Legal Services Ombudsman Bill 2008: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

This Bill provides, for the first time, for the establishment and functions of a legal services ombudsman. Extensive regulation of barristers and solicitors lies, respectively, with the Bar Council and the Law Society. A fundamental part of the regulation is concerned with the maintenance of high professional standards and the investigation of claims that those standards have not been met in particular cases. The procedures put in place by both branches of the legal profession to address complaints of poor professional performance or misconduct have evolved over many years. The legal services ombudsman is intended to oversee the operation of the complaints systems of the professional bodies in order to strengthen the mechanisms for dealing with complaints against both barristers and solicitors.

Both the public and the practitioner must have confidence that the professional bodies operate systems to process and determine complaints in a fair and effective manner without undue delay. The complaints systems of the two professional bodies are designed to give an aggrieved client access to redress when a practitioner fails to provide an acceptable legal service while also protecting the practitioner from unwarranted or malicious claims.

All practising barristers must comply with the Bar Council's code of conduct which was updated and improved in 2006. Complaints against barristers by members of the public are dealt with under the Bar Council's disciplinary code. A client may make a complaint about a barrister who has failed to maintain proper professional standards, has committed professional misconduct or has brought the profession into disrepute.

The complaints against barristers are made to the Bar Council's professional conduct tribunal comprising barristers and lay persons. The complaints are handled in private and may be dealt with by way of an oral hearing. If a complaint goes to an oral hearing, both parties are invited to attend and both may be legally represented. The tribunal's decision may be appealed by either party to a three member appeal board, chaired by a High Court judge with the two other members nominated by the Bar Council and the Attorney General. Where there is a finding of misconduct against a barrister, the disciplinary code prescribes penalties ranging from an admonishment to a fine to disbarment.

The Solicitors Acts 1954 to 2008 regulate the solicitors' profession. In particular, Part III of the Act of 1994 makes detailed provision for the investigation of complaints against solicitors. Complaints to the Law Society generally fall into two broad categories, complaints of misconduct and complaints of inadequate service or excessive fees. There may of course be a degree of overlap between these categories. The society's complaints and client relations committee, which includes lay members, determines complaints lodged directly to it by members of the public.

Complaints of misconduct against solicitors may be made by clients to the society or the Solicitors Disciplinary Tribunal. Where a complaint of misconduct has been made to the society in the first instance, it may be referred by the society to the tribunal and such complaints would then be liable to attract the heavier end of the scale of sanctions. The Solicitors Disciplinary Tribunal is an independent statutory tribunal appointed by the President of the High Court to investigate complaints of misconduct against solicitors under the 1994 Act. Members of the tribunal are appointed by the President of the High Court and include lay persons. The tribunal performs a pivotal role in the solicitors' disciplinary process and this is the tribunal which dealt with recent high profile cases.

The Law Society may refer complaints to the tribunal and every client of a solicitor has a right to make a direct application to the tribunal. The tribunal has limited judicial powers and its primary function is to establish by evidence and documents the facts of a complaint and to decide whether misconduct is proven. Where there is a finding of misconduct, the tribunal can impose a sanction on the solicitor ranging from admonishment to a direction to pay restitution of a sum not exceeding €15,000 to any aggrieved party. In more serious cases the tribunal may refer its finding and recommendation to the President of the High Court, who ultimately will decide on the nature of the sanction to be imposed on the solicitor. The powers of sanction available to the High Court range up to striking the solicitor off the roll. If either party is unhappy with a decision of the tribunal, this may be appealed to the High Court. Approximately 1,700 complaints against solicitors and 20 against barristers are made per annum. There are over 8,000 practising solicitors and more than 2,100 practising barristers.

The Government recognises that further measures are necessary to enhance confidence in the complaints systems of the two professions and that is the purpose of the Bill. The ombudsman will oversee the handling by the Law Society and the Bar Council of three classes of complaint against solicitors and barristers, namely inadequate services, excessive fees and misconduct. The key function will be to provide a form of appeal for clients of solicitors and barristers who are dissatisfied with the outcome of a complaint made to the Law Society or Bar Council.

I now refer to the specific provisions of the Bill. Sections 4 and 5 provide for the establishment of the ombudsman and his or her appointment by the Government on the nomination of the Minister for Justice, Equality and Law Reform. Specified persons not eligible for appointment include practising barristers or solicitors, members of the Law Society, members of the Bar Council or benchers of the Society of King's Inns.

Under section 6, the period of office of an ombudsman will not exceed six years. The person appointed may be re-appointed for a second or subsequent term. Standard provision is made for the manner in which the ombudsman may resign from office, the circumstances in which the Government may remove the ombudsman from office and the circumstances in which a person ceases to hold the office of legal services ombudsman.

The general functions and powers of the ombudsman under section 9 are to receive and investigate complaints, review the procedures of the Bar Council and the Law Society for dealing with complaints made to them by clients of barristers and solicitors, assess the adequacy of the admission policies of the two professional bodies and improve public awareness of their complaints procedures.

Standard provisions are made in section 11 for the appointment of staff to the office of the ombudsman and for the engagement of professional and other advisers and the delegation to a member of the staff of certain functions assigned to the ombudsman.

The office of the legal services ombudsman will be funded entirely by means of a levy on the two professional bodies and Part 3 of the Bill makes detailed provision in this regard. It is necessary to provide for advance funding from the Exchequer which will be recouped from the two professional bodies. Section 12 provides for such advances. Section 13 makes standard provision for financial accounting and audit matters by the ombudsman, including audit by the Comptroller and Auditor General and the presentation of the audited accounts to the Minister and the Houses of the Oireachtas.

Section 14 requires the ombudsman to make various periodic reports to the Minister, including an annual report on the performance of the functions of the office and a report on its effectiveness and the adequacy of its functions within two years of its establishment. The ombudsman may also make a special report to the Minister on a matter of particular gravity or in other exceptional circumstances. The ombudsman is required to make a special report on any other matter if so requested by the Minister. All reports will be laid before the Oireachtas and published.

Under section 15, the ombudsman is also required to produce an annual report on the adequacy of the admission policies of the legal professions. The report must specify the numbers admitted annually to legal practice for the year in question and an assessment as to whether the numbers admitted are consistent with the public interest in ensuring the availability of legal services at a reasonable cost. Again, this report will be laid before the Oireachtas and published.

Sections 16 and 17 provide for the appearance of the ombudsman before the Committee of Public Accounts and other committees of the Houses of the Oireachtas.

Provision is made in section 18 for various publications to be privileged for the purposes of the law of defamation, namely, any matter in a report of the ombudsman laid before either House of the Oireachtas and publications by the ombudsman directed to particular persons or bodies.

Section 19 provides for the payment each year of a levy to the Minister by the Bar Council and the Law Society to meet the approved expenses of the ombudsman. These expenses equate to the full operating costs and administrative expenses of the ombudsman in the preceding year and comprise salaries, superannuation, office accommodation and related costs and legal costs incurred in issuing or defending legal proceedings. The Bar Council and the Law Society will each be liable to pay 10% of the approved expenses and the remaining 80% will be paid pro-rata by the two bodies according to the relative numbers of complaints made to the ombudsman in regard to barristers and solicitors. Provision is made for other matters pertaining to the levy, including late payment.

Section 20 empowers the Minister to make regulations to provide for various matters related to the levy. There are substantive provisions on the ombudsman's functions in regard to complaints, investigations and reviews. A complaint may be made by a client of a barrister or solicitor to the ombudsman concerning the handling by the Bar Council or the Law Society of a related complaint against a barrister or solicitor under section 21. A complaint may also be made by a client of a solicitor to the ombudsman about a decision of the Law Society to make or refuse a grant from its compensation fund. Section 22 provides for the types of complaints which may be made to the ombudsman, including complaints of inadequate investigation and failure to commence or complete an investigation of a related complaint within a reasonable time.

The ombudsman may seek the resolution of complaints in such a manner as he or she considers appropriate and reasonable and the ombudsman may establish and publish procedures to be followed in regard to the receipt and investigation of complaints. The ombudsman must conduct investigations in private. To ensure full co-operation with the investigation of a complaint, the ombudsman has the power to require the provision of information or attendance of any person before him or her as appropriate. In the event that a person fails to comply with a request for information or attendance, the ombudsman may apply to the High Court for an order requiring compliance. Section 27 creates the offence of obstruction of the ombudsman in the performance of his or her functions, which is punishable by a fine not exceeding €2,000 on summary conviction.

The ombudsman has power to issue directions and make recommendations to the Law Society and Bar Council. In particular, following investigation the ombudsman may, if not satisfied that the related complaint was adequately investigated, direct the Bar Council to reinvestigate it under the Bar Council's disciplinary code or direct the Law Society either to conduct a second investigation or refer the complaint to the Solicitors Disciplinary Tribunal for an inquiry on the grounds of alleged misconduct. The ombudsman may make other directions and recommendations to both bodies including that the Law Society make or increase a grant out of its compensation fund. The ombudsman may request the professional body to respond within a specified period to a direction given or recommendation made. In the event of an unsatisfactory response, the ombudsman may make a special report to the Minister which will be published. Provision is made for High Court enforcement of directions made by the ombudsman and for referral of any question of law by the ombudsman to the High Court for determination.

A key function of the ombudsman is to keep under review the procedures of the Bar Council and Law Society for receiving and investigating complaints about barristers and solicitors. Section 32 provides that the ombudsman may examine the complaints procedures of the two bodies, the co-operation of barristers and solicitors with these procedures, the effectiveness of the procedures and the time taken to complete investigations. In addition, the ombudsman may examine random samples of complaints made to the Bar Council and Law Society, complaints relating to specific matters and statistical information, including information on multiple complaints against individual barristers or solicitors. Arising from his or her review, the ombudsman may make written recommendations to the Bar Council and Law Society to improve their complaints investigation procedures and requesting the co-operation of barristers and solicitors with these procedures. If not satisfied with their response to the recommendation, the ombudsman may direct that the recommendation or an amended recommendation be implemented. Where the ombudsman considers it appropriate, in regard to a particular class or classes of complaint, the relevant professional body may be directed to put in place specific procedures to address such complaints.

Full and complete records must be kept by both professional bodies of all investigations and proceedings relating to complaints and must be made available to the ombudsman on request. Legal proceedings may only be commenced against the ombudsman with the leave of the High Court on notice to the ombudsman. Confidentiality of information in the possession of the office of the ombudsman is ensured by section 35 of the Bill which provides that the ombudsman or a member of staff may not, except in accordance with law, disclose any information obtained other than in specified circumstances.

The Bill represents an important part of a series of measures to support the better regulation of the legal professions. The other measures include enactment in July 2008 of the Civil Law (Miscellaneous Provisions) Bill which strengthened and clarified the law on regulatory matters in regard to solicitors and enactment and, also in July 2008, of the Legal Practitioners (Irish Language) Bill 2008 which modernised Irish language training requirements for solicitors and barristers.

I commend the Bill to the House.

I welcome the Minister of State and apologise for missing the beginning of his presentation.

While researching the passage of the Bill through the other House I noted it was introduced by the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, who stated on Second Stage that the rule of law is the cornerstone of a properly functioning democratic society, which is correct. However, the Minister also stated in the second part of the first sentence that in an increasingly complex and prosperous society the law is becoming ever more complex. I wonder, given we are a little less prosperous now than we were eight or ten months ago when the Minister made those comments, is the law becoming any more simple. The answer is probably that it is not.

I welcome the provisions of this Bill which Fine Gael will not be opposing. However, I would like to address a number of issues which arise as a result of the introduction of this Bill. I understand — the Minister of State confirmed this in his contribution — that the two bodies that govern the role of solicitors and barristers, the Law Society and Bar Council, welcome and broadly support this legislation. When the Government was considering introducing this legislation there was a considerable ground swell of support for the proposal that the office of the ombudsman be completely independent and that all complaints relating to legal issues should be referred directly to the office, as established, rather than to the self-regulating bodies that are the Bar Council and Law Society. The Government has chosen this particular direction, namely, the existing complaints procedure of the two representative bodies will remain in place while this overarching mechanism will allow people who have complaints against practitioners, be they barristers or solicitors, and who believe those complaints have not been correctly dealt with by the representative bodies, to proceed to the office of the legal services ombudsman to have their complaint investigated further. This extra level of investigation is a welcome development.

I welcome that the office of the legal services ombudsman will not be dependent on the Exchequer in terms of its operation and that the two representative bodies for the legal practitioners will fund its operations. Our experience in terms of the role of different ombudsmen has been, by and large, positive be it in respect of the position occupied by Emily O'Reilly or others. By and large those offices have been successful. I welcome that the Bill provides that the ombudsman will report, within two years, to the Minister and the Oireachtas in regard to the success or otherwise of the position introduced by this legislation.

The Minister referred in his contribution to the laying of reports of the ombudsman before the Minister. I presume they will be laid before the Oireachtas in general and not only the Minister. I understand this is the case. Another aspect of the introduction of this legislation is the control of access to the professions as dealt with under section 9. There has been much media cover in regard to the proliferation of solicitors in particular areas of the legal profession. However, I do not know how if that is the case. I welcome that the ombudsman will monitor the number of people entering both professions. Also, I welcome that the board may be made up of non-legal practitioners and that the ombudsman will not be a legal practitioner.

Senator Quinn and I are not legal practitioners though my two learned colleagues, Senators Bacik and McDonald, who will speak later on the Bill, are. It is important justice is seen to be done. That the position of ombudsman will be filled by a non-legal person is to be welcomed. I realise this legislation stems primarily from a number of recent high profile cases involving members of the legal profession who engaged in activities which brought both professions into disrepute. While the legal profession has not been dramatically undermined, any initiative to restore people's confidence in it is to be welcomed. There is a necessity, following on from a number of those activities, to restore confidence in the profession. I welcome the Bill in this regard. I am sure I will be permitted to raise on Committee Stage any other issues that come to mind.

Fine Gael supports the Bill as laid before the House.

I welcome the Minister of State. I would like to put on the record of the House my interest in this legislation as a practising solicitor and member of the Law Society. Despite my overall support for the Bill, I have a few fundamental reservations about it.

I worry that this legislation seeks to create yet another watchdog in Irish society. The KitKat advertisement, which shows policemen sitting outside a bank eating KitKat while crimes are being committed all around them, comes to mind. I wonder about the value of toothless watchdogs and the need for more agencies of State in terms of their cost effectiveness and the need for another layer of bureaucracy. Whether or not the legal profession needs or deserves an extra oversight is another issue.

We live in the age of ombudsmen and in an age where people rightly require that decisions taken by others, albeit sometimes for their good, are firstly explained to them and are further explored when not in their favour. I am concerned the proposed new office could become yet another letter writing agency, generating more heat than light from the cases with which it deals. We must learn the lesson in this regard. We must either have an ombudsman with real teeth or no ombudsman at all. In this regard, I welcome the provision for High Court enforcement of directions made by the ombudsman and for referral of any question of law by the High Court for determination, which is an addition that will give further teeth to the office.

I acknowledge Ireland's first Ombudsman, the late Mr. Michael Mills, who had outstanding qualities. We have since been blessed with persons in such roles who have those qualities. I expect that the person appointed as legal services ombudsman will have those qualities and more because he or she will be subjected to tremendous pressure.

The three categories of cases for appeal to the ombudsman will be inadequate services, excessive fees and misconduct. The Bill provides for a procedure that the ordinary citizen who believes he or she was badly served by the legal profession or legal advice may go directly to the ombudsman. This could be daunting for an individual even though the ombudsman exists to help that individual. Many people may require legal help with bringing their complaint to the ombudsman. While the Bill states this is not necessary, we will find in practice that people will require professional assistance when submitting issues to the ombudsman. Legal assistance is costly, as everyone knows, and I wonder if the Bill will make complainants financially worse off.

It appears the running costs of the ombudsman will be borne by the Law Society and the Bar Council. The reality, however, is that it will be the clients who will carry the can in this instance. As the Minister of State outlined, the two professional bodies are paying 10% while the remaining 80% will be paid pro rata by those two bodies, which should help to ensure compliance and ensure members of both professions will up their game, so to speak. However, like everything else in life, it will come back to the primary producer in the end and the consumer who uses a solicitor in years to come will be paying an invisible levy to take care of contributions being made up the line. I would like this to be taken note of as the Bill goes through the House.

If one uses the website, www.rateyoursolicitor.com, there are huge——

I did not know there was one.

There is. Many complaints are made on that website. Without knowing the ins and outs of the cases involved, and all cases turn on their own facts, as we know, many complaints are bogus and stem from a person either losing a case or just not being satisfied with his or her lot in life. Given that clients will be paying for this, it is something we need to avoid.

All legal professionals must recognise the need to demystify our language. Lawyers love each other when they are not facing each other in court, and they like to speak an impenetrable language. Outside of that magic circle, however, people often do not know what lawyers are talking about. I am not talking about judicial decisions but simply about lawyer speak, as it has come to be known. All lawyers need to strive to ensure they are understood by their client, the consumer. This is one area where, if people fully understand from the outset where they are going with a case or an action, it could prevent them feeling they were misled. While the language is not misleading in itself, it is just that it is not understood.

I welcome the fact the person who gets this job will not be a practising member of the legal profession as such a person could be seen as too close to the profession and it could be a distortion of justice if an Irish legal practitioner were appointed to that job. The office holder may have staff who are legal persons but the legal ombudsman should not be too close to the profession because, irrespective of how hard he or she tries, it would lead to a form of self-regulation, which is what we have at present. A legal academic or foreign legal expert would be more acceptable from the point of view of independence and accountability. The core of this argument is that self-regulation may not work because under such a system the profession judges its own members.

We need to ensure the ombudsman does not lead up blind alleyways with regard to reports which may waste the time of practitioners and complainants. There needs to be some sort of prima facie way of dealing with cases through legal people in the office of the ombudsman liaising with practitioners and complainants to ensure this does not happen.

The Bill also provides that various periodic reports are made by the legal services ombudsman to the Oireachtas. I am not sure how this procedure will work but I acknowledge that frivolous complaints will arise and it is important such cases are filtered out. I hope this will not distort any periodic report made to the Minister and the Oireachtas.

The system should be ruthless in blocking frivolous complaints at the point of entry. Otherwise, we will see a system where, believe it or not, people who deserve legal assistance will not be able to get that from the private industry because, unfortunately, people in the profession will take a look at a person and no matter how good that person's case is, they will say they cannot represent the person. This could be the unfortunate result if we do not nip this issue in the bud.

The Garda Síochána Ombudsman also receives frivolous complaints. Where a claimant goes through the process and the only option left to that claimant is to go to the courts, has the Minister executive powers to decide on a case? If a case proceeds to court, will the office of the legal services ombudsman pay the legal fees for the claimant? While perhaps the Minister of State referred to this issue in his speech, it will be appreciated that such proceedings would be beyond the financial capabilities of some people.

I welcome some of the other contents of the Bill. I welcome that the letter of engagement between a client and his or her solicitor is to be in plain language. I understand the need for plain language not only in that it is what we all understand, but as a politician I have learned how to communicate complex information to individuals every day whereas I do not remember receiving that training in the Law Society. All professions have words which ordinary people do not understand and use terminology which is obtuse and does not work to the benefit of the consumer. This can lead to misunderstanding which, in turn, can lead to people believing they did not get a good service.

The term "letter of engagement" is a good one. The client engages with his or her legal representative. It is provided that the letter of engagement should be in the plain language we hear in the local pub, shop and post office or on the street as we go about our business. The other side of this issue is that we also have the bar stool lawyer who seems to know more than the lawyer. The ordinary person needs to guard against listening to such a person in making a complaint which may run into the sand.

We have a duty to the people we represent to ensure the legislation we introduce reflects their point of view and how they feel they have been treated or mistreated by the legal profession. I fully acknowledge there have been incidences of late in the legal profession which have led to this step being taken. Fair dues to anyone who brings a complaint to the ombudsman and I hope if that person requires it, he or she will get redress through this system.

The proposed ombudsman will only serve the public well if it is not another overhead for solicitors during a slump period, which would ensure job losses or extra charges to clients. We have had high profile cases of late which have raised questions regarding self-regulation of both the Law Society and Bar Council. Hard cases make bad law, however. The ombudsman will work if it is for the benefit of ordinary people who will be able to say they went to this office, the steps to be taken were laid out for them and they knew where they were going. While this case may work out in favour of the person concerned, it may not and potential claimants need to be informed of this.

I wish the Bill every success as to its intentions. I hope it will work for the benefit of the public and enhance the relationship that exists between the legal profession and the public.

I welcome the Minister of State, Deputy Conor Lenihan, to the House and I welcome the introduction of the Bill. Like Senator McDonald, before commenting on the legislation I declare an interest as a practising barrister and a member of the Bar Council. This is an important time to debate the regulation of the legal profession, although currently the focus is on the regulation of a different group, namely, members of the banking community. Certain commentary in the newspapers have referred to bankers as "banksters" in recent times, which reflects the public disapproval at present of banking practices and of the lack of regulation of banking. We have seen all too clearly the results of a lack of regulation. I have said in the House and elsewhere that it is not simply a matter of a lack of regulation. In recent years we have introduced extensive regulation of financial services. However, it is the lack of enforcement of the regulations in place as much as anything which has led to the culture of non-compliance that has caused such problems in the financial services sphere. The lesson to be learned while we debate this welcome Bill is the need to ensure regulation exists and that it is seen to exist. The need for public trust and confidence is as important as anything else in the legal profession as it is in the banking and financial sectors.

I listened to the contribution of Senator McDonald who raised some very worthwhile points, especially the need to ensure we do not simply impose another layer of meaningless bureaucracy. There have been enough scandals and public concerns raised related to the legal profession throughout the years. There have also been enough thoughtful and considered proposals to ensure the need to introduce another layer of oversight or scrutiny, which is what the legal services ombudsman represents. This is a layer of oversight or scrutiny which is more than simply a layer of bureaucracy, it has an important function in ensuring not simply that legal services are properly regulated and that the concerns of clients and consumers are supported, but also that the people perceive that the legal profession is well regulated and trustworthy.

I refer to some of the context of the reform. The Minister of State outlined some of the various disciplinary procedures within the professions and the Bar Council and Law Society, both of which have lay person representation on their disciplinary boards, which is important. The new legislation involves another layer of oversight covering the existing procedures. There have been a number of recommendations for change. As far back as 1990, the Fair Trade Commission referred to a lack of public confidence in the complaints procedures in place at that time. The commission indicated the concerns could be remedied by lay representation, which has been introduced, and by the establishment of a legal ombudsman office. In 2005 and December 2006, the Competition Authority reports recommended the need for an independent legal services commission to replace the system of self-regulation, which represents a somewhat different recommendation.

I conducted research with colleagues in Trinity College Dublin in 2003, which was published as Gender InJustice and funded by the Department of Justice, Equality and Law Reform. We received funding for an important study into gender discrimination in the legal professions. One of the issues examined was the regulation of the professions. We examined the matter from a slightly different perspective, that is, discrimination experienced within the profession. However, I believe some of our findings are pertinent and provide a somewhat different perspective to the Bill. Rightly, most of the focus in the legislation is on the concerns of the public, who are clients of the legal profession. Some have complaints concerning the way their cases were handled by barristers or solicitors.

We examined complaints within the profession involving mainly women barristers and solicitors who experienced discrimination and stated how difficult it was for them to seek redress. Time and again the lawyers we surveyed responded that Ireland is too small a place in which to make complaints, that the law is not for lawyers, rather depressingly, and that the law is a lawless domain when discrimination is experienced within the profession. We found a disturbing level of harassment within the profession. We also found that the Chair of the Bar Council at that time stated no legal action had been taken to enforce codes relating to the conduct of its members within the previous ten years, and that the Society of Kings Inns stated that it had not disbarred any persons for disciplinary reasons in living memory.

That is the context in which we recommended, as others had previously done, the need for a legal ombudsperson to whom complaints could be made in confidence by those experiencing discrimination. This measure will go some way towards addressing the problems we identified as much as the problems identified by the other bodies mentioned.

I refer to the provisions of the Bill. The Bill provides in a most welcome fashion for the appointment of an independent ombudsman who would not be drawn from members of the practising professions, which is an important point that has been mentioned previously. The ombudsman would oversee the complaints procedures already in existence and provide for remedies where persons believe the complaints procedures have not adequately been carried out.

One complaint made concerning the Bill was put forward by the Consumers Association of Ireland. It complained that the proposed legislation reinforces existing self-regulated mechanisms and that the powers of the ombudsman are too restricted. I understand why the association made this complaint and the matter is worth reviewing. However, it is enough to say that the ombudsman is acting in an oversight capacity. I do not believe there is a need for the ombudsman to reinvestigate complaints. I accept the concerns of the association. It states the problem for consumers is that the ombudsman may simply direct the professional bodies to re-investigate original allegations. The ombudsman would have a supervisory role similar to that of the High Court in the case of a judicial review and would not examine the merits of the original case. Consumers may believe this is simply not enough.

I refer to the number of allegations of complaints made. The Minister of State referred to 1,700 complaints against solicitors in any given year and approximately 20 complaints against barristers, who clearly are not handling clients money and, therefore, in a practical way tend not to be the subject of complaints to the same extent. There is also a difference in the numbers as there is a greater number of solicitors and a good deal more contact by individuals with solicitors than with barristers.

It is enough to say the ombudsman would provide oversight rather than a reinvestigation procedure. One complaint of the Consumers Association of Ireland may deserve consideration. This is the complaint that it will be too long and drawn out a process because it requires individuals to have gone through the complaints procedures of representative bodies and only if they are dissatisfied will they have the option of pursuing the case with the ombudsman. Section 22 of the Bill meets some of these concerns in allowing a complaint to be made where complaints have not been investigated in an adequate time by the disciplinary bodies. A clearer direction in terms of time limits is important. The most specific ruling on time limits in the Bill is the six month time limit, although it may be extended in special circumstances, within which time someone may make a complaint to the ombudsman. There is a clear time restriction on the member of the public making the complaint and a good deal less clarity in terms of time limits related to the investigation of complaints by professional bodies and the ombudsman.

Section 23 requires a great deal of fleshing out. It provides that the ombudsman can establish procedures related to the investigation of complaints. There will be a great deal of importance attached to the detail in that section. The procedures for investigating complaints will be vital in terms of ensuring people are satisfied with the way in which complaints are handled.

I refer to other specific aspects of the Bill. Section 15 refers to the power of the ombudsman to prepare reports on the admissions policies of the legal bodies. That is very important and I am aware from my research that it is difficult to establish and to get figures from the professional bodies. This does not apply to admission levels which are easier to establish. However, the attrition rates from the legal professions are missing from the Bill and could be usefully inserted.

Senator Phelan referred to the change in the economic climate. The chill wind blowing through the economy generally has already affected the legal professions. There are an increasing number of redundancies from solicitors' firms and great difficulty in junior solicitors getting traineeships and in law graduates getting employment. It would be very useful in this context for the legal bodies to supply the ombudsman not only with figures on admissions, but also figures on departures from the profession, that is, numbers leaving the profession in any given year. I wish to see the legal services ombudsman empowered — the Minister of State may be interested in this point — to require the professional bodies to conduct exit surveys of those leaving the professions and to establish the reasons for leaving. We found anecdotal evidence that this is a matter of particular concern among lawyers surveyed in 2003. However, it was impossible to get data on the numbers who left and the reasons they left. I believe we will see increasing numbers leaving. It would be useful to see why they are leaving and what can be done to ensure people worth keeping in the legal profession are kept there and do not leave for the wrong reasons. Our study indicates people are leaving because they are experiencing discrimination which is a cause of concern to us all.

The Consumers Association of Ireland raised the question of the legal proceedings that may be taken against the legal services ombudsman. It argued there should be an explicit provision in the Bill for an appeal by consumers against decisions of the ombudsman. Section 34, providing for legal proceedings to be taken against the ombudsman, places a restriction that is becoming increasingly common in Bills including the Immigration Bill, such that proceedings may be taken only with the leave of the High Court and on 14 days' notice to the ombudsman. This restricts the usual power to apply for judicial review. While that is not a problem in itself it would be more worthwhile to place a specific right of appeal in the Bill because it is anticipated that those dissatisfied with the ombudsman's findings will take proceedings against him or her. It might be of benefit to consumers of legal services to see something more specific about appeals.

Senator McDonald raised the issue of representation. Many of us have heard people complain that they cannot get representation from solicitors where they believe they have a case against another solicitor. Undoubtedly some of those complaints are vexatious or frivolous and the ombudsman will have the power to make that finding. There remains, however, a real problem for people who believe they have a valid grievance against a solicitor or other member of the legal profession and cannot get legal representation. It is very important that they feel the procedures of the ombudsman are accessible to them. I am glad to see the ombudsman may accept an oral complaint. It is important that the complaint does not need to be presented in a particular written format. That is why the appeal right against the decision of the ombudsman or the right to review that decision should be stated more clearly in the Bill.

I welcome the Bill. There is an increased need for public confidence in the professions. Legal professionals who have brought the profession into disrepute have been highlighted recently. That is a matter of real concern for all of us in the profession and is of greater concern to the wider society. To provide for an ombudsman of this kind allows the public to see that greater levels of scrutiny will be applied in the legal professions. This entails more than creating the regulations. The recent banking scandals have shown that it is not enough to put financial services regulators in place but we need to ensure that they work, that they enforce the law and are seen to do so and that sanctions are imposed on people guilty of wrongdoing.

Sadly we now live in a society where the phrase "a person's word is their bond" has less currency than it once did. Many who held exalted positions in our society by reason of their profession must, justifiably, earn such respect because of society's breakdown and the controversies that have reduced the effectiveness and reliability of such professions. One reason for this is that the type of gentleman's agreement, or self-regulation, that existed in many professions has been abused, albeit by a minority, to the extent that it can no longer be successful.

This Bill is welcome because it introduces a degree of oversight that is lacking in legal services. It is a first step towards bringing about a fully-fledged system of regulation rather than the half-way house of marrying the existing systems of the Law Society and the Bar Council and a degree of State involvement. It is best to bring about such change incrementally.

We have seen examples of rogue solicitors and it is disturbing to hear some individuals defend themselves and seek to be excused on the grounds that others in professions such as banking and the construction industry were guilty of the same type of excesses. The legal profession has recently accepted other practices, for example, many young people buying houses have found until recently that they had to take out large bridging finance before their houses were fully conveyanced while several solicitors' firms held their deposits on account. This was then seen to be a valid part of the remuneration process. Not only have individuals been guilty of rogue practices but in the past the profession has accepted systemic practices. The need for a legal ombudsman is particularly acute in such cases, not only to challenge the individual abuses but to ensure widespread abuses do not occur.

Senators McDonald and Bacik mentioned that it is difficult for a client to get a solicitor to take on a case against a solicitor whom the client believes has behaved illegally. That is in part due to the cliquishness of the profession and in part to geographical factors because no solicitor wants to challenge another who is known in his or her court setting. That is why we need a separate independent effective ombudsman structure that is seen to enact the regulation that cannot be, or is not, enacted by the traditional methods.

The legal ombudsman should have significant early success in identifying early breaches of the code of conduct and how the public should get redress. We have learned from the financial regulatory system that is not enough to have an infrastructure in place to make us feel better about ourselves. We can only inspire public confidence when a system is up and running and is seen to be working. Until people can see a significant difference between the voluntary self-regulation system that has not operated very effectively, and the new system to be introduced on foot of this Bill, they will not have confidence in the legal profession's capacity to operate to the highest standards at all times.

I do not fully agree with Senator Bacik about the right of appeal process. It is important there is a clear and usable process. We must avoid the possibility, particularly in the legal profession, of a tribunal process that is strategically prolonged to avoid anyone having to answer for a wrongdoing. Appeals should be dealt with as quickly as possible. There is a danger in an appeal process that ties itself up in legal knots that the benefit of a legal ombudsman will be compromised by the nefarious actions of those he is trying to regulate. If that can be avoided the ombudsman will be an effective position and people will feel better for the establishment of such an office.

I welcome the Minister. When I came into this House 16 years ago, I wondered how I would handle Bills about which I did not know anything, as I was not a lawyer. I decided to look for the customer in each Bill, so I will speak on this Bill from the point of view of the customer.

I welcome the provision of an independent legal services ombudsman, and I particularly welcome section 5, which states the ombudsman should not be a practising member of the legal profession. It also excludes practising barristers and solicitors from appointment as ombudsman. While the Bill provides for the establishment of a legal services ombudsman, it could be argued the role of the ombudsman is restricted and limited in its powers.

One of the biggest flaws in this Bill is that it seems both the Law Society and Bar Council will continue to have primary responsibility for the adjudication of complaints against their members. The Minister of State speaks of giving consumers greater rights when it comes to the legal profession. However, the Bill only provides the possibility that the complainant can bring his or her case to the ombudsman if he or she is unhappy with the decisions made by either the Bar Council or Law Society. This means the complainant will be forced to go through the complaints board of these bodies before he or she brings the matter to the attention of the Ombudsman. Is this inevitably long and drawn-out process specifically designed to dissuade or even prevent consumers from lodging complaints, for example, due to the cost and complexity of the complaint? Will consumers think the process is still weighted unduly towards the legal profession?

Consumers need to have a direct link to the ombudsman and bypass these bodies which represent the interests of the legal profession, and which are there to protect them and not necessarily protect the consumer. It is surely not progress for the consumer to have a profession which continues to be more or less self regulating. We should try self regulation in every case, but not when it does not work. I believe it has not worked in this case. In summary, the Bill as drafted is not adequate in providing a fair and independent entity for consumers who are unhappy with the performance of their solicitors or barristers. It is also flawed in a number of other ways which are capable of improvement.

Another drawback in the Bill is the limited powers given to the ombudsman when it has to deal with a complaint from a consumer. Specifically, the Bill does not seem to provide for appeal against the decisions of the Law Society and Bar Council regarding complaints they received against solicitors and barristers. The Ombudsman can only deal with complaints relating to the actual process. The legal services ombudsman can only direct the Bar Council and the Law Society to begin an investigation and complete it within a reasonable time, or require them to re-investigate a complaint. The Chairman of the Consumers' Association of Ireland has written that this means that, even if the legal services ombudsman believed the Bar Council or the Law Society made an incorrect or inaccurate decision concerning a complaint, the ombudsman would not have the power to overturn it. In fact, all the legal services ombudsman can do is direct the Bar Council or the Law Society to reinvestigate the complaint. The Minister of State can correct me if I am wrong on this. Once the Bar Council or the Law Society have met the obligation to re-investigate, they can ignore the views of the ombudsman and uphold their original decision.

This seems like a very weak ombudsman. It is very strange that the legal services ombudsman cannot decide the merits of a complaint, especially from the consumer's point of view. This part of the Bill needs to be amended to make sure the legal services ombudsman has the power to decide the merits of a complaint.

I am also concerned about the provision in the bill which will allow the Bar Council and the Law Society to be able to appeal to the courts against the rulings of the legal services ombudsman on their procedures and processes. Consumers cannot appeal in a similar manner, which is a major drawback in the Bill. I am concerned by the provision in the legislation which requires the legal services ombudsman to report to the Minister for Justice, Equality and Law Reform on the numbers of solicitors and barristers and to make an evaluation on their competence. I do not think this is normal for a complaints-orientated agency. Could this be used to argue for more positions in the legal services profession, such as college places, or could it be used to limit entry into the legal profession on the whim of the legal services ombudsman? This part of the Bill needs to be properly examined.

I am afraid this body might just become another quango. How big is the bureaucracy of the ombudsman envisioned to be? To save costs, could the ombudsman be attached to the Office of the Ombudsman as a legal division of that office? We already have several ombudsman bodies, so do we need a totally new body? I welcome the fact that section 19 provides that the Law Society and the Bar Council will each be responsible for 10% of the costs of the legal services ombudsman. However, has the possibility of amalgamating the Legal Services Ombudsman into the Office of the Ombudsman been properly considered?

Section 23 provides that the ombudsman may establish and publish procedures on the receipt and investigation of complaints. This could go one step further by including a customer charter to make the whole process more explicitly directed at, and working for, the consumer.

The objective of this Bill is worthwhile. I have a concern about the creation of another quango, and I know that various efforts have been made to reduce the number of State agencies. We really should look carefully at this. I said earlier that I am not a legal professional, although I have learned much since I came in here. Many years ago, I had the experience of taking the only case to the Supreme Court based on article 44 of the Constitution. Having studied a bit of constitutional law in UCD, I remembered a little bit about article 44, which states that one cannot discriminate on the grounds of religion. Thirty seven cases were taken against me for selling meat after 6 p.m. in 1968. I defended myself and looked at the statutory instrument that dealt with this. It contained four parts, three of which outlined where in Dublin one could not sell meat, the definition of meat as beef, lamb and pork, and a prohibition on selling meat after 6 p.m. The fourth part stated that these provisions would not apply to meat sold following the kosher method of killing.

I realised there might be a flaw in the legislation, as the exclusion of kosher meat was allowed when two Jewish shops in Dublin requested the Minister not to pass the Bill in its original format, as they did not open until sundown on a Saturday. The Minister excluded the Jewish shops from the legislation through the use of the statutory instrument, but that instrument made the Bill illegal on the grounds of discrimination against everyone who was not Jewish. I won that case, and I have always had an interest in the law ever since. We appealed that case to the Supreme Court, and we won it on a four to one basis.

The objective of this Bill is certainly worthy, and is one I support. I have some concerns about the Bill, which I have voiced already.

I thank all Senators who contributed to this debate, especially Senators Phelan and Boyle, for their positive contributions and support for the Bill. I have lived all my life with lawyers, and I am the only member of a family of five who is not a lawyer. I have a great affection for the profession, but I often joke that I am the only honest member of the family as a result. I stress that is a joke, rather than a statement of fact.

I have also worked with lawyers in my business career, and I have always found them to be excellent. It is important, notwithstanding the controversies surrounding bankers, lawyers, churchmen and politicians to which Senator Bacik referred, that the majority of people in all of these professions are honest, hard working people who do not transgress the ethical, moral or legal codes. It is only a minority of people who abuse the public trust in all of these professions. Regulation must take cognisance of that fact more than any other.

Senator McDonald's questioning of the need for an extra layer is shared by the Minister and the Government. While the establishment of the office of the legal services ombudsman may be represented in some quarters as the imposition of an extra layer of regulation, or as a duplication or replication of the work of the existing and overarching Office of the Ombudsman, which is led by Emily O'Reilly, this office will not be paid for out of the public purse. It will be paid for by means of a levy on the profession itself and for that reason, this phenomenon should be encouraged. I am sceptical about the levels and layers of extra obligation we have imposed on professions, businesses and industries over the past ten years. In light of the downturn, the recession and the general Exchequer funding and public spending challenges we face, it is time to examine the relevance of all these regulators, particularly the Commission for Energy Regulation, the Commission for Aviation Regulation and the Commission for Taxi Regulation. It almost defies belief that we have a Taxi Regulator, as the regulation of the taxi industry should be a matter for the Minister rather than for a well paid regulator in a large office.

I would like to speak about an important aspect of this legislation. Senator McDonald spoke about the making of frivolous complaints. Section 22(4) of the Bill empowers the office of the legal services ombudsman to decide not to investigate a complaint it considers frivolous or to discontinue an investigation of such a complaint. This ensures that the ombudsman's time and resources are not wasted. Senator McDonald suggested that a limited number of complaints have some validity. That is why the Bill empowers the ombudsman to siphon off such complaints quickly. That is a fair point. The number of complaints made is not huge, relatively speaking.

Senator Bacik referred to the Competition Authority's report on the legal profession. The report makes 29 recommendations in respect of solicitors and barristers, 15 of which relate to actions for which the Department of Justice, Equality and Law Reform is responsible. Some of the recommendations are directed at the Bar Council and the Law Society. The implementation of the recommendations directed at the Bar Council and the Law Society is a matter for those bodies. The main recommendation is that legislation should be introduced to establish a legal services commission to regulate solicitors, barristers and the market for legal services. A further seven recommendations relate to the functions of the legal services commission. Government policy on the need for changes in the legal profession is reflected in the Bill before the House, which provides for customers to avail of a formal review of legal services if they are dissatisfied with the outcome of a complaint made to the Law Society or the Bar Council. A number of other issues are material.

Senator Bacik also spoke about the timeframe for the making of complaints. Section 22 provides that a complaint can be made to the office of the legal services ombudsman if a professional body fails to complete an investigation into alleged misconduct within a "reasonable time". If the Bar Council's professional conduct tribunal, the Bar Council's professional conduct of appeals board or the Law Society fails to complete its investigation of an allegation of misconduct made by a client of a barrister or a solicitor within a reasonable timeframe, the client may make a complaint about this failure to the ombudsman's office. We have avoided the imposition of arbitrary time limits under this section in the belief that the ombudsman should have the discretion to determine what constitutes a reasonable timeframe in each case.

Senator Quinn highlighted the powers of the office of the legal services ombudsman. Typically, an ombudsman can investigate complaints made by members of the public in respect of the actions of Government agencies or regulatory bodies, make recommendations to improve the handling by such bodies of complaints and report on its assessment of existing mechanisms for handling complaints. Many countries around the world give powers of a similar scope to their various ombudsman offices. It is consistent with the approach taken by the ombudsman offices in this country. The primary role of an ombudsman office is to act as an independent review body. This is the common thread that runs through most of the functions of such offices. The role of the office of the legal services ombudsman is to investigate the manner in which professional bodies deal with complaints. Professional bodies are responsible for investigating complaints about lawyers.

Senator Quinn spoke about restrictions on the numbers going into the legal profession. Under this legislation, the office of the legal services ombudsman is empowered to assess, where necessary, the numbers being allowed or not allowed into the profession each year. I reassure the Senator who raised these concerns by informing him that the legal services ombudsman must work on the basis of the public interest. The "public interest" is defined in terms of the affordability of access to law and, by extension, to justice. The ombudsman does not assess whether we should have 1,000, 10,000 or 1 million lawyers. He or she simply makes a judgment call on whether the quantitative or qualitative restrictions on numbers act in a way that increases the cost of accessing the courts and therefore denies citizens the chance to achieve redress through the legal system. That is the key point. The ombudsman is not an avatar of competitiveness or policies of competition. Issues of justice and access to the law at an affordable cost for ordinary citizens are predominant here. It is clear that issues in this regard have arisen over the years. We should be honest about it.

The legal profession is not the only profession to have inflated its fees in recent years. The fees charged by doctors in the medical profession, and by many other professionals and providers of professional and personal services, increased during the boom. Many of these people have taken excessive fees because of the boom. That will be an even bigger issue in the next few years, obviously, as we face into a downturn. We have to get our costs down. I do not want to refer particularly to lawyers in this regard. The professions in general — lawyers, accountants, doctors and other people who provide private or personal fee-based services — will have to re-examine their structures. It is a huge priority for the Government. We need to get to grips with these fees in the context of the downturn and recession we are experiencing.

Some of the fees are outlandish. Some of these structures have been unchallenged. They act in a restrictive way. It is monopolistic in one sense. We need to break those structures in the next few years. Ireland will not have a competitive economy and will not get out of this downturn unless we break the restrictive practices that have grown up in professional bodies, agencies, groups and associations that have set themselves up as membership organisations. If we do not end those practices, we will not achieve the kind of economic improvement we all desire. When the recession eventually clears away, we will need to be extremely lean and competitive. I do not need to lecture Senator Quinn on the concept of cost control, given that he has managed a very successful retail group. I thank Senators again for their contributions. The points made in this debate and in previous debates on this Bill have been welcome. I thank Senators for their co-operation.

Question put and agreed to.
Committee Stage ordered for Tuesday, 24 February 2009.