Amendment No. 1 is out of order as it is not relevant to the Bill as read a Second Time.
Solicitors (Amendment) Bill, 1994: Committee and Subsequent Stages.
Sections 1 to 3, inclusive, agreed to.
NEW SECTION.
Amendment No. 1 not moved.
Sections 4 to 6, inclusive, agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
The addition to subsection (3) is welcome. The Law Society has set up a considerable number of subcommittees throughout the country. The members of those committees carry out important work on a voluntary basis. Without these people, who are willing and able to give of their time to assist, advise and co-operate with the committee which in turn works and cooperates with the Department of Justice and the courts, the society would have great difficulty functioning. I pay tribute to many of those people who put in time and effort at their own expense.
Question put and agreed to.
Sections 8 to 10, inclusive, agreed to.
SECTION 11.
I move amendment No. 2:
In page 14, subsection (5), line 42, to delete "£1,500" and substitute "£3,000".
I believe that £1,500 is a very low level of sanction under this section. The Bill will be in operation for quite some time and, as usual, inflation will reduce the effect of this fine. A higher fine would give the courts greater leeway. The sum of £1,500 in this day and age is an inadequate deterrent. There should be a greater deterrent for refusing to co-operate under the provisions of subsections 8 (1) and 8 (2) of this Bill. It would be reasonable to double the fine.
Senators will be aware that I reviewed the level of fines on summary conviction in respect of offences under the Bill. There were a number of amendments proposed on Committee Stage in the Dáil which sought to increase the fines on summary conviction under this section and others. Throughout the Bill, where a summary offence is being created the maximum fine provided had been set at £1,000. I was advised that the figure of £1,000 could be safely increased to £1,500.
All of the relevant provisions of the Bill were amended on Report Stage by increasing from £1,000 to £1,500 the maximum fine on summary conviction. This represents a significant adjustment and had the effect of increasing the general level of maximum fines in respect of summary offences in the Bill by 50 per cent. I propose to go no further on advice and that is why I, regrettably, cannot accept the amendment.
To keep the question of penalties in perspective, I would add that the fine in the section is backed up by the potentially heavier sanctions which may be imposed on a solicitor for misconduct pursuant to section 24, including any contravention of the Solicitors Acts or any order or regulations made thereunder. For example, solicitors who fail to comply with any provisions of the Solicitors Acts may have practising certificates suspended under section 58 of the Bill. In addition they could be brought before the disciplinary tribunal and ultimately struck off the roll.
The society also has a power under section 61 of the Bill to refuse to issue a practising certificate to a solicitor who fails to comply with the provisions of sections 8, 9 or 10 of the Bill. Taken together these provisions represent a strong deterrent and I doubt if any solicitor would willingly wish to face having a criminal record and also have his or her career as a solicitor either suspended or terminated.
Senator Neville made the point that the Bill will be in existence for a long time before we amend it. The Senator may or may not be aware that the Minister will shortly introduce legislation in the other House to provide for the indexation of fines. The level of penalties here will, I am advised, come under that. The penalties will increase in accordance with movements in the consumer price index.
I welcome the Minister's promise that legislation will be introduced to index fines. However, I have been in this House since 1989 and that was one of the first issues discussed. Five years later it is still being discussed. Could the Minister confirm that this legislation will be published before Christmas?
The delay arose because the Law Reform Commission was asked to report on the matter as it is fairly complex. My understanding is that the Law Reform Commission have reported. Work on the legislation is very advanced. I cannot definitively state that it will be published before Christmas but I know that work within the Department on the legislation is at a very advanced stage.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Sections 12 and 13 agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
This section concerns the power to inspect documents and is very important. There are occasions when the Law Society may have concerns about a firm of solicitors or a practice and will want to call to it. They can do so without any prior notice. They can attend and show their authority to attend on behalf of the Law Society. Because of the position of trust solicitors hold and, on occasion, the vast sums of clients' money involved, this is essential in the public interest and that of the Law Society, which must make good any moneys lost. This provision, which already existed but which is being improved and strengthened, is welcome.
Question put and agreed to.
SECTION 15.
I move amendment No. 3:
In page 15, lines 48 to 53, to delete subsection (1) and substitute the following:
"(1) Investigation of any written complaint concerning the handling by the Society of a complaint about a solicitor made to the Society by any person, shall be the duty of the Ombudsman as established by the Ombudsman Act, 1980. The Minister shall, in consultation with the Society, set an annual contribution to be made by the Society, towards the cost of the Office of the Ombudsman.".
It is important that an independent person investigates complaints against the solicitor. There is a need for transparency in such investigations and if it was the Ombudsman's duty under the Ombudsman Act, 1980, there would be more confidence in the application of the principles of the Act. There should be a system where investigations into complaints would have credibility. If this amendment is accepted it would be more open and transparent and the public would have more confidence in the procedures.
As regards this amendment, it is appropriate as a matter of policy to maintain a division between complaints machinery for the public sector and for the private sector. The primary function of the Ombudsman for the public service is to investigate any action taken by or on behalf of a Department of State where a complaint is made by a person against such a Department. It is not the role of the Ombudsman to investigate complaints relating to services provided commercially in the private sector.
There is an obvious advantage for complaints about solicitors' services if machinery exists to deal exclusively with them. By comparison, the range of complaints handled by the Ombudsman for the public service, includes complaints in regard to the Civil Service, local authorities, health boards and Telecom Éireann. The proposals in section 15 are a response to public concern about the absence of an effective and accountable system for dealing with complaints about solicitors. It is vital that a specialised mechanism be put in place to improve public confidence in the manner in which complaints against solicitors are dealt with.
Some Senators expressed concern about the independence of the adjudicator given the requirement on the society to pay the costs of the office. At the end of the day the society will have to foot the Bill for the adjudicator's office and that will apply under the provisions of section 15 or under the provisions of the proposed amendments.
I am satisfied the provisions of section 15 underpin the independence of the office, and three key provisions ensure this. The Minister's consent will be required for the appointment of an independent adjudicator by the Law Society. The adjudicator will be required to report annually to the Minister on the discharge of his or her duties as he or she will be under a statutory obligation to act independently in the exercise of his or her functions. It will be open to the adjudicator to raise any issue of interference with his or her independence in the course of these annual reports. The Minister shall also require publication of the annual reports and shall lay them before both Houses of the Oireachtas. Any difficulty encountered by the adjudicator in discharging his or her statutory functions will then be a matter of public record. It is specifically provided that the adjudicator shall not be a practising solicitor, a member of the society or a practising barrister. I am satisfied that section 15 ensures that the adjudicator will be independent of the solicitors profession.
It is not necessary for the State to establish the adjudicator's office, with all the attendant administrative costs which would be involved for the taxpayer. The credit institutions and the insurance industry have established their own Ombudsman schemes and it is past time for the Law Society to establish an adjudication scheme to review decisions of the society in relation to complaints made by the public. I believe the society should establish an adjudication scheme without delay. If it fails to do so, section 15 enables the Minister to require it to do so. Therefore, I cannot accept this amendment.
The general principle in other countries is that the State sets up an Ombudsman's office to deal with complaints in the public sector. In most countries with which I am familiar a system of self-regulation applies to the private sector. A particular profession or business will set up its own Ombudsman and that is what we are doing here.
Could the Minister tell us what type of office he has in mind to carry out independent investigations? Will it be similar to the Ombudsman's Office and what costs will be involved in the setting up and running of this office? As far as I am aware, the Law Society has in the past stated that it is in favour of such a procedure, that is, setting up some type of independent investigation body. The reason the Law Society favours an outside investigation body is because in the past aggrieved clients believed that matters were being investigated by Law Society members because they were investigated by its own disciplinary committee. It is, however, concerned about the level of costs involved and I would like the Minister to tell us what they will be.
I appreciate the Minister's point about the separation of the powers of the Ombudsman, who investigates the workings of local authorities and public bodies. The Office of the Ombudsman was set up in a competent and efficient manner. The Ombudsman is highly respected and his Office has been objective in its views. For that reason Senator Neville's amendment, which refers to the Ombudsman's Office, is worthy of consideration. I am not totally opposed to the Minister, but it is worth bearing in mind.
As regards costs, discussions are ongoing between the Department of Justice and the Law Society. The position is that the Law Society knows what is in this section, it knows what it must do and it is looking at this at present. It has some time to set it up, although I know it is unhappy about incurring extra costs and I understand its position from that point of view. We decided that, as in other private sector areas where there is an Ombudsman, the profession will bear the cost; it will not be borne by the taxpayer from central funds. The Law Society knows what it must do and it must decide the best way to do it. If the society does not do this, the Minister can require them to do so.
There are approximately 5,000 solicitors in practice so the cost per firm, if divided between solicitors, will be low. I appreciate what Senator Enright said about the public sector scheme. It is a good scheme which has worked well. As far as I am aware, no country which has set up a public Ombudsman scheme has extended it to investigate any branch or part of the private sector. It would open a very dangerous door and we are not going to do that here.
The Minister said finance and insurance companies have an investigation scheme. However, bodies such as the four main banks, including Bank of Ireland and AIB, and insurance companies have vast sums of money available to them because they are wealthy organisations. We are dealing with different amounts of money. The Law Society depends on funding, payments or contributions on an annual basis from solicitors. They are an entirely different body and it is creating two entirely different things.
Over the years there has been a very broad measure of agreement among the member solicitors to try to have such a body as the Minister is proposing set up, but it was at all times felt that a contribution should be made by the Department of Justice. This legislation introduces regulations. I do not know whether it is possible at a later stage to make a regulation allowing for a contribution from the Department to finance it in some way, but it is worth looking at. The Minister has mentioned that there are about 5,000 qualified solicitors at the moment, but I do not think they are all employed. It is something that the Minister should consider further.
The office of the banks' Ombudsman has only one or two staff. That is all they need to investigate banks and building societies. It will not be as bad as the Senator imagines. The solicitors themselves know what is in the legislation, they know the level of complaints they are getting. We will see what is coming in by way of appeal to the Ombudsman and I will bear the Senator's suggestion in mind. We will see when the scheme is operating if it is so large and extensive that the Law Society cannot possibly bear it. In that case we would have to reconsider, but let us get it set up now and see how it operates first.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 17, paragraph (f), line 23, after "Society" to add "unless the adjudicator feels there are reasonable grounds for admitting an appeal".
There should be some flexibility in regard to the length of time after which an investigation of a complaint can be dealt with. There could be circumstances where a person was ill or mentally incapable for a period of three or four years and they were not in a position to raise the issue. A person might not be aware of their rights. The whole area of law is very complex and people are often not aware of their rights and the rights they will have under this legislation. I ask the Minister, even when this Bill is law, how many people will be aware of the content and the new facilities which it is giving to the general public? There should be some flexibility, but I agree with the Minister that you cannot have an open ended situation where after 50 or 60 years a person could raise a complaint against the society. There should be flexibility and an investigation should take place after a time lag. It would be up to the adjudicator to determine whether it was fair and reasonable, given all the circumstances, that after a period of three years a complaint against the society could be raised and dealt with.
The Bill as published provided that an adjudicator could examine a complaint made after the expiration of two years following the determination by the Law Society of a complaint. After careful consideration I amended this retrospective period to three years. There must be certainty in the matter of defining time limits and I would be opposed to introducing a discretionary power allowing the adjudicator to admit appeals where the three year period is exceeded. The fairest approach is to have a definite time limit with no provision for variation. Unfortunately, time limits, which we must have, are of their nature arbitrary. Nevertheless, I am satisfied that three years is a very fair limit. It gives complainants to the adjudicator ample scope to have their case dealt with. There are definite time limits in other areas of law. There is a six year period after which it is not possible to initiate action. There is a three year period after which it is not possible to initiate action. I can foresee all sorts of difficulties here now if we move away from a definite time limit. People will complain to TDs and everywhere else that the adjudicator allowed some appeals and did not admit others. On reflection Members will agree that a definite cut-off point is preferable.
Members can rest assured that both the Law Society and the Department of Justice will take all necessary measures to ensure that the provisions of this Bill and the new rights people are getting under this Bill will be publicised as widely as possible.
I raised the matter of timescales on Second Stage because, as I saw it on a first reading, there was in some cases a timescale of eight years within which matters could be raised again. I stated that this appeared to me to be excessive. I agree with the Minister on this one. As a practical matter, when keeping a file and trying to keep evidence together for such a long period of time it is not possible to raise the matter at a late stage and expect it to be dealt with and have people's memories refreshed at such a late time. The procedure allows ample opportunity to any complainant to raise the matter at any stage, and having extended it from the two to three years, I think nobody has any cause for concern about that issue.
While I accept, to an extent, that there should be a cut-off point, there will always be hard cases where it will be unfair to somebody to have their case not dealt with and our amendment would leave it up to the adjudicator to determine what was fair. We would see a very small number of cases coming into this category. The adjudicator should have the leeway to allow appeals in certain circumstances which he would determine. If somebody was ill, was in hospital or mentally incapacitated and did not have the opportunity within three years to raise the issue, the adjudicator should be able to look at it and determine that the case could be dealt with.
Perhaps the Minister might be able to clarify the point he has made. Senator Neville mentioned a person of unsound mind or somebody who was mentally ill or an infant. In some of these cases the time limit on taking an action is suspended for that period of time, so there can be exceptions. Somebody who is mentally ill and is not aware of his rights or an infant would be able to bring their case even after the three years anyway. Perhaps the Minister is in a position to comment on that.
I am aware of that. We are talking about a situation where a person goes to the Law Society, is not happy with their determination and it goes on then to the Ombudsman. We cannot have it open ended. We cannot have a situation where it is theoretically possible, as it would be under the amendment as proposed, to take action 30 years later. The initial period suggested was two years. The general view in the Department was that two years was sufficient. I do not agree with Senator Neville, incidentally, that we are talking about a small number of cases. Potentially, the number of cases could be very large. We thought two years was sufficient. I listened to reasoned arguments, both here on Second Stage and in the other House, and I decided to extend that period to three years. We cannot complain about the costs which the Law Society will have to bear because of this and then increase those costs by putting in this sort of an arbitrary provision. We will have to stick with a definite time limit here now. We will see how it is operating in practice.
Perhaps the three year period covers most cases.
Amendment, by leave, withdrawn.
Section 15 agreed to.
SECTION 16.
Amendments No. 5 and 6 are related and both may be discussed together.
I move amendment No. 5:
In page 20, subsection (5), line 5, to delete "one" and substitute "two".
I proposed this amendment because we have every trust in lay people to be able to adjudicate on disciplinary issues. I fail to understand why one needs two solicitors and one lay person on the tribunal. Why could it not be one solicitor and two lay people? As the Minister is aware, the Employment Appeals Tribunal has this type of system where there is one legal person and two lay people who adjudicate. I would have every confidence that the lay people appointed to the tribunal will determine fairly and honestly on any disciplinary matters. Will the Minister therefore justify why there should be two solicitors and only one lay person who will determine disciplinary matters in respect of solicitors?
It is not a proper analogy to compare this body with the Employment Appeals Tribunal. I speak from some experience on this as I have often brought cases before the tribunal.
I am a member of the Employment Appeals Tribunal.
Very good, but, as the Senator will be aware from his membership, the Employment Appeals Tribunal is a body to which an employee makes a complaint against an employer. There is an employer's representative, a representative from the trade union, an employee's representative and a legal person in the centre. It is presumed that the employer's representative will consider the case from the employer's point of view. I do not suggest that he will invariably agree with the employer.
No, that is not correct.
I will debate the Employment Appeal's Tribunal with the Senator if he wishes.
I do not want a debate.
However, there is no analogy between it and the situation under consideration at present. The principle underlying the solicitor's profession and its regulation is that it is self-regulating and we wish to leave it self-regulating. If there was to be a majority of lay people on the disciplinary tribunal or any committee thereof, then the solicitor's profession would not be effectively regulating itself, but it would be the public.
The proposals contained in section 16 of the Bill are framed on the basis that the policy of self-regulation regarding disciplinary matters should continue as it does with regard to the many other professions. Professional standards of behaviour must be based to a large degree on consensus among the members of each profession. Section 16 of the Bill represents a strong vindication of the public's right to have a say in the deliberations of the disciplinary tribunal, which exercises significant functions with regard to the control and discipline of the profession.
At present all members of the existing disciplinary committee must be solicitors. For the first time up to five lay members will be nominated by the Minister for appointment to the tribunal. The balance of solicitors and lay members is correct, especially in view of the self-regulatory nature of the profession. The purpose of including lay members on the disciplinary tribunal is to ensure that the interests of the public are represented. This must be considered in the context of other provisions in the Bill which allow the public to become involved in the disciplinary and complaints machinery of the profession.
With regard to the amendment in the name of Senator Neville, I am satisfied that we have got the correct balance of lay members and solicitor's members on the tribunal. Consequently, I am happy with the composition of divisions of the tribunal. The Bill provides that committees of the council of the society may include lay members and we have also provided for the appointment of an independent adjudicator to examine complaints regarding the handling of complaints against solicitors by the Law Society. However, it is not the purpose of the Bill to remove the responsibility for the regulation and control of solicitors from the profession itself.
The Bill ensures that there will be accountability on the part of the tribunal. Under section 17, a complainant may appeal a decision of the tribunal to the High Court on the grounds that the penalty imposed was inadequate, or on the grounds that the tribunal should not have imposed a sanction — that is, the limited sanction — but rather should have referred the matter to the High Court for decision. A solicitor may also, of course, appeal to the High Court against the decision of the tribunal.
In all cases where a disciplinary tribunal holds an inquiry it must embody its findings in a report to the High Court. The tribunal is a tribunal of the High Court. It is appointed by the President of the High Court and is responsible for its actions to the High Court.
In this instance the policy is one self-regulation. With regard to the disciplinary tribunal, self-regulation was interpreted up to now to mean that solicitors formed the composition of the tribunal. For the first time we are allowing members of the public onto the tribunal; we are letting in the light. We are allowing in members of the public to let them see how complaints from the public are dealt with by the disciplinary tribunal.
The Minister could open the windows and the doors.
The disciplinary tribunal deals with very serious matters which can have the most profound implications for solicitors and I would be completely opposed to the idea of lay people deciding these important matters by majority. It would not work. However, we have come a long way. We are allowing members of the public to comprise one third of the division, because cases will usually be heard by a division of the disciplinary committee, and if a case is to be heard by the full disciplinary committee, the members of the public will comprise one third of the committee.
The public will therefore be in a position to see how complaints from their fellow members of the public are being dealt with by this most important tribunal, which has far reaching powers, and will now acquire a number of new power as a result of the provisions of this legislation.
The Minister advises that he is letting in the light. However, we are anxious to open the door and allow the public to have more of a say and an influence on issues of concern to it. While the Bill contains self-regulatory provisions with regard to the legal profession, there is a great desire that there should be openness and involvement with regard to the public.
There is now. Members of the public go from nil representation to one third representation.
However, 51 per cent is the important figure to attain. Such a figure would ensure some control.
A figure of 51 per cent would give the public total control.
I am confident that members of the public would be objective and fair in their outlook. This would also be the case in respect of solicitors, but it would not be the impression of the public at present. Such an impression may be unfair, but it is certainly not positive. If the public was seen to be more involved in the disciplinary regulations and the work of the disciplinary tribunal there would be more confidence in the entire legal machinery. The objective of this legislation is to create more transparency and create greater confidence among the public.
The membership of the disciplinary tribunal comprises a ratio of 2:1 between representatives of the legal profession and members of the public. This measure has been sought by the Law Society for many years and the Minister's Department has been anxious over the years to have such a body established. In addition, many people with grievances might have been happier with decisions if a lay person had been involved in them.
Law is an adversarial business. For example, if two neighbours have a serious conflict regarding a farm, right of way or a business, or if a family has a serious dispute which divides them in half, and there is recourse to law, one family or one neighbour wins by a decision of the High Court or Circuit Court. The family or neighbour who loses decides to go to the disciplinary tribunal, alleging that their case was not properly heard or conducted. The case then proceeds to the disciplinary tribunal. The tribunal will comprise two members of the public who will have no knowledge or experience of law and may not understand the difficulties and intricacies of the case. At that stage the disciplinary tribunal makes a finding and matters then proceed to the High Court. Under section 18 of the Bill the court has extensive and wide ranging powers in this area. It may, for example, impose fines, suspend a solicitor for a short period, have a solicitor struck off the role entirely or prevent a solicitor from ever resuming practice.
The Law Society is a self-regulating body and this Bill seeks to introduce more regulations and powers to the society. In this respect the Minister has gone a long way and has opened the window and let in light. It is now a matter of observing how matters proceed, but an important step forward has been made on this issue. It is difficult to achieve a correct balance, but thus far the present proposals are reasonable and fair. While in many instances I appreciate Senator Neville's concerns, the Minister's achievements go a long way towards meeting the feelings and desires of the vast majority of the general public.
Senator Neville spoke about opening windows. I think the Law Society has opened its doors in more ways than one. Therefore, I do not think that is a cause for concern. I only wish that every profession was as regulated as the solicitors profession. The whole thrust of this Bill is to give even more rights to Mr. and Mrs. Citizen. There can be no cause for complaint in that area. I am surprised that Senator Neville, while extolling his independence as a member of the Employment Appeals Tribunal, seems to cast some doubt on the independent role of a disciplinary tribunal.
I did not.
We must remember that we are dealing with complicated issues here and some knowledge of the issues involved is required. That would require somebody with a legal training and I think that the make up of the tribunal is fair.
I am disappointed Senator Gallagher was not listening to what I said. I said that I have every confidence in the legal profession but that we want transparency and I have confidence in the public to be fair. I never at any stage cast aspersions on the possible appointees to the tribunal. I said it would be more transparent and more acceptable to the public and it would assist the profession, in that it would be seen to be more open, if it had lay people. I have full confidence that the lay people would be honest and fair. I never at any stage suggested that anybody appointed to it would act other than honourably.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Section 16 agreed to.
Sections 17 to 21, inclusive, agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."
The publication of information on complaints in the Law Society gazette is of importance. The gazette is regularly read by those working on national newspapers and, therefore, matters which are published in it are often published in the daily and Sunday newspapers also. The public now has considerable access to information about complaints which are received and the outcome of their investigation. It opens many windows and lets in more light.
Question put and agreed to.
Sections 23 to 25, inclusive, agreed to.
NEW SECTION.
I move amendment No. 7:
In page 33, before section 26 (but in Part III) to insert the following new section:
"26.—Fines imposed by a Court under any provision of this Act shall be indexed annually by reference to the Consumer Price Index and regulations setting out this index shall be published annually by the Minister and laid before both Houses of the Oireachtas not later than the 31st day of March in each calendar year.".
I presume the Minister dealt with this section earlier. The amendment expresses our concern about the need for the indexation of fines. I am disappointed the Minister could not give a definite time scale for the introduction of this legislation. Obviously, it will not be introduced during this session which is disappointing.
I did not say that.
Will it be introduced during this session?
I did not say that it would not.
We will wait for the Minister's reply.
The Minister has told us a few things in that area before, he is probably being careful. We hope that this legislation will be introduced as quickly as possible, if not during this session.
As I told Senator Neville and the other House before, I communicate at all times when addressing the House the information which is given to me by the Civil Service. I do not make it up myself, I pass on what they tell me. Sometimes they get it wrong.
Surely the Minister tells them.
They tell me when they are likely to complete work they are doing. I said earlier that this is at an advanced stage and we will see it when we see it. It may be published in this session. If not, I expect that it will be published in the next session. I am emphasising that that is the information I have received.
As the House knows, the Minister for Justice, since taking office 20 months ago, has put through nine very important pieces of legislation. Three other Bills have been published, one of which will be taken in the Dáil either this afternoon or early next week — the Courts and Courts Officers Bill. I think that is an all time record. We have only a certain amount of resources and we cannot do everything together.
However, I refer Senator Neville to the famous work Alice in Wonderland in which Alice states at one point that around here one has to run very fast to stand still. The Minister for Justice, Deputy Geoghegan-Quinn, hit the ground running when she came into the Department and we are all gasping trying to keep up with her. As I said, this is an all time record and she is a tremendous Minister.
Deputy Spring made a great effort recently.
He is only in the ha'penny place.
Amendment, by leave, withdrawn.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
Am I correct in stating that once this Bill is passed, a solicitor will not be entitled to practise as a solicitor unless he has a certificate of indemnity?
Yes.
That is definite?
Yes.
Question put and agreed to.
Section 27 agreed to.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill."
I presume that, in regard to the control of banking accounts and assets, all moneys must be retained within this jurisdiction, that they cannot invest in any company, bank or financial institution unless they are based in Ireland. Is that correct?
Yes.
Is the Senator happy with that reply?
I just wanted it clarified.
The answer is: essentially, yes.
Question put and agreed to.
SECTION 29.
Question proposed: "That section 29 stand part of the Bill."
There are cases where genuine mistakes are made which are covered under indemnity provisions. There are cases where there is actual misappropriation of funds which should be condemned and the Minister and the Law Society should take every possible action to prevent or prosecute such conduct.
However, there are cases where a solicitor may be engaged in transactions in which the Law Society may incur losses because of the way moneys have been appropriated by a solicitor on behalf of firms or undertakings he has given. These are not cases of dishonesty but can result in the Law Society finding itself facing claims which are outside the normal business of the funds involved. Huge sums of money can be involved. For example, a solicitor acting for an international company might invest funds in property and at a later stage the property could drop in value. The Law Society has no control over the conduct of a solicitor. Does the Minister understand the point I am making and what are his views on it? It is a difficult area.
It is a very difficult area. The section states:
Where it is proved to the satisfaction of the Society that any client of a solicitor has sustained loss in consequence of dishonesty on the part of that solicitor or any clerk or servant of that solicitor arising from that solicitor's practice as a solicitor within the jurisdiction of the State, then... the Society shall make a grant ...
Traditionally, this has been the requirement. The society must interpret that properly and make the appropriate grant. I understand the Senator's point. It is difficult in those grey areas. From what does it arise? Does it arise from his practice or not? If it does not arise from his practice as a solicitor, for example, if there is dishonesty in some other walk of life, the situation would not be covered. However, if it arises directly from his practice as a solicitor, the compensation fund comes into play.
The Minister mentioned a grant. It is one thing if one is talking about a 100 per cent grant or contribution. One example might clarify the position. A solicitor is acting for a senior executive in a major financial institution who has access to and control over large sums of money. The sums are invested with the solicitor to purchase property or to hold in trust for a particular reason. The solicitor is asked to buy property on behalf of the client and he uses the money. Perhaps he should have been more careful in checking out where the money came from, but it is difficult on occasions to ask somebody where they obtained funds. The solicitor could act in good faith, although not as prudently as he might have been, but the Law Society could find itself faced with a gigantic bill. This could cause financial consequences for the society.
I do not agree with Senator Enright. I do not see any dishonesty in the example given.
Yes.
The person must be specifically dishonest. The person in the example could be described as negligent. As a result of the earlier provision, on which the Senator raised a query, that person will be compulsorily insured. The aggrieved party will have an action and will be able to recover from the insurance.
That covers it.
Question put and agreed to.
SECTION 30.
I move amendment No. 8:
In page 43, line 21, after "time" to insert "and the said sum shall be increased annually so as to at least reflect the annual increase in the Consumer Price Index".
We discussed this earlier and agreed to withdraw it on the basis of comments made by the Minister that legislation will be introduced after Christmas.
Senator Neville is making fair progress.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 43, subsection (3), line 35, after "State" to insert "or local authorities".
The amendment seeks to extend the exemption from the annual contribution to the fund to solicitors employed full-time by local authorities. These solicitors do not maintain a client's account and have specifically obtained exemption from the Incorporated Law Society from compliance with section 31 of the 1960 Act. There is therefore no capacity for them to interfere with a client's account which is non-existent. In that regard they are clearly similar to solicitors in full-time service of the State.
The result of this discrimination against local authority solicitors is that public moneys are being used to compensate people who could not be defrauded by solicitors in full-time service of a local authority. For example, in the case of Dublin Corporation alone, a sum of £4,200 was paid in 1994 and this is rising annually to cater for this position. The moneys involved are not large because the number of solicitors employed full-time by local authorities is small. The amendment proposes to extend the present exemption for solicitors employed full-time by the State to solicitors employed full-time by local authorities.
This amendment would exempt solicitors employed by local authorities from contributing to the compensation fund. The duties of local authority solicitors are no more analogous to the duties of a solicitor in the full-time service of the State than they are analogous to the duties of many solicitors employed in the semi-State sector and in private practice. Many solicitors employed in private practice, who, for example, are practising exclusively in criminal law, have no access to clients' accounts and may have little other opportunity for fraud. Employed solicitors in private practice, that is, solicitors who are not partners, seldom handle or control clients' funds. However, all solicitors in private practice are required to contribute to the compensation fund regardless of the risk, if any, that they may steal clients' money. This requirement has been justified on the grounds that the fund is intended to provide protection to the clients of all solicitors. It is for the good of the profession as a whole and should therefore be contributed to by all solicitors. In other words, it is an insurance type concept.
Exceptionally, solicitors in the full-time employment of the State have not been required to contribute to the fund since it was established under provisions of the 1954 Solicitors Act. Any proposal to extend the exempted category to include local authority solicitors would be likely to lead to strong pressure from solicitors in private practice who do not handle clients' funds to be similarly exempted. It is imperative that no steps are taken which would tend to undermine the fund.
Will the Minister accept that in private practice solicitors, by internal arrangement, do not deal with clients' funds? However, they must comply with the 1960 Act procedures regarding a declaration for the handling of clients' funds. If solicitors do not hold clients' funds in private practice, it is an internal arrangement by the company. Local authority solicitors are identical to those working in the State area. Is the Minister justifying that perhaps solicitors in the State area should contribute to the fund? The logic of what he said is that perhaps State sector solicitors should contribute to the fund.
I agree with Senator Neville that there appears to be something of a contradiction. Traditionally, solicitors in the State sector have not been obliged to contribute to the fund and this is not being changed. However, the fund exists to compensate clients of solicitors who act dishonestly, that is, who steal clients' money. Obviously, the only solicitors who will steal clients' money are those who are in a position to do so. There may be many solicitors in the country who would like to steal clients' money if they could get their hands on it but they have no opportunity to do so.
Careful.
Nevertheless, they must all contribute to the fund. It is an insurance type situation. From that point of view I am not willing to open the door any further. The State has been traditionally exempted. Perhaps there is a question of whether that is right or wrong, but whoever introduced the legislation in 1954 decided that point. We have decided not to change it. Senator Neville is correct that in many firms there is a private internal arrangement as regards who will have access to clients' funds. However, there are other solicitors — for example, those practising exclusively in the criminal or family law area — who have no access to clients' funds whatsoever. They are similarly caught for the compensation fund, which is an insurance type concept. Although one category of solicitors has been exempt since 1954, I do not propose to open the door any further.
Amendment, by leave, withdrawn.
Section 30 agreed to.
Sections 31 to 36, inclusive, agreed to.
SECTION 37.
Question proposed: "That section 37 stand part of the Bill."
Does the Minister feel that there is a necessary specific period of time before a person can set up as a sole practitioner?
Yes, I think it is best. We have had extensive discussions with the Law Society about this and they felt that to reduce the number of claims and the number of negligence cases — which is doing no good for the reputation of the solicitor's profession — somebody would need a grounding of three years, which it felt was a reasonable timescale, before they would enter practice on their own and deal with clients themselves as a principal in a firm. There is a provision in the first line of the section which states: "A solicitor shall not, without the written consent of the Society ...". A solicitor who has been practising with somebody else for three years can apply to the society and if the society feels that for some reason the person is sufficiently grounded to safely carry on practice on their own it has discretion to allow them to do so.
May we go through the sections a little more slowly as we have points we wish to make? I would like the Minister to comment on the provision that somebody has to be employed full time for three years before practising on their own. In section 42 the apprenticeship is lowered from three to two years. Is there a contradiction here in that the apprenticeship period is two years but one cannot set up until one has qualified post apprenticeship for a period of three years? Would it be better if the apprenticeship period was extended to three years so that a person would have experience at apprenticeship level in a firm under the master and may be better able to obtain employment post apprenticeship? In other words, the person would have more experience post apprenticeship and then the period of experience could be reduced to two years before they could set up practice on their own.
I can see the Senator's point, but an apprentice is only paid as an apprentice. When they come out of their apprenticeship they are a fully fledged solicitor and will be able to command whatever salary a fully qualified solicitor can command.
Not a lot.
Maybe not, but certainly a lot more than an apprentice. This is for the benefit of the profession also. We have had representations from many quarters asking for the period of apprenticeship to be reduced and we are doing that. We are allowing people to come out of an apprenticeship earlier and command whatever salary the market will bear for a fully qualified solicitor, which will obviously be more than for somebody who is just an apprentice.
We have discussed with the Law Society how long a person should be working for somebody else as an assistant before they can become a principal or practice in their own right or as a partner in a firm, and we feel that a maximum of three years is right. If they feel that after two years they are qualified to set up on their own they can apply to the Law Society which will put them through their paces and see if they are sufficiently safe to practice on their own. The Law Society will have discretion to give them permission to do so.
Question put and agreed to.
Sections 38 to 41, inclusive, agreed to.
SECTION 42.
Question proposed: "That section 42 stand part of the Bill."
On obtaining a degree one can enter into an apprenticeship for a two year period, which is quite short. A person is employed as an apprentice and is paid. There is a period of time during the apprenticeship when they are out of the office attending courses. It is a short period of apprenticeship — it was four years when I did it and three years when Senator Gallagher did it. One does need a certain level of practical involvement in an office to appreciate the problems and pitfalls that can arise and the enjoyable work to be done. It is a short period of time and I will not hold up the discussion over it, but it is worthy of examination. Senator Neville is right; there can be dangers in it.
There is a difference when somebody has been working as a law clerk and has amassed experience over a considerable time. However, the study of law in an academic environment and the day to day work involved are poles apart. The matter is worthy of consideration, if not now then in the future.
While I appreciate Senator Enright's point, colleagues of mine went to an institution in Belfast to train as solicitors and then took two years apprenticeship while my period of apprenticeship was three years. It depends on the training programme and how much practical experience the apprentice is allowed to gain in the individual firm. A two year period is long enough because one gets a good grounding in the primary degree and a lot of practical experience in the office; the Law Society courses are now very practical as opposed to academic. It takes long enough to qualify and I would not make it any harder.
As she has more recent knowledge, I bow to Senator Gallagher's views on that.
Question put and agreed to.
Sections 43 to 49, inclusive, agreed to.
SECTION 50.
Question proposed: "That section 50 stand part of the Bill."
With regard to holding a degree, what exemptions are there for degrees from universities in England, for example?
There is exemption from the preliminary examination to get into Blackhall Place.
Does that mean a primary law degree from any of the universities in Ireland——
Ireland, England, Scotland or Wales.
A primary degree in law?
Yes.
Question put and agreed to.
Sections 51 to 53, inclusive, agreed to.
SECTION 54.
I move amendment No. 10:
In page 63, between lines 19 and 20, to insert the following subsection:
"(9) It shall be an offence for the Society to use regulations made under this Act, the Principal Act or any other Act in such a way as to restrict access to the profession of solicitor so as to reduce competition. Where the Society is found guilty of an offence under this section the Society shall be liable to a fine which shall be not less than £5,000.".
This amendment proposes that there would be more competition and no restriction in obtaining access to the profession of solicitor. This is an issue about which the public has been concerned for some time and which crops up regularly. In all other professions there is free access. If one qualifies as an accountant one can practise as an accountant provided the proper examinations are completed. I do not see why there should be regulations to restrict access to the profession of solicitor.
The amendment is not necessary as there is separate legislation governing competition and restrictive practices.
The competition Act of 1990 prohibits anti-competitive practices. The Minister for Enterprise and Employment has a Bill before the Dáil at present amending and strengthening that Act by providing for public enforcement of the law on competition by the competition authority. The Law Society, like any other controlling body of a profession, is subject to the provisions of the competition Act of 1990 and will be subject to the amended provisions. That Act provides a comprehensive scheme for dealing with allegations of anti-competitive practices. I am advised that using regulations in order to restrict access to the profession would leave the society open to challenge under the competition Act.
The amendment is a stand alone provision which makes it an offence for the society to restrict access to the profession. I admit that it is commendable. However, the offence might be difficult to prove. While I appreciate what the Senator is trying to achieve, I do not believe the amendment is the best method of attaining his objective. The competition Act appears to be the most appropriate vehicle for dealing with anti-competitive practices by any profession.
One area where the Law Society could restrict access to the profession is obviously education. The vocational training of solicitors at present is ruled by the Law Society. However, there is a provision in section 49 of the Bill which requires that any regulations made in regard to the education and training of solicitors and apprentices shall be made only with the concurrence of the Minister for Justice. The Minister, therefore, will have a power of veto over any draft regulations prepared by the society in the area of education or apprenticeship. If the Minister is not satisfied with any draft regulations he or she can refuse to concur with them.
It was precisely because the Government was concerned about access to the profession that the restrictions on apprenticeships are being eased through a number of measures in this Bill.
I accept the Minister's assurances that this area is covered under competition legislation and its amending legislation currently before the Dáil. I also accept his assurance that it is covered by regulations under this Bill which ensure that there are no restrictions on the availability of education for anybody who wishes to become a solicitor. When the competition Bill comes before the House we will examine it to ensure that it covers this area. Under the circumstances we are happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 54 agreed to.
Sections 55 to 64, inclusive, agreed to.
NEW SECTIONS.
An Leas-Chathaoirleach
Amendment No. 11 is out of order as it is outside the scope of the Bill as read a Second Time. Amendment No. 12 is out of order as it is outside the scope of the Bill as read a Second Time.
Amendments Nos. 11 and 12 not moved.
Sections 65 and 66 agreed to.
SECTION 67.
I move amendment No. 13:
In page 72, between lines 11 and 12 to insert the following new subsection:
"(3) Where a person wishes to take legal action against a solicitor, the Society shall be required to nominate three suitably qualified and experienced solicitors, from whom the complainant may select one to act on his behalf, and the Society and the nominated solicitors shall have no discretion, unless another solicitor voluntarily comes forward, in the matter, and that the terms of engagement shall otherwise be the ordinary terms of engagement of that solicitor, and that the Society shall immediately remove from the register of solicitors, for a period of five years, the name of any solicitor who refuses to act against another solicitor when nominated by the Society to do so.".
I have listened to the debate on this matter this morning. I understand there is a pool of solicitors from which a complainant may choose a solicitor. I am happy that our concerns in this regard are covered by the provisions of the Bill.
Amendment, by leave, withdrawn.
Section 67 agreed to.
SECTION 68.
I move amendment No. 14:
In page 72, subsection (1), line 14, to delete "client" and substitute "person giving the instructions".
This amendment seeks to delete the word "client" to describe the person giving instructions. The person would not necessarily be a client.
This is essentially a drafting amendment. The draftsman has been consulted about this matter and he is satisfied with the way the section has been drafted. "Client" has a wide meaning in section 2 of the Bill. It is defined as including the personal representative of a client and other persons. However, this wide definition of a client is qualified by section 2 which states that the wider meaning applies unless the context otherwise requires.
The draftsman's advice is that under section 68 the context requires a narrow definition of the word "client". Subsection (1) must be read as a whole and it is clear that the client referred to in line 14 relates to the person who gives instructions to the solicitor in the first place. In summary, I am advised that "client" should be given its ordinary and natural meaning and not its wider meaning. I ask Senator Enright to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 72, subsection (1), line 31, after "parties)" to add:
"provided however that a solicitor shall not be obliged to furnish such particulars where the total amount of the charges payable to the solicitor including any value added tax payable thereon in respect of the subject matter of the instructions does not exceed the sum of £150.00 or such greater sum as the Minister may provide by regulation from time to time".
In this amendment the amount involved is small. I do not anticipate that the cost of drafting or preparing a bill should be necessary in this instance.
The effect of the amendment is to apply a lower cut-off threshold to the requirement in section 68(1) to give full details of costs in advance of the solicitor and client doing business. This is one of the central consumer driven measures in the Bill. I would not like to see it diluted, although I understand the Senator's point of view.
I would be concerned that many transactions at, for example, £100 cost would not be covered by the new requirements if this amendment were accepted. This amount may represent a considerable outgoing for many clients and solicitors and I would not want them to be kept in the dark about the extent of their commitment. The cost to solicitors of complying with these new requirements should be negligible where very small charges are involved. I envisage a simple procedure being put in place using a standard form for setting out charges and I am sure the Law Society will draft such forms and circulate them in the profession.
I am advised that there may be technical problems with the amendment. The power proposed for the Minister to increase the sum of £150 as proposed may well exceed the powers which may be delegated to a Minister in making regulations. There would also be the question of making any such regulation delegating power subject to a requirement to lay the regulations before a House of the Oireachtas. While I have some sympathy for Senator Enright's point of view, I cannot accept the amendment.
On occasion — it depends on the type of business — a person might be obliged to draft a very long bill and could spend one or two hours going through a file to draft that bill — that is considerable expenditure in time — and the bill must then be typed. However, if a simplified procedure were available it would meet both sides of the argument.
That is what we are discussing.
Amendment, by leave, withdrawn.
Section 68 agreed to.
SECTION 69.
Question proposed: "That section 69 stand part of the Bill."
Section 69 concerns advertising. One repeatedly hears of the insurance companies' concern about a small number of solicitors who have earned a reputation of being good at getting money from those companies. Does any provision exist whereby advertising by those solicitors can be monitored or controlled? More generally, is there any monitoring of solicitors who appear to be in the business of eliciting high claims from insurance companies, which consequently lead to high premia? Presumably, the Law Society is concerned about this, along with everyone else.
Senator Fahey has raised an important point which is of concern to us all. We have to find a balance because we are trying to reduce solicitors' costs to clients and one way to do that is to allow solicitors to advertise their services and fees. We decided to allow that because as far as we can ascertain it achieved the desired effect in Britain. On the other hand, we must be in a position to guard against irresponsible advertising.
This is precisely why section 69 (3) provides that the Law Society shall not prohibit advertising while subsection (4) allows the society to prevent advertising which is likely to bring the profession into disrepute, is in bad taste, reflects unfavourably on other solicitors, contains an express or implied assertion by a solicitor that he has specialist knowledge of any area of law or practice superior to other solicitors, is false or misleading in any respect, comprises or includes unsolicited approaches to any person with a view to obtaining instructions in any legal matter, or is contrary to public policy. The Law Society now has wide powers to prohibit advertising which falls within any of those categories.
The society has assured the Department that it is fully aware of the problem to which Senator Fahey adverted. I have every confidence it will use this power to alleviate that problem as far as it possibly can.
The Law Society cannot now prohibit advertising by solicitors. It was never prudent or wise to allow this and some of the advertising I have heard on the radio is not of benefit to the profession, the insurance companies or the public. However, the society was compelled by the restrictive practices commission which wanted advertising to be allowed.
It was the Fair Trade Commission.
Many of the insurance companies claim they are losing money. It is interesting that a company losing money should advertise to get more of the same trade. This strikes me at strange; if I was incurring losses I would be trying to reduce business instead of increasing it. Obviously, insurance companies have their own unusual ways of doing things.
It is called retrenchment.
The Minister said advertising helped reduce costs to insurance companies.
No, our information was that fee advertising reduced costs to the public.
The difference between Ireland and Britain is that there is civil legal aid in the other jurisdiction. I have on occasion acted for people who had returned from Britain. These cases are processed for a considerable period before a decision is made on whether civil legal aid can be granted. Unless there is a basic case legal aid will not be granted in Britain. Here, solicitors advertise on a "no foal, no fee" basis, which is downright unsatisfactory. I dislike that advertising and approach and many solicitors view it unfavourably. Advertising should be monitored closely by the Minister and I fully agree with Senator Fahey that we are not giving it enough attention.
I will speak later about capping awards, which will probably feature in future legislation. Having awards capped is fine for people who are paying insurance premia but it is not beneficial for a person who loses a leg or an eye. There are two sides to the story and I hope the Minister bears that in mind. I also hope the Minister and the Law Society continue to monitor advertising. I note the restrictions contained in the Bill, but even with them there will always be someone who will veer close to the wind, which is not beneficial to anyone.
What monitoring system is in place? I have received complaints from an insurance company that a specific solicitor is constantly touting for and getting business. That company is concerned about the nature of the claims he is making and about the professionalism of this solicitor. It feels he is trying to extract money from the company and that it is not warranted. What procedure exists to identify such people and have them brought to heel?
Since 1988 solicitors have given themselves power to advertise their services. Now for the first time they will be allowed to advertise their fees. Judging from what I hear on the radio and see in the newspapers, the monitoring system is not adequate at present. Perhaps the Law Society feels it does not have the power to monitor advertising properly but we are now specifically giving it power. There are a number of types of advertising which it can prevent: advertising in bad taste, which reflects unfavourably on other solicitors, which is false or misleading, which is contrary to public policy, or which involves unsolicited approaches, such as cold calling.
There will be no excuse from now on. The Law Society is being given the power to monitor advertising and if it does not do so properly we shall have to do something else. In the meantime the reputation of solicitors, which has fallen considerably in recent years, will fall even further. They will soon find themselves as disreputable as politicians if this type of advertising continues.
Senator Enright mentioned the civil legal aid system in the UK. Some months ago I represented the Minister at a Council of Ministers meeting. The meeting of Justice Ministers took place in London during Britain's Presidency of the EU and was presided over by the Lord Chancellor, Lord Mackay. I was intrigued by the fact that he asked all people present to give a synopsis of how the civil legal aid system operated in our respective countries. The per capita expenditure in Ireland was close to that of other countries except Britain, which was considerably out of line. The per capita expenditure there was about ten times the EU average.
I later asked the Lord Chancellor why he had asked for the comparative costs. He said he wanted to know what was happening in other countries because he wanted to cut the expenditure in Britain. He said the British had made a terrible mistake in setting up their system. It has swept out of control and is a huge burden on the British Exchequer. That system may not continue as it is for much longer; at the highest level of government there is an intention to bring it into line with the system of civil legal aid in other EU countries.
There is much concern about the level of fraudulent claims being made against insurance companies. Anyone in or on a local authority is well aware of the level of such claims. This is akin to stealing and there should be sanctions against people who bring such claims. At present there is a free for all.
I fully agree with Senator Enright, Senator Fahey and the Minister about controlling the level of advertising, because the type of advertising happening at present will lead to an explosion of such fraudulent complaints. The type of advertising taking place now will lead to an explosion of such fraudulent complaints and of the difficulties insurance companies have in defending these claims. The area of proof should be looked at to ensure that those with genuine claims are honoured and compensated and those who bring fraudulent claims are not successful.
Considerable publicity is given to claims against local authorities. It is time that many authorities put their houses in order. It is not good enough that elderly people and others walking the streets should fall and hurt themselves. I am a member of Offaly County Council and am happy to say that the level of claims against the council which have been successful have been at a minimum because the council takes its duties to the public seriously. If an accident occurs it makes sure there will not be another one at the same place the following night. It is time people in charge of these bodies put their own houses in order rather than trying to reduce the levels of lawful damages. I am glad the Minister will monitor advertising because it is in everybody's best interests that it is kept under control.
Question put and agreed to.
Sections 70 and 71 agreed to.
SECTION 72.
Question proposed: "That section 72 stand part of the Bill."
Is the Minister allowing all solicitors the power to administer oaths?
Yes.
Once a solicitor obtains a practice does he or she have this power?
Yes.
What is the situation regarding notary publics?
The Law Society is empowered to make regulations in relation to notary publics. Whatever regulations they make will have to be submitted to the Minister for her concurrence.
Question put and agreed to.
Sections 73 to 77, inclusive, agreed to.
SECTION 78.
Question proposed: "That section 78 stand part of the Bill."
I am sure the Minister is aware of the discussion which is taking place surrounding this section and the involvement of credit unions in probate.
I am well aware of it.
The concerns which are being expressed is that credit unions will not have the technical and legal expertise required to make wills and take them to probate or administration. I ask the Minister to assure us that difficulties will not arise as a result of this change. One is happy to have open competition. However, I am concerned that if this leads to difficulties for families following deaths and the reading of wills or taking them to probate, the Bill should ensure that proper legal expertise is available to them. I am not a legal person but everyone is aware of difficulties which have arisen with wills from time to time. We wish to ensure that this section will not lead to further difficulties.
I assure Senator Neville that we have thought about this very carefully and the section will not lead to difficulties. This is my intention. Senator Neville will know from reading the section that we are not giving credit unions the right to make wills or extract grants of probate. The legislation provides only that the Minister can make regulations to give them such power. Such regulations will ensure that the power is circumscribed to provide the maximum protection for people for whom they provide those services. The regulations will include, among other things, that adequate compensation is available for any person in respect of negligence, fraud or other dishonesty on the part of whoever is carrying out this task on behalf of the credit union. The regulations will cover matters like the qualifications and experience of personnel generally engaged in the provision of the services on behalf of credit unions.
Section 79 provides for an investigation and complaints procedure. The regulations will be drawn up in consultation with the Minister for Enterprise and Employment, who has statutory responsibility for matters dealing with credit unions. We will ensure there is the maximum protection, even if it involves including in the regulations that only a qualified solicitor will be engaged by a credit union to do this work. I am not sure if this will be in the regulations; it may be possible to provide protection short of doing this. We will ensure an absolutely level playing pitch with regard to complaints, people who have been defrauded, people who are suffering as a result of negligence, the Ombudsman and so on. We will put credit unions who do this specific, restricted type of work on the same level as solicitors who do this work. Unless regulations can be drawn to give the recipient of the service the very same protection as if he or she had gone to a solicitor, we will not proceed; but I think it is possible to do this by regulations if they are properly drawn.
Senator Enright
Credit unions are normally established and run for the benefit of their members, who are usually middle and low income earners and not particularly wealthy. My understanding is that each branch must be self-regulatory and pay its way. I am concerned that unless a credit union has taken out a good insurance policy, it would be very serious for it to take out a grant of probate or an administration. If an error was made this could result in a negligence action against that credit union for, perhaps, £0.25 million. A house, cars, some investments or a farm worth £250,000 or £300,000 could be involved. If something went wrong in such an administration it would be essential to have a level playing pitch. This was mentioned by the Minister. I am concerned that many members of credit unions who have amassed small humble savings, but which are of immense importance to them, will suddenly feel that if something goes wrong or an error is made, everything they have in the line of physical possessions will be in danger of being interfered with or lost. This is unlikely but we should reassure people with considerable investments. The number of credit union accounts is vast.
I am fully aware of what Senator Enright is saying. He can rest assured that the legislation states that the Minister may introduce regulations to allow credit unions to make wills and extract grants of probate. However, the regulations must ensure that there is a system in whatever branch people go to, whether it is in Offaly, Limerick, Donegal or Dublin, so that they will be fully protected if anything goes wrong. Otherwise, we will not put it into operation. We are satisfied that we can and that is why we are giving ourselves the power to draw up these regulations. The Senator can rest assured that the regulations will not be introduced until they are drawn in such a way so as to ensure that the client will be as protected as if he had gone to a solicitor.
As regards registers of wills, a solicitor is obliged to give a register if a will is lost so that he will know it has been lost. He must also have a fire proof safe. The credit unions in big towns — for example, in Tullamore, Birr, Edenderry and Portarlington in County Offaly — are full-time credit unions with permanent staff. However, many villages and smaller towns do not have permanent staff. They work on a part-time basis and when they finish their work they go home after doing their civic duty to the public. These credit unions have no safes or proper facilities. This needs to be looked at. The work of the credit unions has been so beneficial to ordinary people that I would like to see whatever goes on here being maintained on behalf of the credit unions.
That will be part of the regulations.
Question put and agreed to.
Sections 79 to 82, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
This was one of the first Bills to go to special committee. I do not know how many years it has taken to put this Bill on the Statute Book, but a lot of work has gone into the planning of this Bill. I pay tribute to the special committee and the work of the Members of the Dáil. They worked hard to get this Bill together over a long period of time. I often criticise rather than praise Ministers, but the Minister has acted with considerable expertise and he presented this Bill in a competent and efficient manner. People from all sides of the House appreciate the work he has put into it. It is excellent legislation and I hope it will be a landmark as regards improving the services provided by the legal profession on behalf of clients throughout the country. I thank all the members of the Government parties, our party and other parties for their help and co-operation. I also thank the Cathaoirleach and the Leas-Chathaoirleach.
I concur with Senator Enright. I thank the Minister for the way he explained the matters raised during the various stages of the Bill.
I am glad we have come to the end of this legislation. As Senator Enright rightly said, there have been a number of Solicitors Bills over the years, but they were either dropped for one reason or another, or they were not revived after the Dáil fell. This legislation has been around for several years and we are glad it has gone through both Houses of the Oireachtas. I thank Senator Enright for his kind remarks, which are deeply appreciated. I also thank my colleagues on all sides in the Dáil and the Senators for their enlightened contributions.
I accepted substantial amendments to the Bill as originally drafted. Although my advisers in the Department of Justice are excellent, they do not have a monopoly on wisdom. That is why we have debates. If an argument is well presented and I see the need for change. I will accept it if it is correct, regardless of which side of the House it comes from. The final shape of the Bill reflects that. I thank the Senators for the expeditious and intelligent way they have dealt with this Bill today. It is now ready to go to the President. From what I gather from my officials who have spoken to the Law Society, members of the profession and the public, this legislation is badly needed. I hope it will have the desired effect.
Question put and agreed to.
An Leas-Chathaoirleach
When is it proposed to sit again?
It is proposed to sit at 2.30 p.m. on Wednesday, 2 November 1994.
Sitting suspended at 12.35 p.m. and resumed at 4 p.m.