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Seanad Éireann debate -
Wednesday, 13 Nov 1957

Vol. 48 No. 9

Solicitors' Remuneration General Order, 1957—Motion to Disallow.

I move:—

That Seanad Éireann is of opinion that the Solicitors' Remuneration General Order, 1957, should be disallowed and requests the Government to disallow it.

I should like to raise a question with regard to the propriety of proceeding with this motion to-day. I am not raising the question of order, but it is true that a number of members of the House, myself included, received our agenda only to-day and I am conscious of the fact that at least one member of the House has not yet received his agenda and accordingly had not notice of the fact specifically that this motion would be moved in the House this evening as practically the first business. I want to suggest to the Minister that a motion of such importance as this, novel in its way— it is my first experience of such a motion since I entered the other House in 1923—ought not to be moved in haste, that the members of the House ought to have an opportunity of examining the proposal and trying to understand its implications and what exactly it means.

The Minister will not lose anything if he will meet the House by putting down the motion for, say, this day week. In all the circumstances, that would be most satisfactory to everyone concerned. The Minister is a man of common sense. I do not know if there is any member of the solicitors' profession in the House, at least a practising member, and in all the circumstances, so that we all should be fully conscious of what we are doing, the Minister would do a service to the country by agreeing that the motion should be put down for a later date. We are ready to meet the Minister any day next week that he suggests. Otherwise, I can only feel he will not be doing justice to the House and will not be giving it a fair opportunity to consider the implications of this motion and we must ask why it is necessary at this stage to rush the motion.

The position is that I cannot get any of the people who could interpret clearly for me whether the laying of this Order on the Table of the House on 14th ultimo does not imply that the month will have concluded on the 14th, that is, to-morrow. In view of the fact that I cannot get any definite advice on that aspect of the matter and in view of the fact that the ordinary, normal notice was given—the full statutory period for putting down motions was given—I must presume that if that is the period allowed for the moving of motions, it must have been regarded as sufficient to meet a case of that kind.

I cannot say, on my own, that I am going to agree with Senator Baxter that I should be doing either a favour to the House or an injustice to somebody by not agreeing to his proposition. I am in the difficult position that if I were to agree here and now to postpone this to a later date, I might be putting myself and the Government in the position in which we could not move the motion and from that point of view I am afraid I will have to insist on having it discussed to-day.

Might I ask the Minister, if the position is as he has stated it to be, did it not occur to him that he should have put the motion down in the Dáil for last week?

The answer to that is that it was still under discussion last week and we were not in a position to put it down.

Might I say, in reply to that, that if the Government takes a month to make up its mind about this matter they might give the House at least a few days to do so?

The answer to that is that if we are to observe the common courtesies to each other and if the Incorporated Law Society of Ireland seeks an interview with the representatives of the Government, the Taoiseach and myself, and if we meet them and discuss questions with them, that should not be put up as the reason why we should have done something a month ago.

We met the representatives of the Incorporated Law Society and had what I deem now to be a very friendly discussion with them. The Taoiseach on that occasion made it reasonably clear to the deputation that, while he was listening to their case and was prepared to deal with it as sympathetically as possible, he could not give any undertaking on behalf of the Government. He said that the matter would have to be brought before the Government and discussed by them and the decision would be the Government's decision. That is exactly what took place. Following the interview, the matter had to be brought before the Government again to see if the Government were prepared to change their decision, but having heard the Taoiseach and myself in regard to the interview, they decided they would not alter their previous decision and that is why this motion was not put down last week or brought in at an even earlier date.

It is said that the Incorporated Law Society was concerned, but they did not make this instrument. I am not suggesting that the Minister has not been courteous—

I did not say they had made it.

No, but the instrument it is proposed to rescind was made by a certain body and the Minister tells me: "We took up time discussing the matter with a third body". I am not sure it is reasonable that a matter which concerns a body consisting of the Chief Justice, the three senior judges of the courts and the President of the Incorporated Law Society should be brought into this House at very short notice on the excuse, or on the plea—we shall be very fair to the Minister and agree that he has been working on this; we shall not take him short on that argument —that the Minister had to be courteous, but the Minister has so tied things up that it is at the last moment we are dealing with this. I am not suggesting that the Minister was discourteous to anybody, but there is the question of taking this House short. I understand that the meeting between the Minister and the Incorporated Law Society took place on October 23rd.

That is almost a month ago.

This matter has been properly ordered for to-day. The Minister has expressed a desire that the motion be taken now and the motion is now before the House.

Before saying anything about the Order which is before the House, I think it would be well to say a few words about the manner in which the remuneration of solicitors is fixed. For what is called "contentious work", meaning, broadly speaking, work in connection with cases in court, the remuneration is fixed by Rules of Court made by rule-making committees consisting of representatives of the Bench, Bar and solicitors, but the concurrence of the Minister for Justice is required before these Rules of Court become law. The remuneration of solicitors for non-contentious work is fixed by a committee established by the Solicitors' Remuneration Act, 1881, which consists at present of the Chief Justice, the President of the High Court, the senior ordinary judge of the Supreme Court and the President of the Incorporated Law Society of Ireland. An Order made under the Act does not become law until it has been laid before each House for a month, and if either House or both Houses resolve within the month that it be disallowed in whole or in part the Government may so disallow it. Parliament did not hand over to the committee the right to regulate costs, but reserved to itself the final say in the matter.

Under the Act, the remuneration of solicitors has been regulated by Order since 1884. The work covered has been divided into two categories and the remuneration for these was fixed under Schedules I and II respectively to the Order of 1884. Schedule I provided scales of fees based on the amount of the consideration for sales, purchases, mortgages, leases, agreements for leases, and similar transactions. Schedule II covered other business of a non-contentious kind and instead of fixing scales based on the amount of the consideration as in Schedule I, it continued the system then in force of charging for the work done by reference to a priced list of items.

The Order has been amended from time to time, and the rates have been increased. Since 1920, it has been permissible for a solicitor, instead of furnishing a detailed bill in which each item is priced, to furnish a bill for a gross sum, at the same time informing his client that he may insist on having a detailed bill, and have this bill taxed.

Bills of costs are taxed by two Taxing Masters of the High Court who are themselves solicitors.

The new Order abolishes altogether the detailed priced list in respect of the work covered by Schedule II, while it does not abolish the scales fixed by Schedule I for sales, purchases, leases, etc. A solicitor is in future to charge a gross sum which is to be fair and reasonable, regard being had to all relevant circumstances.

No one would attempt to deny that a solicitor should be paid for his work whatever is fair and reasonable, but in the view of the Government the Order affords inadequate protection to the client. There will now be no list of charges to which reference may be made in order to decide what is fair and reasonable. The Taxing Masters have expressed the view that their work in taxing bills under the new Order would be made very difficult. Furthermore the client has no right to obtain at any stage details of the work which the solicitor claims to have done so as to enable him to decide for himself whether the charge is reasonable or not. He may possibly get such details by asking to have the bill taxed but by so doing he incurs the cost of taxation in addition to the amount of the bill itself, and even by doing this he cannot be sure that he will get the details he needs. This is to be contrasted with the existing system under which the client may demand an item-ised bill and when he gets it he may possibly see that the bill is reasonable and agree to pay it without taxation, or if he wishes he may have it taxed.

It may be said that the new Order safeguards the client by entitling him to ask for a certificate of the Incorporated Law Society that the charge is fair and reasonable, but there is a similar Order in England and the court there has pointed out a defect in this procedure inasmuch as the client has no means of seeing what information the solicitor furnishes to the law society or of questioning its accuracy.

Another objection to the new Order is that—unlike its English counterpart —it applies to work already completed if a bill of costs has not yet been furnished. The reason for this is difficult to see.

It must not be thought that the Government is totally opposed to any alteration of the existing Orders. On the contrary, it recognises that a case can be made for some alterations. Unfortunately, the law at present does not enable the Oireachtas to amend the Order made by the committee. The Order may be allowed to stand or disallowed in whole or in part. By disallowing the Order, the existing arrangements will be continued, but the way will be left open to the Incorporated Law Society, who proposed to the committee the making of the present Order, to come forward with other proposals which may be acceptable.

I do not know what the pulse of the House is generally on this question, but it seems to me the decision of the Government is one of the most disquieting that members of the Oireachtas have ever experienced, if they appreciate fully the implications of this decision. I feel this is not a matter on which the House should be divided. We are—in the words of Mark Antony—just plain men, not distinguished lawyers, not members of the particular profession which the Minister seems to indict in his efforts to amend the Order and we can only make the approach to the Minister's proposals that ordinary common-sense men would be competent to make.

Briefly, what are the facts? The Order does not apply to solicitors' costs generally. The bulk of these are decided already by a procedure which is accepted and well-established. The Order refers specifically to the costs incurred when I, as a countryman, go to my solicitor with a problem which I want him to resolve and it proposes to deal with the question of the costs due to him for that particular service. That is a close, intimate service; none is concerned but the client and his adviser. The procedure has been that under the Act of 1881 the committee which is authorised to determine the method by which these costs are decided, has come to a decision and made an Order. The committee is composed of the most distinguished men in the land—the Chief Justice, two judges of the High Court and the President of the Incorporated Law Society. Obviously they are not a partisan body. That cannot be alleged.

The President of the Supreme Court is a nominee of the present Government and I think all those who compose the committee hold office on the nomination of the present Government. They were invited to make an Order. Would anybody suggest that a group of distinguished citizens got together and without thought or examination made an Order which has been laid on the Table of the House and which we are expected either to accept or reject according to the line of reasoning pursued on this matter to-day? I think it must be unexampled in the history of this State that men of such distinction in the legal profession would make an Order on a trifling matter like this —that is what it is in fact—and that the Government would interpose itself in this way and move to upset or amend the Order.

A number of people in this House and in the other House have experience of the allegations that have been made against the Executive in many countries throughout the world. It is one of the things the common people and ordinary parliamentarians are being continually warned against—this effort on the part of the Executive to reject the advice of the best authorities and to use the simple parliamentarians to carry their point of view. All I can say is that it is a very bad example. I do not know whether one can use words like "contempt" or not. In a matter like this, when the Executive are rejecting the advice of people who occupy the most important posts in the judiciary, many of the common citizens must ask: "Where are we going? Who is leading us?" The decision is extraordinary and unwise and sets a very bad example.

I do not intend to say a great deal on this because in many ways it is a professional matter, but I will have to ask what offence have the solicitors of this country committed that they must be indicted in this way? I can go to a doctor and invite him into my home; I can go to my accountant and seek his advice as to whether I am liable to pay so much income-tax or not; I can go to engineers and members of other professions. It never seems to occur to the Government that they have any responsibility to protect me against the members of these other professions. It arises only in the case of solicitors.

The solicitors' profession is a very highly respected one. It has within its ranks many of our finest citizens. We have been urging the establishment and operation of functional and vocational bodies. We have taken the line in various statutes passing through the House of authorising these functional bodies to regulate their own affairs. We have done that in all cases except one—the solicitors' profession. I do not know why. There must be some reason and I should like to have it.

When a person goes to an accountant about his income-tax, he is concerned with something very personal and intimate, just as intimate as anything that would take him to a solicitor. As far as the Government are concerned, I have no protection in regard to any charge that may be imposed on me in such a case. In the same way, when the doctor comes into my home, it is a matter just as intimate, but no more intimate. Yet none of these people is singled out in the way solicitors are singled out.

From the information at my disposal —and the Minister has corroborated it —the solicitors' profession sought an interview with the Taoiseach and the Minister when they realised that the Order, which had been shaped by the committee agitating on the question of costs, was being challenged by the Government. I do not think they came brandishing swords or with atomic weapons. They came as reasonable people believing they had an argument to which reasonable people would listen.

In the first instance, I take it that this Order of the committee was made after hearing both sides of the case. I cannot imagine how anybody could impose any sort of story on such people as the Chief Justice and get them to arrive at conclusions to be implemented in an Order, unless there was a very good reason for doing so. As I say, an interview was sought with the Minister and the Taoiseach. The Minister indicates that the discussions were agreeable, and while the Taoiseach indicated that they were not to go away with the impression that anything would be done, at least they were not turned away with a frown.

Certain suggestions were made to the Taoiseach and the Minister. These suggestions were put on paper and were in the nature of what the representatives of the Incorporated Law Society would speak of as "additional safeguards". This, I understand, is what they advised the Minister they were prepared to do:—

"We, the representatives of the Incorporated Law Society of Ireland, having full power from the council, which is the governing body of the solicitors' profession, to bind the council in any matters relating to the above Order, hereby undertake with the Government through you as follows:—

1. If, at any time after the expiration of a period of 12 months from the date of the Order, there appears to be injustice to the public under its operation, the council will of their own motion or at the request of the Attorney-General refer the matter to the statutory body to make such amendments, if any, to the Order as may, after inquiry, appear proper to it or, if need be, to revoke the Order.

2. To make a disciplinary regulation under the Solicitors Act, 1954, providing that a bill of costs furnished under the Order shall contain a notification of the right of the client (a) to obtain free of charge from the council a certificate of the reasonableness or otherwise of the charge and/or (b) to have the bill taxed by the Taxing Master.

Signed, Seán Ó hUadhaigh, A. Cox, G.G. Overend, Ralph Walker and Eric A. Plunkett, Secretary."

That sounds a fair and reasonable attitude on the part of the Incorporated Law Society. Somebody is unreasonable, but it is not the Incorporated Law Society. The people who are unreasonable in this matter are creating a dangerous precedent. If they can do this with the members of one profession, they can do it with the members of another. Where does it all end? Is it the Civil Service which is trying to inject itself into the minds of the Executive in order to commit the country to a new policy of interference between the citizens and the members of the professions, a policy of which the country has had no experience in the past?

Some people may think there is a necessity to protect the ordinary client from the risks he will run when he gets into the toils of a member of the solicitors' profession. Who are the simple people of this country? I do not think there is any countryman to-day who will go into a solicitor's office and, when he is asked to pay his bill, will not be competent to make up his mind whether the bill is high or low and, if he thinks the bill is too high, the countryman is quite competent in his own way to find that out. He will not be very long making such investigations as will enlighten him and enable him to see a way whereby that solicitor will be reproved.

We are trying to protect people from themselves in such a way as is unworthy of the individual. The individual is better able to mind his own business than the Government is in its domain in many respects, and you cannot save the people from everything all the time. Give the people a chance. This is an effort of the Minister on a small matter. I would suggest that the costs which will fall due under this particular clause of the Order are the least of the costs that a solicitor will collect. I cannot understand why the Minister is introducing an amendment to this Order and I would hope that those Senators, who, like myself, have no training as lawyers and cannot be described as having to speak for members of the legal profession, would voice their opinion on this issue as I have voiced mine. I think it is very unwise for the Minister to proceed with the amendment but, above all, I think he should have given us a better chance to investigate all the implications behind this Order before asking us to take it to-day.

The Order before the House to-day is an extremely important Order which affects a great many people in this country. I agree with Senator Baxter that the revocation of this Order is not a matter to be undertaken without the fullest consideration. It affects the prosperity of one branch of the legal profession. It affects the costs of litigation, or rather of professional consultations. It affects the relationship between solicitor and client, and above all, it affects the status of the independent statutory body, set up by statute, to investigate cases of this kind.

After a lengthy investigation, in which all sides were heard, certain recommendations were made. With only two days' notice, before members of the Seanad had time to gather their material together, they were informed that the Government had decided to ignore and reject this recommendation which I certainly regard as having the same status and the same claim to consideration as at least a judgment of the High Court. Three eminent judges have expressed their opinions on what is a legal matter. The Seanad is now asked, without any convincing reasons I fear being advanced so far by anybody, to reject this finding of the tribunal and to throw this whole question of solicitor and client relations into a confusing position again.

I make no apology for taking up a little time on this matter because I think a very important duty of the Seanad is to try to protect the liberty of the citizens in this country. One of the most valuable functions which Seanad Éireann has performed was the setting up of the Statutory Orders Committee which has acted as a watchdog on the Executive. Since that committee was set up, the various Departments of State have been anxiously concerned not to do anything not within their powers. I do not suggest in this case that the Minister has done anything to exceed his statutory powers. He is entirely within them but I think the Seanad is entitled to be told all the issues involved in this matter. I do not think the Seanad has been told all the issue involved, by the Minister in his opening statement to-day.

If I had come here to-day without any professional information on this subject, I do not feel I would be very much convinced by what I heard on the part of the Minister, that this eminent body should be capriciously set aside by the Seanad at two days' notice. Most of the members of the Seanad had no time to study the issues involved and I feel I am doing a public duty in putting forward the history of this matter in so far as I know it.

In February of this year the Incorporated Law Society, acting under the Solicitors' Remuneration Act, put an application before the statutory body set up to hear applications of this kind. The solicitors' profession is unique in that alone amongst all others must its practitioners charge for their services to clients by submitting very lengthy and detailed bills of costs in which every item is set out fully. This method of presenting costs dates back to the days when solicitors were very little removed from scriveners. In later days this method of presenting costs has become antiquated in the light of modern conditions.

The Order we are discussing refers only to a very small part of solicitors' costs. Costs of conveyancing are fixed on a scale based on the amount of the purchase money. Where there is actual litigation costs are subject to taxation. What this Order refers to is known as solicitor and client costs covering advice. This embraces such matters as administration of estates, wills, the formation of companies and legal advice on a great number of matters. This Order covers only a very small part of solicitors' work as a whole.

This application was made in February and I am not going to weary the Seanad by a summary of the case which was made by the solicitors' profession before the statutory body. Some of the issues are slightly technical and perhaps I might not explain them very clearly. This application was heard by this statutory body which is a body of quite unusual prestige. I am in contact with other bodies of this kind, visitors to universities and professional bodies of that nature, but I do not think there is any professional body in Ireland which has a greater prestige than that composed of the Chief Justice, the President of the High Court, the Senior Judge of the High Court and the President of the Incorporated Law Society.

One would have thought that a body of this kind would make a suitable recommendation. One would have thought that a body of three eminent judges, drawn from the other branch of the legal profession, with no trade union or professional feeling, together with the President of the Incorporated Law Society, would have been at least as competent to judge the correct relationship between solicitor and client as, with all respects to him, the Minister for Justice. Having considered this matter, with we must assume all parties having been heard, an Order was made in the terms which we have before us in the Seanad and a copy of the Order was sent by the statutory body to the Department of Justice in July, 1957.

This is November. The Department of Justice has had the whole of summer and autumn to consider this matter. Two days ago, there suddenly appeared on the Order Paper of this House— the Dáil not sitting this week—the surprise item which we are now debating.

If the Minister urges that the reason for pushing this through with great haste is that only two days are left in which it can legally be done, I suggest the blame lies with the Department of Justice, which had months and months in which the matter could have been brought before the Dáil. The Seanad has not been sitting since the summer, but the Dáil has. There were ample opportunities of parliamentary debate before the middle of November.

It was intimated that the statutory body proposed to sign the Order on 9th October. It will be within the knowledge of Senators that, in July last, we received an anonymous communication on this matter from what we all know to have been interested parties. On learning of that communication, the Incorporated Law Society sent an explanation—it is printed in their society's Gazette— which has been circulated, and which is in the possession of every member of the House.

In September, the Incorporated Law Society sought to be received by the Department of Justice. The Minister for Justice abruptly refused to receive them. This highly important matter could, I take it, have been under consideration. There was plenty of time to consider it; there were all the empty summer months during which the Dáil and the Seanad were not sitting. However, in spite of its importance, the Minister for Justice could not find time to receive the Incorporated Law Society in the middle of the long vacation to discuss this highly important matter.

I am not free to refer to certain communications which we know passed between the Minister for Justice and the statutory body. These are privileged documents. We know that the correspondence took place. One of the things I am doing this afternoon is pressing the Minister to produce these communications. According to the information in my possession—if I am incorrect, the Minister can correct or contradict me, but, until I am corrected or contradicted, my information will be accepted by the Seanad—this eminently strong and reputable statutory body administered, through this correspondence to the Minister for Justice something in the nature of a snub. That may not be so. If it is not, the rumour can be scotched by the production of the correspondence.

The next stage in this extraordinary procedure was that, at the end of October, the Taoiseach received a deputation from the Incorporated Law Society. At that interview, the Incorporated Law Society pointed out, amongst other things, that the Order had been made by the judges after the fullest consideration; that the same judges always have the power to alter or revoke it; that the Order refers only to non-contentious solicitor and client business; that it enables solicitors to effect economies in preparing bills of costs and puts them in the same position vis-á-vis their clients as accountants, barristers or other professional men; that the Order does not—and this is an important point— abolish taxation of costs; that clients will still, if this Order is passed, have the fullest right to taxation, as they have to-day. In addition, they have the right to have a bill of costs presented under this Order examined by the Incorporated Law Society. If the Incorporated Law Society comes to the conclusion that there is anything in the nature of gross overcharging, the solicitor is submitted to disciplinary inquiry as a result of which he can be very severely punished by his own professional body.

This method, which is regarded as so reprehensible by the Minister and his Department, has operated quite successfully in England since 1953. It has partially operated in Northern Ireland since 1955. If any person in this House or if the Minister has reason to believe that the operation of this system in England and in Northern Ireland has caused hardship to clients, he could, perhaps, give some evidence of it in the course of this debate.

My information is that people in England have been very pleased with the operation of this new system and that the cost of legal advice, far from being greater, is probably reduced. The Taoiseach stated that the Government was unwilling to accept the recommendations of the statutory body. As has already been stated, certain undertakings were given to the Taoiseach by the Incorporated Law Society on behalf of the society— undertakings which one would have thought would advance the matter.

The Taoiseach, apparently, as far as one can gather, discussed the matter— argued the various matters involved— and the Incorporated Law Society made certain proposals which I need not read in detail as they have already been read. The Taoiseach then suggested that these might be amended in some minor particulars. The second communication from the Incorporated Law Society accepted these amendments.

One would have thought, as there was no further communication from the Taoiseach, from the Minister for Justice or from any other Government Department, that, when the Taoiseach suggested amendments to the Incorporated Law Society's proposals, the Taoiseach was satisfied regarding his objections to the Order. But no. Another period of silence prevailed. The profession was left in complete ignorance of its fate until two days ago when, greatly to my surprise and that of other members of this House, we received—after the provisional Order Paper had been circulated late last week—by post on Monday morning a supplementary motion which is now being discussed, at two days' notice, that the Seanad should be called on to reverse the findings of this eminent body of judges and capriciously throw all their work on the scrapheap. No reason was given in the notice of motion—and to me, at least, no very convincing reason was given in the Minister's speech. That is the state of affairs to-day.

I want to make one or two points for the benefit of those Senators who, through no fault of their own, have not had sufficient time to study this matter. The literature in regard to it was circulated to Dublin Senators only in the last couple of days. I consider it but fair to the House that one or two of the issues involved should explicitly be studied. As I have said, in the first place, the right to taxation of costs is not abolished. Every person will still have the right to have his costs taxed. The safeguards in this proposed Order are fully set out in the communication of the Incorporated Law Society which was issued in response to the anonymous communication which was circulted to Senators on behalf of the interested parties in July.

The Senator will arrange to leave the document in the Library—the document from which he is quoting?

This document is probably in the Library. It is the Gazette of the Incorporated Law Society of Ireland. In paragraph 5 of this communication the Incorporated Law Society states:—

"Under the present system if a client feels that he has been overcharged his only redress is to have the bill taxed. This will involve him in expense if less than one-sixth is taxed off, as he will then be liable for the costs of taxation. The Order contains the following provisions for the protection of clients:—

(a) The client will have the right to apply to the Incorporated Law Society for a certificate, which must be given free of charge stating whether the amount of any bill is or is not fair and reasonable, and, if too high, what substituted sum would be a fair and reasonable charge.

(b) The client will still have the right to have the bill of costs taxed by application direct to the Taxing Master of the High Court whether or not he has already obtained a certificate from the Law Society. The Taxing Master on such a reference will deal with the matter independently.

(c) On any taxation of a bill it will be the duty of the solicitor to satisfy the Taxing Master as to the fairness and reasonableness of his charge.

(d) If the Taxing Master allows less than one-half of the amount charged he must bring the facts of the case to the attention of the Incorporated Law Society which may result in disciplinary action against the solicitor.

(e) The right of appeal from the Taxing Master to the court will remain.

A solicitor furnishing a bill of costs will know that it is subject to these tests. The Law Society on reference to them and the Taxing Master on taxation will be entitled to all necessary information including the solicitor's files and documents to enable them to judge the reasonableness of the charge."

These were agreed by the Incorporated Law Society in October in deference to the Taoiseach's expression of opinion, further safeguards for the protection of clients. These are contained in a letter dated 29th October, in which the following undertakings were made:

"If at any time after the expiration of a period of 12 months from the date of the Order, there appears to be injustice to the public under its operation the council will of their own motion or at the request of the Attorney-General refer the matter to the statutory body to make such amendments, if any, to the Order as may, after inquiry, appear proper to it or, if need be, to revoke the Order.

To make a disciplinary regulation under the Solicitors Act, 1954, providing that a bill of costs furnished under the Order shall contain a notification of the right of the client (a) to obtain free of charge from the council a certificate of the reasonableness or otherwise of the charge and/or (b) to have the bill taxed by the Taxing Master."

I really feel, as a member of the public, as a person who has to consult solicitors occasionally professionally, that the interests of the clients are fully protected by these arrangements. You must remember that the statutory body consists of three members of the Bar—three judges—and only one solicitor. The suggestion that this Order is making the solicitors judges in their own cause is completely without foundation. The Incorporated Law Society has appeared before this tribunal which contains only one member of the solicitors' profession as against three members of the Bar.

I do not wish to say any more. I think I have said enough to indicate to impartial Senators, who have not perhaps the same knowledge of the legal profession that I happen to have, that this Order is eminently reasonable and that, if the Seanad is now, without full debate and without convincing reasons being offered, to reverse the judgment of the Chief Justice, the President of the High Court and the senior judge, they really are doing something which, in my opinion, will do much to undermine faith and confidence in the position of the judges and in the impartiality of the Government in this matter.

I should like to speak as an Independent on this motion and look at it as such without any prejudice in the matter. It seems to me that the Seanad has two clear duties to perform in this very crucial decision which it has to make this afternoon. Their duty as Senators, as it seems to me, is to ask whether this Order will do any injustice to the public at large and, secondly, if it will victimise any special group of citizens. If either of those charges can be proved it is the duty of Senators to reject the Order.

No case of any strength has been made purporting to show that either of those possible injustices will be performed. The Minister did say—and this is really the only argument which has been put before the House in favour of the motion—that the Order will give inadequate protection to the client. I have tried to view this as calmly and impartially as I can. I cannot see how any reasonable man, who has read through the Order, together with the undertakings given by representatives of the solicitors' profession, can say there is not adequate protection for the client. There is, in my opinion, very clear and adequate protection.

There was one thing the Minister said that leaves me with a trace of disquiet. He said the client cannot get information about what precise items are supplied to the Incorporated Society by the solicitor. I see one slight danger there, but I do not think any Order could be drafted which would be entirely perfect and to reject the Order on that small point I think would be foolhardy and rash.

There are three very good reasons why we should accept this Order and three very good reasons why we should not reject it. As a layman considering the position—and most of us are in the position of being laymen—I can see three points emerging in favour of the Order. What appeals to me first of all is that there appears to be a movement in it towards simplification and modernisation of method in this very complicated and troublesome world. It is particularly hard on any profession in these complicated times to have to produce long lists, items and charges, particularly at a time when, as a memorandum has said, in most solicitors' offices overhead charges are particularly heavy. As citizens of the country, in a time involving the pressure of modern complications of business, when we see a chance of simplification and modernisation and of relieving any body of citizens of an unnecessary burden of detail, I think we should, ipso facto, be in favour of it. I think this Order is in this way a move in the right direction.

The second reason is this: why should we tie the hands or, if you like, continue to keep the hands tied, of one particular profession in the country when every other profession, as far as we know, is entirely free in this matter? Senator O'Brien told us that the reason is an historical one. It appears that at one time the solicitors' profession was not one which could be entirely trusted. In my view that reason has been completely removed. At the moment very severe tests and very high qualifications are demanded before a man can become a solicitor. Why should we treat them as if they were petty clerks, in the year 1957? That is really what it amounts to. It is a matter of untying hands that have been tied for 100 years for historic reasons now obsolete. Why should solicitors not have complete equality? I can see no reasonable answer to that unless someone says it means that the public are going to be fleeced. I see no indication of that.

A third reason in favour of this Order, as Senator Professor O'Brien has pointed out, is there has been legislation of exactly the same kind in England within the last few years. In 1953 legislation of this kind was introduced, and since 1953 there have been approximately only 130 objections, I am informed, to bills supplied by some 20,000 solicitors in Great Britain—in the last three or four years 130 objections to the bills of this kind supplied by solicitors amounting to 20,000. In this country I believe there are something like 1,100 to 1,200 solicitors and if there are to be objections in the same proportion the amount would be infinitesimally small. Those are the three reasons, and I think they are strong ones, why I think we should accept the Order—the improvement in simplification and modernisation, the granting of equal rights to an honourable profession and our keeping up with enlightened legislation in a neighbouring country.

It seems to me that equally strong reasons against accepting the motion, that is against refusing to accept this Order, can be advanced. Senator Professor O'Brien has mentioned one point and I will mention it again. In my opinion it is a matter of the greatest gravity. The stability of our State depends partly on the job we are doing in the Legislature, it depends partly on the prestige and confidence of the judicature, and partly on the civil servants and the Executive. If one of those four cardinal supporting columns, supporting the stability of the body politic, is shaken by direct action of the Government, it undermines the stability of the State. I am quite certain about that. There is the need for the greatest respect, greatest delicacy and negotiation between the people who constitute those main columns that support the body politic.

If this Order is rejected it will amount to a rebuff—I will not say insult, I think that would be too strong a term—to the judicature in a matter that will subtly but effectively do a good deal of harm. We must maintain the prestige of the courts, as we must maintain the prestige of the Legislature. I do not think this will help to maintain the prestige of the courts. Secondly, if we reject the Order it will be a slur on an honourable profession. There is no point in disguising the fact that the only ultimate reason why one should reject this Order is fear that the solicitors will exploit it to fleece the public. I can see no other practical reason for rejecting this Order. I am quite sure that springs from a very ancient prejudice against lawyers, which I am quite sure is unfounded. But there will be people throughout the country who will rub their hands and say: "There is a knock for the fleecing solicitors" if this Order does not go through. I think that would be a very great pity. It would be another step in undermining the prestige of the law which is so important at this very moment in this country. That is the second reason why I do not think this Order should be rejected.

Thirdly—and this concerns us particularly in this body—if the Seanad, inadequately briefed as it has to be in this case, not having had sufficient time to think the matter over and consider the implications and discuss it with the people involved, makes up its mind against the considered opinion of the judges and solicitors, I can only say we are open to the gravest charges of acting injudiciously and hastily. I agree with Senator Baxter that this matter should have been adjourned. With such short notice and with such insufficient time we cannot accept the view of an inexpert body, which the Government is in this case, against the expert body which the judges are. If we must make our decision now it must be on the side of the judges; otherwise I do think we will be accused of rash and inadequately briefed action.

A final point which I would like to make is in regard to the speed with which this motion is brought before the House and the fact that we have had insufficient time to gather information about it. I should like to ask the Minister if he will accept the request from Senator Professor O'Brien, to which I add my own voice, to produce the correspondence between the judges concerned and the Ministry in this matter. It is just another example of how inadequately we have been informed. We wish to see that correspondence and we feel we cannot make up our minds until we are properly informed. If it is possible I think we should even adjourn now until we hear that correspondence from the Minister.

Hear, hear!

Since there is some support for that I wonder if we could adjourn? I see it is not possible. In that case I hope the Minister will meet us with the information before we finish the debate.

It is apparent to anybody who is used to seeing the Seanad in session that this motion, under the name of Senator Kissane, has rather shocked the House in an unusual manner. I might say that the Seanad by now should be used to being shocked and abused but I am afraid that this is really an all-time high. It is becoming increasingly apparent as this debate, which is so one-sided, goes on. Not only is it due to the public that they should know what the Order means but it is due to the Incorporated Law Society of Ireland that it should be revealed what they are doing is quite in order and quite right. I think the public should be quite satisfied, as I feel the Government should be satisfied when it has the imprimatur of the judiciary itself, when you have the Chief Justice and the other judges having given their sanction to this Order.

I am afraid that the Minister, first of all, has not given us very much information on the motion. He has not, in fact, brought it here to give us food for debate. In fact, this motion was thrown on the Table and the House was asked to pass it. What is most frightening about the matter is that it will probably be passed by the Minister's Party which is in the majority. That is the machinery under which we work nowadays and which leaves very little room for individual thinking.

I think it a tragedy that this motion should be passed to-day merely on the strength of governmental support in the House. It is a fact that in the debate up to now not one single speaker from the Government side of the House opened his mouth. In other words, Senators are being treated merely as ciphers. It gives me and the people outside the impression that the case is not a good one and that there is something to be hidden.

We on this side of the House and independent Senators have complained that we have no information on this subject and I do not know if the people on the Government side of the House have any information. This is rather a minor matter, but it carries major implications. The charges imposed in connection with this particular case are comparatively minor ones and relate only to charges between willing clients who may choose selected solicitors to act for them. If I go to a surgeon in Merrion Square I may be prepared to pay 25 guineas, whereas I may pay another man only ten guineas. This allows for a certain discretion in regard to quality. It also gives clients the choice to avail of a solicitor who may be better than another.

I think it is a fault in the solicitors' profession—it does not exist in any other profession—that, no matter how good a solicitor is, he is entitled to get only the same fees as the worst man in the profession. The case against the proposal before the House has been very well made by those who have spoken already. I do not want to cover the ground upon which they have trodden but I feel there are three points I should like to stress and which struck me in this particular case. The points I make are in addition to those which have already been made by other speakers.

I cannot help feeling it was thought that the Seanad was an easy place to get this motion through. Why did it not come before Dáil Éireann last week when there was plenty of time to have the matter examined and properly presented? It is brought into the Seanad in a hurry to-day. We have had many things brought in by Ministers and by all Governments in such a manner before. The matter under consideration has been given very little examination and I cannot help feeling that it was thought an easy way to get this thing through to-day. I do not want to use the word "contemptible" to describe the action of the Minister but it is a casual way of treating the Seanad.

Even at this stage we are entitled to ask the Minister for a lot more information. If we have any brains at all or any sense of dignity, we are entitled to be given more information and we should be given more facts than we have already received in order to give our decision.

Senator O'Brien has already referred to very important correspondence that apparently passed between the Department of Justice and the judicial body which approved of this Order. That correspondence is very vital because I gather that in that correspondence of the statutory body appears the answer to the objections made by the Government. Surely such correspondence is most relevant since it contains all the factors upon which decisions were made. We have not been told those. We are merely asked to take the word of the Minister. He knows quite well that at any given moment he need not answer us and his action will be supported by the votes of the people supporting the Government. I think that is a pity.

When I was on the other side of the House I voted for many things introduced by the Government with which I did not always agree. The case at issue is one where everybody is competent to judge the rights and wrongs of the case, given a proper picture of what he is asked to do. I protest against the way in which this thing has been brought hurriedly before the Seanad. We have been given very little information the whole day. There has been hurry and scurry in regard to the matter and if the Seanad has not been treated in an underhand way it has certainly been treated in a cursory way.

My other point concerns the question of the treatment of vocational bodies. For many years, both here and outside, I have fought for the recognition in a democratic country of the rights of vocational bodies. Having regard to our particular philosophy, I believe that a very high degree of vocational organisation is a very good idea and a very beneficial one for a community such as ours. Vocational bodies of all sorts have been growing up in this country, including farmers' associations, business associations and professional associations of every kind. It is most important that Governments should take notice of such bodies and rely upon them to a great degree for information, guidance and help in the government of the country. Ministers cannot be experts on farming, business, banking, the law or on the numerous other matters which are catered for by the many vocations that exist in the country.

It is very important that vocational bodies should be properly regarded and treated. The Incorporated Law Society of Ireland is surely a premier vocational body which in this case is doing something that has the acquiescence and support of the Chief Justice of the country and two other judges. I think it is a most extraordinary state of affairs that the Government, in a hurried sort of way and without giving us any real reason for doing so, have completely ignored this body and is treating it in a most flagrant manner. That is a very important point for if such a vocational body is treated in such a way as that, what chance will less highly respected and less highly thought of bodies in the country have of getting a fair deal? It is wrong that the Incorporated Law Society should find itself treated in this manner.

Finally, I should like to reiterate the point I made about the treatment of a judicial body in the way I mentioned. Over a period of years the tendency for the Executive—the Civil Service is also involved—is to have powers over the citizens and the lives of the citizens, to deny them the right of the protection of the courts. We had many Orders under the Emergency Powers Act and so on and there is an increasing tendency to ignore the courts and the judiciary. I think that is a very dangerous thing. I had hoped it was on the way out with the removal of the Emergency Powers Act but that mentality still lingers on and it breaks out in very many cases which come before us in the Oireachtas.

Although this is only an indirect example of that kind of thing, by ignoring what the Chief Justice and other eminent judges do and ignoring the imprimatur which they have put on this Order, the Government is weakening the respect that is due to the judiciary—not only weakening the respect but also weakening the powers. For these reasons, I would ask the Minister to reconsider this motion. Even on the ground of affording people a better opportunity of having the whole position properly explained to them thereby enabling them to a better understanding of it, I think the Minister ought to withdraw or postpone this motion.

I am another of those who, unfortunately, got no notice of this motion being on the Agenda to-day. I did not get the Order Paper for to-day at my usual address. I had only the provisional Order Paper and, on that, this motion was not mentioned.

This is a complicated matter and one upon which it would take Senators some time to make up their minds. Apart from the very full statement of Senator O'Brien I had very little idea of what this proposal referred to because I had no time in which to make inquiry or to consider the matter. I am surprised that the Minister did not see his way either to adjourn or postpone this matter for a day or two to enable Senators to consider it. The Minister's statement was not a very full one. If he could even intervene now and explain to us that he had certain correspondence with the statutory body and that the Government disagreed on certain points and was determined to hold to its view, that would be of some help to Senators because they would know exactly the points at which disagreement arose.

Apparently the gist of the Order is that solicitors charge a lump sum or present a detailed account. Equally apparently, the Government wants a detailed account. I know from experience that most country solicitors have, at the outset of a case, to give the client a lump sum figure. Country clients come in and ask how much will prospective litigation cost and the cuter ones will go to other solicitors in the town and ask them how much such litigation will cost. Perhaps the Government thinks that there are still clients who can be fooled. I would like to take this opportunity of assuring the Government that there are not very many such left.

I know for a fact that the solicitors' profession has gone to a great deal of trouble recently to improve the standard of the profession on their own behalf and on behalf of the public generally. I regard this proposal as rather an insult to them. The Order in question came before that very eminent body and the main points incorporated in it were suggested by solicitors. It is, to say the least of it, a denigration of that body to reject the Order offhand, especially when one considers the way in which it has been brought before this House. I hope that the Minister will tell us in detail where he and the Government disagree with this Order. That is what we are waiting for from him. I cannot see why the Government could not allow this Order to stand and amend it, if necessary, at a later date having discussed the entire matter with the statutory body.

Speakers so far have, unfortunately, been beating the air. They have been indulging in shadow boxing since Senators do not really know what the Minister's objections are to the proposed Order. If we did know we would be in a better position to come to grips with the matter. The Minister's opening statement was brief and prepared apparently with the same haste governing the appearance of this motion on the Order Paper to-day. The Minister in his opening statement might have referred to the statutory basis upon which Orders of this kind are made. In that connection, it might be well that members should know, since there have been so many references to the Incorporated Law Society, how and in what manner the Incorporated Law Society comes into this.

Solicitors' remuneration is governed by the Solicitors' Remuneration Act of 1881. That Act authorises certain named members of the judiciary to make general Orders governing the regulation of fees in relation to the type of business mentioned in the Minister's statement. In the Act the people designated are the Lord Chancellor, the Lord Chief Justice and the Master of the Rolls. In our modern circumstances these have been replaced by the Chief Justice, the President of the High Court and the Senior Judge of the High Court. Under the Act, which authorises these three judges, together with the President of the Incorporated Law Society, to make general Orders regulating the remunertion of solicitors, provision is made, and it is important that this should be borne in mind, whereby at least a month before the contemplated Order is made the Incorporated Law Society must be consulted, and that body is given liberty under the Act to make any suggestions which they think proper.

It is vitally important that the House should realise that the original statute, upon which the Minister is relying now for revocation of the Order, contemplates that the views of the Incorporated Law Society, the people whose livelihood is affected and the status of whose profession is likewise affected, should be obtained and borne in mind. It is very regrettable, if not deplorable, that the Minister did not in July of this year see fit to meet the representatives of the Incorporated Law Society. Apparently he got the views of the society in some way but, as everybody knows, it is very difficult to express views cogently and coherently in a hasty memorandum as against full and free discussion.

It is regrettable that a body constituted under charter, and representing a very important arm of the legal profession, was not afforded an opportunity of meeting the Minister to discuss these matters. Had that been done, some compromise acceptable to the society and to the Government could have been worked out. At a later stage the Taoiseach met the representatives of the solicitors' profession and agreement was reached on certain points, but it was then too late to go back on the decision that had already been taken.

The common-sense view has been expressed by a number of Senators who preceded me that there is no reason in principle why the solicitors' profession, any more than any other body of professional men or group of skilled craftsmen, should have to have their fees regulated. Senator Cole has very properly remarked that what happens in many of these cases is that people go around to solicitors and find out what conveyancing, and so on, will cost them. The public are not as gullible as it would seem to be suggested, that solicitors can charge them pretty well what they like and that people will pay up. Therefore, having regard to the fact that the solicitors' profession is an honourable profession and that all solicitors are officers of the Supreme Court of Justice and are liable to disciplinary action as officers of that court, it is highly improper that they should be subjected to the kind of treatment that is perhaps proper to people who have not the same ethical standard that they possess.

The difference between the procedure in operation up to the present time and what is proposed is merely to substitute a detailed means of computing costs in these non-contentious legal matters for the system of taxed costs as has been in vogue up to the present time. I think that members of the public would much prefer to get a bill charging them £20, £30, or whatever was the proper charge for the amount of the work involved, than to get what the Minister is insisting on, a long bill containing several pages itemising everything, which, to my mind, always leaves the impression on the person who has got the solicitor's services, that the solicitor is inflating his bill. I think that in both cases the bill would come to the same amount but that the client would be much happier and feel that he was not being dunned for every single item when a bulk sum is agreed upon. In that respect this Order is an improvement upon the existing position.

It is a notorious fact—I think members of the House will agree with me—that where there are scales of charges fixed as the maximum charges, those maximum charges inevitably become the minimum charges. It is the more so in the case of the solicitor's bill of costs because the amount of time involved in taking out each item and having these matters set down in such a way that they can stand up to examination before the taxing masters costs so much to solicitors that it inevitably increases the cost for the work done by him in a particular matter. I submit to the House that, if a solicitor, having experience of what it costs to investigate the title in the sale of a particular property, suggests a round figure to his client, that is much more satisfactory than if he has to go through each item. Very often it involves sending the matter to outsiders to draw up the bill and if that has to be done it increases the total cost. If a solicitor can arrive at a lump sum and present that to his client, he will not have the extra cost involved in preparing the bill for taxation. In that way costs will actually be reduced for clients rather than increased as has been suggested in the Minister's speech.

There is then the further question of competition between solicitors. There is competition in every profession, just as there is in business. In to-day's papers we have the Minister for Lands reported as talking about the importance of all-pervading competition in keeping down costs in business. That all-pervading competition in this profession, the members of which have increased in numbers in recent years in this country, will be very keen indeed and that competition will, I suggest, produce the effect that competition always produces in the matter of costs and prices—of keeping them down. That in itself is an adequate safeguard for members of the public.

As regards the point raised by the Minister in his speech, that there would be difficulty afterwards in taxing costs if a member of the public were dissatisfied with the bill from a solicitor because he had only got a bill for a lump sum, I do not quite follow what the Minister has in mind. It seems to me that if a member of the public has always a right to have his bill taxed, then the solicitor must always be in a position to produce these figures and must keep the records if he is to substantiate the bill which he submits to his client. Therefore, I cannot see any difficulty in having the costs taxed. However, in so far as the question of a lump sum is concerned, it is proper to draw the attention of the House to the fact that this is not the first time that there has been a departure from itemised costs.

My understanding of the position is that the instructions fee in the bill of costs, where these costs arise out of court proceedings, is now a bulk sum, and that was heretofore calculated on the basis of a schedule item by item. That has worked quite satisfactorily and has not given any difficulty to the profession or created any undue hardship for the public, and this is an extension of that same principle.

It has already been mentioned that the system proposed under the new Order is working satisfactorily in England and in Northern Ireland. I cannot see any great difficulty being presented to the taxing masters in this matter, particularly in view of the fact that there has been a decrease in the number of bills submitted to the taxing masters for taxation. In 1937 the number of bills certified by the master of taxation was 2,367 and in 1957 it is about half that number, 1,302. If the number of bills coming before the taxing masters for examination is reduced they will have the time and opportunity for dealing with them if there is slightly more work involved. Therefore, it does not seem to me that the Minister's argument is valid.

Senator Baxter wondered what was the real motive for putting down this motion and wondered whether it was due to particular influences. I must confess that I cannot rid my own mind of the feeling that there is in the Government a certain prejudice against the legal profession and I feel that that has, to some extent, at any rate, coloured the action of the Government in relation to this motion. I think it is extremely regrettable that prejudices of that kind, which are quite unfounded, should find their way into this House in the form of a motion which, as a number of people have suggested, is a disparagement, to say the least of it, of the people who made it.

It should be remembered that the Constitution of this country provides for three arms of Government—the Legislature, the Executive and the Judiciary. The Judiciary is constituted with the primary function of safeguarding the rights of the people and they will safeguard those rights, whether it is between man and man, between citizen and citizen, between the Government and the governed, or otherwise. The members of the Judiciary have wide experience in the matter of costs in litigation and the costs involved in legal processes generally. This House should be very slow to set its opinion, based upon necessarily scanty consideration of the issues involved in this matter, against the weight of authority of leading members of the Judiciary.

I cannot but feel, too, that the Minister in his opening remarks gave a hint of another possible reason behind this motion. He examined the position with regard to costs in cases of litigation and he said that these costs were settled on a scale drawn up by a committee comprising members of the Judiciary, of the Bar and of the solicitors' profession. This is, I think, the crucial matter: he added—and it is the fact—that these rules were subject to the concurrence of the Minister for Justice. I feel that the Minister has in some way taken umbrage at the fact that there is now, or there has been in existence since 1881, an Act which has remained unamended, which enables a body, independently of himself and his Department, to draft rules regulating solicitors' remuneration.

I should be certainly much more convinced of the desire on the part of the Government to safeguard the rights of the public in what must necessarily be always a very small matter if the Government, after a period of nearly 20 years, had introduced a short amending Bill which would be necessary to give effect to one of the fundamental provisions of the 1937 Constitution. Members of this House may not be aware that the 1937 Constitution set up courts, that these courts have not yet been brought into being under the 1937 Constitution and that we are still operating with the courts which were established under the Saorstát Éireann Constitution. That being the fact—and coupled with it the manner and mode of putting down this motion—it seems to me that there is somewhere a lurking feeling— it is very difficult to describe what the feeling is—against the Judiciary and the legal processes. I think that is a most regrettable thing, particularly, as Senator Stanford remarked, at a time when it is necessary that there should be in this country the highest respect for our constitutional institutions and the various organs created by the Constitution.

I feel that there are two quite independent things before us this afternoon and it is rather difficult to keep them from being mixed up, because inevitably they are associated. First of all, there is this question of the substance of the Order and the objections which the Legislature has to it, and which I do not think have been very clearly brought out. This Order is to us as members of the Seanad a very interesting one. It is an Order which I, for one, should like to have heard properly and symmetrically debated here and not treated, as it is at present, as if one were playing a game of chess with oneself. I am sure there are many things to be said on various aspects of it and that it has various implications, but we have not heard very much about it, because we have had so little time to get the information properly in line. We have got information, but I am rather slow in assimilating and slow in digesting it. We might have had a very pleasant week or two discussing this properly and learning something about it. I hope the Minister will see his way for that to happen.

The other point is the question of the responsibility of the Seanad in this type of situation. I have been associated with this body for 14 years and it is a body I have become very fond of. It is a body with its own characteristic climate, its own characteristic hopes, its own characteristic tradition and, I think, its own characteristic service to the State. In many cases we work on what comes to us from the other House and we have had time to think things over. There has been no general sense of danger, urgency or fire in the House when we are debating such matters. On such occasions when things come up before us, we have a reasonable time to consider them. Here, however, we have this motion coming very abruptly and suddenly and I am not at all clear as to the nature of the urgency.

In the past, we have protested against legislation in haste. Very often it is necessary—there may be an invasion—and one just has to hasten the legislation, and perhaps it becomes legislation by panic. I do not see any occasion for a motion in haste in connection with this matter. I feel that the responsibility of the Seanad is really becoming involved in this and I hope Senators will stand up and say: "Please give us some more time to consider this motion." That point might be fairly put in regard to any hasty legislation. This motion comes to us, however, with some august names attached to it and I should be very reluctant, indeed, to appear to be giving a judgment on a judgment, if I seem to be one of a body in accepting this motion and disallowing a general Order which comes to us with such very high credentials. I do not feel competent to oppose an Order like that and I hope the Minister will not put me and the Seanad in the position of having to accept that responsibility at short notice. That is what I have the greater apprehension about, in regard to this matter.

I have been waiting, as I suppose many Senators have, to hear the Government point of view put by some supporters of the Government in this House. There have been now some seven speakers and nobody has put in a single word in favour of the Government. I find it a bit disturbing to think that there is perhaps in this Seanad a majority of Senators who are prepared to say: "We intend to vote for this because the Minister tells us to do so, through the Party Whips, though we do not really see anything that can be said in favour of it." I say that is disturbing and I am very much afraid that is what will happen. This will be steamrolled through in the face of the almost unanimous opposition of all who have spoken. All the speeches so far have been critical, if not directly opposed: the only speeches have been in opposition. Yet a majority vote, with the Whips put on, will apparently be brought into play in support of the Minister, using Senators who have not been able to find anything to be said in favour of the Minister's point of view.

It is quite clear that this motion comes before this House alone. It will not go to the Dáil. It will not be debated in the Dáil. It does not have to be, because of this method of meeting the situation by bringing this motion, very much at the last moment, before the Seanad, getting it over and done with before the Dáil can meet. It will not even be possible to put a question down in the Dáil and get an answer to that question, arising out of this matter, before the motion is passed and dealt with and the whole thing finished and done with. I do not know whether even the Government supporters in the Seanad can feel too happy about such a situation as that.

I do not regard the issue as being a very major one. I think the phrase used by Senator McGuire was a good one. It is a minor issue in one sense. The matter can be set right again, even if we pass this motion. It is a minor issue but with major implications. The Minister is the only one on the Government side who has the power to change his mind here. The Government supporters have not got that power, because of the presence of the Whips in this House, which is supposed to be a purely vocational body. I would ask the Minister to think very seriously before he belittles the Legislature by putting on the Whips for a motion which is being debated in this way.

It is the practice under our legislation, as a rule, when a statutory Order is to be made under some statute, to have a regulation made, or even to have incorporated in the statute a section which says that if the Order is not revoked by a resolution in either House within 21 sitting days—I think that is the usual term— then the Order shall stand.

I was a little bit surprised when I read the motion, which came to us so belatedly, to notice that this was not a motion to revoke an Order but a motion requesting "an opinion" from the Seanad—"that Seanad Éireann is of opinion that the Solicitors' Remuneration General Order, 1957, should be disallowed." We are not asked to revoke it. We are asked to express an opinion and we are asked "to request the Government to disallow." The Minister is asking the Seanad for its opinion and he has got it from seven speakers so far. The opinion is that we in the Seanad are opposed to this motion.

Why is the motion couched in these terms? Why are we not asked just to revoke it? The answer is, of course, that this is under a British Act—the Solicitors' Remuneration Act, 1881. Section 6 of that Act contains two subsections, one which says that such an Order when it is made must be laid before each House for a period of one month, and a second sub-section which says: "If within that month an address is presented to the Queen by either House seeking the disallowance of the Order"—you see where the word "disallowed" came from—"or part thereof, it shall be lawful for Her Majesty, by Order in Council, to disallow the Order", and so on. That is the section under which we are talking here to-day. That is why the Minister has only a month, and not 21 sitting days. That is why the word "disallowed" is used instead of "revoked". This fact has not been adverted to so far. Perhaps it is regarded as an awkward fact, but I feel that it should be mentioned when we are debating a motion in these terms.

I do not want to labour points that have already been excellently made, such as the fact that this Order was approved and made by the Chief Justice, the President of the High Court, the senior ordinary judge of the Supreme Court and the President of the Incorporated Law Society but it is worth stating that these three senior and very eminent judges, two of the Supreme Court and one of the High Court, plus the President of the Incorporated Law Society, have unanimously made a recommendation which we in this House are now being asked to set aside because the Minister asks us to do so, upon advice which so far he has not disclosed. In other words, the Minister comes before us and says: "I feel that these eminent judges are wrong and I am asking you, for not very clearly stated reasons, to set at naught their judgment."

I do not believe that judges are infallible; I am not ready to say they should never be criticised, and I do certainly grant the Government the right in certain circumstances to differ from the findings of judges, but I am very impressed by both the persons and the unanimity of these eminent people on this issue; and I feel, as other Senators have felt, that the legal profession, much as we may like to abuse it and to make fun of it, is entitled to as much respect and as much consideration as the other professions.

It is quite obvious that a doctor, a dentist, an accountant or an architect has not got any statutory obligation to furnish his patient or his client with an itemised account for the fee which he charges for his professional services. We may get operated on for appendicitis, but we do not ask the doctor to give us an exact account of the number of scalpels he used, and the size and the number of sponges. We do not say: "You charged me for six. I do not believe there were more than five used. I should like to see an affidavit from the senior nurse present at the operation to make quite sure that six were used and not five". That would be absurd. Are we not, in fact, asking an equivalent absurdity of the legal profession, when we ask a solicitor to itemise every little action that he does on behalf of a client in a law case? I think we are being absurd in just precisely that way.

Furthermore, I do not believe that were you to introduce legislation which would make it compulsory for doctors to itemise their every action at an operation, and so on, it would give any increased protection whatsoever to the patient. All it would do would be to consume considerably more of the doctor's time, make him employ people to copy these things out and would, in fact, put increased expense upon the patient. I believe that one of the effects of this Order which has now been made, and which we are asked to request the Government to disallow, would be to make things cheaper for a client.

I speak on the subject as a layman, of course. I am impressed by the fact that this has been working well, apparently, in England since 1953, without there being a major outcry against it, and without, apparently, the Minister being able to quote any considerable body of reputable opinion that feels that it has not been a good thing.

If the Minister has documentary evidence that this has not been working well for the client in England, he should not withhold it from the Seanad. If he has not got such evidence, then I feel the Order is supported by that very lack of evidence of general disapproval in England.

Now, it is quite obvious that under this Order the client has two very clear remedies if he is not satisfied with the solicitor's bill. Under this Order he has two remedies: (1) he can appeal— and the solicitor knows that when he is sending out the account—to the Council of the Law Society; and the solicitor has to justify his bill to that council. I am quite sure the Minister will not suggest that the Council of the Law Society would be so crooked in their dealings with the laity, as it were, as to tolerate the faking of professional accounts by a solicitor in order to swindle a client. I do not believe that. I believe that this in itself constitutes a sufficient remedy—the fact that every solicitor knows that the client can appeal and can appeal free, at no cost. The second remedy is that he can appeal, this time with a charge in the event of his not being justified, to a taxing master and have the costs taxed.

Furthermore, the Incorporated Law Society has offered—that is one of the concessions they made willingly to the Government who objected to the original form and I quote—"to make a disciplinary regulation under the Solicitors Act of 1954 providing that a bill of costs furnished under the Order shall contain a notification of the right of the client (a) to obtain free of charge from the council a certificate of the reasonableness or otherwise of the charge, and/or (b) to have the bill taxed by a taxing master."

In other words, the client will have two remedies, and every solicitor will have an obligation under the Order to attach to his bill an explanation of the two remedies that the client has, in the event of his not being satisfied with the amount he is being charged. I feel that that is eminently reasonable. If the new Order is open to objection and if it happens that certain defects are discovered in practice, I think the way to discover such defects is to allow the Order to be implemented and see how it works out in practice.

The Minister has said that under the Order the client "cannot get the details" of his account. I do not feel that that is common sense at all. I find myself very much in sympathy with Senators who have suggested that the ordinary client, if he is not satisfied he is being charged a fair amount, will demand details and will, in fact, get them, just as easily as he will get them in connection with his grocery account, without any statutory regulation. Who wants to itemise every bill? That will be the position if we fail to let this Order go through. I feel such a statutory obligation is an enormous, cumbersome mechanism in our legal system, and I feel this Order by abolishing it for certain costs is improving the position for the client.

The other undertaking that the Council of the Incorporated Law Society gave—I think it has already been mentioned and I shall not read it in full—is that if within 12 months of the date of this Order it transpired that injustice is being done to the public they take it upon themselves to refer the matter to the statutory body with a view to having the Order amended. I think that that is a very fair offer, and I feel that if in practice there is any demonstrable injustice, it can easily be righted in that way. These are honourable men, and they give this honourable undertaking.

Apparently that is being set aside by the Minister, and the statutory body, it has been suggested, has written, apparently, a confidential letter to the Minister on all this matter. Is the Minister really asking us here to decide on this issue while concealing from us the contents of this letter, which, in my opinion, has no right to be considered as being confidential? Why should we be prevented from knowing the terms of this letter? I can only guess that, perhaps, its terms make it quite obvious that the Minister, in trying to squash this Order, is acting in a most injudicious and ill-advised way and therefore he will not give the House the contents of the letter which have already been asked for by several Senators. I should like to hear the Minister on that point, or some justification from him of this treatment of such a letter as being confidential and incapable of being revealed to this House when we are being asked to make a request to the Government.

I feel some puzzlement as to where the opposition to this Order has come from. Why, when certain amendments were suggested by the Taoiseach and the Government and met apparently by the statutory body, is there suddenly this last-minute opposition? Who is it who could really believe that a statutory obligation placed upon a solicitor to fill in long detailed lists in an itemised account would save anybody money? I believe that such a belief could only reside in the innocent heart of a civil servant. I do not think anybody outside the Civil Service could really believe that an obligation on a solicitor to send in perhaps ten foolscap pages of itemised detail such as: "To attendance on client by telephone, 6/8; to taking up pen in left hand, 6/8, to transferring it from left hand to right hand, 6/8; to appending signature with right hand, 6/8," would save money.

I think that that kind of an itemised account frightens a client and gives a false impression of the work of the solicitor. Who can say that ten foolscap pages of that kind of thing will save time or money either for the legal profession or for the client? That sort of view, that if you can force people to fill in long lists you will save money in some way, can only he held by the innocent hearts of civil servants.

I have a great respect for civil servants and particularly for those with innocent hearts, but I feel in this case they are mistaken, and so far from money being saved by such a statutory obligation it will be wasted. I have seen some of these long bills of costs—not, I am glad to say, in a personal capacity, but as a member of various boards—and I have been staggered at the wealth of detail the solicitors put into them. It is a needless waste of everybody's time; it does not impress anybody. In fact, they have the reverse effect, and many solicitors, even under the present rules, are not now giving an itemised account unless specifically requested to do so.

I feel, therefore, we should accept the Order as it stands, and accept the assurance of the Incorporated Law Society Council that if at the end of a year injustice is shown to have been done, they are prepared to propose an amendment. I feel that for us to do anything else would be supremely injudicious. In the circumstances we have two alternatives, one, to quash the Order—and that is what the Government is asking us to request— and to throw it back, as it were to the statutory body contemptuously, and ask them to try again, and that, without any clear indication of what is worrying us.

The second alternative is to let the Order stand and be amended, if necessary, in 12 months in the light of experience. This course seems to me to be the one that commends itself to our common sense, and I personally, therefore, shall vote against this motion if it is put to a vote of the House.

I think I might best start, as Senator Sheehy-Skeffington did, by referring to what is the constitutional position in this country. There is no doubt, no matter how we may try to avoid it, that it is involved in this matter. This country is what is called a unitary State. Despite that fact, we have here the usual pillars of democratic society, that is to say a Legislature, represented by the two Houses of the Oireachtas; an Executive, represented by the Government which operates in the main through the Civil Service; and a system of justice, the rule of law, which operates through the judiciary.

It is not for the purpose of opposition or for the purpose of being difficult that we have heard every speaker, except the Minister, getting up and drawing the attention of the House to the fundamental rights people have. The Minister gave his reasons for his hurry coming here to-day. I doubt if he is correct. I notice this evidence of hurry on the part of the Executive. I am extremely doubtful if it comes from the Minister's Government. I would say that the Civil Service had better be careful about being in a hurry, or it may find itself in a position where it will not have any rights to hurry.

I have noticed wide evidence of the Civil Service arrogating to itself rights it has not got, setting itself up with functions and making references in public to matters it has no right to mention. I can give evidence of that if it is required. It is extremely objectionable that there should be this kind of hurry. I referred to it on another occasion. The first people to suffer in this country as regards their rights—and they are considerable— would be the civil servants. They would be taken from them more rapidly than anybody else if we got this kind of thing.

It is true that the Minister gave us the minimum notice. I noted the phrase he used that "normal notice was given." Normal notice of this matter was not given. It is not normal in an important matter of this sort to give three or four days' notice. Actually, I did not get mine until Monday morning, but I do not want to make any point of that. I went out early to my home and I did not get back until that evening. It does limit the time one has to prepare material on the subject.

The most important point the Minister made about the reason for his hurry was that he could not get any firm interpretation of this antiquated statute, Section 6 of the Solicitors' Remuneration Act, 1881. The case he makes is that the time must run from the day the Order was sent to the Clerk of the Dáil. Suppose this body, as it was quite entitled to do, had made the Order on 1st of August? Would this House or the Dáil have been called back for the purpose of rescinding it? That is implicit in it.

I suggest you can argue—I am as much entitled to my opinion as the Minister—that the 30 days should run from to-day, being the first sitting day of the House. To be fair to the Minister, he did not pretend he had a firm opinion; he was making sure of his position as the Executive. Further evidence of the hurry I spoke about comes from the fact that the Executive would not tolerate the position that they would have to wait a year. Although they got certain guarantees, they were not prepared to tolerate that position.

Why, one asks oneself, is the Executive so keen on bringing the motion to rescind this Order before this House rather than before the Dáil? I think there is a reason. It is that in this House there is no practising solicitor. There are a number of them on both sides of the Dáil. In this House, there are few practising barristers. There are a big number of them in the other House. I think this was a method of avoiding a serious and acrimonious debate in the Dáil. We are more docile in this House; we are not so truculent about our opinions as perhaps are the people in the Dáil; but that is no reason why we should not put forward our opinions on an occasion like this in the most vociferous and determined way.

I propose to go on to deal with a matter which certainly caused me a great deal of concern at the time. It is the anonymous communication which every member of the House received during the summer and to which we subsequently received a reply from the Incorporated Law Society. I propose to go through the document in detail. I do not suggest that the Government paid undue attention to this communication. From the statements made by the Taoiseach in the interviews he had and from the various messages he conveyed, it was quite obvious he was very concerned. However, I still would like to know why, last Friday, the Government took a decision that they would have this Order rescinded. We really have not the evidence.

In any event, I propose to go through this anonymous communication paragraph by paragraph. It is not on record. It is in the Gazette of the Incorporated Law Society, but that is not a journal that circulates amongst many people. This is the communication:—

"Solicitors' Remuneration Order, 1957

New System and Methods of Charging Costs by Solicitors

The Incorporated Law Society of Ireland (the professional association of all solicitors in the Republic of Ireland) having made application to the Superior Courts Rules-making Committee an Order entitled as above was approved."

Of course, that is not strictly correct. It was considered at the time; it was not approved. No Order is approved until it is made.

"This Order when it has been laid on the Table of Dáil Éireann automatically becomes law on the expiration of one month.

The effect of the Order is to remove all limitation on the amount a solicitor may charge to his client for services rendered to clients in all matters, other than costs payable by the third parties in proceedings before the courts, and is in fact assumption of unbridled control of their own remuneration by solicitors."

That, of course, was an outrageous statement, entirely contrary to the facts. As has been pointed out, the Order does not apply to conveyancing where the normal scale of fees is fixed on the amount of the purchase money, whatever the figure may be—2 or 3 per cent.—and it does not apply to party and party costs in actual litigation. Therefore, that statement was a disreputable statement.

The document continues:—

"Two results inevitably ensue. Firstly, the delivery of the public into the uncontrolled hands of solicitors, and, secondly, loss of revenue to the State.

Up to the present the system of charging costs by solicitors to clients has been on a basis laid down in 1859 and increased by General Order from time to time—the most recent being one of 55 per cent. as from 1/1/52."

These statements are not correct either.

"This schedule comprised items covering every conceivable task a solicitor could be called upon to perform and with a stated fee, or charge for each item.

Under the present existing system a solicitor is bound to furnish to a client a bill of costs showing details of the work performed for which the costs are charged setting out dates, details of work done and charges for each separate piece of work done."

These are the matters Senator Sheehy Skeffington referred to.

The document continues:—

"So that the client may be satisfied that the charges are fair and reasonable and that the work charged for was done (as few people could even guess at this aspect of solicitors' work) he has a fundamental right to have the bill accurately checked and this is done by way of a taxation and measurement of the bill by the High Court Taxing Master appointed by Statute for such purpose."

I wonder how many of the bills solicitors furnish to their clients are taxed in such a way. I wonder what the percentage is. I know the answer is a negligible percentage. The document adds:—

"On such taxation the solicitor must vouch all the items contained in the bill of costs by the production of vouching documents, and of evidence that the work charged for was done, was necessary, was for the benefit, and done in pursuance of the instructions, of the client. The client has of course the right of representation at the taxation and can make such objections to the bill of costs as are proper."

As I say, this is all argumentation because such taxations seldom take place. It continues:—

"The system of taxation and measurement of solicitors' costs has throughout the years protected clients (the public) against the possibility of being overcharged, and upholds the recent public assertion that ‘in no other profession is the public more protected against extortionists than in the legal profession.'"

I cannot see why the solicitors' profession should be put to the trouble of giving these detailed costs which add considerably, being drawn up by cost drawers, to the expense incurred. Apart from anything else, they are made out on very thick paper and, I would say, extremely expensive paper. It would not surprise me if two or three copies of a bill of costs contained £1 worth of paper. If anything like that could be avoided, it would be an advantage to the client. The anonymous document continues:—

"The new Order provides that each solicitor shall be the sole judge of what is a reasonable reward for his services and he shall be entitled to fix a bulk sum for his services and amongst other considerations laid down in this Order which may be taken into account by the solicitor in fixing such bulk fee are such as ‘the special skill and knowledge a solicitor may have for the work undertaken'."

Why not, if he is a company lawyer, if it is an involved company question and he has long experience of that work for which there is limited demand in the community? Why should he not charge for that special knowledge? I saw recently where Senator Humphries in the United States said that the United States were suffering now from the attacks made in the last decade on its "egg-heads". An "egghead" is an intellectual. A solicitor is an "egg-head". The truth of the matter is that anybody on a salary above what would be paid to the most formal clerk is an "egg-head". All people attached to universities are "egg-heads". and the United States is paying severely, in the opinion of Senator Humphries, one of its oldest Senators and a Conservative, for attacking "egg-heads". May I say with all respect that there is some evidence here of a similar attack on the "egg-heads", an attack here in this House this evening, creating a similar position?

The document also refers to "The value of the work to the client and the rarity, urgency or complexity of the work". Would you pay a man the same amount for one day's work, lasting the normal solicitor's day of six hours, as you would for a day's work lasting 15 or 16 hours? That is my comment on that.

I quote further from the document:—

"This means that for the performance of identical work, different solicitors may fix on different fees and no client can be certain of what he is going to be charged for any particular job and could conceivably find when the bill was presented that it was so high that had he known the amount before he gave instructions he might decide that the results would not justify his having the work done."

Our people are not as foolish as all that. They are also capable of arguing with their solicitors about the amount of bills of costs. I have very little to do with the solicitors' profession. I have no connection with that profession whatever, and I make that statement in case there is any doubt about it. However, I do have knowledge of people who argued with their solicitors about their bills of costs. They either visited their solicitors' offices, or had the solicitors come to their homes and, after argument, succeed in fixing an agreed bill.

The document adds:—

"This is a fundamental change from the present system whereby he can ascertain to a fairly close degree what any job will cost before he decides to have it done."

Unless one is going to say that, when the new Order is made, the whole custom of the profession is going to change, I cannot see how there is any justification for a statement of that kind.

I quote further from the document:—

"The only suggested safeguard to a client in the new system is the provision that before a solicitor sues a client for fees he should inform the client that there is available to him a right of submission of the bill of costs to the Law Society for a certificate that the bill is fair and reasonable. In other words, the solicitors would be the judges of their own cause and this might give rise to the feeling by a dissatisfied client that a disinterested tribunal or taxing master, as under the present system, would be more impartial."

I know one thing about professional people from experience of them over a long period of time. No body of professional men are going to see one of their number overcharging a person, if it is drawn to their attention. I think that is a scandalous suggestion there. Ever since the earliest times when the guild system operated, such bodies have controlled the work done and costs made, and these professional bodies are the nearest approach in our present state to the guild system of the Middle Ages. The guilds took an interest not only in proper charges but in a proper standard of work being done. They were inclined to be too rigid in their approach to the whole matter.

The document goes on:—

"It is a fundamental rule that ‘not alone should justice be done but it should appear to be done'."

That point is covered naturally under the new arrangement suggesting that the Taxing Master can be brought in. If a client is not satisfied, he can have a free taxation of his bill of costs under the arrangement suggested by the Incorporated Law Society.

The document continues:—

"A rather sinister feature of this provision in the new Order it will be noted is that it is only when a solicitor proposed to sue his client for fees that he need inform him of this right."

That has all gone by the board. This information will be stamped on the bills of costs.

The document continues:—

"The Order goes on to say that if a client pays the fees demanded he shall have no right to such a certificate from the Law Society.

All the foregoing observations deal with the effects of this new system in so far as ordinary clients are concerned, but when the position of public bodies is considered the result would appear to be likely to be chaotic. All public bodies' solicitors' costs must be taxed by the High Court Taxing Master. If the present Order becomes operative the Taxing Master will have no standard or guide to assist him in measuring solicitors' remuneration—he will have no priced details of the work and he cannot assess the fairness or otherwise of any of the charges made."

Are the Taxing Masters nincompoops? Have their long years of experience taught them nothing?

The document continues:—

"If the Taxing Master decides that he cannot accept the solicitor's own uncontrolled estimate of the value of the services charged for, the bill cannot be taxed. Local Government Department auditors cannot pass costs unless taxed. This could conceivably result in public bodies not being able to get any legal business transacted if solicitors refuse to work unless their fees were paid on their own estimations of the value of their services."

This goes from one absurdity to another. Literally, there is no limit to it.

It continues:—

"In a normal year about 100,000 items of public bodies' solicitors' charges are taxed by the Taxing Master so that it can be appreciated that this aspect of the difficulties raised by the new system presents, or is likely to present, a grave problem for the Local Government Department."

Why was that brought in? It was brought in because all of us in this House know that reference has been made in county councils and other bodies to charges which some members of county councils, for example, felt bulked up too large for work done by professional men under a scheme. That is a matter of opinion. However, it was deliberately brought in here to prejudice the case, large numbers of Senators being members of public bodies. It was a deliberate effort to prejudice the case in the minds of Senators.

It continues:—

"The Departments of Justice and Finance would also be affected by the operation of the new system as by recent increases of stamp duty the Taxing Master has been made self-supporting and by the cutting out of taxations which would inevitably result by the new system the costs of running the Taxing Office would fall on the general State Revenue."

These gentlemen were concerned about general State revenue. They want taxation, on the one hand and, on the other hand, they point out the argument against it.

The document continues:—

"These practical implications and effects of the new system would not be apparent from casual reading of the new Order.

Only Dáil Éireann can now stop the implementation of this new Order by the bringing in of an objection within the statutory period of one month from the date of the laying of the Order on the Table of the Dáil and thus preserve for the people, county councils, and other similar bodies and organisations liable to solicitors for costs, the complete protection they have under the present system.

It has been suggested by the Law Society when recommending this new system to their members that a similar system has been operating satisfactorily in England for some years. Leaving this aside the question of whether, having regard to the totally different economies of the two countries, a slavish copying of English methods is justifiable or desirable, it is a fact that no evidence in support of this suggestion is forthcoming and rather is it believed that the contrary is the fact."

So, of course, they end up by wrapping the national flag about them.

The representatives of the Incorporated Law Society, naturally enough, got a copy of this anonymous communication which every Senator got and they replied to it in detail. Theirs was not an anonymous communication. It was dated 26th July, 1957, and reads as follows:—

"Solicitors' Remuneration General Order, 1957.

Dear Sir/Madam,

The Council of the Incorporated Law Society of Ireland have seen a copy of an anonymous communication which has been circulated to certain members of the Dáil and Seanad. The memorandum is a complete misrepresentation of the facts in so far as it states or suggests that the effect of the Order would be

(a) to abolish the present system of taxation of costs by independent officers of the court, or

(b) to remove all limitations on costs and make solicitors the sole judges of reasonable professional charges, or

(c) to relieve solicitors from the obligation of vouching their professional charges and disbursements.

The true position in respect of these matters is the converse of what is stated or suggested in the memorandum, which contains other misrepresentations and inaccuracies.

The internal evidence in the memorandum is strongly indicative that its author has a vested interest in the perpetuation of the present expensive and complicated system but is not a person who is at all concerned with the interests of clients. It is noteworthy that he has apparently obtained information concerning the Order, prior to its signature."

He certainly obtained information about the Order a great deal more rapidly than we obtained information about the fact it was to be rescinded in this House to-day if the Minister could get the majority.

The letter continues:—

"The draft Order has been approved by the Statutory Committee under the Solicitors' Remuneration Act, 1881, consisting of the Chief Justice, the President of the High Court, the Senior Ordinary Judge of the Supreme Court and the President of this Society. It is inconceivable that such a committee would act without careful consideration.

The council of this society are confident that no fair-minded person will allow his views to be coloured by an anonymous communication the only possible effect of which could be to create bias. A factual statement is enclosed for the information of those who are interested in acquainting themselves with the true position."

I now propose to go through this factual statement, just as I went through the statement bearing on the other side of the case. It is headed: "Costs in Non-Contentious Matters," and reads as follows:—

"1. This Order, which has been approved in principle but not yet signed, is the work of a committee consisting of four persons, namely, the Chief Justice, the President of the High Court, the Senior Ordinary Judge of the Supreme Court and the President of the Incorporated Law Society, who is the only solicitor on the committee. This committee of eminence and impartiality have paid due regard to all relevant matters before approving the Order.

2. The Order, which has been approved by the Statutory Committee, deals only with parts of a solicitor's business and these are entirely unconnected with court proceedings. The costs of court business are prescribed by different rules and have not been changed.

3. The main effect of the new Order is to substitute for a lengthy and involved bill of costs such sum as is fair and reasonable having regard to all the relevant circumstances, and in particular:

(a) The complexity or difficulty of the case."

I should like to make a comment on that. It has been noted that when an extremely complex matter is resolved by somebody, everybody can see the solution. The moment they hear it, it is obvious. The more complex it is and the more sweat put into resolving it, the more obvious the answer is when somebody produces it. But it is not obvious at all until somebody puts in an effort to produce it. The statement continues:—

"(b) The amount or value of the property involved.

(c) The importance of the matter to the client."

If a client goes to a solicitor and says: "This is a matter of the greatest importance to me. I want you to consider it with the greatest care and to give it the very best attention," surely the solicitor, if he does that and carries out his work correctly in the manner I have said, is entitled to charge for that?

The document continues:—

"(d) The skill, knowledge and responsibility involved.

(e) The number and importance of any documents involved.

(f) The place and the circumstances in which the business is transacted.

(g) The time expended.

4. The system described in paragraph 3 is basically the same as the method used by accountants, surveyors, medical practitioners, architects and other professions."

In other words, it is basically the method which is used for all other professional work in this country.

The document continues:—

"As regards non-contentious business where the costs are paid by the client to his own solicitor (and not by a third party as in litigation) there is no reason why solicitors should be in a different position from other professional men. Much of the advisory work done by solicitors and accountants is of a like nature, but an accountant does not render an itemised bill."

Much of the work done by architects is of a somewhat similar nature. Again, there is a scale of fees and they render a general bill. It is paragraph 3 that the Incorporated Law Society wants to have adopted.

Paragraph 5 says:—

"Under the present system if a client feels that he has been overcharged his only redress is to have the bill taxed. This will involve him in expense if less than one-sixth is taxed off, as he will then be liable for the costs of taxation. The Order contains the following provision for the protection of clients:—

(a) The client will have the right to apply to the Incorporated Law Society for a certificate, which must be given free of charge, stating whether the amount of any bill is or is not fair and reasonable, and, if it is too high, what substituted sum would be a fair and reasonable charge."

The Minister commented during his speech that the Order—I took down his phrase—"affords inadequate protection to the client." I must say I do not think anybody would suggest that, as far as taxation alone went, the existing system of solicitor and client taxation affords exceptional protection to a client.

"(b) The client will still have the right to have the bill of costs taxed by application direct to the Taxing Master of the High Court whether or not he has already obtained a certificate from the Law Society. The Taxing Master on such a reference will deal with the matter independently.

(c) On any taxation of a bill it will be the duty of the solicitor to satisfy the Taxing Master as to the fairness and reasonableness of his charge.

(d) If the Taxing Master allows less than one-half of the amount charged he must bring the facts of the case to the attention of the Incorporated Law Society, which may result in disciplinary action against the solicitor."

In other words he reports back, in the traditional method, to the parent body —the body to which he belongs and he is called to account if the people in the professional association feel that that is required.

"(e) The right of appeal from the taxing masters to the court will remain."

All these rights will remain, and he has the additional advantage of getting a free certificate from the Incorporated Law Society.

The General Order goes on:—

"A solicitor furnishing a bill of costs will know that it is subject to these tests. The Law Society on reference to them and the taxing master on taxation will be entitled to all necessary information including the solicitor's files and documents to enable them to judge the reasonableness of the charge."

Paragraph 6 says:—

"The new system while allowing solicitors reasonable remuneration would be an incentive to efficiency and diligence. A solicitor who completes business with exceptional skill or expedition would be entitled to fair recompense for his additional exertions. On the other hand a solicitor who is dilatory or who transacts business in a roundabout or negligent fashion would be liable to have his remuneration reduced by the taxation masters. It is suggested that this principle the value of the work to the client, is an important benefit.

(7) The Council of the Incorporated Law Society are most anxious to increase the standard of professional integrity and efficiency."

There is no doubt about that. We all know the Act passed a few years ago which is intended to have, and in fact will have, the effect of improving professional integrity and competence. Yet it is suggested that this same body which co-operated with the last Government in the passing of that Act will now turn around into reverse.

The paragraph continues:—

"They have shown this by the promotion of the Solicitors Act, 1954, and by the steps which they have since taken for the protection of clients against solicitors whose conduct came to their notice. They believe that the new system would help the society in maintaining this standard. The public interest would be served by freeing the profession from archaic restrictions while strengthening the hand of the professional body in disciplinary matters.

(8) The new system would help to reduce the present unnecessary expense and delay in preparing and furnishing bills of cost."

Of course it would. At present if a solicitor has not a costs drawer in his office he must hand the whole load of files over to a costs drawer and it may take a long time.

The paragraph goes on:—

"No business concern could stand the expense of ascertaining charges and furnishing accounts which the present system imposes on solicitors. The following is an actual example of a solicitor and own client bill of costs taxed by a solicitor for a public body. It is typical of many others:—

Gross profits costs for year's work

£1,173

Disbursements

£331

Total

£1,504

Taxed off

£40

Now, there is no necessary connection in any particular case between disbursements and the amount of work done. There is a connection in general, and when the figure of disbursements is £331 it is quite certain there is a considerable amount of work involved.

The paragraph goes on to state that the expenses of drawing and taxing the bill which resulted in a reduction of £40 were as follows: Costs drawer's remission, £103; costs drawer's scrivenery charges—that is using the archaic word for what would now be described as the person who types out the bill—£38; costs drawer's petty disbursements, £9—paper, I suppose; duty on costs, £39. There is a footnote on that item which says:—

"This bill was taxed in 1953. The duty payable to the taxing office, which was then £7 16s., would be £39 to-day under the Fees Order made by the Minister for Justice in 1956."

To continue with the bill, taxation items amount to £44 and the fee to the solicitor and costs drawer opposing the bill amounted to £31. That is a total of £264—22.15 per cent. of the solicitor's profit costs as drawn. So the local authority ended up by paying to the solicitor £74 more than if they had just paid the bill of costs.

The document goes on, still in paragraph 8:—

"If the new system were in operation a considerable part of this expense could be saved. If in addition a county manager (who from his experience of dealing with bills from year to year is something of an expert) were authorised in his discretion to settle his solicitor's bill of costs without taxation a further saving could have been effected."

There is no use in pretending this is a kind of abracadabra. There are in public and business offices many people who could make a fair shot as to what a solicitor's bill of costs would be. I feel sure they would be within 5 per cent. of the accurate figure. In large organisations dealing with different people in these matters from day to day they become experts. There is a division of the labour and there is no difficulty.

Business suspended at 6 p.m. and resumed at 7 p.m.

When business was suspended I was on paragraph 8 of the reply of the Incorporated Law Society to this anonymous document which we all got in the post during the summer.

I understand all Senators did not get this anonymous document. I wonder will the Senator make it available in the Library?

I have gone through nearly all of it.

It is still essential that the document be circulated.

I have the same document as Senator O'Brien has.

Is it the document published by the Incorporated Law Society?

That is quite all right then.

The reason I wanted to go through it was that it is not on the records of the House. The reply of the Incorporated Law Society in paragraph 8 went on:—

"Taxation would, of course, be available if necessary. Generally speaking the present system, outmoded as it is and not used by any other profession, results in an undue dependence of the solicitors' profession on a small number of costs drawers in Dublin who are paid by commission. This is not a good thing either for members of the profession, who should be independent, or for their clients. Commission and scrivenery charges are disproportionate as the above example shows."

This really comes down by tradition, as so many of these things do. The Act of 1859, under which the original scheme was fixed, became law at a time when solicitors were scriveners and there is an interesting point in this.

"Delays in having bills drawn and furnished due to the shortage of competent costs drawers may run into many months."

Everybody knows that.

"The costs drawers' association have recently sought to impose on the profession a scale of charges varying from 5 per cent. to 7½ per cent. on the gross amount of a solicitor's bill including disbursements paid by the solicitor. This may work out at 20 per cent. to 30 per cent. of a solicitor's net profit costs after payment of disbursements and overhead office expenses. The result is that a small body of men might receive for their services in preparing solicitors' bills in particular cases approximately one fourth of the amount which the solicitor receives in each case as net profit (and before payment of income-tax) for doing all the professional work involved in the bill."

So of course it is here. That is where you have the real bottleneck in the whole position. There are to-day 40 per cent. more solicitors in this country than there were 30 years ago and nobody can say, least of all the Government, which recently introduced the Prices Bill, that competition does not really improve service to the community. If the Government says that, it is facing two ways on the one day in this House.

Paragraph 9 says:—

"It is stated in the anonymous memorandum that the new system would result in a loss of court fees in the taxing office. It should be pointed out, however, that these fees are added to the bill and paid by the client. In the instance cited in paragraph 8 the fees would amount to £39. The council regard these fees as exorbitant and, in so far as they must be first paid by the solicitor and later collected from the client, as an unfair imposition on the profession. It is submitted that even if the new system resulted in some loss of revenue from fee stamps in the taxing office it would be inconsiderable in proportion to all court fees collected."

I think the State is not doing badly out of court fees. The very large increase in them in recent years has had the effect of making things extremely difficult for young solicitors.

Paragraph 10 says:—

"The old system was discarded in England in 1953. It was discarded in Northern Ireland in 1955 as regards the fee for instructions in non-contentious matters."

—this being the matter we are talking about.

"In the Solicitors Bill, 1957, which has passed the First Reading in the House of Commons in Northern Ireland there is provision in Section 40 that a solicitor may, in respect of any non-contentious business carried out by him, charge and recover such remuneration as is fair and reasonable having regard to any schedule for the time being published by the Incorporated Law Society of Northern Ireland under Section 41 and the relevant circumstances, which are similar to those enumerated in paragraph 3 of this memorandum."

—the extent of the work, thought and so on.

"Section 41 provides that the Law Society of Northern Ireland may from time to time publish schedules prescribing the remuneration which shall be regarded as fair and reasonable and by Section 42 the Taxing Master is to have regard to such schedules. If this Bill is enacted the position of the profession in Northern Ireland will be more favourable than that sought in the present memorandum for the profession in the Twenty-Six Counties. As far as can be ascertained the system of item charges which it is now sought to abolish never existed outside these islands and certain British possessions. It has been abolished in Great Britain and is in course of abolition in Northern Ireland."

One of my colleagues has already pointed out that comparing 1937 with 1957 in regard to the amount of cost and outlay certified for payment, it was £225,000 in 1937 and £292,000 in the present year. Is it not obvious to anybody what the value of money is to-day? At best, about 40 per cent. of what it was in 1937—two-fifths. The number of persons involved is 1,300 as compared with 2,300. That certainly proves that the taxing masters are not overworked. There is no use suggesting that the solicitors as a profession are getting excessive incomes.

I want to conclude on just two points about the Minister's statement. I thought that the Minister's statement, as read out to us, was extremely polemical and categorical. He was laying down the law, I thought. Of course, the Minister is entitled to make his statement in that form. I did think that in a matter of this sort, to which there are obviously two sides, it would have been better if he was not quite so polemical or quite so categorical. For instance, he said that Parliament did not hand over to this committee the right to regulate costs. Parliament did not hand over the right to this committee to regulate costs, but Parliament did hand over to this statutory body, composed, as it is, of people who certainly are above reproach in the matter of trying to put money into solicitors' pockets.

Now the Executive is interfering with the decision of that committee, come to after mature consideration. Nobody could suggest it was immature. The gravamen of the case here to-day is that a provision in the law which should be invoked only in the case of extreme irresponsibility has been invoked now by the Executive to attempt to deny to this committee the putting into operation of a statutory instrument prepared by it.

The Minister also mentioned—in this connection it was suggested we might like to hear from him further—that a court in England had pointed out a defect in the procedure which is suggested in the Order. One would like something more on that. I should like to end on the note that it is very desirable that the Minister should table the correspondence which he has had with this rules-making committee. I think it would enable the people to judge where the matters lie and what is in effect between the Executive and the judiciary.

I myself am inclined to think that there is an element of dispute, contention—call it what you will—between persons involved in the Executive and the members of the committee. Everybody will appreciate, I think, that it is desirable that the letters should be put on the records of the House, particularly as it is obvious that the Taoiseach made a tremendous effort to get this matter agreed between the parties. That is quite obvious from the information which Senator O'Brien read out to the House. I do not know exactly what went wrong in the end that this decision of the Government with which we are dealing to-day was taken.

We have listened for three hours now to a debate on this motion and I cannot add anything to the collective knowledge of the Seanad in regard to the matter. Why I rise to speak at all is to point out to the Seanad what I consider to be the importance of this matter and, secondly, to try to clarify my own mind as to what the position is and what my decision should be. I say "decision" deliberately because I think that in this matter the Seanad is being asked by the Government to act as a jury to decide the rights and wrongs of the dispute.

Some of us have often complained about the lack of power of the Seanad but I think in this matter we cannot complain if some of us may fear the responsibility that is being put on us. Nevertheless, we cannot escape it and apparently the Minister is not disposed to allow us to postpone that responsibility.

I am not an advocate for the solicitors in regard to this matter. I must confess that, like many laymen, when I think of our solicitors and their fees, I have a natural suspicion. You may notice, however, that the solicitors do not appear to be short of very good advocates in the Seanad this afternoon. I am not, on the other hand, trying to persuade other Senators as to how they should make up their mind or whether or not they should agree with me.

I have listened to practically all that has been said in this matter. I have read the documents supplied to us by the Incorporated Law Society of Ireland. More particularly, I have listened with great care to what the Minister said in introducing the motion. In spite of all that, I and other Senators would like much more information on this important question, but apparently we are not to be given it, and with the little information we have at hand, we have to make up our minds as to whether this motion should be approved or not.

I delayed speaking as long as I could in the hope that our colleagues on the other side of the House would make a case in support of this motion. We have seven or eight speakers all against the motion. There is a strange silence from the other side. Perhaps, however, they are saving their ammunition, and I should be very glad to hear their arguments, because, quite frankly, if there is a case in favour of the motion, it has not yet been made. I have waited patiently to try to get the case but I have not heard it.

Perhaps the Minister considered the Seanad a very amenable body, quite prepared to agree with his opinion. He did not go to any great trouble to persuade or convince us that his attitude and the attitude of his Government was right and proper. I would not make up my mind on this question for or against the Government or look upon it in any way as a political matter. It is my responsibility as a Senator to consider the merits or demerits of the difficulty which has arisen and, in accordance with my conscience, having listened to what has been said, make up my own mind.

With the best will in the world, I cannot accept the Minister in the rôle of defender of the general public against the body of solicitors, endeavouring to save the public from greedy solicitors anxious to overcharge for their services. There is plenty of evidence that the present system of itemised accounts does not, in fact, lead to low charges. The little experience I have in this matter is that every time one opens one's mouth to a solicitor, on the phone or otherwise, a couple of guineas are clapped on. I cannot accept, therefore, that that method of assessing charges means of itself that one is charged fairly and reasonably.

The argument has been put forward that the method suggested in this Order may lead to more reasonable charges. I do not know. There is no great body of evidence to support that. I must reject the suggestion that the present method leads to reasonable charging and to a greater protection for clients as against the method laid down in this Order.

Many speakers have implied that this represents a clash between the Executive and the judiciary. I do not know if that is correct. I do not know if it is an exaggeration. I deplore the suggestion that it is the civil servants who are responsible and that we are in effect criticising the decision of civil servants in opposing this Order. It is the Minister who is responsible and, ultimately, the Government. The Minister may be advised, as I am sure he is, by his civil servants, but the responsibility is his and I deplore the suggestion by previous speakers that civil servants are responsible.

I have listened to all that has been said; I have read the documents supplied. I am firmly of the opinion that, if there is a case in favour of this motion, we have not heard it. Because of that and because of the arguments put forward by other speakers, I must vote against this motion. The Government have taken a wrong decision and I, therefore, must in conscience oppose this motion.

I did not have an opportunity of listening to the major part of the debate on this motion earlier this afternoon. I have, however, taken a keen interest in this matter, the more so as I was supplied by the Incorporated Law Society with a very comprehensive file, a file which makes rather illuminating reading. Like Senator Murphy, I do not hold any brief for the legal profession or for the scale of charges which they impose on an unsuspecting public. I have my own views and my own ideas as to the moral justification, or otherwise, for many of these charges, but frankly I cannot accept the suggestion that that is in fact the case in point on this issue.

I support the point made by Senator Murphy just now. I do not think the Government are being fair to the House in requesting us to give our approval blindly to this motion. I deprecate the haste with which it has been put before us and I deplore the absence of any fair explanation as to its necessity. I read the documents supplied to me very carefully and two important points impressed me. The Government appear to be very hesitant, if not unwilling, to implement an Order made by a statutory body. That is tantamount to rejecting the whole principle of arbitration or fair ruling of any kind and I would find it impossible to support any suggestion that that represents right or proper conduct for any Government to pursue.

The second point that impresses me is that the Government appear to be in possession of certain facts or information. They appear to be in possession of certain correspondence. They have not taken the trouble to put either, or both, before this or the other House. The Government are treating this House in a rather cavalier fashion. I would prefer to know a great deal more about this matter before passing judgment on it and we should not be asked to give our approval to it in the absence of Government confidence in us and in the absence of the information to which I think we are entitled before our approval is sought.

In the interests of the maintenance of proper relations between the judiciary and the Executive, we are forced to refuse our sanction. Unless we are given a great deal more information and some of the confidence to which we are entitled, we must oppose this motion. I would appeal to the Minister to consider the desirability of postponing this proposal and giving the House the information and confidence to which we are entitled before we are asked to vote.

I am in some respects sorry that a particular line has been taken. An effort has been made here to cause a rift between the Government and the judiciary. It is a deplorable state of affairs that such an effort should be made in a House of this distinction. It has also been suggested that we are the enemies of the solicitors. That implication has run through most of the speeches to which I have listened. I want to point out now that there are probably more solicitors, or more relatives of solicitors, in our Party than in any other Party or Parties either in the Dáil or Seanad. We were quite conscious of all these facts when we came to discuss this Order.

It is very difficult to approach this question from the many points of view which were raised here by Senators, but one point in particular did strike me. Reference was made to what I might describe as the brevity of my statement. That was deliberate, because I did want to avoid anything that might be regarded as being in any way controversial or harmful to the solicitors' profession or insulting to the judges. I wanted to be as clear as possible on the actual facts of the case and these I stated. I could not do more because the issue in this is simplicity itself. The issue is: Are we to allow the solicitors to decide costs to their clients or are we to prevent it? We feel it is our duty to ensure that exorbitant costs will not be charged in any single respect, and it is because we have that feeling that we have had to take this decision.

I have made it very clear in the course of my statement that we are against this Order. We made it clear in our communication to the statutory body that if they wished to consider other ways and means we would be prepared to give sympathetic consideration to their views. Someone has been asking for the production of particular documents. As far as I can see, there is nothing very secret about them, but the fact that they were regarded as being confidential by the people who sent them to us means that unless we get the consent of the statutory body, I should feel that I was not honouring my bond in respect of those documents. Therefore, unless and until the statutory committee tells me that these documents may be made available to the public, I have no intention of making them available because I should feel I am not entitled to do so.

In my statement to-day I should like to have referred Senators to a debate which took place here as far back as 1924. I can refer them to the actual volume—Volume 2, column 631. On that occasion, the Courts of Justice Bill was being discussed and it was on the same occasion that an eminent lawyer said that the battle for democratic control was fought and won. I want to say that the winning of the battle on that occasion was due in the main to the Labour representatives who were in the Seanad at the time. What we are discussing here to-day is in many respects the equivalent of what was being discussed then.

There must have been some good reason for putting this section into the 1881 Act in regard to Parliamentary control. The Rules Committee in its original form consisted of very eminent judges—I do not mean the personnel but their ranks—as now. They were not regarded as being infallible then any more than they can be regarded as being infallible to-day, but does it not strike Senators that there must have been some good reason for putting in the particular section that gave the right to the Government to veto their decision if, in the wisdom of Parliament, it was considered necessary to do so? Surely there must have been some good reason for that. Some valuable foresight must have shown to somebody that such a situation as this could arise. It has arisen now and the attitude of the Government in respect of it is to defend what we believe to be the rights of the common people.

The policy of every Government in this country naturally is directed towards the greatest good for the greatest number. We are satisfied that, in this instance, the greatest good will accrue to the ordinary public, who are compelled by reasons outside their own control to enter into legal work of this kind if the Order is disallowed. Most Senators will realise that non-contentious business consists of the simple matters that do not have to be taken into the law courts. They are things such as wills, leases, purchase of houses and matters of one kind or another with which the man in the street is concerned from time to time. These are the things the costs of which, by reason of this Order would, in our opinion, be increased and increased perhaps abnormally by reason of the freedom that would be given to solicitors just to deliver bills without the client having the right to see the itemised account.

I know play has been made about the case of a doctor—as to why, if a doctor undertakes to carry out an operation, and takes out an appendix, he should not be forced to give an itemised account of all the things which he did. The fact is that anyone who thinks a doctor is overcharging him, to the extent that he feels he is being defrauded, has the right to take that doctor to court, and he has the same right in respect of every other profession. All that happens in regard to the solicitor is—and as far as I know it has not occurred to any great extent —that if you get a bill from a solicitor which you think is exorbitant you now have the right to go to the solicitor and say: "Surely this bill you have given me is far in excess of what the work is worth. I want to dispute this with you and I want you to show in what manner the bill has accrued to such an extent."

This may be a hardship on the solicitor—I am not saying it is not— but if he is a good solicitor he will have his accounts in apple-pie order. He will have them, as any other good business man will have them, and he will not be occasioned any great difficulty in itemising his bill. A good costs drawer — Senator O'Donovan seems to think costs drawers are obnoxious persons—will do that work for the solicitor well and expeditiously. When the client gets this itemised account, he can sit down like any other common sense individual and examine it; and if, in his opinion, the bill is still exorbitant, he can go to the Taxing Master and have it taxed. We know that that sort of thing has happened reasonably often and that the Taxing Master, having examined the bill, has knocked off a certain amount and has left the client reasonably satisfied. That is the position at the present time. If this Order were to go through, the position—in spite of the suggested safety devices which have been put forward by the Incorporated Law Society—would be that a person could get a bill for, say, £500 and would have to accept it or reject it without getting details of the itemised charges.

We know that one can under the Order bring it to the attention of the society, but we must remember that the society is made up of solicitors. I do not know that it would be any great consolation to an individual, who believed that he was being charged an exorbitant fee by a solicitor, to find that he could have the account examined by a body of solicitors. I do not wish to impute anything to those who would make up a body which would examine into such cases, but it is reasonable to suggest that the individual would not feel very happy about having to submit his charges to a body of that kind. If the suggestion were that the account could be examined by an independent body, that might be reasonable and might be more acceptable, but I doubt very much if it would satisfy every client.

Senator O'Donovan made what to my mind were slighting references to the costs drawers. I must admit, being a layman, that I do not know anything personally about either the costs drawers or the taxing masters; but as a result of this business, I do know that the costs drawers are important persons to solicitors.

If I may say so, I do not remember making any comment myself about costs drawers. I made no comment whatever about them.

I am sorry if I am misquoting the Senator. He can examine his speech in the Official Report.

I made no comment myself.

The Senator did not mention them at all?

I quoted from the document. I made no comment myself.

Anyhow, the comment was suggested to me. It may have been only a quotation.

From the documents.

An easy remedy is there for the solicitors, to my mind. Speaking as one who might be regarded as an ignorant layman, I would point out that we are told there is a very large number of young solicitors, many of them looking for work in their profession. I cannot see why the solicitors should not take some of these young men—who, I am sure, are exceptionally well fitted for the task—and give them a course in the drawing up of law costs and in that way make them part of their own staff. It is reasonable to believe that they would be a loyal staff, giving faithful service to the employers.

I deplore the suggestions made here in respect of our attitude to the judiciary. Speeches of the kind which have been made are doing a disservice to the State generally, in suggesting that this Government—or any other Government, for that matter—would deliberately oppose or put itself up against the judiciary. The judiciary do not claim to be infallible, I am sure, and I do not regard them as being infallible; neither do the Government. When, in the course of our duty, we have to examine a matter of this kind, we have to arrive at our own decision on it; and if our decision, arrived at after full consideration, is that we should not allow a certain thing, then I can tell the Seanad that we would be very much lacking in our duty if we were to do other than what we believed to be right.

I said at the conclusion of my opening statement that as far as the Government were concerned, we were prepared to give ample consideration to any suggestions put forward by the society. That still stands. I want to make it clear from this House to the society that, as regards the friendly relations which I have been informed have always existed between the Department of Justice and the society, I desire—during my term of office, however long or short it may be—to see that friendship and those relations continue. I will make it my task to ensure, as far as I can, that nothing will take place to upset the good relations which have existed between the Department and the society.

Mention was made of the difference between the English Order and the Order we are discussing. The most objectionable thing I saw in the Irish Order—as against the Order on which it was modelled, that is, the English one—was that all business which was not completed prior to 10th October would be charged on the new basis. I am sure that no Senator who gives any consideration to it, will say that that provision in the Irish Order is fair and reasonable. In other words, if one had business which went back two, three, five or ten years, it would be charged for on the new basis instead of the old. That, to my mind, is one of the most objectionable aspects of the Order. I regard the Order generally as one which would inflict a hardship on a section of the population who often have legal matters of the type in question forced on them, by reason of the fact that someone has left them something in a will or because they may have to make a will themselves— simple kind of matters in which the ordinary man or woman in the street is involved.

Is the Minister saying that charges will be higher?

One of the things that amused me here—I do not mind saying that it amused me—was the fact that Senator after Senator stood up and said the Minister had given little or no information. Then they proceeded immediately to make long speeches in respect to the Order; and not only that but they proceeded to quote from long, weighty, voluminous documents, which were obviously supplied to them from some source. Every one of those Senators who complained about the lack of information then started to give me and my colleagues all the information that I was alleged not to have supplied. There was something unreal about all that sort of thing. The Senators knew very well what the position was.

Another thing that I deplered was that the debate was carried on on a political basis. There was no necessity for that. If the Order was wrong, it was wrong and that is all that should be said about it; but the Government were the villains of the piece, even though the Government were endeavouring to protect what they believed was a section of the community that needed protection. That is the attitude that was adopted and I deplore that attitude. I think the matter could have been discussed on its merits and left at that.

I do not know that I can say any more. I do not in fact wish to say any more. I may have said too much and, if I have, I deplore that also because, as I have said, I want the good relations which have existed between the solicitors and ourselves to continue, and I want the good relations between the judiciary and whatever Government may be in power to continue also. As far as I am concerned it would be my desire all the time to see that that is so.

On a point of personal explanation, I was one of those who suggested to the Minister that he might give us the correspondence. That was made to appear foolish by what the Minister said. I should like to say that I have evidence in my hand that the Minister had permission from this statutory body to communicate that correspondence to the Incorporated Law Society on 28th October and, if he had communicated it to the Incorporated Law Society on 29th October, we could have had it in our hands a week ago. We are entitled to point out that it was not such a foolish suggestion. It is not confidential correspondence in that sense.

I will clarify that point. Yesterday was the first intimation we had that the Law Society was anxious to see these documents— yesterday, not 28th October. I should say that I was at a meeting of the Government the whole forenoon of yesterday. Naturally, like any other individual, I had to go home and have my lunch. I was back in my office at about 3.30. The Secretary of the Department, who, like any other human being, also had to go home and have his lunch found, for the first time, when he returned in the afternoon, this request from the Law Society for the production of these papers. We never had the authority of the statutory body to supply these papers to the public.

There is no suggestion, I hope, that we are deliberately withholding something that would make Senators here change their minds in respect to whatever views they may hold or to whatever attitude they may be prepared to adopt. The documents which we received were confidential and that is the normal thing, if a document is confidential, that one does not use it for any public purpose. Until such time as I am assured by the statutory body that they have no objection to these communications being made available to the public, I regard myself as being in honour bound to keep them confidential. That is the actual position as I know it, but I should say that as far as I am concerned, having a recollection of the documents—I have not seen them for some time—they are nothing that I personally would be averse from showing or letting any member of the Seanad see, much less read out.

I have a letter here of 28th October from the secretary of the Supreme Court——

I am afraid we cannot hear the Senator any further.

The Minister was permitted to speak, when you were putting the motion. The Minister was given extended time to make a further statement.

In reply to a question.

May I ask the Minister if he would be prepared now to seek the permission of this committee for the publication of these documents by having them laid on the Table of the House? I understand from the Minister that he himself has no aversion from that.

I personally would have no aversion.

We are asked to take a decision here this evening without having all the knowledge which the Minister has. He has seen documents that we have not seen, but which are available. We are asking the Minister if he would be prepared to seek the permission of that committee to have them laid on the Table of the House.

Without any interference with the decision taken to-night, of course.

I beg your pardon? I am putting a question to the Minister.

Without any qualifications?

Just a straight, fair question.

I would have no objection myself, provided there are no qualifications such as: "We will not have a vote now; we will not have a vote until we see these papers."

No. I am not asking that at all.

That is all right. I have no objection, subject, I should say, to the agreement of the statutory body. The documents are still confidential as far as I am concerned, but, subject to the agreement of the statutory body, which, as has been mentioned here several times, consists of three eminent judges and the President of the Incorporated Law Society, agreeing, I have no objection.

I put the question to the Minister if the Minister would now seek the permission of the committee to have these documents laid on the Table of the House.

Yes, certainly.

He has that permission. There is not the slightest shadow of a doubt that he has that permission.

The Minister has agreed to do that.

We are not getting the full facts.

Question put.
The Seanad divided: Tá, 23; Níl, 21.

  • Brady, Seán.
  • Carter, Frank.
  • Colley, Harry.
  • Crowley, Tadhg.
  • Dowdall, Jane.
  • Farnan, Robert P.
  • Fitzsimons, Patrick.
  • Hayes, Seán.
  • Hogan, Daniel.
  • Kissane, Éamon.
  • Lahiffe, Robert.
  • Lenihan, Brian.
  • Moylan, Seán.
  • O'Callaghan, William.
  • Ó Donnabháin, Seán.
  • Ó Grádaigh, Seán.
  • Ó Maoláin, Tomás.
  • O'Reilly, Patrick.
  • Ó Siochfhradha, Pádraig.
  • O'Sullivan, Ted.
  • Ruane, Thomas.
  • Teehan, Patrick J.
  • Walsh, Laurence J.

Níl

  • Barniville, Henry L.
  • Baxter, Patrick F.
  • Connor, Patrick.
  • Crowe, Patrick.
  • Crowley, Patrick.
  • Davidson, Mary F.
  • Donegan, Patrick.
  • Fearon, William R.
  • L'Estrange, Gerald.
  • McGuire, Edward A.
  • Murphy, Dominick F.
  • O'Brien, George A.T.
  • O'Donovan, John.
  • O'Keeffe, James J.
  • O'Leary, Johnny.
  • O'Quigley, John B.
  • O'Sullivan, John L.
  • Prendergast, Micheál A.
  • Roddy, Joseph.
  • Sheehy Skeffington, Owen L.
  • Stanford, William B.
Tellers:—Tá: Senators T. Ó Maoláin and Carter; Níl: Senators Murphy and O'Quigley.
Question declared carried.
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