a conclusion on the issue of multidisciplinary practices. We looked at the issue and saw that there were advantages to competition in various models, but this must also be looked at from other points of view. What we recommended was barrister partnerships, where a number of barristers would get together. However, I would not see that as restricting choice, because that is how solicitors have operated since the year dot. Notionally, one can secure any barrister of one's choice, provided one has €50,000 to pay the brief fee. Therefore, the choice is not as free as portrayed.

Will Mr. Meegan respond to the question I asked him?

Mr. Michael Meegan

We have had no formal response from the Minister apart from the usual letter saying he had received our letter. There has been no interaction with him.

On the Mandate issue, and I thank Mr. Meegan for raising it, we have had representations from some people employed in the Law Society of Ireland as individuals. How many employees are we talking about with regard to this issue? I am aware Mr. Meegan has said he has had no formal response to his letter to the Minister, but he said the Minister had indicated that he might be minded to put in some sort of transitional or transfer arrangement. I have looked at section 75 of the Irish Horseracing Industry Act, a note of which Mandate sent to us, and it provides a clear transfer mechanism to the new horseracing authority. Mandate believes that would be a good model. Is that correct?

Mr. Michael Meegan

The problem that our members face is that they are in a vacuum and this is causing huge frustration. There is very low morale with the members of the Law Society of Ireland as it stands because nobody knows what impact this Bill will have on their future. They want some sort of assurance that they will have the same protection as if they were within the private sector under the likes of transfer of undertakings, in other words, that they would be allowed to transfer over to the new authority with their terms and conditions intact. We are talking about approximately 50 or 60 staff, although I stand to be corrected on that. I had a meeting with them recently and the situation is very frustrating for them. All they want is some sort of assurance. They are loyal workers and employees of the Law Society of Ireland and there has never been an issue with regard to their work. They have agreed agreements with the society on flexibility and on changes to work practices without issue and all we are asking is that they are given the assurance that their jobs are protected and that they will not end up on social welfare like so many others.

I have a question for the Competition Authority. I and some Trinity College colleagues did a report in 2003 on gender discrimination in the legal professions and felt it was somewhat refuted. However, both professional bodies implemented a number of our recommendations. We recommended, for example, transparent criteria for promotion within the solicitor profession or for appointment as senior counsel in the barrister profession because that had an impact on gender discrimination. I am aware this is something the Competition Authority has raised also.

I am interested in the issue the authority raised about education in its 2006 report and about opening up education to other providers, presumably to law schools and so on. Is the Competition Authority satisfied with what is in section 30 of the Bill on that, in terms of the report to be provided? Is it appropriate that the regulatory authority would look at that?

Ms Isolde Goggin

I think it is appropriate. We can have a distinction between standard setting and service provision and that is very common in other professions. For example, in the medical profession there is no monopoly on the provision of training for doctors, despite it being crucial that they are trained to the appropriate standard. Other professions train in multiple schools and other jurisdictions also have multiple schools. However, it is important that there is a standard setting and enforcement body.

I have two brief questions. The first relates to the point raised by Deputy Bacik on education, training and qualification of solicitors. As a public representative I have been made aware of the fact that law graduates, primarily because of the economic downturn, find it very difficult to get apprenticeships in law firms. The lifeblood of the profession is competition and the 2006 report identified restrictions on how people could qualify as a solicitor as a barrier. Is the Competition Authority disappointed that the legislation is not more proactive in terms of charting a seamless pathway for people who enter university to study law with the obvious intent of qualifying as a solicitor or barrister? I am aware the legislation mentions studies at a later stage to deal with these issues. I feel that people are duped. They think on entering university that there is a clear pathway to qualification, but there are gatekeepers along the way. In an economic downturn, this means that honours graduates with very high academic capability find that their career prospects are stymied because they cannot get an apprenticeship. I would like the witnesses to address that issue.

The second issue I would like to raise is multidisciplinary practices. I represent a rural constituency that is largely populated by legal practices of one or two solicitors, perhaps not regularly having a requirement for High Court appearances. I would feel that people they represent in court are likely to be short changed by the introduction of multidisciplinary practices because the biggest and best law firms will come together. Solicitors' practices in provincial Ireland are currently in a position to access senior counsel on the occasions that they need them, but they might find that their case is poached by the larger practices which will have access to the best counsel available, by virtue of these new arrangements. I think that is a disservice in terms of choice. Ultimately, I think it is anti-competition and it would be wise to step carefully onto the pathway and to take cognisance of experiences in other jurisdictions before we leap, as the currently drafted legislation proposes.

Ms Isolde Goggin

The question about the career path is really interesting. I am probably not qualified to answer it because there is a question about whether a university degree is of value in itself. People might decide to do it and then branch off into some other profession or use their degree as a degree without becoming a professional. If the new legal services regulatory authority is examining the issue of merging the professions, it might look at that as an element of the issue as well. I am sorry I do not have an answer for the Deputy, but I think it is a very interesting question.

I will ask my colleague, Ms Boate, to get back to the Deputy on the multidisciplinary practices.

Ms Carol Boate

The issue of multidisciplinary practices is exactly as the Deputy portrayed it. It raises concerns that it could lead to anti-competitive effects as well as pro-competitive effects. I think one would want to examine them on a case by case basis. Are legal partnerships with accountants different to legal partnerships with doctors or different to legal partnerships with tax specialists? That is why we recommended that these be examined in quite a lot of detail. I guess this committee will have to consider the question of whether the Bill should state that a report should be done into whether these things are a good idea, as opposed to how.

I would like to echo something Ms Blackwell said earlier. It would be worthwhile considering a wider set of models than just the two in the Bill. In our report on page 105, we also considered other models for solicitor services, whereby there could be non-solicitor owners involved in practices. We said that these should be examined. All of these things will come in now in the UK and we should be able to benefit from their experience of that. All of the predictions for the UK legal services are that there will be huge legal retailers, just like Specsavers, Vision Express, Boots and so on developed high street retail optician services. Instead of having to go to an individual optician who has eight pairs of glasses to chose from, people can still go to a fully qualified optician, the level of eye care will have improved because the test is so cheap and people can go regularly, and there is a huge choice of glasses. Similar things are expected to happen in the retail provision of legal services for the basic and most common services.

As Ms Blackwell said, information is key. Regulation is not the solution to everything, but businesses that operate a main street service have a very strong incentive to provide very clear information. This could be good for solicitors because it could tap into a demand that exists for legal services whereby people do not go and visit their solicitor when they should be getting legal advice but they are in awe of solicitors, are afraid of getting a bill that they will not be able to pay, and they do not know what are the costs involved. This kind of commercialisation of basic retail practices could be a good thing from that point of view, but there are wider implications and that is why it should be considered.

Senator O'Donovan has a question.

I have been very silent all day. I must confess that I am a solicitor. I live in Bantry in west Cork. There is no Specsavers within 70 miles of the town. The same competition principle applies to airlines, but unfortunately that did a lot damage to Cork, because not alone did competition destroy Aer Arann, but Ryanair left afterwards and there are now no flights left from Cork to Dublin. If we go down the lines of what Ms Boate is saying, then small rural practices might as well close down. I know there are Specsavers in Dublin or Cork city, but there are many places in Ireland where Specsavers is not available. These are extreme examples coming from my point of view as a person representing rural Ireland who trained in and is involved in small practices.

What is the view of the Competition Authority on the huge amount of people with law degrees and master's degrees who cannot access the legal profession due to the lack of apprenticeships or get into the Bar Council? A barrister came to me recently who wanted to emigrate to either Australia or New Zealand. Unfortunately they want carpenters and plumbers, but there is a surplus of legally qualified people in Canada, Australia and New Zealand. Are we at a stage where we would now advise people to think carefully before doing a law degree or going into the legal profession, because it is overflowing? The witnesses are going on about opening up competition, which is fair enough, but I see it differently at the moment.

Last year, 11 people, some of them with master's degrees, came to me asking whether I could take them on as apprentices. They were badly stuck; they looked at all their options but they could not get into any office. That was similar to what I experienced many years ago. I think the market is flooded with young legal professionals who see no opportunity. In my view, it is not the fault of the Law Society of Ireland or the Bar Council. It is just that there were many opportunities in law during the last decade. I would not encourage people to study law in the next decade, because there is a diminishing set of opportunities.

Ms Isolde Goggin

Speaking as an engineer, I would always advise people to study engineering.

One could end up in the Competition Authority.

Ms Isolde Goggin

One could end up anywhere. There is a difficulty with every aspect of education. I am not sure if anything can be done in respect of the education, training or legal profession that will solve that kind of problem. There is always a lag in terms of young people making their career choices back at junior certificate level, when they choose certain subjects and then go into university by which time the jobs market has changed. All I can say is that I recognise that there is an issue here but I do not have a solution.

The thing about the Specsavers model is that we end up with different models. We end up with chains and local services. There is always a market for people who provide good, local, knowledgeable service. These are people who are known and trusted for generations and they can coexist with the other model. There are many benefits to consumers in that certain types will be attractive for young people who want to get things done quickly. Older people want more time and want to be taken care of, and they will appreciate that. That coexistence of different models exists in many industries, depending on the local economies of scale and the size of the place and so on.

Chains like this open up access to the profession for people who previously could only have started their own business, whereas now they can get a job. It is the same argument really. What is the normal way that somebody coming out of college gets a foot on the ladder? They need not necessarily become self-employed and perhaps they must wait for five or seven years while they build up a business. One gets a job based on one's hard work in college, one's qualifications, one's personality and whatever else. I do not see that as a bad thing.

There are three requests for input. Mr. O'Higgins sought to make a point earlier.

Mr. Paul O’Higgins

The matter of regulatory impact assessments was raised and I wish to check what Ms Goggin said. I hope she did not miss her real vocation when she decided not to practise as an engineer. The Competition Authority described the various measures which it believed should be examined, such as unification of the professions and multidisciplinary partnerships. The authority decided that this should be preceded by a regulatory impact assessment. I am struck by the fact that when Deputy Calleary made his point, the question of whether that was now necessary was not expressed. It was stated that it was too late for that. I suggest that it is not too late. There is no reason a regulatory assessment could not be carried out. The programme for Government recommended it be done before now. That recommendation emerged at a time when it could have been considered by the Houses. I believe an assessment is proposed. Anyway, the more time they have, the better but I am unsure what it would be like. I imagine the suggestion was not put forward in all seriousness but if an assessment were carried out I believe it would show - I wish to put this on record - that the idea that €50,000 was needed for a good barrister to do one's case is very much out of touch. Most cases are done for tiny fees and many are done for no fee. This is something which a regulatory impact assessment would disclose if the position of barristers was examined in a genuine way.

There is a notion that self-employed barristers are prevented from getting a job elsewhere. They are in the sense that part of being a barrister is being self-employed. It offers an alternative service to the public. They can change to being solicitors readily and they could seek a job in that way. However, as Senator O'Donovan pointed out, they may not get one because each of the two markets is fully supplied at present.

Mr. Ken Murphy

It has not been remarked on today but part of the reality and the economic background to the legislation is the fact that, according to the Law Society of Ireland estimate, there are between 1,000 and 1,200 unemployed solicitors. The extent to which this is suggestive of a market lacking in competition is open to question. Clearly, the considerable numbers of unemployed solicitors are not indicative of a market that anyone is in a position to exploit anti-competitively.

Mr. Tony McGillicuddy

There has been mention of the career path for younger professionals. I refer to one or two points about how the proposals might affect people who may wish to become barristers. There were 144 new entrants to the Law Library this year. Earlier, Mr. Maguire stated that the average number of people qualifying each year in the past ten years has been 159. Anyway, some 144 people were able to enter the Law Library this year. Of these, 86 were female and 57 were male. Each had to be provided with a master and their subscription fee is subsidised. In year one they pay a subscription fee of €1,500 whereas a person at my level will pay approximately €4,500 and it goes on. Therefore, there is subsidisation of fees for those who enter.

In addition, they must be provided with a master in order that they can gain experience. It is well and good to suggest that someone qualifies as a legal professional and can then get employment. However, one thing any employer seeks from anyone advocating in court is the assurance that they have done it before, that the person has driven the ship before when it comes to doing a court case. This is part of what the profession gives. Important access issues arise for the public as well as for the professions. Under the chambers system in England - a type of partnership system - this year some 1,850 people will qualify. However, only 460 pupillages, effectively devil-type relationships, are available. That represents approximately 20% proceeding. A bottleneck exists and some may qualify but they cannot get in and start in the profession. Deputy Farrell adverted to this point. I come from a non-legal background, far away from Dublin.

One thing about the profession as it stands which should be examined carefully is the question of barriers to entry and how they can be rectified. It is important to preserve freedom of access and we should be careful not to remove it. One element of our proposals not included in the Bill relates to the business structure provisions. In the case of education we maintain that one of the primary things that the research authority should consider is the impact of removing barriers to entry or assessing barriers to entry for new entrants or for people to come into the professions. There should be access. It helps in two ways. It creates greater diversity among those who come into the profession and more are available as well.

Some 2,300 barristers are available to carry out work. Often, they work at the coalface and at the hard end for organisations such as that headed by Noeline Blackwell and the new organisation involving David Hall which people will have heard of. Such property cases are often carried out for little money. In the case of access to the professions, the cure might be worse than the disease. The scene in United Kingdom is an example of where people cannot get into the professions even when they have qualified.

Mr. Conor Maguire

Mr. McGillicuddy has taken some of the points I wished to raise but I will make one or two minor points. As far as we are concerned, there is no restriction on the numbers that can come into the King's Inns. As Mr. McGillicuddy has said, there is no evidence of an unsatisfied demand. It is useful to point out the comparison with England. Our fees are a good deal lower. If one goes to London the fees are of the order of £19,000 while here they are €12,500. A comparison can be made in this regard.

One point, which relates to Deputy Creed's remarks earlier, often missed is the ease of transfer between the two professions. The Law Society of Ireland and the Bar Council of Ireland got together at the time the Competition Authority report was being considered. We freed up the change of professions. One need not do any examination and once a person is three years qualified in either profession, one must simply complete an unexaminable course, that is to say, there are no examinations. This allows one to switch from one to the other. The course for a barrister would train one to do solicitor-type work and the converse is true for a solicitor's training to transfer to the bar. As far as we are concerned we do not see ourselves as gatekeepers; we have open access and no limits on numbers.

Ms Isolde Goggin

We have had an interesting and open debate and I have no wish to nitpick. My point about the regulatory impact assessment was simply that to the best of my recollection the Government decision from June 2005 requiring regulatory impact assessments for primary legislation and significant secondary legislation contains a get-out clause for urgent matters, the essence of which is if the matter is urgent-----

It is six months since the Bill was published.

Ms Isolde Goggin

My understanding is that it should have been carried out with the heads of the Bill. The matter of self-employed barristers was raised. It annoys me that although I have barristers working in the Competition Authority, I am obliged to get my solicitors to brief other barristers and pay those barristers to appear in court. I have barristers who could carry out that work perfectly well but they are not allowed. That is somewhat annoying. They are in the organisation, they know the subject matter and they know the cases.

Why not?

Ms Isolde Goggin

One cannot be an employed barrister.

My final point relates to the recession. Times are tough for everyone. There are many unemployed lawyers as well as bricklayers, construction workers and so on. In the study we carried out in 2006 we made a serious effort to make recommendations which would remain valid regardless of the circumstances of the time. We tried to consider something that is serious, long lasting and does not focus on whether people are making too much or not enough money. It is something that should be valid regardless of changing circumstances.

Times have changed immensely. We are in different times. Would Ms Goggin have a different report now?

Ms Isolde Goggin

We should have implemented it in 2006.

I thank the witnesses for coming before the committee today and giving of their time and expertise. It has been extremely useful to members and others who have been listening, watching and trying to understand what this is all about. I hope it was helpful to the witnesses. They are busy people.

A number of things jumped out at me. Ms Blackwell mentioned human dignity and fundamental rights under the basic UN principles on the role of lawyers. It was highlighted at the start of the meeting and I want to play to the finish. That view came across in all the contributions and it is good to see it.

I am concerned that there are many unemployed solicitors and barristers who are having a tough time of it. A lot of people in society are experiencing such difficulties. There have been huge legal bills and massive costs from tribunals. That has skewed the perception of the profession in many ways. It is something that should be highlighted.

The Minister will come before the committee in April or May to discuss the detail of the Bill, such as amendments and so on. We will all be working very hard on debating and discussing many of the points made. I am sure witnesses will be in contact with members in the meantime about other issues and points.

The joint committee adjourned at 5.05 p.m. until 3.30 p.m. on Tuesday, 27 March 2012.