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Seanad Éireann debate -
Thursday, 19 Nov 2015

Vol. 243 No. 9

Legal Services Regulation Bill 2011: Committee Stage

I welcome the Minister for Justice and Equality, Deputy Fitzgerald, to the House.

SECTION 1

Amendments Nos. 1 and 154 to 157, inclusive, form a composite proposal and may be discussed together. Is that agreed? Agreed.

Government amendment No. 1:
In page 9, between lines 27 and 28, to insert the following:
"(4) The Solicitors Acts 1954 to 2008 and Part 14 may be cited together as the Solicitors Acts 1954 to 2015.".

I am very pleased to bring the Bill before the House on Committee Stage. The Bill is a working recipe for the coexistence of the old and the new, which can ensure our legal services sector does not end up at a permanent competitive disadvantage and provide people who use legal services with better and more competitive choice. The Legal Services Regulation Bill will deliver on the programme for Government commitment to establish independent regulation of the legal profession, improve access and competition, make legal costs more transparent and ensure adequate procedures for addressing consumer complaints.

After 30 years of reports and recommendations, the Bill, with the enhancements we will make to it in the Seanad, will provide for the independent regulation of the provision of legal services in the State and a far more transparent legal costs regime. It contains substantial provisions which will promote competition, help reduce legal costs in Ireland and support Ireland's economic competitiveness. These very important reforms, which are good news for customers and small business enterprises, will improve equity of access to the justice system for all. All of this will be achieved by balancing in law, in the stated objectives of the Bill and by amendment where necessary, legal professional principles and the interests of those who avail of legal services, this time in a more modern way under an independent regulator.

Let there be no doubt that while the Bill does not obstruct the traditional form of legal practice, it demands that legal practitioners do not obstruct the Bill's reforms. While some observations have been critical of the proposed new regulatory regime and some aspects of today's anticipated amendments, they have missed the point. The new regime is being built by specific statutory provision on the foundation of an independently nominated regulatory authority, an independent complaints committee, an independent practitioners' disciplinary tribunal and a full suite of High Court powers and safeguards.

As passed by the Dáil, the Bill already comprises 158 sections spread over 13 Parts. During its passage through the Dáil, more than 235 amendments were made, and I will lay out for the Seanad very briefly the amendments I am about to propose. They will see the replacement and reconfiguration of two Parts of the Bill to reflect the co-regulatory framework now in place between the new legal services regulatory authority and the Law Society. This was foreseen in some of the amendments in the Dáil, but the Bill was skeletal in some areas with a great amount of work to be done, which is what I am bringing forward today.

Provision will be made for the possible transfer of the complaints handling staff of the Law Society and the Bar Council into the new body, to ensure adequate working capacity and expertise as we move from the old system to the new. I am glad to say such a transfer has received support from all parties in the Dáil and, I am led to believe, the Seanad has the same view. It makes sense to ensure the ability of the new complaints facility to hit the ground running and gain early public confidence. The societies have been doing this for decades. There has never been independent regulation. This is a serious transfer of function and we must take account of procedures and practices, history and expertise in the transfer to the new body of certain obligations. We must ensure the new body works in tandem with the established bodies and nothing is lost in translation so the consumers and practitioners do not lose out on the expertise in handling issues, such as the financial compensation fund, which has been built up so painstakingly over a long period.

On foot of the amendments proposed, all public complaints, no matter what their subject matter, will be made to and remain in the hands of the legal services regulatory authority to be prosecuted to a conclusion. The authority will have the power to go back to the relevant body, such as the Law Society, and I will go into detail in this regard.

The provisions on inspections and search and entry will be strengthened, legal services advertising will be brought in line with EU directives and there will be a strengthening of existing provisions on cost, including the chief legal costs adjudicator replacing the Taxing Master. There will be more transparency on fees, and there is quite an amount of detail on this point. A two year review clause is built in, at the end of which note will be taken of how consumer and competitiveness issues have been addressed over the two year period.

This is a quick summary of the approach, and I will now discuss the amendments. This group of amendments relates to consequential amendments to the Solicitors Acts which, I note, are from 1954 to 2008. We are speaking about Acts from over a long period, all of which had to be looked at and various amendments made to arrive at the point where we have a new independent authority. This issue may also arise on Report Stage.

Amendment No. 1 is a technical amendment with regard to a collective citation. Amendment No. 154 is with regard to section 3 of the Solicitors (Amendment) Act 1960 and substitutes a new definition of "misconduct" which will refer to the definition of "misconduct" provided for in the legal services regulation Act. This is to ensure there is equivalence between the two pieces of legislation in investigations. It is very straightforward and technical. Amendment No. 155 amends section 2 of the Solicitors (Amendment) Act 1994 with regard to the definition of "authority" to mean the legal services regulatory authority under the Act.

Amendment No. 156 is important and substitutes a new section 14A into the Solicitors (Amendment) Act 1994. It deals with the powers of the Law Society to investigate alleged misconduct by solicitors. With the new arrangements on complaints and procedures, it is necessary to clarify what powers the Law Society will have to investigate complaints. Subsection (1) of the new section 14A sets out what the Law Society may investigate where it receives a complaint about a solicitor or where the authority requests it to carry out an investigation. Subsection (2) provides that the society should conduct an investigation in compliance with a request from the authority, because the authority can request the Law Society to conduct an investigation under section 50 of the legal services regulation Act. Subsection (3) permits the Law Society to issue a direction or more than one direction to a solicitor where it considers that the act or omission of the solicitor warrants a sanction.

This will apply except where the Law Society considers that due to the gravity of the concerns raised, the matter should be referred to the disciplinary tribunal I mentioned in the context of subsection (6). Subsection (5) provides that where a solicitor takes the measure or measures specified in the direction of the Law Society, the matter shall be considered as determined. Subsection (7) relates to notifications to be made to a solicitor on the determination of a complaint.

These follow on from the major changes we have made on the role of the LSRA handling disciplinary issues. Amendment No. 157 amends section 26 of the Solicitors Act, which relates to the provision of professional indemnity cover. New provisions on it will be provided in the Legal Services Regulation Act 2015. The amendments are designed to ensure continuity with these provisions. Accordingly, the amendment ensures that the Law Society may make regulations in this matter but only with the consent of the authority. The amendments also provide that the regulation may extend to solicitors in legal partnerships, multidisciplinary practices or limited liability partnerships.

I welcome the Minister to the House. We had some brief discussion on this matter this morning during the Order of Business. If we are being totally honest, the Bill that we see before the House now has changed from that presented by Deputy Shatter four years ago. Then it was like a two year old male tiger, full of teeth, steam and gusto and now we end up with a little lamb with little teeth that one would find in the mountains of West Cork. There has been a total change. I am a member of the Law Society and it appears to me that the two big legal professions have coerced the Government to water down this Bill from what it was originally supposed to be. I make that observation at the very outset.

There is no doubt that we need to have independent regulation. That is something I advocate. As Senator Barrett mentioned on the Order of Business this morning, it seems that the existing staff of both the Law Society and the Bar Council will be subsumed into the new authority. That creates a doubt in my mind about how independent the new authority will be.

The Minister mentioned the issue of cost. One of the catalysts of this legislation was the coming of the troika to this country which pointed a finger at the matter of legal costs. I wish to place on record the fact that approximately 25% of the solicitors in this country, while they do not have a monopoly, are in a very strong position. There are solicitors in Dublin charging the Government, Departments, and commercial people €455 per hour. In other places, such as Bantry, Castlebar, Castleblayney or any rural town in Ireland where there are solicitors, a solicitor would be very lucky to get €75 an hour. The huge costs charged by a small number of major companies are a problem. They advise the Government and NAMA. I say this as someone who practised in a small town and made a living there. A huge proportion of these costs revolves around ten or 15 big firms. I always make the point that there are qualified young solicitors and barristers who cannot even get onto the payroll because they cannot find jobs. The idea is that this Bill will resolve the matter of costs through regulation and the trust. It will not and cannot resolve the whole area of costs and transparency unless there is some sort of parity. If one seeks advice from a solicitor on a will, for example, in Castlemaine in Kerry or Tullamore, the charge is €100 or €150. There has to be some balance because the costs to solicitors are the same. The licence fee that I pay to the Law Society is no different than the fee paid by a principal in a main firm in Dublin that employs 100 solicitors. If we do not grasp the nettle that is the regulation of costs, this Bill will fail on many issues. I can tell the Minister that 75% of practising solicitors in Ireland would concur with what I am saying. Some of them are struggling to survive. They have mortgages like everyone else. Not long ago, I was driven into the city from the airport by a young taxi driver who is a qualified barrister but who had no work. If the perception in Europe is that we are all creaming it, they are wrong and are going down the wrong road.

We are on Committee Stage and I do not want to labour the point. I am concerned about the new regulatory authority. Is it another quango? Will it be efficient? One can say it is not relevant to this particular section. The troika said that Ireland should sort out its legal services - the Bar association and solicitors. If that is done and the same monopoly is retained in which 25% control the major income and major fee per hour and the other 75% suffer, we will not have solved the issue to which the troika referred. I am talking about solicitors in particular. I cannot say strongly enough that the version of the Bill introduced in the House four years ago is so different from that now before us that if a law student studied it, he or she would say it is completely new legislation. I have great respect for the Minister and I do not say this in a derogatory way towards her or her officials but perhaps they should have gone back to the drawing board, produced a new Bill with the changes incorporated in it and started afresh rather than moving from a big ship to a small boat. That is the impression I get. We are dealing with a totally different Bill. However it is dressed up, those are the facts. I put that on record.

I wish to express my complete disappointment with this Bill. It does nothing about the conveyancing monopoly which imposes a cost on every person who buys a house in this country. The costs are way in excess of those which obtain in the United Kingdom. That damages our competitiveness. The Bill does nothing about the right of audience to a barrister without having a solicitor present. It seriously disappoints the Competition and Consumer Protection Commission which, in one of its former guises as the Competition Authority, has been advocating what I have been saying for the past ten years. The amendments arrived late on Tuesday after the deadline for our own amendments. As Senator O'Donovan said, this is a completely new Bill and the Minister has shown scant regard for the House by the way she has proceeded. We asked to have a new Second Stage today and to have the weekend to discuss it. At the last count, there were 220 amendments over 77 pages - 159 from the Minister, 37 from me, and 24 from Sinn Féin and others. The Minister has changed the emphasis completely. She has ignored Stephen Kinsella in today's edition of The Irish Times, the Competition and Consumer Protection Commission and the troika. This is a Bill written by the legal profession for the legal profession. That is why its members are allowed to transfer over to the new body.

On the Order of Business, I asked what is next if the people from the Bar Council and the Law Society who are involved in structuring reform transfer to the new body with their pensions topped up. What is next? Will the tobacco industry have a right to have people employed in the Department of Health? Will speeding motorists get jobs in the Road Safety Authority? This is total capture of Government by a vested interest. The Minister has ignored both what the National Competitiveness Council has said and the burden put on people trying to buy houses. It is totally producer based and that is why it is so disappointing. I refer here to both the content of the Bill and the way it is being pushed through the House today. I have heard several Members of the Lower House saying "What a pity we did not run with the Bill four years ago." This Bill is a travesty. It is a huge victory for the incumbents. I see no representation from MABS, FLAC, university law departments or the Competition and Consumer Protection Commission. It is totally producer based, setting up a quango which will do much the same job as the Bar Council and Law Society have been doing up to now. We have a problem in respect of excess legal costs that will have to be addressed some time. This Bill will set up a quango to address some of those issues in four years' time but we have known about the issues, as the Minister said in her press release, for 38 years. Why not tackle the conveyancing monopoly now? That is the basis on which the super-normal profits are made and which has built up our bloated legal structure.

The Minister will also have to look at what is happening to insurance costs because of legal costs in this country. She need only look at the banking inquiry. One of the major reasons Anglo Irish Bank was worth far less when it was transferred to NAMA was that the legal papers were not adequate in respect of the title of the properties, and we lost €30 billion as a result.

I am really disappointed that the Minister who led reform on the same-sex marriage issue, with the support of the House, has become so traditional and conservative in what is before the House today. We will be going through the amendments one by one, but this Bill shows a Government reversing from what the troika wanted and from what every citizen in Ireland wanted, that is to say, a more efficient and lower-cost legal system than what we have now. There must be great happiness in the Law Society of Ireland and the Bar Council of Ireland with the version of the Bill before the House today. Everyone else is distinctly unhappy about it.

It is not universal.

I am obliged to communicate that to the Minister.

One of the problems that Senator O'Donovan raised related to how, as in accountancy, three or four firms now dominate legal services. That will increase under this Bill. There is no mention in the Bill of how to deal with an oligopoly. The authors of the Bill have obviously discounted everything that the Competition and Consumer Protection Commission has said about the need for a competitive sector. It will become less competitive when we implement this legislation.

Before I call Senator Bradford, I wish to make one point. While I appreciate that colleagues have a difficulty in respect of the time lag between Second and Committee Stages - that point was made on the Order of Business by some Senators - my hands are tied. We are dealing with Committee Stage as per the Order of the House. I call on colleagues to address the amendments before the House. I appreciate that it has been some time since Second Stage, but my hands are tied. We are on Committee Stage and I have to deal with Committee Stage and the particular amendments to be dealt with at this point. Senator Bradford is next. I am not referring to you, Senator Bradford. It is a general comment.

Thank you very much, Acting Chairman. I wish you had not said that because it is unhelpful from my perspective. The Minister is welcome and I am sure we will have a substantive debate this afternoon and beyond. I concur with what was said previously to the effect that this is really a new or fresh start. To use the awful phrase, we are where we are.

I am unsure whether it was Peter Mandelson, when working for Tony Blair, or Mr. Emanuel, when working for President Obama, who coined the phrase that we should never waste a good crisis. I am mindful of that phrase because of the crisis that resulted in the economic meltdown of the country a few short years ago and the subsequent arrival into town of the IMF and the troika with their list of proposals, suggestions and demands, most of which have been enacted.

This brings me to reflect on the fact that one of the big-ticket issues as far as the troika was concerned, as recently as a fortnight ago, was the way law is practised in this country and the way it impinges on the cost of the legal provision for every citizen. Of course, it is not simply a question of every citizen or taxpayer in the country. Anyway, I heard Professor Kinsella being interviewed yesterday afternoon. He made a pertinent observation about the vast cost to the taxpayer of the legal bills for every Department and virtually every agency of State. If we fail or refuse to challenge legal costs, it is not only the so-called private citizen or householder who is affected. The taxpayer who is footing the legal bills for every Department and Government agency is being affected as well. Certainly, there was an expectation four short - or long - years ago when this Bill was introduced. I served briefly on the Joint Committee on Justice, Defence and Equality at that stage. There was an expectation that when the Bill was passed we would see a new regime in place and that the cost of the provision of legal services would be reduced. There appears to be no indication that we are going in that direction.

The Minister made certain remarks in her opening statement. It was useful that the Minister prefaced the debate with the remarks to the effect that she sees this as good news for consumers. I imagine the Minister believes that. Yet the only response of consumer champions or consumer associations to date has been one of regret and disappointment. They believe what they believe and the Minister believes what she believes. I call on the Minister to clarify why she believes it is good news for consumers.

The Minister also made what I deem to be a very honest statement, if she was quoted correctly. Of course, the Minister is not always quoted correctly. Anyway, yesterday a newspaper reported the Minister describing the Bill as a pragmatic solution in response to some of the criticisms. I did not hear the Minister say it, but she was quoted as pronouncing that this was a pragmatic solution. We experience great difficulties in the way we try to do political business and carry out reform in this State and in respect of the law. One of the reasons we often fail is that pragmatism wins. It is a neat, handy and short-term solution, but pragmatic solutions to big issues are not required in this case.

I agree with what Senator O'Donovan has said about the major variance in legal costs throughout the country. Let no one be in doubt: there are many barristers who are failing to eke out a living in this country and many solicitors likewise. Not every legal practice has a lottery machine in the back room of the premises. However, the general cost of legal services in this country is still extraordinarily high by European and world standards. When this almost new Bill is passed and these sections and amendments are all pushed through, we should ask ourselves honestly what will have changed and whether law be more accessible from a financial perspective to the citizen on the street. The answer is clearly going to be "No". We have substantial issues to take up with the Minister as we peruse this legislation. They relate to the concept of regulation, the independence of regulation and the new practices required. All these questions will have to be at the centre of the debate. It is difficult to accept that what is now before the House is in any way related to what was published in 2011. One particular route was taken at that stage but it appears to have been reversed.

The Minister rightly referred to legislation going back to the 1950s. Obviously there is a need for major updating. However, I believe we are in danger, following the changes proposed in recent weeks or months by the current Government, having waited for four years, of putting through changes to a reform Bill which will negate its entire purpose.

I look forward to the Minister's defence of her amendments. In fairness, the Minister had to present this legislation to her Cabinet colleagues. They now seem to be at one on the matter. The heavy hand of forces outside Government appears to have worked on this occasion. The consumer and the economy are the losers. So often the Taoiseach refers to building a modern, dynamic, creative and inventive economy. If we are to be the famous best small country in the world in which to do business, then issues such as the practice of law and the cost of same need to be dramatically reformed. They will not be fundamentally reformed arising from these amendments. I look forward to the Minister's observations on the amendments.

I do not believe it would be the end of the world, from a reform or a political perspective, if it were not possible to push this legislation through the Dáil and Seanad before the term of this Government ends, because we need to get it right. Maybe it is a question of only parliamentary days rather than weeks left. After all the waiting, consultation and submissions, there is a danger that we could pass legislation which, while bringing many improvements - in fairness, all legislation does - does not really push the buttons required of us and demanded of us, rightly, not only by the troika but by consumer champions in this country as well.

I welcome the Minister to the House. Without prolonging things at this point - I am mindful that we have many amendments to get through - I wish to refer to some key issues. Clearly, colleagues believe in the need to make Second Stage speeches at this point. I remind colleagues that we had a full Second Stage on 13 May on the Bill that is before the House now. It was substantially amended in the Dáil, as Minister has said. My note indicates that only eight of us spoke. I was one of those eight. Certainly, I made a full speech in which I spoke about the need, as I saw it, for certain amendments and so on. I speak as a former member of the Bar and a practising barrister.

I can say for sure, and Senator O'Donovan will acknowledge, that there are many members of both legal professions who are most unhappy about the reforms in this Bill. I refer to substantial reforms, particularly in the area of costs. I urge colleagues to examine the provisions on costs that are not being amended in any substantive way and that will provide for much greater transparency and provide for a duty to give advance notice on costs to clients. This is extremely significant for consumers.

To speak in broad terms, the other great change is the one to bring about an independent system of regulation for practitioners in both professions. Again, this is a significant change about which many practising lawyers are unhappy but, nonetheless, it is an important and welcome one that will provide for significant lay supervision.

Senator Barrett, in particular, spoke about who should be on the legal services regulatory authority. Section 8 of the Bill provides that lay members should be nominated by FLAC, the Irish Congress of Trade Unions and others. There will be a really important input from those bodies with human rights expertise and so on. That is important.

People have been making issue about the transfer of staff but I believe there was general support for it in the Dáil. Senator Conway will remember that when the justice committee had hearings on this Bill some years ago, staff transfers comprised a significant issue. Reference was made to the need to ensure continuity of expertise and adequate competence in the new regulatory authority. If one examines the provision, one sees it is only giving the authority the option to transfer staff. It strikes the right balance.

I have two other points. On section 33, Senator Barrett mentioned university law schools. That is a subject close to my heart, of course, and I know that university law schools are looking at this with great interest. Section 33 will empower the authority, once it is established, to take soundings and examine the evidence basis for extending the provision of legal education to the universities and other entities, in addition to considering the unification of the legal profession, which I believe would be a welcome reform but for which we need to see the case. A good balance is struck between the necessary reforms that need to be carried out now on costs and independent regulation and setting up a basis for further reforms. This is the start of a reform of the legal profession that is long overdue.

Among the reforms that have been in place for many years now are those to allow solicitors rights of audience before all courts. Senator Barrett should note that solicitors do have rights of audience before all the courts, but very few solicitors choose to exercise them. In fact, the Minister's predecessor, Deputy Shatter, was one of the few practising solicitors who appeared quite regularly in the superior court. This is a matter that requires a cultural shift. However, the sorts of changes being brought about in this Bill will certainly help to expedite the cultural shift that is needed urgently in the legal profession.

It is a contradiction to say we urgently need reform of the legal profession and then object to this Bill coming before us now, a few months after Second Stage. We need to get this Bill through. I am glad there is to be a review clause in it. There is a two-year review clause. It will ensure that we keep our eye on the ball in terms of the reform of the legal profession.

I concur with Senator Bacik and welcome the Minister to the House. We in this House, having had Second Stage on 13 May, had an advantage in the sense that the Bill had done the rounds of both Dáil Éireann and the justice committee. The latter did substantial work on it. In this regard, Senators Bacik and O'Donovan, other colleagues and I were quite active. Many of these issues were ironed out at the time. When we took Second Stage here on 13 May, it was the end of one journey and the beginning of another. I very much regard this legislation as groundbreaking in what will probably be a ten to 15-year process to deal with a profession that has not really been dealt with properly in 50 to 100 years.

Once Chapter 1 is operational under the authority, the two-year review will determine how that chapter has worked. Some future Government can bring in further legislation to deal with the issues this legislation will not have dealt with and its provisions that will not have worked.

This House has a responsibility to ensure this Bill passes as a matter of urgency. We are in the twilight of the political life of this Government and there could be an election any time. Therefore, the House has a responsibility to the citizens and consumers to ensure it does not delay the passage of the Bill in any way.

I hope that as we go through the amendments and as the Bill progresses today, Senators will have an opportunity to see the substantive changes that are to be brought about. It is obviously a continuation of the work in the Dáil, as is right. In some instances, there was a framework laid out for the approach, as in respect of inspections and discipline. That has all been filled out in great detail and we will have an opportunity to go through it today.

Some of the comments made by Senators, which I appreciate were summary, do a disservice to the scope and scale of this legislation. Independent regulation is to be achieved for the first time, along with independent means of dealing with complaints. This is important. There is to be an independent statutory framework set up for the first time. I could comment on the various points. The cost regime is quite significant, as Senator Barrett should note. His point on conveyancing is addressed in the Bill, as recommended by the Competition Authority. We have taken it on board, along with many of the points the authority has made in several memoranda to the Government and several detailed responses on the way the Bill has been drafted.

The troika welcomes the Bill. It was briefed last week. We will have legal partnerships once we enact and implement this Bill. We will have legal partnerships up and running next year. That is a significant change in terms of access. Transparency and accountability are the hallmarks of this Bill.

I hope that as we go through the various sections, Senators will understand what I am saying. I reject completely the idea that this is a completely new Bill. It represents detailed work on significant changes to the legal profession. Significant changes are being introduced for the first time and there is to be important new regulation, representing the right way to go. The nominating bodies for the board are the Citizens Information Board, the Higher Education Authority, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, the Institute of Legal Costs Accountants, the Consumer Association of Ireland, the Bar Council, the Legal Aid Board, the Honourable Society of King's Inns and the Law Society of Ireland. There is a mix of lay and legal representation. It is an excellent mix and will lead to the right kinds of decisions. The board is carefully balanced, with 11 members in total. There are five legal members and six lay members.

I appreciate that we need to move on to the detail of each amendment. I mentioned that there is a very detailed cost regime. A new office of legal costs adjudicators is to replace the Taxing Master.

It is to be significantly more difficult for excessive charges by lawyers to stand. The legislation makes it quicker and easier for clients to have their bills assessed and reduced, where applicable, efficiently and effectively. These are all major changes, as evident in comments by many. Let us not underestimate the scale of the change in this Bill overall, its range of sections, the range of issues it deals with in terms of the legal profession, and the groundwork it lays and framework it establishes to make progress in the years ahead.

Senator O'Donovan may comment very briefly.

It is hard to be brief on a very long Bill. The first grouping encapsulates amendments Nos. 154 to 157, inclusive. Amendment No. 1 is fairly technical and I do not have a problem with it. There are 80 pages of amendments and the original Bill is 130 pages. To say the legislation before us is not close to being a new Bill is not exactly correct. Amendment No. 156 is to substitute a new section, amounting to nearly two pages of change.

I have some concerns about it. First, it refers to the new legal services regulatory authority. In reading this new section contained in amendment No. 156, I am a little confused. As I understand it, it can deal with a complaint from the public without it going through the Law Society or, I presume, the Bar Council, but this refers in particular to the Law Society. It is a little difficult to fathom.

The Law Society also has a twin-track role in investigating a complaint against its member. I say that, and I am a little confused, because if we are talking about independence of the new regulatory authority, subsection (7)(a) of amendment No. 156 states:

Where the Society considers that the measure specified in section 61(6)(a) of the Legal Services Regulation Act 2015 is the appropriate measure to be taken as respects the finalisation of its investigation, it shall notify the solicitor concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be placed on the practising certificate of the solicitor, the precise restriction or condition).

As I understand this, at all stages it seems that the Law Society has a twin-track role in the investigation of a complaint, either directly by a member of the public independent of the Law Society or by a group of people against a solicitor or a firm of solicitors. Subsection (7)(c) of the same amendment states:

Where the Society issues a notification pursuant to paragraph (b) and does not receive the written consent of the solicitor concerned within 21 days to the imposition of the specified measures [I presume it will be some sort of constraint on how they practice], it shall apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015 by it into the matter, in so far as the Society has not found that the concerns giving rise to its investigation of the matter are unfounded or that the act or omission concerned does not warrant the imposition of a sanction under this section.

If this new regulatory authority makes a decision, the Law Society, on my reading of it, must accept it. There can also be an application to the legal practitioners disciplinary tribunal for a further hearing.

In the case of some of the big guys who held us all to ransom as members of the Law Society and who went off with €50 million and €70 million and never came home, this gives significant scope where there is an initial investigation which can go on subsequently to the legal practitioners disciplinary tribunal. Therefore, there is investigation after investigation. If there is a judicial review of the matter in the High Court and Supreme Court, the investigation, particularly of a serious complaint, could extend to two or three years.

Debate on amendment No. 1, even though it is technical, also takes in amendments Nos. 154 to 157, inclusive. We have agreed to debate them together. Amendment No. 156 in particular is a lengthy new amendment that needs more explanation, as far as I am concerned. It certainly is not simple.

In changing this Bill for solicitors, I make the point, while not trying to go outside the remit of the section, that a small fisherman in the Beara Peninsula or a small farmer in Connemara should have the same right and access as a multi-millionaire. If this is as difficult as it seems, the person living in a remote part of Ireland will find it difficult to jump all the hurdles required under this new section. It certainly is not making it simple, which it should be.

Let us say a complaint is made and this new regulatory authority states the solicitor should not be allowed practise if it is a serious issue, should only practise under the supervision of somebody else or should be fined or reprimanded in some way. There seems to be another tranche of proceedings which that person could instigate, I presume through the Law Society, or the Law Society could say that the legal practitioners disciplinary tribunal would kick in, and that is another tier of investigation. It is certainly far from simple and it is certainly something the troika did not envisage.

I do not know whether this is something that has been recommended by the Law Society or agreed to, but it is a lengthy section. The Minister might clear the air on amendment No. 156, which is part of the first tranche of amendments. Maybe I am confused or I misunderstand it. Reading it through, it does not make the area of complaints and discipline simple. If anything, it makes it more convoluted.

I thank Senator O'Donovan. I was conscious, by using the word "brief", that I was witness to the Senator speaking for four and a half hours on one amendment during the Harbours (Amendment) Bill 2008 in a previous Seanad.

I understand in part the point Senator O'Donovan is making. Amendment No. 156, which comes early here because it has been grouped, is a technical amendment to the Solicitors (Amendment) Act 1994. Primarily, the body of this issue is dealt with in section 5. We will be going into considerable detail on that because it is about how the complaints and discipline are dealt with. It sets up the entire framework for the new authority dealing with all complaints. It will be very straightforward. If anyone else has a complaint, it goes to the legal services regulatory authority, LSRA. It can then seek the help of and, if necessary, get inspections and reports from the Law Society's financial experts because, as Senator O'Donovan will be aware, the solicitor's financial affairs will continue to be overseen by the Law Society but under the supervision of the LSRA. Amendment No. 156 is the technical amendment to the Solicitors (Amendment) Act 1994, but we are getting into the debate that is substantially dealt with under section 5. I will be going into a lot of detail about how the complaints and discipline issues are to be dealt with, the new structure that will be set up and the replacement of the current two disciplinary bodies with a new body. That is merely a preliminary explanation for the Senator. It is the whole of section 5 and we will be looking in detail at how this will work.

It is difficult for us to say we agree to this and to pass this amendment, which is technical, only for an issue to arise in the discussion on section 5 and we cannot go back to amendment No. 156 on Committee Stage. I am not being difficult, but this is a most important Bill. It has changed substantially since it was first published. It is important for us, as Members of the Seanad, to tease out the pros and cons and to look at all aspects.

I will reluctantly hold back until the amendments are reached and we have the substantial debate on section 5. At the same time, my unhappiness with amendment No. 156 gives me the urge to call a vote on it and I will not have that opportunity then if we pass it. That is my problem. It is lumped in here with amendment No. 1, which is technical. Should amendment No. 156 be more appropriately dealt with in the amendments concerning section 5.

As Senator O'Donovan will be well aware, only amendment No. 1 will be decided now. We will get to the other ones.

I wish to make a quick correction to the record. I apologise, as I was looking at the wrong piece of paper regarding the lay membership and the nominators to the LSRA in section 8. I thank the Minister for putting it correctly on the record. In fact, the nominating bodies for lay members include the Citizens Information Board, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission and the Consumers' Association. That is welcome. I apologise that I had put the wrong nomination bodies on record.

Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2

Amendments Nos. 2 to 6, inclusive, 8 to 11, inclusive and 13 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 2:
In page 9, between lines 29 and 30, to insert the following:
" "Act of 1994" means the Solicitors (Amendment) Act 1994;".

I am introducing these technical amendments to better clarify what is meant by certain terms used throughout the Bill. I refer to the definitions of "Compensation Fund", "legal partnership", "limited liability partnership", "multi-disciplinary practice", "prescribed" and "Solicitors Accounts Regulations". These are the definitions that we will go on to discuss in other sections.

Amendment agreed to.
Government amendment No. 3:
In page 9, to delete line 30, and in page 10, to delete lines 1 to 4.

I hope I am not confusing the issue, but amendment No. 3 proposes to delete the following:

"admissible complaint" means a complaint which---

(a) is received by the Authority not later than 3 years after the occurrence of the act or omission which it is alleged constitutes misconduct (unless the complaint relates to fraud or dishonesty by a legal practitioner), or

(b) is not a complaint to which subsection (2), (3) or (4) of section 50 applies;

Will the Minister clarify what happens to complaints if that section is deleted? Would the three-year rule be retained or dropped elsewhere, and why is it proposed to remove the definition now?

The three-year rule is maintained in Part 5.

Does that mean it will come up later?

Amendment agreed to.
Government amendment No. 4:
In page 10, between lines 12 and 13, to insert the following:
“ “Compensation Fund” means the fund maintained by the Law Society under section 21 of the Solicitors (Amendment) Act 1960;”.
Amendment agreed to.
Government amendment No. 5:
In page 10, line 13, to delete “Part 6 ” and substitute “Part 5 ”.
Amendment agreed to.
Government amendment No. 6:
In page 10, lines 14 and 15, to delete “shall be construed in accordance with section 48 ” and substitute “means a complaint made, or deemed to have been made, in accordance with section 42 ”.
Amendment agreed to.

Government amendment No. 7 is related to amendments Nos. 39 to 46, inclusive, and they may discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 7:
In page 10, line 22, to delete “appointed under section 30” and substitute “appointed under section 36”.

This group of amendments relate to the powers of the authority to inspect legal practices. Sections 30 and 31 of the Bill as published are being remodelled again into the new Bill, Part 3, to better specify the inspection powers of the legal services regulatory authority in line with any modern inspection regime. Part 3 of the Bill outlines all the expected powers that one would assume a strong independent regulator would have. This section defines the role of inspector within the meaning of the Bill, with amendments Nos. 39 to 46 inserting the new Part of the Bill. Amendment No. 39 inserts a new section that provides for the appointment of inspectors and is all about the inspectors. It is very similar in nature to the provisions in the Property Services (Regulation) Act 2011. Under the provision the authority can appoint either members of its staff or other persons whom it thinks fit to act as inspectors. The section makes it clear that a person appointed as an inspector will be furnished with a warrant of appointment by the authority. Amendment No. 40 inserts a new section 37, an important provision which sets out that the purpose for which an inspection can be carried out can be defined in general. It is intended that the legal services regulatory authority will have inspection powers and investigation powers in relation to compliance and general compliance practices.

While the authority will exercise these powers in relation to solicitors and barristers, it will not overlap with the separate inspection powers of the Law Society of Ireland, which will be retained under the Act. In regard to complaints made to the authority, section 37 provides that an inspector may carry out an inspection where a complaint is being made or is deemed to have been made to the authority under the Act regarding inadequate service. Where a complaint regarding excessive legal fees has been made or is deemed to have been made to the authority, it can appoint an inspector to bring the information together and do the necessary work. An inspector can also be appointed where a complaint has been made to the authority regarding an act or omission on the part of a legal practitioner which may be considered as constituting misconduct. If any of these complaints are made there is a straight route to the authority. Complaints can be made, inspectors can be appointed and an investigation carried out into the compliant by an independent body, with an inspector appointed. As I said previously, this is a consumer-friendly process.

In addition, the section provides that the authority may carry out an inspection in order to ensure compliance by a legal practitioner in relation to any requirement imposed on the practitioner by this Act, in relation to any regulations made under the Act which are applicable to the practitioner and in relation to any code of practice issued or amended under section 20. Amendment No. 41 inserts a new section 38 into the Bill, which is a key provision that specifies the powers of an inspector under section 36 with regard to the inspections carried out.

I will summarise what the inspector can do in response to any of these complaints. The inspector can enter, inspect, examine and search any place where he or she believes an activity is being carried out in connection with the business of a legal practitioner. For example, the inspector can enter a premises where it is suspected, or where there are reasonable grounds for believing, that books, records or accounts are being kept or other documents stored in various forms which relate to the business of a legal practitioner. The inspector may require a legal practitioner, or any other person in the place, to produce the books, records and documents for the inspector. Senators can see what the general approach is. It is to have a robust inspection regime that can follow up and have the necessary authority and powers to get the information together to make a determination on it. The inspectors can also require any legal practitioner, or any other person present at the place concerned, to give the inspector such information and assistance as the inspector may reasonably require or to answer relevant questions. On foot of a court order obtained from the High Court, the inspector can also carry out certain actions where necessary, including seizing and retaining books, securing data equipment or any associated apparatus for later inspection, and, for the purpose of preserving records for later inspection, the securing of the place or any such place where that may reasonably be necessary.

This section and these amendments are all about the powers of the inspectors who will be operating under the legal services regulatory authority and who will have quite robust and stringent powers of inspection. It is an inspection regime which will operate under the legal services regulatory authority with all the powers that I have outlined.

I understand that all these powers are necessary, but will the Minister indicate whether there is any mechanism within the authority that could conduct preliminary investigations? Sometimes vexatious or frivolous complaints can be made for inappropriate reasons with the motive of targeting a particular solicitor or office. A sledgehammer does not have to be used to crack a nut. Is there a way that those complaints could be filtered out, set aside and dealt with quickly rather than having to go through the whole process?

Senator O'Donovan makes an extremely good point. We are speaking now about the powers of inspection, because the discussion is around Part 5, and this is where I go into the detail of how the complaints will be handled. In answer to the Senator's query, yes, there is a mechanism to deal with that type of situation. It is quite clear that there has to be an assessment in the first instance. The complaints can vary from anonymous complaints to those that are very serious and those that have other motivations. We know that this can happen in any walk of life. The authority will have a triage system, and the complaints process will include triage for admissibility types, attempts at informal resolution or mediation where appropriate, referral to the complaints committee of the authority, and, where necessary, referral for determination of misconduct by a legal practitioners' disciplinary tribunal. Like any complaints process, it is a system that in the first instance can assess what is the level of complaint and make a reasonable judgment on that. Depending on that judgment, it can then go to the most serious level of inspection, which I have just described, or, after the triage, it may be decided that the complaint does not warrant further investigation. This type of process is followed all the time by other bodies. The legal services regulatory authority will be in a position to do exactly that. Senator O'Donovan asks a fair and relevant question because there does have to be an assessment of the complaints as they come in and an assessment of the way in which they should be dealt with depending on their seriousness and so on.

I thank the Minister for her clear response, which clarifies the worries I had in that regard.

Amendment agreed to.
Government amendment No. 8:
In page 11, between lines 7 and 8, to insert the following:
" "legal partnership" means a partnership formed under the law of the State by written agreement, by two or more legal practitioners, at least one of whom is a barrister, for the purpose of providing legal services;".
Amendment agreed. to.
Government amendment No. 9:
In page 11, between lines 12 and 13, to insert the following:
" "limited liability partnership" has the same meaning as it has in Part 8;".
Amendment agreed to.
Government amendment No. 10:
In page 11, between lines 14 and 15, to insert the following:
" "multi-disciplinary practice" means a partnership formed under the law of the State by written agreement, by two or more individuals, at least one of whom is a legal practitioner, for the purpose of providing legal services and services other than legal services;".
Amendment agreed to.
Government amendment No. 11:
In page 11, to delete line 29 and substitute the following:
" "prescribed" means prescribed by regulations under this Act;".
Amendment agreed to.

Amendments Nos. 12, 47 to 49, inclusive, and 115 are related while amendment No. 49 is a physical alternative to amendment No. 48. The amendments may be discussed together. Is that agreed? Agreed.

Government amendment No. 12:
In page 11, between lines 37 and 38, to insert the following:
" "professional indemnity insurance” means a policy of indemnity insurance to cover claims in respect of any description of civil liability incurred in the provision of legal services by—
(a) a legal practitioner,
(b) a legal partnership, multi-disciplinary practice or limited liability partnership, or
(c) a partner, employee or agent or former partner of a person referred to in paragraph (a) or (b).".

This deals with the issue of professional indemnity insurance, PII, for legal practitioners. A definition of PII is inserted and there are two sections to clarify the issue of professional indemnity insurance for legal practitioners. It is proposed that section 38 is to be replaced by a new section 38, which is reworked in order to better clarify the obligation on solicitors and barristers to have adequate professional indemnity insurance, including when they are providing services through the new business models being created by the Bill, such as legal partnerships, multidisciplinary practices and limited liability partnerships. This is necessary for the consumer and in the interests of clients, they will not be permitted to practice unless insurance cover is in place. All legal practitioners will be under an obligation to comply with the relevant regulations and the authority is being given the power to approve any existing group schemes, as long as they are already compliant with regulations.

Section 39 sets out the regulatory authority's professional indemnity insurance regulation-making powers in addition to making new regulations, including where none exists, such as the case with the new business models. The authority will have the power to set monetary amounts regarding the minimum level of cover and maximum excess amount that the authority considers appropriate to each type of legal practice. The objectives of the regulations are set out and these include elements that are important to the consumer. They are to protect the client's money and interests, encouraging high standards at a reasonable cost, proper consideration of any different levels of risk that might apply to different types of legal practices and ensuring that adequate cover is in place in all cases. These provisions are similar to what was contained in the previous section 38 but they are more robust and detailed. In some ways, what we had was a more skeletal approach to the issues but as the Bill has developed, we have filled them out, as we have done with the inspection regime.

Senator Barrett's amendment suggests the use of the world "shall". That is part of the section being proposed. We are effectively dealing with the amendment in that way.

I have an observation. I agree there should be compulsory insurance cover for professional indemnity. I remember when I returned from England in 1981 that I opened my little practice and was probably one of the first to volunteer for professional indemnity. It cost me £750 at the time and it was a lot of money then. My concern is whether the professional indemnity cover would take into account turnover in cover. I am subject to correction but there seems to be no more than two firms in the State offering professional indemnity insurance. Normally, 95% or 97% of professionally practising solicitors may have to carry the burden for the rogue solicitors or those who are negligent in one way or another. In ensuring that we have professional negligence insurance, is there sufficient competition in the market to guarantee fair play across the board? I have a feeling that we are tending towards a monopoly, with just one or two big players providing insurance and holding the gun to solicitors' heads. That affects the small guy rather than the big guy, who can afford to carry that level of cover. Professional negligence insurance is now probably several thousand euro per year. A person from a firm with six or seven solicitors told me recently that before it starts on 1 January each year, it must set aside €50,000 for professional negligence insurance, despite not having made a claim in the past ten years. Perhaps this may be the wrong time to raise the issue but I will say it anyway.

I thought the Senator was going to ask about the business of the solicitors and the cost. The PII provider evaluates risk and turnover of the practice. We have consulted the market and we understand it is open, although I take the Senator's point. If there is any further information that the Senator can give us, I can certainly see if there are any implications. I understand the concerns.

Issues have been raised regarding major legal firms. One of the hopes we have with respect to limited liability is that it will support those solicitors who wish to merge smaller practices. Very often it is because of worries about liabilities that mergers do not go ahead, etc.

I thank the Minister for her comments about amendment No. 49.

Amendment agreed to.
Government amendment No. 13:
In page 12, between lines 16 and 17, to insert the following:
" "Solicitors Accounts Regulations” means—
(a) the Solicitors Accounts Regulations 2001 to 2013,
(b) the Solicitors Accounts Regulations 2014 (S.I. No. 516 of 2014), and
(c) any other regulations made by the Law Society under section 66 of the Solicitor’s Act 1954 or section 73 of the Act of 1994.".
Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 to 5, inclusive, agreed to.
NEW SECTION
Government amendment No. 14:
In page 13, between lines 27 and 28, to insert the following:
“Review of Act
6. (1) The Authority shall—
(a) not later than 2 years after the establishment day and not later than the end of each subsequent 3 year period, commence a review of the operation of this Act, and
(b) not later than 12 months after the commencement of a review under paragraph (a), make a report to each House of the Oireachtas of its findings and conclusions, including such recommendations (if any) to the Minister resulting from that review as it considers appropriate.
(2) Recommendations under subsection (1)(b) shall include such recommendations (if any) for amendments to this Act, the Solicitors Acts 1954 to 2015 or any instrument made under those Acts, as the Authority considers appropriate arising from its findings and conclusions.
(3) In conducting a review under this section, the Authority shall consult with professional bodies and such other person as the Authority considers appropriate for such purpose.".

I mentioned this in my introductory remarks and it is about a review of the Act. It is a standard legislative review clause, like others in the Statute Book, to provide that consideration will be given by the new regulatory authority as to how well the Act is functioning. It gives the new regulatory authority scope for recommendations to the Minister for Justice and Equality for future legislative amendments to both this Act and the Solicitors Acts if they prove necessary. The authority will be expected to consult with all relevant bodies, as appropriate, when conducting its reviews. That will be discussed later. We have put in a two-year review, with some specific terms of reference that would capture some of the concerns spoken about by Senators earlier. That is just to make sure the new regulatory authority is functioning in the interests of everybody, including consumers. It should make for a competitive regime and people should comply with the provisions. The legislation specifically states that professional bodies are obliged to comply with the changes.

I have concerns about the amendment as proposed by the Minister. Not later than two years after the establishment, the review starts and then within 12 months there is a report. We are extending the conveyancing monopoly for approximately four years. There is no need for any review as it has been done in 200 pages by the Competition Authority. It can be done by comparing conveyancing charges on property in Ireland and the adjoining island, which has a flat fee of £250. Our fee is 1.5% of the cost of the building. There is no need for a review as the research is known. If we pass this amendment, we will condone for another four years the overcharging of everybody who buys a house in this country.

I take the Senator's point but this provision is in the Bill and it is very important. There will be much work in the first year for the authority to do and although there is some flexibility, a timeframe is laid down. The point was raised earlier about the size of this authority. We are not establishing an enormous new body because we want a small but efficient authority. We are talking about it having approximately 30 or 40 staff, although that may change.

The Competition Authority agreed with the idea that the Law Society would keep the financial compensation fund.

If we were to move all the functions across, we would be talking about a completely different type of body. I want to make the point that this would have enormous resource implications. I remind Senator Barrett that there was absolute cross-party agreement on the transfer of the staff who are coming across. There is a need to recognise the expertise of the staff in the establishment of a new body. I emphasise that this is being done under independent management. That is the key point. Less than half of the staff - approximately 18 people - are transferring across. We often talk about the need for expertise and skill in the handling of complaints. While that is the reality of what has happened in the past, there is now completely independent management. We have a timeframe for the various pieces of work to be done by the legal services regulatory authority. We cannot ask it to do absolutely everything in the first year. We have to be realistic about the various tasks given to any new body. However, we have said that the legal partnerships need to be up and running within six months. By allowing these new partnerships, we will introduce competition into the market and change the way legal services are provided. We are also putting those barristers who are currently operating outside the Bar Council on a statutory basis.

I thank the Minister. I have seen a reference to the timetable under which the new authority will work. As far as I can recall - of course I am liable to error - it will be talking about education and will be addressing the conveyancing issue. People want that issue to be addressed because it is the one that really hurts the consumers of legal services. I am afraid, with the best will in the world, that a delaying mechanism is being used. There is no need for it because the research has already been done. It is quite easy to compare the cost of conveyancing in this jurisdiction with the cost of conveyancing in the United Kingdom. I do not see a case for delays in a matter of serious public concern. I remind the House that during the boom period, house prices went from two and a half times the average income to 12 times the average income and the legal profession made an absolute fortune from being linked to house prices. That is the anti-competitive aspect of the legal sector about which the troika and the competition commission are concerned. I do not see the case for delaying yet again a reform that has been overdue for so long.

I ask the Minister to take on board a suggestion of mine in advance of Report Stage. I think it is fair enough that the first review will take place not later than two years after the establishment day. Obviously, there will be teething problems. Everybody takes time to settle in. It is proposed that the possible subsequent reviews will take place after three-year periods. I suggest that after matters have bedded in, it should be possible to have those subsequent reviews every two years rather than every three years. I would grant some grace to allow the first review to take place after two years, in acceptance that matters will be new, but I ask the Minister to consider making a change to this Bill on Report Stage to make subsequent reports two-year reports rather than three-year reports. I believe this is necessary to ensure matters do not get kicked to touch indefinitely.

I emphasise that there will be annual reports to the Dáil and the Seanad. That will give Members of the Oireachtas an opportunity to evaluate and debate the progress of the new authority. They will be able to bring people into the committee structure as well. I do not doubt that they will avail of such an opportunity. I will have a look at the timeframes again in advance of Report Stage. We have considered them carefully. As I have said, this is not a independent regulatory body with hundreds of staff. It is a small and efficient body that will be charged with dealing with significant issues. We have to be careful not to overwhelm it in its initial stages.

I remind Senator Barrett that the evidence from the research into the new approach to conveyancing in England is that the new approach has not taken off to any significant degree. I think that is an interesting point for us to contemplate. There seems to be a reluctance among the general public to make the kind of move that has been allowed for in England. We want the consultation to be done here. We want to move on it. The experience in England is an interesting marker because it shows that after the change was made, the take-up was apparently very small. There may be different reasons pertaining in the UK compared to here. I am just putting this point into the debate, for what it is worth.

I thank the Minister. She is quite right when she says that the share of the independent conveyancers is quite small. However, they have put manners on the established soliciting firms, to use a colloquial term. Their costs for conveyancing are much lower. I do not care how many new conveyancers there are. We have to get away from the system that involves 1.5% of the price of a house, or approximately €5,000 in the case of a semi-detached house in Dublin. The work in question can be done for £250 across the water. That is totally uncompetitive. Perhaps it will take a handful of conveyancers to induce that competition, as the Minister has said. Previous evidence from the Prices Commission and other bodies has suggested that conveyancing is used in solicitors' firms, particularly in the bigger firms, to cross-subsidise many of their other activities. The house purchasers about whom we were concerned when we introduced the residential tenancies Bill and other legislation get a bad deal from the present way Ireland organises the conveyancing monopoly held by solicitors. We know that they would do far better in the UK. We also know that it does not take many of the new conveyancers to secure a more competitive outcome. I do not see the need to keep waiting around on this issue, which has been an urgent one for well over 30 years.

I do not want to cross swords with my learned colleague and good friend, Senator Barrett, but I am speaking from knowledge in my own area when I say that the days when a solicitor would charge 1.5% for conveyancing are well gone. According to the most recent information I have received from my own area of west Cork, the average charge is approximately one third of that 1.5% charge. I was the secretary of the West Cork Barristers Association in my younger days. What happens now is that people ring around from one solicitor to another to find a fellow who can do it €100 cheaper. It is extremely competitive. Maybe there was a monopoly during the boom, when bigger firms controlled much of this activity, but I think that has gone.

I would like to put a final point to the Minister before I conclude. I welcome the new regulatory authority on principle. The efficiency of that body will be critical for Joe Citizen, Josephine Citizen and the general public. I know the Minister cannot guarantee this, but I am laying down a marker that it has to be efficient for the members of the Law Society and the general public. Both groups deserve fairness. They deserve to have complaints or other matters dealt with quickly and efficiently. If the regulatory authority is to be a success, it is critical for it to be absolutely efficient and professional and to deal with complaints quickly. I appreciate that the Minister does not have a crystal ball and cannot look down the road, but I remind her that justice delayed is justice denied. If the new authority is not efficient, it will do no good for the complainant or for the person who is complained against.

I welcomed the amendment providing for a review earlier because it is important. I think we have strayed into talking about the specific issues on which the authority will have to report to the Minister. Perhaps this relates to section 33 of the Bill. I am aware that Senator Barrett has tabled amendments to that section. All of us agree absolutely with the comments that have been made by others on the high cost of conveyancing. I will make two quick points in that respect. First, e-conveyancing, about which we have heard a great deal at the Joint Committee on Justice, Defence and Equality, will undoubtedly provide for a streamlined and less expensive procedure. This important initiative, which is in train at the moment and will not need legislation, is being driven by a number of bodies. Second, section 33 as it stands does not make provision for a specific timeframe within which the legal services regulatory authority must make its report to the Minister on the creation of the profession of conveyancer. It might be worth putting in a specified timeframe, as Senator Bradford has suggested. I remind the House that clear timeframes of two years and four years, respectively, have been set for the reports on changes to legal education and on the potential unification of the profession. I think it might provide some comfort if we were to include a timeframe in this instance.

My point is almost redundant as I was going to refer to the issue of e-conveyancing. Senator O'Donovan is correct to state that the world has moved on and the 1.5% book price is no longer an issue. When e-conveyancing is introduced it will be 90% cheaper than that. I would like to see a situation where people could self-convey. This will happen with e-conveyancing because computers and technology can ensure that adequate protections are included to ensure everything is done correctly.

The Joint Committee on Justice, Defence and Equality has done a lot of work on the matter and it is progressing. Perhaps the Minister will comment.

Yes. The Senator has made a relevant point. The matter has also been discussed by Ministers at meetings of the Justice and Home Affairs Council. There is a real need Europe-wide to do more on e-conveyancing. The Law Society of Ireland has done a lot on the subject. Also, I have spoken to the Minister, Deputy Noonan about financial institutions because the banks need to do more on this matter. If they can do more, and work in co-operation with solicitors and law firms, then I think we will begin to see a change.

I say to Senator Barrett that I would be happy, when the LSRA is established, to take up the points that he made on conveyancing. I shall ask the authority if it is feasible for it to do this study that we would like it to do, as well as the ones that have been legislated for within a given period. We do not want to ask the authority to do too much in its first year.

I thank the Minister for her reply. The figure of 1.5% came from a returning emigrants' website which stated that the difference between the United Kingdom and Ireland is that one pays 1.5%. I know that is a quote that is dear to this Minister's heart and that of the Minister for Finance.

In the context of trying to attract the people who left during the recession to come back here, it is important that they face a conveyancing charge that is comparable with the one that they had in the United Kingdom.

Amendment agreed to.
Sections 6 and 7 agreed to.
NEW SECTION

Amendment No. 15 in the names of Senators Cullinane, Ó Clochartaigh and Reilly has been ruled out of order due to a potential charge on the Exchequer.

On a point of order, I ask the Acting Chairman to clarify why the amendment has been ruled out of order.

The amendment has been ruled out of order as it involves a potential charge on the Exchequer.

Please explain where the charge arises. The amendment seeks to increase the number of members on the board from 11 to 13 people. Therefore, it seems quite strange that the amendment has been deemed to bring a charge on the Exchequer.

I understand that a letter was issued to the Senator or his colleagues this morning on the matter. For the benefit of the House, I shall read into the record the note that the Cathaoirleach has left for me, if that is okay, on the amendment tabled by Senators Ó Clochartaigh and his colleagues that sought to increase the membership of the authority from 11 to 13 members. It reads:

This will increase the remuneration and expenses of the Authority. The Bill provides that these costs must first be paid out of the Exchequer before these costs may be recouped from levy funding. As this increase in membership could increase a charge on the Exchequer the amendment must be ruled out of order in accordance with Standing Order 41.

I wish to note our huge disappointment at that decision. We have tabled similar amendments at different times for different legislation that were not ruled out of order and I know that the Government has tabled similar amendments. I shall speak on the section to outline why my party made the suggestion.

The amendment has been kicked to touch on a technicality, which is disappointing to be honest.

I accept the Acting Chairman's ruling but concur with my colleague that it is rather trivial that his amendment has been deemed to create a burden on the Exchequer.

Senators can discuss the matter when we debate the section.

Amendment No. 15 not moved.
SECTION 8

Amendments Nos. 16 and 17 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 16:
In page 15, line 9, to delete “Competition Authority” and substitute “Competition and Consumer Protection Commission”.

This is a straightforward amendment to reflect the merging of various statutory bodies to create the Irish Human Rights and Equality Commission and the Competition and Consumer Protection Commission. There has been no shift away from policy. In the meantime we have had a merger and the amendment reflects the changed names of the bodies involved.

Amendment agreed to.
Government amendment No. 17:
In page 15, line 10, to delete “Human Rights Commission” and substitute “Irish Human Rights and Equality Commission”.
Amendment agreed to.
Question proposed: "That section 8, as amended, stand part of the Bill."

Níor labhair mé leis fós ach ba mhaith liom fáilte a chur roimh an Aire. I thank the Minister for bringing the Bill forward. In a general sense, we concur with most of what has been brought forward in the Bill but we will raise a number of issues later on. I thank the Minister's backroom team for its briefing on amendments yesterday. I wish to put on record that we did not think it was right, fitting or correct that so many substantial amendments were brought forward with so little time left to parse them. I note and concur with the points made by Senators previously but shall comment on the amendments and the section.

Sinn Féin is conscious of the fact that the amendment is on the composition of the authority and I think Senator Bacik has made a Freudian slip because she agreed with me on this matter earlier. Sinn Féin would prefer if the Minister would bring forward, and we ask her to consider doing so before Report Stage, an amendment proposing that the authority should consist of 13 members and of the following persons: three persons nominated by the Law Society of Ireland; two persons nominated by the Bar Council of Ireland; one judge of the Superior Courts nominated by the Chief Justice; one person nominated by the Irish Business and Employers Confederation; one person nominated by the Irish Congress of Trade Unions; one person nominated by the National Consumer Council; one person nominated by the Free Legal Advice Centres; and one person selected by the Chief Justice from such persons as are nominated by non-profit legal advocacy groups, as defined in subsection (6), operating in the State. For such purpose each such group shall be entitled to nominate one person for selection as follows: one legal cost accountant nominated by the Institute of Legal Cost Accountants; and one person selected by the Chief Justice from such persons as are nominated by legal education institutions, as defined in subsection (7), operating in the State. For such purposes each such legal education institution shall be entitled to nominate one such person for selection. I note the points made by Senators previously that they concur on this issue. The rest of the suggestions were on the running of the authority, how the authority could elect its members, how it would select a chair, etc. and we also outlined the roles of the authority.

I disagree with the ruling out of order of amendment No. 15 on a technicality because there is merit in the changes we sought. The purpose of the amendment was to increase the membership of the authority from the 11 members proposed by the Government to 13 members. We did not seek a huge increase. We simply wanted to ensure that the authority was broad enough, fit for purpose and covered all of the different stakeholders that need to be covered.

We are very positive about most of the provisions in the legislation. It is important to emphasise that no provision has been made to afford free legal aid organisations a position on the board of the authority. We feel there should also be representation by an employers' organisation and the trade union movement in order to represent workers' interests based on the social partnership model. The present Government proposal lacks such a provision. Our suggestion would improve what has been put forward.

On another note, there have been issues recently concerning competency in the Irish language. On particular State boards there have been no individuals with competency in the Irish language, which is something that we should look at as well. A number of legal issues have arisen recently which pertain to language and people exerting their rights to have their cases, for example, heard through the medium of Irish. I ask the Minister to clarify if the legislation provides that the board would comprise a number of people who are proficient in the Irish language, which we feel is important in this type of scenario. We shall consider tabling such an amendment on Report Stage.

I wish to make an observation on the appointments process. There has been much reference here to the work of the Joint Committee on Justice, Defence and Equality. Oireachtas committees in the main have been quite effective over the past decade or so since the committee structure was improved and enhanced. What has been proposed here is that the members shall be appointed by the Government using a resolution of the Dáil and Seanad.

Over the years, such resolutions have generally been passed without debate, although a row sometimes takes place on the floor of the Dáil or Seanad about whether to vote on them. Will the Minister consider introducing an amendment on Report Stage to provide that the appointees be nominated by the Government and that the appropriate committee - in this case, I presume it would be the Joint Committee on Justice, Defence and Equality - would engage with the nominees. It is practically the norm nowadays that chairpersons-designate of State boards appear before the appropriate committee for debate and dialogue. I am not aware of any case in which a committee expressed dissatisfaction with a nominee. From the point of view of political reform and the work of the average Oireachtas Member, as opposed to Ministers who sit around the Cabinet table, it would be useful to keep the Joint Committee on Justice, Defence and Equality engaged in this process through dialogue and discussion with the nominees before their formal appointment. I ask the Minister to consider my proposal before Report Stage.

Having listened to Senator Ó Clochartaigh's contribution, I am concerned by the structure he proposes for nominees, under which ten of the 13 members of the board would be from the legal profession. We have been trying to move away from this concept to ensure laypersons have greater influence. Under the proposal in the Bill, laypersons would make up the majority of board members of the new authority. If Senator Ó Clochartaigh's proposal were implemented, a substantial majority of board members would be members of the legal profession. I agree with the Senator's analysis on the Irish language and cognisance should be taken of his argument in this regard. However, I urge him to reflect on the structure he has proposed because it runs counter to the ethos of what we are trying to achieve in the legislation.

I am satisfied with the proposal in the Bill, which provides for a good balance on the board. The lay majority on the board is important. I remind the House that persons are to be nominated by independent bodies and must have a set of skills, as laid down in the Bill. While the Legal Services Regulatory Authority will be independent of Parliament, I have no doubt its representatives will appear before the Joint Committee on Justice, Defence and Equality to discuss the authority's work when the annual reports are produced. I have no doubt this will be possible in the early days to ensure the joint committee familiarises itself with the persons nominated by independent bodies.

To respond to Senator Conway, the suggestion we are making is that the authority includes members from employer and employee representative organisations. This is important because in addition to dealing with legal issues, the authority will also manage people. For this reason, it is important that employers and workers are represented in equal measure on the board.

I would welcome clarification of the reason free legal aid organisations are being excluded from the authority's membership. It is important to have these organisations represented on the authority.

I referred to the 11 members of the authority, five of whom will be from the legal professions and six of whom will be laypersons. There are always other bodies that people would like to have represented on boards and that is an understandable view. I have no doubt that many skilled non-governmental organisations with a significant interest in this area will closely follow the work of the Legal Services Regulatory Authority.

On the proposal to include on the authority representatives of the Legal Aid Board, Irish Human Rights and Equality Commission and Competition and Consumer Protection Commission, the Bill catches many of the issues with which these organisations engage. We do not want to increase the size of the board because in my experience doing so can make boards unwieldy. We need a technical, talented group that includes people who take account of consumer interests and have the range of skills prescribed in the Bill. The selection provided for is carefully balanced and I am happy to stand over it.

Question put and agreed to.
Section 9 agreed to.
SECTION 10

Amendments Nos. 18 and 19 are related and may be discussed together by agreement.

Government amendment No. 18:
In page 17, to delete lines 13 to 22 and substitute the following:
"(c) in the case of a member who is a legal practitioner, his or her name is struck off the roll of solicitors or the roll of practising barristers, as the case may be, or, following the investigation of a complaint under Part 5, he or she is the subject of—
(i) a determination under section 72 (1) and the member concerned has not brought an appeal in accordance with section 73 (2) (a), or
(ii) a decision of the High Court under subsection (2) (a) or (3) of section 75,
(d) he or she—
(i) has a declaration under section 819 of the Companies Act 2014 made against him or her or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, or
(ii) is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Companies Act 2014, whether by virtue of that Chapter or any other provisions of that Act, or".

This issue was discussed in great detail in previous debates and I referred to it on Second Stage, both here and in the Dáil. The Government amendments that were made in 2013 with the insertion of sections 8 to 10, inclusive, were broadly welcomed at the time. There is no reason to revisit or reconsider these sections as they are still understood to be a great improvement on the original provisions because they address the issue of independence. This was widely debated before my time as Minister and important changes were made in the Dáil. The changes put to rest, as it were, the concerns that had been expressed regarding the actual and perceived independence of the authority from the Government. A significant number of amendments were tabled on this matter. We do not want to have any absentee members, although I accept Senator Barrett's point, which I assume refers to international expertise. However, I am sure international expertise can be accessed by the Legal Services Regulatory Authority in a variety of ways. For this reason, I cannot accept the Senator's amendment.

A person is disqualified from being a member of the authority when he or she ceases to be resident in the State. Last week, the Oireachtas elected Senator Máiría Cahill who is not resident in the State. An incredible record of service has been given to the Seanad by persons from Northern Ireland. No one has ever stated that they should not be here because they are not resident in the State. There is no point in making our points in Stormont or extending hands across the Border in friendship if we choose to preclude citizens of Northern Ireland from membership of the proposed new authority on the basis that it may cost too much if a member lived in Newry or elsewhere in Northern Ireland.

There are many capable individuals in the law in Northern Ireland and the various reforms introduced there could be of great value to us. Since the Anglo-Irish Agreement was signed, the State is supposed to be on good working terms with Northern Ireland and that is mainly the case. I believe this proposal is an oversight. When I think of Gordon Wilson, Martin McAleese, Seamus Mallon and John Robb, all of whom served in the Seanad, and Senator Cahill, a current Member, I wonder how on earth this section was included in the Bill. I also wonder if it is compatible with European law, given that Ireland is part of a Common Market in services. I accept the Minister's point that we want international expertise. However, we are no longer a 26-county State that should require people to resign if they move elsewhere to live.

I ask that more consideration be given to amendment No. 19 in my name, particularly as we have a legal system that is substantially unreformed, even when compared with other common law countries. We need expertise but the Bill, as it stands, discriminates against people from Northern Ireland. I am sure that is not the intention of the Minister or Cabinet. I also wonder if the proposal is compatible with European Union rules given that we subscribed to the principle of the free movement of people a long time ago.

Most important, the change I propose would bring a dimension that would be of use to us. We all value greater international context. One of the problems with law is that it has been an excessively national as opposed to broadly-based activity. I ask the Minister to reconsider the matter before Report Stage. It is not necessary to leave this provision in place as it could send out the wrong message, which I am sure is not the intention of anyone in the House.

I support the position set out by Senator Barrett. Given that the legal and judicial systems are, by and large, closely connected to the common law system, including the British system, perhaps the Minister will reflect on the provision that excludes persons from England, Northern Ireland or Wales from membership of the authority before Report Stage.

While I will not push it any further, there is merit in what Senator Barrett has said. It is only an academic point really, but section 10(2) provides that a person who is appointed to the authority as a lay member shall cease to hold office where he or she ceases to be a layperson. Does that include a person who has an honorary doctorate in law or does it refer to a person who has entered one or other of the legal professions? How does one cease to be a layperson for the purposes of the legislation?

I support my colleagues on the residency-in-the-State clause. If we wound back the clock two decades or so, the lady from County Down who was eligible and elected to become President of Ireland would not have been eligible to be a member of this authority. We have debated this in the context of such clauses in other Bills. It is worthy of examination. The concept of some outside eyes looking at things and helping should not be dismissed. Perhaps the Minister will reflect on that exemption on Report Stage.

On Senator O'Donovan's point, it would not apply in that situation. It is only if a person actually practises as a solicitor or barrister.

I am satisfied at the changes to the Bill. When it was discussed on Second Stage in the Dáil and here, the issues of the independence of the authority and the role of the Minister were raised. Substantial changes have been made in that regard by way of amendments. I am satisfied with the overall approach in the section, but I will revert on Report Stage. I take the points that have been made here. It is a routine provision in some legislation, but I will have a further look at it.

I thank the Minister. It is the generosity of spirit which we recognise. It could be misinterpreted and it would be silly to allow that to happen. I speak on behalf of a constituency with a substantial number of people from Northern Ireland in it. I would not like to see them disbarred from anything cross-Border because I value their presence so hugely. Every Department and House of the Oireachtas should have hands across the Border. On the Order of Business, we expressed admiration and wished Mr. Robinson the best of luck on his retirement. The progress made has been admirable. People from Northern Ireland are very worthwhile people to have about and I am delighted the Minister intends to consider the matter on Report Stage.

Amendment agreed to.
Amendment No. 19 not moved.
Section 10, as amended, agreed to.
Sections 11 and 12 agreed to.
SECTION 13

Amendments Nos. 20 and 21 are related and may be discussed together, by agreement.

I move amendment No. 20:

In page 21, line 10, to delete “in each period of three months” and substitute “per month”.

Section 13 deals with the frequency of meetings. As drafted, the section provides that the authority shall hold such and so many meetings as may be necessary for the due performance of its functions but in each year shall hold not less than one meeting in each period of three months. Given the magnitude of the task the Minister has outlined to the House and the sheer volume of the legislation dealing with it, the normal practice of boards should be followed of having a meeting once a month. This is a major task and there is a very demanding timetable. Four meetings a year do not seem adequate to the task before the authority. That is why I have asked for the work agenda to be more demanding.

Section 13 (1) (b) provides:

In addition to a meeting with all participants physically present, the Authority may hold or continue a meeting by the use of any means of communication by which all the participants can hear and be heard at the same time.

If that is a reference to incorporeal meetings, I note - and I do not want to let secrets out - that this practice is one of the things the banking inquiry was most unhappy about. Those should be meetings where people are present. Like this afternoon, it is about the flow and ebb of ideas back and forth. Arising from the banking inquiry, we will likely recommend that incorporeal meetings should not be a feature of Government going forward. I will leave it to Deputy Ciarán Lynch to say. Given the experience we have spent ten or 11 months talking about down in the dungeons, there is an unhappy precedent in this regard. There is no substitute for people being at a meeting, putting forward propositions, and listening to others in the context of good decision-making.

In summary, more meetings are, unfortunately, needed due to the gravity of the task. They should be real meetings rather than incorporeal ones.

The section provides that a quorum shall be five, of whom not fewer than two shall be lay members and not fewer than two shall be members other than lay members. If one looks at the breakdown of the membership, the lay members will be in the ascendant from a numerical perspective. I hope I do not come across as entirely conspiratorial, but a situation might arise some day where there could be a clash at such an inquiry between lay and non-lay members where an item of particular contention was up for debate. It would be possible for one side of the equation to ensure that a meeting would not go ahead simply by using the provisions we are putting in place for a quorum. The quorum should be five, but its make-up should not be prescribed. Perhaps I am being too conspiratorial, but if a non-lay member was very unhappy with the holding of a certain meeting, he or she could simply not turn up thereby preventing the meeting from going ahead. It should be possible for the authority to meet with a quorum of five but there should be no prescription as to the five being made up of lay and non-lay members. Hopefully, the situation would not occur, but it will be possible for one side to veto the holding of a meeting by not sending its representatives.

That issue is carefully formulated in terms of ensuring the independence of the body. While I take the point the Senator makes, it is very carefully formulated as drafted.

On Senator Barrett's points, I note that the provision is a basic three-month benchmark. Of course, the authority will be able to call extra meetings when it gets up and running and deals with the scale of work involved and considers that necessary. It is not obligatory that the meetings only be held every three months. I have no doubt that sub-committees will be formed as well. There will be a great deal of ongoing work, but I do not want an obligation regarding meetings which has people tied up with those as opposed to getting on with the work. The board will determine its way of working and number of meetings. The three-month benchmark is important, but I would not want to prescribe monthly meetings. There is a great deal of work to do and I will leave it to the board to decide how best to approach it.

In this day of modern communications and meetings technology, the Senator's second amendment in the grouping would remove the new authority's ability to meet by teleconferencing or video conferencing where it was considered appropriate. I would not want to remove that and I will not accept the amendments.

I thank the Minister. My concern is about whether, under modern corporate governance, the idea that one could meet only every three months would have any acceptability. I hope it is read in conjunction with what the Minister has just said. The other finding of the banking inquiry is that the executives had far too much power and the boards did not, and it cost us the €64 billion. While I will not push these two amendments, before Report Stage, could the Minister reflect on what is good corporate governance and how frequently boards must meet in order to monitor what executives are doing? Maybe, the Cabinet meeting on the night of the bank guarantee was not conducted with the kind of technology the Minister has in mind. It was a series of sequential phone calls, such that Minister X did not know what Ministers A to H said.

If we are going to have incorporeal meetings, the kind of technology the Minister has in mind is the correct way to proceed, and definitely not the kind used in the decision on the bank guarantee.

While I respect what the Minister said about the balance being provided for in a very careful fashion, the way we have it written here allows for the deliberate vetoing of a meeting between the lay and non-lay side - and we hate marking this distinction - by virtue of the way the quorum provisions are put in place. The Minister might reflect on it. Although it would almost certainly never occur, it is better to ensure people could not even have those bad thoughts.

Amendment, by leave, withdrawn.
Amendment No. 21 not moved.
Section 13 agreed to.
Sections 14 to 19, inclusive, agreed to.
SECTION 20

Amendments Nos. 22 to 24, inclusive, are related and may be discussed together by agreement.

I move amendment No. 22:

In page 25, lines 35 and 36, to delete “in such manner as it considers appropriate” and substitute “following public advertisement”.

The amendment deals with consultation. The Bill specifies "in such manner as it considers appropriate". There are two parties to a consultation, the other party being the public. This is why my amendment provides that it should be by public advertisement. We have concerns about the insider-outsider model. What the insiders say to each other is one thing. The purpose of the amendment is to involve the wider public.

Amendment No. 23 is on the same lines, and I will deal with amendment No. 24 later, if I may.

The authority will have the power to advertise about its consultations on codes in any event. It has that power.

The purpose of the amendment is to ensure it complies with an obligation to consult, particularly as part of the background. As people said earlier, there was a feeling that insiders got the jump regarding the legislation, although the Minister will disagree. Why not have public advertisement?

Amendment No. 24 seeks to insert the words "or any other person" after "practitioner". Perhaps I should address it. I will not, because I have confused myself.

The point of the other two amendments was to use public advertisement to extend participation, ensure the majority of people are involved and deal with some of the criticism by people who felt they were left out of the bringing of the Bill to this Stage.

The provisions relate to the new authority’s issuing its own codes of practice as opposed to the codes of the legal professional bodies. In this regard, it is right that the relevant powers be exercised as the independent regulatory authority considers appropriate and that a legal professional affected by a code of the authority, which may be considered to be oppressive, unreasonable or unnecessary, can seek the protection of the High Court. These measures enable the independent discretion of the new authority to act as appropriate to its independent regulatory functions while also protecting the independence of the legal profession from being undermined by the provisions of a code of practice. They are necessary.

I apologise for the confusion. The purpose of amendment No. 24 is to insert "or any other person" after "practitioner" on page 26, line 8 such that it states:

The High Court, on application to it by a legal practitioner or any other person who is affected by a code of practice, made within 28 days of the issuing by the Authority of that code, may, where it considers that the code of conduct is oppressive, unreasonable or unnecessary, revoke or vary the code.

Do people other than legal practitioners who feel, in the words of the Bill, that it is "oppressive, unreasonable or unnecessary" have the right of access? I apologise for running it with the public advertisement issue in the two earlier amendments. Perhaps there is another route in the Bill whereby a person who feels his or her treatment has been "oppressive, unreasonable or unnecessary" may seek to revoke or vary the code.

The purpose of the provision in the Bill is to protect the independence of the legal profession.

Amendment, by leave, withdrawn.
Amendments Nos. 23 and 24 not moved.
Section 20 agreed to.
Sections 21 and 22 agreed to.
SECTION 23

Amendments Nos. 25 to 29, inclusive, are related and may be discussed together by agreement.

I move amendment No. 25:

In page 29, line 10, after “may” where it firstly occurs to insert “, after consultation with the professional bodies,”.

Sinn Féin is concerned that the staff employed by the Law Society and Bar Council to handle and investigate complaints will lose their jobs and be replaced by staff in the new authority carrying out the same role. The trade unions have called for the staff to be employed by the new authority, and we support this call.

Amendment No. 27 likewise proposes in line 12, after "Authority", to insert "after consultation with the professional bodies". That is the logic behind these amendments.

We are not as far apart on this matter as the Senator might think. This section relates to the staffing of the new legal services regulatory authority. My amendment No. 28 inserts a new subsection (4) which is intended to clarify the status of the staff of the new body as public servants. This means they will not be working as civil servants for any Department or office, thereby reflecting the independent nature of the new authority. My amendment No. 29 inserts a new section relating to the transfer of the staff of the Law Society or Bar Council. As I said, there has been wide political support, including from the Senator's party and, indeed, all parties on Committee Stage, for finding a suitable way to deal with the very expert and suitably qualified staff of the Law Society and the Bar Council whose public complaints functions are being taken over by the new authority. We are talking about 18 full-time equivalent posts or thereabouts.

Under the proposed new section, staff who opt to become staff of the new regulatory authority, under designation by the Minister for Justice and Equality, will enjoy terms and tenure no less favourable than those they currently enjoy, will retain their existing and accumulated pension entitlements, will become public servants and will become, from the date of their appointment, members of the single public servant pension scheme. The proposed transfer of a discrete number of such staff makes good sense. The complaints function of the new authority will be at the front line of the new body in dealing with the public. It is essential that the new authority's complaints regime has the capacity to operate effectively from day one while also having its own corporate identity. Any staff who transfer in accordance with the provisions of this section will work under the independent regulatory authority, to which they will be answerable, and will be made amenable to its ethos as an independent statutory regulator of the legal professions.

Senator Ó Clochartaigh is proposing in his amendments Nos. 25 and 27 that staff should be brought in subject to consultation with the professional bodies. However, it is very important that the new authority, as an independent regulator of the legal professions, would be able to configure its staff to meet its statutory functions and objectives. On that basis, I cannot accept the amendments. In any event, members of the professional bodies will be included among the membership of the regulatory authority. In regard to amendment No. 26, I fully appreciate the Senator's wish to find a workable and fair solution in regard to the existing complaints handling functions of the Law Society and the Bar Council. As I have brought forward a like-minded amendment, I ask him to consider withdrawing his proposal on that basis.

I thank the Minister for her response. The Government amendments came in quite late in the day. Our own were probably submitted at the same time. We seem to be coming from a similar position on this issue. I will take what the Minister has said at face value and on that basis we will withdraw the amendments while reserving the right to resubmit them on Report Stage. We will discuss the issue with the people concerned in the interim to ascertain whether they still have concerns. We will analyse the Minister's amendment with that in mind.

Amendment, by leave, withdrawn.
Amendments Nos. 26 and 27 not moved.
Government amendment No. 28:
In page 29, between lines 18 and 19, to insert the following:
"(4) A member of staff of the Authority shall be a public servant.".
Amendment agreed to.
Section 23, as amended, agreed to.
NEW SECTION
Government amendment No. 29:
In page 29, between lines 18 and 19, to insert the following:
"Transfer of staff of Law Society or Bar Council
24. (1) Subject to this section, the Authority may, for the purposes of discharging its functions under Part 5, give appropriately qualified staff of the Law Society or the Bar Council an option to transfer to the Authority.
(2) Where a member of staff referred to in subsection (1) exercises an option under that subsection, the Authority shall request the Minister, with the consent of the Minister for Public Expenditure and Reform, to designate in writing such member to be transferred to the staff of the Authority from such date as may be specified in the designation (in this section referred to as "the effective date").
(3) A member of staff of the Law Society or the Bar Council designated in accordance with subsection (2) shall become and be a member of staff of the Authority from the effective date and shall become a member of the Single Public Service Pension Scheme from that date.
(4) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, persons transferred by virtue of a designation under subsection (2) shall not be brought to less favourable terms and conditions than the terms and conditions of service relating to basic remuneration to which the person was subject immediately before the effective date.
(5) Subject to subsection (4), the Authority shall determine, in accordance with section 23(2), the terms and conditions of service and the grade of a person transferred by virtue of a designation under subsection (2).".
Amendment agreed to.
SECTION 24

Government amendment No. 30 and amendment No. 1 to amendment No. 30, in the name of Senator Jillian van Turnhout, may be discussed together. Is that agreed? Agreed.

Government amendment No. 30:
In page 29, lines 20 to 23, to delete all words from and including "(1) The Authority" in line 20 down to and including line 23 and substitute the following:
"(1) The Authority may, with the approval of the Minister for Public Expenditure and Reform, make a scheme or schemes for the granting of superannuation benefits to or in respect of any person appointed chief executive or any person who, on becoming a member of staff of the Authority, does not become a member of the Single Service Pension Scheme.".

This amendment provides for a change in regard to superannuation. It is being brought forward for technical reasons following discussions with the Department of Public Expenditure and Reform. The provision will ensure the new regulatory authority has the flexibility and discretion to make such superannuation arrangements as may be necessary.

Amendment No. 1 to amendment No. 30 cannot be moved as Senator Jillian van Turnout is not present.

Amendment No. 1 to amendment No. 30 not moved.
Amendment No. 30 agreed to.
Question proposed: "That section 24, as amended, stand part of the Bill."

I initially intended to submit an amendment to delete section 24 in its entirety. It is an extraordinary section in that it provides for private employees to be become fully pensioned civil servants without any assessment or competition. From speaking to colleagues and others, I understand the last time this was done was when Charlie Haughey nationalised the staff of a motor factors business before an election which was seen back then as very much a political stroke. Will the employees who become fully pensioned civil servants under this section be appointed at general service grades? Will they be able to transfer out of the authority into other areas, which would rather negate the point of bringing them into the body in the first place? Will the cost of assuming staff into the State service at elevated points on a payscale and with a consequent elevated pension entitlement not significantly increase the expenditure associated with the establishment of the new regulatory authority? It seems an inappropriate way to proceed. Surely the correct method would be to define the role, advertise it and let the best qualified persons apply rather than just taking private staff and making them into fully pensioned civil servants? The positions should be put out to public competition in order that all relevantly qualified persons may apply. If it turns out the best people are, in fact, those the Government is proposing to make fully pensioned civil servants, then so be it. However, the positions should be opened up to a much wider pool of applicants.

There is a danger under this section to do with regulatory capture. As we know from the banking inquiry, a good regulator should, in the wider public interest, be independent of the sector he or she is regulating. Both the Law Society and the Bar Council have done a splendid job on behalf of their clients in resisting change for the past 38 years or so. Do we expect them now to become agents of change? There is a risk in this regard, and it is a substantial one, in requiring a Pauline conversion by the people involved whereby they would now become pro-consumer having previously represented producers.

I wish to comment briefly on what Senator Barrett has said. He has issued a note of warning and given an example of experience from which we can learn. I appreciate what is being proposed and understand the necessity for it because people who have a degree of expertise can bring it to the new authority. I presume the Minister is expecting that a sizeable number of the authority's staff will be new to the space and will come from outside the fold. We are not prescribing here that the new authority will be made up entirely of staff from within the current confines. We are simply allowing that such staff may be taken on board. However, we must send the message forth that the spirit of the changes proposed in this legislation must result in the majority of the staff coming from outside the current confines. Is that something we could try to prescribe on Report Stage? We are prescribing who may make up the quorum of a meeting. Could we also prescribe that the initial staff complement would include at least a majority of people who did not previously work for the other agencies? While we are not putting a bar on staff from the Law Society of Ireland or the Bar Council applying for posts, for which some of them will be eminently qualified, we should try to ensure a majority of the staff at the new authority would be new. Can the Minister see some way of providing for that? Perhaps section 23 would be the most appropriate place in this regard. We must ensure, either in section 23 or section 24, that the authority will present a very fresh face and provide for a majority of new staff.

This is a new, independent body. The legal services regulatory authority will decide how to advertise for the majority of its staff. When the debate on this legislation took place in the Dáil and during the Second Stage debate in this House, it was clear that most if not all Members in both Houses felt that there was a case to be made, given the decades of experience among the staff in the Law Society of Ireland in dealing with complaints and very complex legal issues and in the best interests of moving forward and having a seamless transition from one to the other, for ensuring some staff who handle complaints under the auspices of the complaints committee of the society, which operates independently, would transfer to the new authority. Members argued that we should make arrangements to transfer a limited number of staff to the authority so as not to lose their expertise. That expertise will be built on and there will be other staff, independent senior management and an independent board made up of the representatives to whom I have referred. Furthermore, the board will have a lay majority.

To answer some of the more detailed questions, the intention is that staff will preserve their current terms and conditions and will map onto a moderate public service grade. That will be done by ministerial order. It is a question of expertise in this area and transferring that to the new authority. That is the key issue. We are talking about a small number of people out of the total staff of the legal services regulatory authority. As I said, there was much agreement across both Houses that this was desirable in the interests of best practice and a smooth transition.

I would make the point again that there will be a lay majority on the board. There will also be representatives from the Competition and Consumer Protection Commission, the Legal Aid Board and other bodies, as well as independent management. While the staff concerned gained their expertise while working in another setting, they will be under independent management and an independent regulator.

Question put and agreed to.
Sections 25 to 27, inclusive, agreed to.
SECTION 28

Amendments Nos. 31 to 33, inclusive, are related and may be discussed together.

I move amendment No. 31:

In page 32, line 19, after “Authority” to insert “subject to the approval of the Competition and Consumer Protection Commission”.

This amendment was tabled in the context of guarding the guardians, so to speak. The authority should not have the power to increase fees without any checks and balances, which could be provided by the Minister or by the Competition and Consumer Protection Commission. It is not a major issue but a point I would put to the House for discussion. Amendments Nos. 32 and 33 properly belong to the Minister.

Amendments Nos. 32 and 33 are Government amendments which are intended to reflect the fact the new authority, which is to be self-funding by means of a levy on the legal professions it is regulating, will have clear discretion to use any fees it raises in support of carrying out its functions independently under the Bill. I would like to mention at this point that I may come back with a proposal on Report Stage to delete subsection (3) of section 28. The new authority will be funded through its levy rather than through the Exchequer, save for some start-up support being provided on a recoupable basis.

In the context of Senator Barrett's amendment, the new authority must be able to charge and recover fees without being subject to the approval of an external body or group which may have an interest in its remit.

Amendment, by leave, withdrawn.
Government amendment No. 32:
In page 32, line 30, to delete “Fees received under this Act” and substitute “Subject to subsection (4), fees received under this Act”.
Amendment agreed to.
Government amendment No. 33:
In page 32, between lines 31 and 32, to insert the following:
“(4) Fees prescribed under Part 8 and paid to the Authority may be used by the Authority to meet the costs it incurs in carrying out its functions under that Part.”.
Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 agreed to.
Sections 30 and 31 deleted.
Section 32 agreed to.
SECTION 33

Amendments Nos. 34 to 38, inclusive, are related and may be discussed together.

I move amendment No. 34:

In page 35, between lines 25 and 26, to insert the following:

“(d) the right of direct access to a barrister other than through a solicitor;”.

This amendment deals with territory we have already been over in the context of the work programme of the new body. Education and training is first, followed by subsection (1)(b) on unification. Subsection (1)(c) deals with the creation of the new profession of conveyancer. We have discussed the urgency of that provision, given that some studies would indicate there are significant differences in the costs for that service between the United Kingdom and here. In that context, I suggest that this provision be moved up the list. My amendment proposes a new subsection (1)(d) which gives the consumer the right of direct access to a barrister other than through a solicitor. This issue has been mentioned by the Competition Authority as one of the restrictive practices in this area but it is not on the work programme of the body as outlined in section 33(1). Will the Minister consider this proposal to address one of the traditional restrictive practices identified in this area?

The right of audience is currently very restricted. I gather we have a surplus of barristers who are available and have the necessary skills and qualifications. Why can people not approach them directly? Would that have a good impact on cost? That is the purpose of amendment No. 34.

Amendment No. 35 reflects the concern that, as legal services are developing, they are becoming increasingly oligopolistic, dominated by three or four firms. Senator O'Donovan has referred to that. It will damage the cost structure of the sector. It is a matter of increasing worry in respect of the economics of the professions. I gather that all but one company on the FTSE 100 are audited by the "big four" accountants. The concentration of a small number of legal firms, from three to five depending on how one measures them, should be a matter of concern to the authority as it sees how the sector is developing. Amendment No. 35 seeks to address this issue.

Amendment No. 36 is one we have discussed already. It covers the question of whether the work programme can be brought forward, earlier than in two years. As we have mentioned, the two-year period is specified to deal with the education of the legal profession.

Amendment No. 38 concerns "reports on the creation of a new professional conveyancer, including the conduct of conveyancing by other professions, the extent of monopolistic provision of legal services in the State and the right of direct access to a barrister", rather than through a solicitor. The reference in the amendment to "other than through a barrister" is a mistake on my part but what I am trying to say is implicit. Should the work programme that is envisaged have different priorities after Members of the Seanad and the wider public have expressed their views? Conveyancing is urgent, as is the right of audience. I found, in preparing for this debate, that there is concern over the increasingly monopolistic concentration ratio, as mentioned by Senator O'Donovan. I refer to the dominance of the sector by the big firms. There is concern in the National Competitiveness Council about the high cost of legal fees. Can we introduce more competition into conveyancing? The Minister referred to this earlier. Can we use the stock of barristers better by allowing people to approach them directly?

We have already discussed the issue of conveyancing. I have said to the Senator that I will revert to him on this on Report Stage having examined it. I take the points the Senator makes. Obviously, I will have to proceed while taking into consideration the range of other reports requested and the sort of sequencing that exists. I do not want to swamp a new authority with responsibility for producing many different reviews in a very short period, particularly in the first year. I will certainly examine the conveyancing issue. The Senator has made a very strong case in that regard. Let me see what I can do about it.

Section 86 of the Bill already provides for direct access to barristers. As the Senator knows, in non-contentious matters there is statutory provision in this regard for the first time, and that is important. The creation of the new legal partnerships, which will be up and running in 2016 after the six-monthly report, also deals with the question of access. There is to be statutory recognition and regulation for the first time of the 100 barristers who operate outside the Bar Council and whose number is probably increasing. This also deals with that issue of access. However, we have said the LSRA should carry out a review of this. That is provided for. I hope that gives the Senator an idea of the approach we have been taking to this issue.

That we are now dealing with limited liability is supportive of smaller firms, particularly of solicitors, many of whose practices have actually wanted to merge around the country in order to provide what might be regarded as a more comprehensive service. The chance of this happening will improve with limited liability, and that will make for more competition and probably a better service and access, or a different service and different form of access than we have at present. I do not intend to accept the amendments and hope the Senator will accept the points I am making.

I thank the Minister. What she said is most interesting.

An allied concern is that if we have law firms, access to law might become more difficult. If we allowed correct access to barristers, it might become less difficult. That should be considered. Will the firms with large numbers of partners comprise a means of excluding those on low or below-average incomes from gaining access to the law? There is concern over corporatisation. However, I thank the Minister for her most interesting and informative responses on my amendments. I will not be moving amendments Nos. 35 to 38, inclusive.

Government amendment No. 40:

In page 38, between lines 7 and 8, to insert the following:

“Inspection on direction of Authority

37. An inspector shall, upon the direction of the Authority, have power to carry out an inspection in accordance with section 38

(a) for the purpose of an investigation of any complaint made or deemed to be made under this Act, or

(b) to ensure compliance by a legal practitioner with—

(i) any requirements imposed by this Act on the practitioner,

(ii) any regulations made under this Act applicable to the practitioner,

(iii) any code of practice issued under section 20,

and

(c) for the purpose of the Authority exercising its power under section 42(7).”.

Government amendment No. 45:

In page 38, between lines 7 and 8, to insert the following:

“Report to Authority in certain circumstances following inspection

42. (1) An inspector shall, where an inspection relates to paragraph (b) or (c) of section 37, prepare and furnish a report in writing to the Authority of the inspection within 21 days of completion of the inspection.

(2) A report prepared under subsection (1) shall, where an inspection relates to paragraph (b) of section 37, include a statement by the inspector as to whether he or she has found evidence of failure to comply with any of the matters set out in subparagraphs (i), (ii) or (iii) of that section.

(3) A report prepared under subsection (1) shall, where an inspection relates to paragraph (c) of section 37, include a statement by the inspector as to whether he or she has found evidence of an act or omission that may constitute misconduct (within the meaning of section 41(1)) on the part of a legal practitioner.

(4) The Authority shall refer the report of an inspector under this section to the officer of the Authority referred to in subsection (3) of section 42 for his or her consideration in accordance with that subsection.

(5) An inspector may, if he or she considers it necessary to do so, make an interim report to the Authority in respect of any matter arising in the course of the inspection being carried out by him or her.

(6) The Authority shall refer an interim report of an inspector under this section to the officer of the Authority referred to in subsection (3) of section 44 for his or her consideration in accordance with that subsection.”.

Amendment agreed to.

Section 38 deleted.

Amendment, by leave, withdrawn.
Amendments Nos. 35 to 38, inclusive, not moved.
Section 33 agreed to.
Sections 34 and 35 agreed to.
NEW SECTIONS
Government amendment No. 39:
In page 38, between lines 7 and 8, to insert the following:
“PART 3
INSPECTIONS - LEGAL PRACTITIONERS
Inspectors
36. (1) For the purposes of this Act, the Authority may appoint such and so many—
(a) members of its staff as it thinks fit to be inspectors for such period and subject to such terms as the Authority may determine,
(b) other persons as it thinks fit to be inspectors for such period and subject to such terms (including terms as to remuneration and allowances for expenses) as the Authority, with the approval of the Minister and consent of the Minister for Public Expenditure and Reform, may determine.
(2) A person appointed to be an inspector under this section shall on his or her appointment be furnished with a warrant of appointment by the Authority and when exercising a power conferred by this Act shall, when requested by any person
affected, produce such warrant or a copy thereof, together with a form of personal identification, to that person.
(3) The Authority may revoke any appointment made by it under subsection (1).
(4) An appointment or revocation under this section shall be in writing.
(5) The appointment of a person as an inspector under subsection (1) ceases—
(a) on the revocation of the appointment by the Authority,
(b) in a case where the appointment is for a specified period, on the expiration of that period,
(c) on the resignation of that person from the appointment, or
(d) where the person was appointed under subsection (1)(a), where that person ceases to be a member of staff of the Authority.”.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 41:
In page 38, between lines 7 and 8, to insert the following:
“Powers of Inspectors
38. (1) For the purposes set out in section 37, an inspector may—
(a) subject to subsections (2) and (4), enter and inspect any place—
(i) which he or she reasonably believes is being used to carry on the business of a legal practitioner,
(ii) at which he or she has reasonable grounds for believing records or documents relating to the business of a legal practitioner are being kept,
(b) at such place inspect and take copies of any books, records, accounts or other documents (including books, records, accounts or documents stored in non-legible form), or extracts therefrom, that he or she finds in the course of his or her inspection,
(c) require—
(i) any legal practitioner who carries on the business of a legal practitioner in the place concerned, or
(ii) any person at the place concerned, including the owner or person in charge of that place,
to produce to the inspector such books, records, accounts or other documents (and in the case of documents stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s possession or procurement, or under that person’s control, as that inspector may reasonably require for the purposes of his or her functions under this Act,
(d) subject to an order being obtained for such purpose from the High Court under section 39, seize and retain any such books, records, accounts or other documents from such premises and take any other steps which appear to the inspector to be necessary for preserving or preventing interference with such books, records, accounts or other documents,
(e) where there is data equipment on the premises which the inspector reasonably believes is or has been used in connection with the business of the legal practitioner, require any person—
(i) who uses the data equipment or on whose behalf the data equipment is used, or
(ii) having charge of, or who is otherwise concerned with the operation of, such equipment,
to afford the inspector all reasonable assistance in relation to the operation of such equipment and any associated apparatus or material,
(f) subject to an order being obtained for such purpose from the High Court under section 39, to secure for later inspection such data equipment and any associated apparatus or material,
(g) subject to an order being obtained for such purpose from the High Court under section 39, secure for later inspection the place or any part of the place, for such period as may reasonably be necessary for the purpose of exercising his or her powers under this section,
(h) require—
(i) any legal practitioner who carries on the business of a legal practitioner in the place concerned, or
(ii) any person at the place concerned, including the owner or person in charge of that place,
to give the inspector such information and assistance as the inspector may reasonably require for the purposes of his or her functions under this Act,
(i) examine with regard to any matter under this Act any person whom the inspector has reasonable grounds for believing to be—
(i) a legal practitioner who carries on the business of a legal practitioner in the place concerned, or
(ii) employed by a person referred to in subparagraph (i),
and require the person to answer such questions as the inspector may ask relative to those matters and to make a declaration of the truth of the answers to those questions, and
(j) require a legal practitioner who carries on the business of a legal practitioner in the place concerned, or any person duly authorised by the legal practitioner in that behalf, to give such authority in writing addressed to such bank or banks as an inspector requires for the purpose of enabling the inspector to inspect any accounts held by that practitioner at such bank or banks and obtain copies of any documents relating to such accounts.
(2) An inspector may enter and inspect a place under subsection (1)—
(a) at any time during normal business hours with or without prior notice to the practitioner where an inspector reasonably believes that the business of a legal practitioner is carried on at that place or records or documents relating to the business of a legal practitioner are being kept at that place, and
(b) at any other time on reasonable notice to the practitioner.
(3) When performing a function under this Act, an inspector may, subject to any warrant under subsection (5), be accompanied by such number of other inspectors or members of the Garda Síochána as he or she considers appropriate.
(4) An inspector shall not enter a dwelling other than—
(a) with the consent of the occupier, or
(b) pursuant to a warrant under subsection (5).
(5) Upon the sworn information of an inspector, a judge of the District Court may—
(a) for the purposes of enabling an inspector to carry out an inspection of a place that the inspector has reasonable grounds for believing is being used for the carrying on of the business of a legal practitioner, or
(b) if satisfied that there are reasonable grounds for believing that information, books, records, accounts or other documents (including information, books, records, accounts or other documents stored in non-legible form) required by an inspector under this section relating to the business of a legal practitioner is or are held in any place,
issue a warrant authorising a named inspector accompanied by such other inspectors or members of the Garda Síochána as may be necessary, at any time or times, before the expiration of one month from the date of issue of the warrant, to enter the dwelling (if necessary by using reasonable force) and exercise the powers of an inspector under subsection (1).
(6) In this Part, “place” shall be construed in accordance with section 29 (inserted by section 1 of the Criminal Justice (Search Warrants) Act 2012) of the Offences Against the State Act 1939.”.
Amendment agreed to.
Government amendment No. 42:
In page 38, between lines 7 and 8, to insert the following:
“High Court order to exercise certain powers under section 38
39. The High Court may, on application to it in that behalf by the inspector concerned, make an order authorising that inspector, accompanied by such other inspectors or members of the Garda Síochána as may be necessary, to exercise his or her powers under paragraphs (d), (f) or (g) of section 38(1) where the Court is satisfied it is necessary for the purposes of section 37.”.
Amendment agreed to.
Government amendment No. 43:
In page 38, between lines 7 and 8, to insert the following:
“High Court direction to comply with inspection
40. (1) Where a person, without reasonable cause, fails, refuses or neglects to comply with a requirement of an inspector in the exercise of his or her powers under any of paragraphs (c), (e), (h), (i) or (j) of section 38(1), the Authority may, on notice to the person concerned, apply to the High Court for an order directing a person to comply with such requirement or requirements as the Authority considers necessary for the purposes of an inspection referred to in section 38.
(2) Where the person referred to in subsection (1) is not the legal practitioner in respect of whose business the inspection is concerned, the Authority shall, at the same time as notifying that person, notify that legal practitioner of the application.
(3) The High Court may make an order in the terms sought by the Authority under subsection (1) or such other order as the Court considers necessary for the purpose of such inspection.”.
Amendment agreed to.
Government amendment No. 44:
In page 38, between lines 7 and 8, to insert the following:
“Offences
41. (1) A person commits an offence if he or she—
(a) obstructs or interferes with an inspector or a member of the Garda Síochána in the course of exercising a power conferred on him or her by section 38 or a warrant under section 38(5) or impedes the exercise by the person or member, as the case may be, of such power,
(b) removes from a place referred to in paragraph (a) of section 38(1), or destroys, defaces or conceals, all or any part of his or her books, records, accounts or other documents (including books, records, accounts or other documents stored in nonlegible form) with intent to prevent, or interfere with, the exercise of a power of an inspector or member conferred on him or her by section 38, or
(c) fails or refuses to comply with a request or requirement of, or to answer a question asked by, the inspector or member pursuant to section 38, or in purported compliance with such request or requirement or in answer to such question gives information to the inspector or member that he or she knows to be false or misleading in any material respect.
(2) Where an inspector believes, upon reasonable grounds, that a person has committed an offence under this Part, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.
(3) A statement or admission made by a person pursuant to a requirement under paragraph (h) or (i) of section 38(1) shall not be admissible as evidence in proceedings brought against the person for an offence (other than an offence under subsection (1)).
(4) A person who commits an offence under this section is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.”.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 46:
In page 38, between lines 7 and 8, to insert the following:
“Admissibility of evidence obtained in course of inspection
43. Any report or interim report prepared under section 42 and any information or documents obtained in the course of an inspection under this Part may be admitted in evidence in any—
(a) proceedings in respect of a legal practitioner under Part 5, and
(b) investigation, inquiry or proceedings under the Solicitors Acts 1954 to 2015 in respect of a legal practitioner who is a solicitor.”.
Amendment agreed to.
Sections 36 and 37 agreed to.
NEW SECTIONS
Government amendment No. 47:
In page 39, between lines 24 and 25, to insert the following:
“Legal practitioners to have professional indemnity insurance
38. (1) A legal practitioner shall not provide legal services unless there is in force, in respect of such practitioner, at the time of the provision of such services, a policy of professional indemnity insurance which complies with—
(a) where a legal practitioner is a practising barrister, regulations made under section 39, or
(b) where a legal practitioner is a practising solicitor, regulations made under section 26 of the Act of 1994.
(2) A legal practitioner who provides legal services as a partner or employee of a legal partnership, a multi-disciplinary practice or a limited liability partnership shall be taken to comply with subsection (1) where at the time of provision of such services by the legal practitioner there is in place a policy of professional indemnity insurance in respect of the partnership or practice concerned which—
(a) complies with regulations made under section 26 of the Act of 1994 relating to practising solicitors in such partnerships or practices, and
(b) complies with regulations made under section 39 in respect of practising barristers in such partnerships or practices.
(3) The Authority may approve a group scheme of professional indemnity insurance for legal practitioners who are practising barristers where the scheme is provided under the aegis of a professional body and it is satisfied that the scheme complies with regulations made under section 39 in respect of practising barristers.
(4) Where at the time of provision of legal services, a legal practitioner who is a practising barrister is covered by a scheme approved by the Authority under subsection (3), he or she shall be taken to comply with subsection (1).
(5) A legal practitioner shall not knowingly make a false or misleading declaration of a material nature for the purpose of obtaining professional indemnity insurance.”.
Amendment agreed to.
Government amendment No. 48:
In page 39, between lines 24 and 25, to insert the following:
“Regulations regarding professional indemnity insurance
39. (1) The Authority shall make regulations in relation to the professional indemnity insurance required to be maintained by—
(a) practising barristers,
(b) legal partnerships, multi-disciplinary practices and limited liability partnerships (in this section referred to as “legal practices”) other than in relation to practising solicitors in such partnerships or practices.
(2) The Authority shall consult with each professional body before making regulations under this section.
(3) Regulations made under subsection (1) shall specify the practising barristers or legal practice to whom or to which the regulations apply and may specify circumstances in which practising barristers may be exempted from any requirements in relation to professional indemnity insurance in regulations made under this section.
(4) In making regulations under subsection (1) the Authority shall have due regard to the following objectives:
(a) ensuring that the interests of clients of practising barristers and legal practices are protected;
(b) encouraging the provision of legal services of a high standard by practising barristers and legal practices at a reasonable cost;
(c) ensuring that there is adequate consideration given, in setting professional indemnity insurance requirements, to any different levels of risk which may apply in respect of practising barristers or different legal practices;
(d) ensuring, in setting professional indemnity insurance requirements in relation to legal practices, that there is adequate cover in place in respect of each practising barrister and other person in the legal practice concerned in respect of whom such insurance is required to be in place.
(5) Without prejudice to the generality of subsection (1), regulations made under that subsection may—
(a) specify the matters or risks in respect of which insurance is to be maintained by practising barristers or legal practices to whom the regulations apply, and the Authority may specify different matters or risks in respect of which insurance is to be maintained in respect of practising barristers or different legal practices or both,
(b) by reference to a monetary amount, specify minimum levels of insurance which are to be maintained by a practising barrister or legal practice to whom the regulations apply and such amount may be specified by reference to—
(i) a type or category of claim, or
(ii) practising barristers or different legal practices,
(c) by reference to a monetary amount, specify the maximum excess amount which shall apply in respect of the insurance maintained by a practising barrister or legal practice as the case may be, and such amount may be specified by reference to—
(i) a type or category of claim, or
(ii) practising barristers or different legal practices, as the case may be,
and
(d) specify criteria to be met by persons offering such insurance as is required to be maintained and as respects the terms and conditions of such cover.
(6) Regulations made under subsection (1) may provide that the insurance required to be in place shall be considered as meeting the requirement if—
(a) the insurance is provided by an insurer or mutual fund approved by the Authority,
(b) the terms of the policy or other documentation effecting the insurance meet criteria specified in the regulations, and
(c) the wording of terms and conditions of the policy or insurance documentation is in a specified form.
(7) Regulations made under subsection (1) may include such incidental or supplementary provisions as appears to the Authority to be necessary.”.
Amendment No. 49 not moved.
Section 39 agreed to.
NEW SECTIONS

Amendments Nos. 50 to 60, inclusive, are related and may be discussed together.

Government amendment No. 50:
In page 41, between lines 22 and 23, to insert the following:
“PART 5
COMPLAINTS AND DISCIPLINARY HEARINGS IN RESPECT OF LEGAL PRACTITIONERS
Construction ( Part 5 )
40. (1) In this Part—
“barrister” means, in relation to a person who is the subject of a complaint under this Part—
(a) a practising barrister, or
(b) a person who, at the time of the act or omission to which the complaint relates, was a practising barrister;
“solicitor” means, in relation to a person who is the subject of a complaint under this
Part—
(a) a practising solicitor, or
(b) a person who, at the time of the act or omission to which the complaint relates, was a practising solicitor.
(2) For the purposes of this Part—
(a) the legal services provided to a person by a legal practitioner shall be considered as being of an inadequate standard where, by act or omission of the legal practitioner, the legal services actually provided by him or her—
(i) where the legal practitioner is a barrister, were inadequate in any material respect and were not of the quality that could reasonably be expected of him as a barrister, and
(ii) where the legal practitioner is a solicitor, were inadequate in any material respect and were not of the quality that could reasonably be expected of him or her as a solicitor,
(b) a reference to an amount of costs sought by a legal practitioner in respect of the provision of legal services means an amount of costs specified in a bill of costs issued by the legal practitioner concerned, and
(c) a reference to the resolution of a matter in an informal manner includes a reference to the referral of the dispute concerned to mediation or other appropriate form of dispute resolution.”.

We have discussed in detail the inspection issues. This is the situation where the Law Society under the oversight of the legal services regulatory authority will retain its existing investigative, protective and disciplinary powers in the financial regulation of solicitors under the Solicitors Acts. The Law Society will continue to oversee implementation of the solicitors' accounts regulations, to carry out routine financial inspections of solicitors, to investigate financial infringements and prosecute them before the newly set up Legal Practitioners Disciplinary Tribunal.

Part 5 of the Bill deals with complaints and discipline. They relate mainly to procedures, into which I have gone in some detail, to be followed by the authority in dealing with such issues. Amendment No. 50 inserts a new section 40 which includes various definitions.

Amendment No. 51 is an important provision which specifies what is meant by misconduct by legal practitioners in the context of this legislation. I did say earlier that an act of omission by a legal practitioner could be considered to be misconduct, of which there is a definition. The list of reasons has been discussed with the professional bodies and it includes: fraud and dishonesty; breaches of the Solicitors Acts; offences under this Bill; inadequate service; excessive costs; the commission of an arrestable offence; behaviour likely to bring the solicitors’ profession into disrepute; and behaviour likely to bring the barristers’ profession into disrepute.

Subsection (2) sets out the manner in which the complaints or disciplinary tribunal established under the Bill or the High Court in considering a matter of excessive costs can determine whether an act or omission should be considered as constituting misconduct. It is very important, consumer friendly and necessary to have it in the legislation. We often hear from individuals that certain acts were not carried out or followed through. The Bill deals with that issue.

Amendment No. 52 concerns the making of complaints under the Bill. It defines the three main reasons a person may complain to the authority: the act or omission of the legal practitioner constituted misconduct; the legal services provided by the legal practitioner were inadequate; and the amount of costs sought by the legal practitioner was excessive.

Subsection (2) provides that from the commencement of the Bill complaints may be made only to the authority. That is a major change in regulation. This gives the authority responsibility for the handling of all complaints against legal practitioners.

Subsection (3) makes it clear that where a report or an interim report of an inspector under Part 3 is received by the authority, an officer of the authority may make a complaint in respect of the legal practitioner.

Subsection (4) is a key provision which provides that where the Law Society, following an investigation under the Solicitors Acts, considers an act or omission of the legal practitioner constitutes misconduct, it must notify the authority. It has to bring any investigation where this is found to the attention of the authority and give its views on the circumstances such that the matter shall be deemed to be a complaint made by the Law Society. However, subsection (5) provides that subsection (4) shall not apply where the matter either constitutes a breach of, or is related to, an act or omission which constitutes a breach of the solicitors' accounts regulations.

Under subsection (6), the authority is required to notify the Law Society of any complaint received about a solicitor. That is extremely important.

Amendment No. 53 inserts a new section 43 which provides guidance on the referral of complaints by the professional bodies to the authority. It lays out the procedures they are to follow in sending complaints to the new regulatory authority. The section provides that following commencement of the Part where a client of a barrister makes a complaint to the Bar Council, the Honourable Society of the King's Inns or the Law Society, it shall be referred to the authority and the client shall be deemed to be the complainant.

Amendment No. 54 is a technical provision on the making of a complaint to the authority, that the period beginning on the making of a complaint to the authority and ending two months after the complaint is determined under this Part shall be disregarded in reckoning any period of time for the purposes of any limitation period in the making of an application for adjudication of a bill of costs under Part 10. That gives some leeway for the complaint to be considered rather than counting the time from the moment the complaint is made.

Section 45 provides that where a complaint is withdrawn but the authority considers it to be in the best interests of the public to do so, the authority may proceed or continue to deal with the complaint under this Part. This is quite important because if there is a public interest issue, even though the complaint is withdrawn, the authority can proceed to deal with it.

Amendment No. 56 is a key provision that gives the authority the power to make regulations regarding the making of a complaint and the procedures to be followed by the authority and the complaints committee in investigating such a complaint.

Amendment No. 57 is a standard provision which relates to fees for the submission of complaints and which provides that the authority may, by regulation and with the consent of the Minister for Public Expenditure and Reform, prescribe fees for the making of a complaint and circumstances where they may be refunded. How it handles complaints is dealt with in amendment No. 58.

Amendment No. 59 deals with the point Senator Denis O'Donovan raised about the fact that not all complaints received by the authority will be worthy of further investigation. This provision gives legislative standing to the principles on the admissibility of complaints received by the authority. The section lists a number of instances wherein the authority may determine that a complaint is inadmissible such as complaints that are vexatious or without substance or foundation. There has to be a clear way in law for the authority to deal with such complaints. Other instances arise where the act or omission to which the complaint relates is the same subject matter of a complaint previously determined under the Bill; the act or omission of a solicitor to which the complaint relates is substantially the same as a complaint previously determined by the High Court or the Law Society; the act or omission of a solicitor to which the complaint relates was the subject of criminal or civil proceedings in which a final determination was made by the court in favour of the solicitor. The section goes into the detail of the range of situations that will guide the legal services regulatory authority in dealing with a complaint. The authority may defer consideration of a complaint until a final determination, including any appeal, rehearing or retrial in civil or criminal proceedings, has been made. I am sure people will see that this makes absolute sense.

There is a section that allows the independent authority to request the Law Society to investigate any matter relevant to a complaint against a solicitor. Section 50 permits the authority, the complaints committee or the Legal Practitioners Disciplinary Tribunal to request, in relation to a complaint against a solicitor, that the Law Society carry out an investigation under the Solicitors Acts into any matter relevant to the complaint. The section further provides that the Law Society shall comply with the request and within one month of receiving the request furnish the authority with an interim report on the matter, together with an indication of when the final report will be available. The section makes it clear that any interim or final report of the Law Society shall be admissible in proceedings under this Part.

I have gone into a lot of detail on this section, but it is very important to be aware of what we are trying to do. It is a question of oversight and giving confidence to the public that there is a fair and equitable regime in place for complaints and disciplinary issues and that all of the detail has been covered in respect of instances of fraud or dishonesty, breaches of the Solicitors Acts, inadequate service, excessive costs and so forth that can now be dealt with by an independent body. There is also a role for the Law Society and the Bar Council, but this is an independent body which will deal with these issues.

Obviously, the compensatory fund will remain with the Law Society.

Government amendment No. 60:

In page 41, between lines 22 and 23, to insert the following:

“Authority may request Law Society to investigate matter relevant to complaint

50. (1) The Authority may, at any stage in its investigation under this Part of a complaint in respect of a solicitor, and for the purposes of the investigation, request the Law Society to carry out an investigation under the Solicitors Acts 1954 to 2015 into any matter that is relevant to the complaint.

(2) The Complaints Committee or Disciplinary Tribunal may, for the purposes of its consideration under this Part of a complaint, request the Law Society to carry out an investigation under the Solicitors Acts 1954 to 2015 into any matter that is relevant to that consideration.

(3) The Law Society, on receipt of a request under subsection (1) or (2), shall—

(a) comply with the request, and

(b) within one month of receipt of the request, or such later period as may be agreed between it and the Authority, provide the Authority with an interim report of its investigation and an indication of when its final report will be available.

(4) An interim report and final report of the Law Society referred to in subsection (3) shall be admissible in any proceedings under this Part.”.

Amendment agreed to.
Government amendment No. 51:
In page 41, between lines 22 and 23, to insert the following:
“Misconduct by legal practitioners
41. (1) An act or omission of a legal practitioner may be considered as constituting misconduct where the act or omission—
(a) involves fraud or dishonesty,
(b) is connected with the provision by the legal practitioner of legal services, which were, to a substantial degree, of an inadequate standard,
(c) where occurring otherwise than in connection with the practice of law, would justify a finding that the legal practitioner concerned is not a fit and proper person to engage in the provision of legal services,
(d) consists of an offence under this Act,
(e) in the case of a solicitor, consists of a breach of the Solicitors Acts 1954 to 2015 or any regulations made under those Acts,
(f) in the case of a solicitor, consists of an offence under the Solicitors Acts 1954 to 2015,
(g) in the case of a barrister, is likely to bring the barristers’ profession into disrepute,
(h) in the case of a solicitor, is likely to bring the solicitors’ profession into disrepute,
(i) in the case of a legal practitioner who is a managing legal practitioner of a multidisciplinary practice (within the meaning of those terms under Part 8), consists of a failure by him or her to comply with his or her obligations under this Act as a managing legal practitioner,
(j) consists of the commission of an arrestable offence,
(k) consists of the commission of a crime or offence outside the State which, if committed within the State, would be an arrestable offence,
(l) consists of seeking an amount of costs in respect of the provision of legal services, that is grossly excessive,
(m) consists of a breach of this Act or regulations made under it, or
(n) consists of a contravention of section 153(1).
(2) In determining whether an act or omission referred to in paragraph (l) of subsection (1) should be considered as constituting misconduct, the Authority, the Complaints Committee, the Disciplinary Tribunal or, as the case may be, the High Court may have regard to—
(a) the amount by which or the extent to which the amount claimed in the bill of costs was found to be excessive,
(b) whether in the particular circumstances of the legal services performed the amount of the bill of costs appears to be unconscionable, and
(c) whether or not a Legal Costs Adjudicator has found the costs charged to be grossly excessive.
(3) In this section “arrestable offence” has the same meaning as it has in the Criminal Law Act 1997.”.
Amendment agreed to.
Government amendment No. 52:
In page 41, between lines 22 and 23, to insert the following:
“Complaints under Part 5
42. (1) A person may, in writing and in accordance with this Part and regulations under section 46, make a complaint to the Authority in respect of a legal practitioner where the person considers that—
(a) an act or omission of the legal practitioner constitutes misconduct, or
(b) where the person is a client of the legal practitioner—
(i) the legal services provided to the person by the legal practitioner were or are of an inadequate standard, or
(ii) an amount of costs sought by the legal practitioner in respect of legal services provided to the person by the legal practitioner was or is excessive.
(2) Subject to section 43, on or after the coming into operation of this Part, a complaint to which subsection (1) applies may be made to the Authority only.
(3) An officer of the Authority, having considered an interim report or a report of an inspector under Part 3, may make a complaint under subsection (1) in respect of the legal practitioner concerned.
(4) Subject to subsection (5), where the Law Society, in the performance by it of its functions under the Solicitors Acts 1954 to 2015, forms the opinion that an act or omission of a solicitor constitutes misconduct, it shall, in such manner as may be prescribed, notify the Authority of its opinion, and such notification shall be deemed to be a complaint made by the Law Society under subsection (1).
(5) Subsection (4) shall not apply where—
(a) the act or omission concerned constitutes a breach of the Solicitors Accounts Regulations, or
(b) the Law Society is investigating, or proposes to investigate, a suspected breach of the Solicitors Accounts Regulations and is of the opinion that the circumstances of the act or omission means that it should be investigated by it as part of the investigation of the suspected breach.
(6) The Authority, on receipt of a complaint under subsection (1) that is made in respect of a solicitor (other than a complaint made, or deemed under this Part to have been made, or referred under section 43, by the Law Society), shall notify the Law Society of the complaint, which notification shall be accompanied by any documents relating to the complaint that are submitted by the complainant.
(7) Nothing in this section shall be construed as affecting the power of the Authority to investigate an act or omission of a legal practitioner where no complaint has been received by it in relation to that legal practitioner.
(8) This section and section 43 shall not operate to prevent the Authority or a person who is aggrieved by an act or omission of a legal practitioner seeking assistance from another person with a view to resolving the matter to which a complaint relates.”.
Amendment agreed to.
Government amendment No. 53:
In page 41, between lines 22 and 23, to insert the following:
“Referral of complaints by Bar Council, Honorable Society of King’s Inns, Law Society
43. (1) Where, on or after the coming into operation of this Part, a client of a barrister makes, to the Bar Council or the Honorable Society of King’s Inns, a complaint in respect of an act or omission of the barrister to which section 42(1) applies—
(a) the Bar Council or the Honorable Society of King’s Inns, as the case may be, shall refer the complaint to the Authority, and
(b) the complaint shall be deemed to be a complaint made by the client under section 42(1).
(2) Where, on or after the coming into operation of this Part, a client of a solicitor makes, to the Law Society, a complaint in respect of an act or omission of the solicitor to which section 42(1) applies—
(a) the Law Society shall refer the complaint to the Authority, and
(b) the complaint shall be deemed to be a complaint made by the client in accordance with section 42(1).
(3) Nothing in this section shall be construed as preventing the Bar Council, the Honorable Society of King’s Inns or the Law Society from making a complaint under section 42 in respect of a legal practitioner.”.
Amendment agreed to.
Government amendment No. 54:
In page 41, between lines 22 and 23, to insert the following:
“Limitation period
44. In reckoning any period of time for the purposes of any limitation period in relation to the making of an application for adjudication of a bill of costs under Part 10 which bill of costs is or has been the subject of a complaint under this Part, the period beginning on the making of a complaint to the Authority and ending 2 months after the complaint is determined under this Part shall be disregarded.”.
Amendment agreed to.
Government amendment No. 55:
In page 41, between lines 22 and 23, to insert the following:
“Withdrawal of complaint under Part
45. Where a complaint made in accordance with this Part is withdrawn, the Authority may, notwithstanding the withdrawal, where it considers it to be in the public interest to do so, proceed or, as the case may be, continue to deal with the complaint in accordance with this Part.”.
Amendment agreed to.
Government amendment No. 56:
In page 41, between lines 22 and 23, to insert the following:
“Regulations regarding complaints
46. (1) The Authority may make regulations regarding—
(a) the making of complaints to the Authority under this Part, and
(b) the procedures to be followed by the Authority and the Complaints Committee in investigating complaints under this Part.
(2) Without prejudice to the generality of subsection (1), regulations made under this section may provide in particular for the extension or abridgement by the Authority or the Complaints Committee of any period specified in the regulations for the doing of any thing, where the Authority or the Complaints Committee is satisfied that the extension or abridgement is appropriate and would not cause an injustice to the other parties to the complaint.
(3) The Authority shall, in making regulations under this section, have as an objective that the manner in which complaints may be made, and the procedures to be followed by the complainant, the legal practitioner concerned and the Authority are as informal as is consistent with the principles of fair procedures and that undue expense is not incurred by the complainant or the legal practitioner concerned in relation to the complaint.”.
Amendment agreed to.
Government amendment No. 57:
In page 41, between lines 22 and 23, to insert the following:
“Fees in respect of complaints
47. The Authority may, with the consent of the Minister for Public Expenditure and Reform, make regulations prescribing the fee (if any) payable in respect of making a complaint under this Part and the regulations may specify the circumstances in which the fee shall be refunded.”.
Amendment agreed to.
Government amendment No. 58:
In page 41, between lines 22 and 23, to insert the following:
“Preliminary review of complaints
48. (1) Where the Authority receives a complaint under this Part, it shall conduct a preliminary review of the complaint to determine whether or not the complaint is admissible under section 49.
(2) The Authority, for the purpose of its preliminary review under subsection (1), shall notify the legal practitioner concerned of the complaint, which notification shall request the legal practitioner to respond to the Authority, within such reasonable period as is specified in the notification, with his or her observations on the complaint.
(3) A notification under subsection (2) shall be accompanied by a copy of the complaint and any documents relating to the complaint that are submitted by the complainant.
(4) The Authority, for the purpose of determining whether a complaint is admissible under section 49, may request from the complainant or the legal practitioner further information relating to the complaint.
(5) The Authority, having considered the response (if any) of the legal practitioner to the notification under subsection (2) and any information received under subsection (4), shall determine that the complaint is—
(a) admissible,
(b) inadmissible, or
(c) one to which section 49(5) applies.
(6) The Authority shall notify the complainant and the legal practitioner concerned of its determination under this section and of the reasons for its determination.
(7) Where the Authority makes a determination referred to in subsection (4)(b), it shall take no further action under this Part in relation to the complaint.”.
Amendment agreed to.
Government amendment No. 59:
In page 41, between lines 22 and 23, to insert the following:
“Admissibility of complaints
49. (1) The Authority shall determine a complaint under this Part to be inadmissible, if in the opinion of the Authority the complaint is—
(a) frivolous or vexatious, or
(b) without substance or foundation.
(2) The Authority shall determine a complaint under this Part to be inadmissible where it is satisfied that the act or omission to which the complaint relates is the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that legal practitioner which was previously determined under this Act.
(3) The Authority shall determine a complaint under this Part that is made in respect of a solicitor to be inadmissible where it is satisfied that the act or omission to which the complaint relates is—
(a) the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that solicitor which was previously determined under the Solicitors Acts 1954 to 2015—
(i) by the High Court, or
(ii) by the Law Society or any of its Committees or Tribunals,
or
(b) the same or substantially the same act or omission as that which was the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has been made by the court in those proceedings in favour of the solicitor concerned.
(4) The Authority shall determine a complaint under this Part that is made in respect of a barrister to be inadmissible where it is satisfied that the act or omission to which the complaint relates is—
(a) the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that barrister which was previously determined by the Barristers’ Professional Conduct Tribunal or the Honorable Society of King’s Inns, or
(b) the same or substantially the same act or omission as that which was the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has been made by the court in those proceedings in favour of the barrister concerned.
(5) (a) Where the Authority is satisfied that the act or omission to which a complaint relates is the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has not been made by the court in those proceedings, the Authority may defer consideration under this Part of the complaint until the proceedings have been finally determined.
(b) Where the Authority is satisfied that the act or omission to which a complaint relates has been investigated by a court in civil proceedings or criminal proceedings and that a final determination of the issues which are, in substance, the issues involved in the complaint has been made by the court in those proceedings in favour of the legal practitioner concerned, the Authority may decide to take no action or no further action in relation to the complaint.
(c) Proceedings shall not be regarded as finally determined for the purposes of paragraph (a) or (b) until any appeal, rehearing or retrial in relation to those proceedings has been determined.
(6) In this section, “Barristers’ Professional Conduct Tribunal” means the body of that name constituted in accordance with the Disciplinary Code for the Bar of Ireland.”.
Amendment agreed to.
Amendment agreed to.

Amendments Nos. 61 to 67, inclusive, and 93 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 61:
In page 41, between lines 22 and 23, to insert the following:
“Authority to facilitate resolution of complaints made under this Part relating to inadequate services
51. (1) Where the Authority—
(a) decides under section 49 that a complaint to which section 42(1)(b)(i) applies is admissible, and
(b) is of the opinion that the matter the subject of the complaint is capable of being resolved in accordance with this section,
the Authority shall invite the client and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint in an informal manner.
(2) Where the client and the legal practitioner agree to the Authority’s invitation under subsection (1), and request the Authority to do so, the Authority shall facilitate the resolution of the matter—
(a) by offering its assistance in resolving it in an informal manner, or
(b) by identifying to the legal practitioner and the client other persons who are willing to assist in resolving the matter in an informal manner.
(3) Where the Authority, having allowed the client and the legal practitioner a reasonable period to resolve the matter the subject of the complaint in an informal manner, considers that an agreement or resolution between the parties in relation to the complaint is unlikely to be reached in that manner, it may give notice in writing to the client and the legal practitioner (and, where appropriate, any other person involved in attempting to resolve the dispute) that it proposes to determine the complaint in accordance with this section.
(4) Where subsection (3) applies, the Authority shall not determine the complaint concerned earlier than 30 days after the giving of notice under that subsection.
(5) Where—
(a) the client or the legal practitioner does not accept the Authority’s invitation under subsection (1),
(b) the client or the legal practitioner, having attempted to resolve the matter in an informal manner, confirms to the Authority that he or she does not wish to continue to make such an attempt, or
(c) the Authority decides under subsection (3) to exercise its power to determine the complaint under this section,
the Authority shall thereafter invite the client and the legal practitioner to furnish to it, within such reasonable period as is specified by the Authority, a statement setting out their respective positions in relation to the matter the subject of the complaint.
(6) The Authority shall consider any statement furnished to it pursuant to subsection (5) and, where it considers that the legal services provided by the legal practitioner were of an inadequate standard, and that it is, having regard to all the circumstances concerned, appropriate to do so, the Authority may direct the legal practitioner to do one or more of the following:
(a) secure the rectification, at his or her own expense or at the expense of his or her firm, of any error, omission or other deficiency arising in connection with the legal services concerned;
(b) take, at his or her own expense or at the expense of his or her firm (which shall not exceed €3,000), such other action as the Authority may specify;
(c) transfer any documents relating to the subject matter of the complaint to another legal practitioner nominated by the client, subject to such terms and conditions as the Authority may consider appropriate having regard to the existence of any right to possession or retention of any of the documents concerned vested in the legal practitioner to whom the direction is issued;
(d) pay to the client a sum not exceeding €3,000 as compensation for any financial or other loss suffered by the client in consequence of the legal services provided by the legal practitioner to the client being of an inadequate standard.
(7) Where the client or the legal practitioner is aggrieved by a direction made by the Authority under subsection (6) or its failure to make such a direction the person aggrieved may by notice in writing given not more than 30 days after the Authority has notified the parties to the complaint of its decision under subsection (6), seek a review by the Review Committee established under section 53 of the direction or the failure.
(8) Any payment made by a legal practitioner pursuant to a direction referred to in subsection (6)(d) shall be without prejudice to any legal right of the client.”.

I wish to go through these amendments. Basically, these are the Parts of the Bill that deal with the range of areas concerning the efforts the authority will make to facilitate resolution of complaints. For example, amendment No. 61 permits the authority to seek resolution of complaints relating to inadequate service. Amendment No. 62 allows the authority to consider excessive costs. The purpose of amendment No. 63 is to set up a mechanism within the regulatory authority to enable a review committee to consider reviews requested by a party to a determination of the authority under sections 51 or 52 and it lays down the membership of that review. Amendment No. 64 allows the authority the power to offer assistance where it is considered that the conduct of the legal practitioners could constitute misconduct. In this regard, I note that I may table a further amendment on Report Stage with regard to the definition of misconduct that will apply and perhaps in respect of some related matters. For the information of Members, I also intend to table some further amendments on Report Stage to deal with the legal issues regarding the precise transition arrangements, new regimes and cut-off dates as to when the new definitions of misconduct etc. will apply. I will deal with this on Report Stage. Amendment No. 66 is about the admissibility of various statements and amendment No. 67 inserts a new section 57, which specifies that the authority shall prepare and publish guidelines on the manner in which the resolution of complaints by informal means may be conducted.

I stated at the outset of this debate that when it comes to considering complaints, there will be a form of triage system. In the first instance, one must establish whether the complaint is admissible and I have said quite a bit about that. Second, there will be a triage system and then there will be the assessment of the complaint. This may or may not go to the disciplinary tribunal and this section is to describe how the resolution of complaints by informal means will be conducted. Senator Barrett will appreciate why I cannot accept his proposed amendment No. 93. As it is set out, it would defeat access to the informal resolution of excessive fee complaints it is intended to make available to the public under the current text of the Bill. The purpose of the informal complaints track is to provide an alternative to the taxation of costs, as this can be a costly or cumbersome option for members of the public to pursue. This informal option does not prevent a legal practitioner from being subject to a complaint of misconduct about grossly excessive fees. I hope that clarifies matters.

As Minister stated, this pertains to setting up the procedure to deal with the costs aspects. If there is a known referee, the Taxing Master as was, and the chief legal costs adjudicator, it might help the process to be able to state that while the two parties can continue having this argument, the adjudication is that costs were X amount. It is a suggestion to the Minister that it may be useful to have a referee present. Would this prevent prolonged discussions, if the two parties could identify a person who can give them a verdict on this matter and could decide to not use up valuable legal time having debates about it? It would be great to have a referee who would be available to be frequented, were the parties to so desire, and it is a question of whether to point them in that direction. I will not press the amendment but that which I have outlined is the idea behind it. We have a service that can solve these disputes by stating the bill is X and has been independently adjudicated and this might short-circuit longer debates and arguments. However, I will not move the amendment and I thank the Minister for her response.

It might be helpful were I to inform the Senator that the legal services regulatory authority, LRSA, will have the potential to refer directly. Consequently, this can be done to the new body that replaces the Taxing Master.

I thank the Minister.

I wish to ask a question of the Minister. Members are being snowed under with paper and, in that context, I hope I am reading the amendment booklets correctly. Amendment No. 63 provides for the make-up of the review committee and outlines the work it will do. Will it be necessary to make provision for a reporting timescale for such reviews? The amendment makes provision for who will sit on the review committee, its make-up and so on. Is there an indication here or elsewhere as to a timeframe for the review committee to make a recommendation? Could such a timeframe be considered?

I would be inclined to leave that to the management of the legal services regulatory authority. Obviously, these reviews could vary in terms of substance in that some could be relatively straightforward whereas others might be more complicated. It will consist of three members, two of whom shall be lay members. Where the complaint refers to a solicitor, one member of the committee shall be a solicitor, while where the complaint relates to a barrister, one member shall be a barrister. The eligibility is also outlined. In respect of the range of tasks with which this body must deal, I must state my reluctance to consider changes. Perhaps this matter should be examined as part of the two-year review, when one will be able to see how many cases were referred, what was the scale involved, whether there was a question of reviews backing up or something similar and whether a new method or more people were needed on the review committee. I suggest this might be best done after the two-year review.

Amendment agreed to.
Government amendment No. 62:
In page 41, between lines 22 and 23, to insert the following:
“Authority to facilitate resolution of complaints made under this Part relating to excessive costs
52. (1) Where the Authority—
(a) decides under section 49 that a complaint to which section 42(1)(b)(ii) applies is admissible, and
(b) is of the opinion that the matter the subject of the complaint is capable of being resolved, in accordance with this section,
the Authority may invite the client and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint.
(2) Where the complainant and the legal practitioner agree to make efforts to resolve the matter the subject of the complaint the Authority shall facilitate the resolution of the matters the subject of the complaint—
(a) by offering its assistance in resolving the matter in an informal manner, or
(b) by identifying other persons to the legal practitioner and the client who are willing to assist in resolving the matter in an informal manner.
(3) In reckoning any period of time for the purposes of any limitation period in relation to the making of an application for adjudication of a bill of costs under Part 10 which bill of costs is or has been the subject of a complaint under this Part, the period beginning on the making of a complaint to the Authority and ending 2 months after the complaint is determined under this Part shall be disregarded.
(4) Where pursuant to this section a dispute regarding a bill of costs between the client and the legal practitioner is resolved the client shall not thereafter be entitled to seek adjudication of the bill of costs under Part 10 unless such adjudication forms part of the resolution.
(5) Having facilitated the resolution of the complaint pursuant to subsection (2) and having allowed the client and the legal practitioner a reasonable period to resolve the matter the subject of the complaint, the Authority, where it considers that an agreement or resolution between the parties in relation to the complaint is unlikely to be reached, may give notice in writing to the client and the legal practitioner (and where appropriate any other person involved in attempting to resolve the dispute) that it proposes to conclude the dispute resolution process.
(6) The Authority shall not conclude the dispute resolution process under this section earlier than 30 days after the giving of notice under subsection (5).
(7) Where the Authority concludes the dispute resolution process under subsection (5), the complaint shall be deemed to be determined.
(8) Where a complaint under this section is deemed pursuant to subsection (7) to be determined such determination shall be without prejudice to any legal right of the client.”.
Amendment agreed to.
Government amendment No. 63:
In page 41, between lines 22 and 23, to insert the following:
“Review Committee
53. (1) The Authority shall establish a Review Committee to consider reviews requested by complainants or legal practitioners in relation to determinations of the Authority under section 51 or 52.
(2) The Review Committee shall be composed of 3 persons, 2 of whom shall be lay persons and one of whom shall be a legal practitioner.
(3) The member of the Review Committee who is a legal practitioner shall—
(a) in a case where the complaint relates to a solicitor, be a solicitor, and
(b) in a case where the complaint relates to a barrister, be a barrister.
(4) A person shall be eligible to serve as a member of a Review Committee established under this section if he or she is eligible to serve as a member of the Complaints Committee established under this Part.
(5) The Review Committee shall consider reviews requested and, having given both the client and the legal practitioner an opportunity to make a statement in writing to it as to why the determination of the Authority under section 51 or 52, as the case may be, was incorrect or unjust, determine the review by—
(a) confirming the determination of the Authority,
(b) finding that the complaint is not well founded, or
(c) issuing one or more than one of the directions to the legal practitioner that the Authority is authorised to issue under section 51(6).
(6) Any payment made by a legal practitioner pursuant to a direction referred to in subsection (5) shall be without prejudice to any legal right of the client.”.
Amendment agreed to.
Government amendment No. 64:
In page 41, between lines 22 and 23, to insert the following:
“Authority to offer assistance in resolving matter in dispute where it appears that conduct could constitute misconduct
54. (1) Where the Authority—
(a) decides that a complaint under section 42(1)(a) is admissible, and that the act or omission of the legal practitioner, if the complaint were substantiated, is such that the act or omission concerned could constitute misconduct within the meaning of section 41(1)(b), and
(b) is of the opinion that the matter the subject of the complaint is capable of being substantially resolved by the legal practitioner concerned in a prompt manner in accordance with guidelines published by the Authority pursuant to section 57,
the Authority may invite the client and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint.
(2) The agreement by the complainant and the legal practitioner to make efforts to resolve the matter the subject of the complaint shall not prevent the Authority continuing with its consideration or investigation of the complaint.
(3) Notwithstanding subsection (2), where the Complaints Committee, the Disciplinary Tribunal or the High Court is satisfied that an act or omission of a legal practitioner the subject of a complaint has been resolved or that proper effort was made by the legal practitioner concerned to resolve the matter in accordance with this section, the Complaints Committee, Disciplinary Committee or the High Court, as the case may be, shall, in determining the appropriate sanction (if any) that should be imposed upon the legal practitioner, give due regard to the efforts to resolve the matter made by the legal practitioner concerned.”.
Amendment agreed to.
Government amendment No. 65:
In page 41, between lines 22 and 23, to insert the following:
“Resolution of complaint by mediation or informal means-additional provisions
55. (1) No answer or statement made, in the course of attempting to resolve a complaint in the manner specified in section 51, 52 or 54, by—
(a) the complainant, or
(b) the legal practitioner who is the subject of the complaint,
may be used in any disciplinary, civil or criminal proceedings or communicated to any person other than the persons participating in the attempt to resolve the complaint.
(2) Any costs arising from an attempt to resolve a complaint in the manner specified in section 51, 52 or 54 shall be borne equally by the parties to the complaint unless the parties agree otherwise.”.
Amendment agreed to.
Government amendment No. 66:
In page 41, between lines 22 and 23, to insert the following:
“Agreement by legal practitioner to participate in resolution of matter under section 51 , 52 or 54 not to be treated as admission of liability
56. An agreement by a legal practitioner who is the subject of a complaint to attempt to resolve the complaint in the manner referred to in section 54 shall not be taken as an admission of any allegation of misconduct insofar as such misconduct consists of an act or omission of the legal practitioner that in the provision of legal services the legal practitioner has fallen short to a substantial degree of the standards reasonably expected of a legal practitioner.”.
Amendment agreed to.
Government amendment No. 67:
In page 41, between lines 22 and 23, to insert the following:
“Guidelines for resolution of complaints by mediation or informal means
57. The Authority shall prepare and publish guidelines in relation to the resolution of complaints by mediation or informal means and those guidelines may—
(a) set out the process whereby a determination can be made in respect of whether a complaint can be resolved by mediation or informal means,
(b) provide for the recording of the manner in which a complaint was resolved and of the terms of any agreement between the complainant and the legal practitioner the subject of the complaint,
(c) outline the steps to be taken (including notice to the complainant, the legal practitioner concerned and the Complaints Committee) if the complaint cannot, in the opinion of the person attempting to do so, be resolved by mediation or informal means, and
(d) contain any other matters that the Authority considers necessary or appropriate for facilitating the resolution of the complaint by mediation or informal means.”.
Amendment agreed to.

Amendments Nos. 68 to 73, inclusive, and Nos. 94 to 96, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 68:
In page 41, between lines 22 and 23, to insert the following:
“Authority to refer complaints relating to misconduct to Complaints Committee
58. The Authority shall refer a complaint under section 42(1)(a) to the Complaints Committee where—
(a) it decides under section 49 that the complaint is admissible, and that section 54(1)(b) does not apply to the complaint, or
(b) where section 54(1)(b) applied to the complaint, a client and legal practitioner do not succeed in resolving a matter in accordance with section 54.”.

This group of amendments deals with the establishment and procedures of a new complaints committee. Amendment No. 68 is a key provision which obliges the authority to refer a complaint to the complaints committee where it has determined that the complaint is an admissible complaint, and we have already discussed the range of areas where a complaint can be made or where the matter has not been resolved in accordance with the informal procedures. This amendment deals with the way that will be handled. The membership of the complaints committee is outlined in detail.

Amendment No. 70 inserts a new section 60 relating to the investigation of complaints referred by the authority to a divisional committee. It gives details of the exact procedures that must be followed when referring the authority to the divisional committee and the duties of a divisional committee regarding an investigation. Where the committee considers that the complaint could be resolved under sections 51 or 52, it shall refer the complaint to the authority for further action. The options available to the divisional committee are spelt out in the legislation also. There is also a subsection that provides that where the committee considers that the act or omission warrants the imposition of a sanction, it may issue a direction to the legal practitioner to take such measures as the committee considers appropriate. It goes into all the details of how complaints will be dealt with, the sanctions that can apply, the action that can be taken and the way the committee will work.

There is a list of measures which may be imposed by the committee. I would bring the attention of Senators to those, a number of which I will read out. They include a direction to the practitioner to perform or complete the legal service concerned; a direction to arrange for the completion of the legal service; a direction to complete specified modules of continuing professional development, which is looking at the professional development issue; a direction to the practitioner to put aside all fees that were associated with the legal service; a direction to the practitioner to refund all or some of the fees already paid for the legal service; a direction to the practitioner to take any other action in the interest of the complainant; a direction to withdraw or amend an advertisement; a direction to pay a sum not exceeding €5,000 as compensation; a direction to pay to the authority a sum to cover the costs of the investigation; and a direction to pay to the authority an additional sum where the practitioner did not co-operate with the committee. A range of issues are dealt with in those measures. There is also the section that deals with appeals to the disciplinary tribunal by legal practitioners against determination of the divisional committee or a sanction imposed by a divisional committee.

Section 63 provides that the authority shall, every six months, which I believe is an appropriate timeframe, publish a report outlining the number and type of complaints received, which is why I said there is transparency in this Bill; the nature and outcome of the complaints; the number of complaints referred to the complaints committee; and the number of those complaints which were determined by the complaints committee, including details on sanctions imposed.

While I appreciate the intentions behind Senator Barrett's amendments, I do not propose to accept them because the number of members and the divisions of the new complaints committee of the Regulatory Authority is intended to facilitate the efficient processing of the thousands of complaints that will come before the Regulatory Authority based on current caseloads. Halving the committee's membership along the lines proposed would immediately create a backlog about which I would be concerned. This section goes into detail on how complaints are being dealt with, the responsibilities of various committees, the issues that can be dealt with and the sanctions that can be imposed. It deals with all the relevant issues around those provisions. As Senator Barrett can see, this list of issues and sanctions is strong and supportive of consumers who may have concerns about the kind of legal service they have received.

On amendment No. 68, under the new complaints regime, and I may have misinterpreted the Minister, there will not be 27 people hearing the case. Do the 27 divide the work among them? Is it the case that the 27 people handle all the complaints but do not hear them all? Is there a smaller committee to do the work because 27, including eight solicitors and four barristers, seems a cumbersome body.

The complaints committee consists of 27 members, the majority of whom will be lay people. The law society shall have eight members. The Bar Council have four. Members are appointed for a period of four years and shall be eligible for reappointment. Lay members must be independent of the professional bodies but have some expertise or knowledge of the provisions of legal service or maintenance of standards in an organisation.

Is it intended that all 27 will be there?

No, just available.

That is not the intention.

To answer the Senator's question in more detail, I should have said that the Bill provides that the complaints committee shall act in divisions of not less than three and not more than five members but must have an uneven number and a majority of lay members.

I thank the Minister.

I thank the Minister for that clarification.

Amendment agreed to.
Government amendment No. 69:
In page 41, between lines 22 and 23, to insert the following:
“Establishment and membership of Complaints Committee
59. (1) The Authority shall establish a committee, to be known as the Complaints Committee, for the purpose of considering and investigating complaints referred to it by the Authority under section 58.
(2) A member of the Complaints Committee shall—
(a) hold office for a period of 4 years from the date of his or her appointment, and
(b) be eligible for reappointment as a member of the Complaints Committee, provided that he or she does not hold office for periods the aggregate of which exceeds 8 years.
(3) The Complaints Committee shall be appointed by the Authority and shall consist of not more than 27 members of whom—
(a) the majority shall be lay persons,
(b) not fewer than 8 shall be persons nominated by the Law Society, each of whom has practised as a solicitor for more than 10 years, and
(c) not fewer than 4 shall be persons nominated by the Bar Council, each of whom has practised in the State as a barrister for more than 10 years.
(4) In appointing lay persons to be members of the Complaints Committee the Authority shall ensure that those members are persons who—
(a) are independent of the professional bodies, and
(b) have expertise in or knowledge of—
(i) the provision of legal services,
(ii) the maintenance of standards in a profession (including those regulated by a statutory body),
(iii) the investigation and consideration of complaints relating to services, or
(iv) the interests of consumers of legal services.
(5) The Complaints Committee shall act in divisions of not less than 3 members and not more than 5 members (in this Act referred to as a “Divisional Committee”).
(6) A Divisional Committee shall consist of an uneven number of members.
(7) Each Divisional Committee shall have a majority of lay members.
(8) The chairperson of each Divisional Committee shall be one of the lay members of that Divisional Committee.
(9) The chief executive shall make arrangements for the provision of such administrative and secretarial support to each Divisional Committee as he or she considers necessary.
(10) Subject to subsections (6) and (7), where a complaint relates to a solicitor—
(a) in a case where the Divisional Committee consists of 3 members, one of the members of the Divisional Committee shall be a solicitor,
(b) in a case where the Divisional Committee consists of 5 members, 2 of the members of the Divisional Committee shall be solicitors.
(11) Subject to subsections (6) and (7), where a complaint relates to a barrister—
(a) in a case where the Divisional Committee consists of 3 members, one of the members of the Divisional Committee shall be a barrister,
(b) in a case where the Divisional Committee consists of 5 members, 2 of the members of the Divisional Committee shall be barristers.”.
Amendment agreed to.
Government amendment No. 70:
In page 41, between lines 22 and 23, to insert the following:
“Investigation of complaints
60. (1) A Divisional Committee shall consider and investigate complaints made under this Part referred to it by the Authority.
(2) When referring a complaint to a Divisional Committee the Authority shall furnish to the Divisional Committee—
(a) a copy of the complaint and any documents relating to the complaint that have been submitted by the complainant, and
(b) a summary of the complaint.
(3) Unless the legal practitioner to whom the complaint relates has already been furnished with the documents concerned, the Divisional Committee shall furnish a copy of the documents referred to in subsection (2) to the legal practitioner concerned, requesting the legal practitioner to furnish his or her response to the complaint within such reasonable period as is specified by the Divisional Committee.
(4) Where, in the opinion of the Divisional Committee, the response of the legal practitioner under subsection (3) indicates that he or she is not in agreement to the issuing of a direction under section 61(1)(a) or the taking of a measure under section 61(1)(b), the Divisional Committee shall furnish a copy of the response to the complainant inviting him or her to furnish observations to the Divisional Committee in relation to the response of the legal practitioner within such a period as may be specified by the Divisional Committee.
(5) Where—
(a) the response of the legal practitioner under subsection (3) does not satisfy the Divisional Committee that it should not issue a direction under section 61(1)(a) or take a measure under section 61(1)(b), or
(b) the legal practitioner does not furnish a response within the period specified in the notice,
the Divisional Committee shall, subject to the provisions of this Chapter, take such steps as it considers appropriate to investigate the complaint.
(6) For the purposes of investigating a complaint in accordance with subsection (1), the Divisional Committee—
(a) shall have due regard to information furnished to it by the Authority,
(b) may, by notice in writing to the complainant, do one or more of the following:
(i) require the complainant to verify, by affidavit or otherwise, anything contained in the complaint;
(ii) request the complainant to supply to the Committee, within a reasonable period specified in the notice—
(I) such information relating to the complaint as is specified in the notice,
or
(II) such documents relating to the complaint as it may require;
(iii) require that information requested under subparagraph (ii) be verified by affidavit or otherwise;
and
(c) may by notice in writing to the legal practitioner the subject of the complaint require him or her to do one or more of the following:
(i) verify, by affidavit or otherwise, anything contained in his or her response under subsection (3);
(ii) supply the Committee, within a reasonable period specified in the notice, with—
(I) such information relating to the complaint as is specified in the notice,
or
(II) such documents relating to the complaint as it may require.
(7) The complainant concerned shall comply with a notice issued to him or her by the Divisional Committee under subsection (6)(b).
(8) The legal practitioner concerned shall comply with a notice issued to him or her by the Divisional Committee under subsection (6)(c).
(9) The Divisional Committee may, having had due regard to—
(a) information furnished to it by the Authority,
(b) any information or documents provided to it by the complainant or the legal practitioner concerned under this section,
(c) any explanation furnished to the Divisional Committee by the legal practitioner concerned pursuant to this section, and
(d) any observations furnished by the complainant under subsection (3), require the complainant and the legal practitioner to appear before the Committee for the purposes of the investigation of the complaint.
(10) The complainant and the legal practitioner may be represented by a person of their choice for the purposes of their appearance before the Divisional Committee and the costs of such representation, if any, shall be borne by the person who requested such representation.
(11) Where a complaint is withdrawn when it is being investigated by the Divisional Committee, the Committee may—
(a) decide that no further action be taken in relation to the matter the subject of the complaint, or
(b) proceed as if the complaint had not been withdrawn.
(12) Where the Divisional Committee determines that the act or omission does not warrant the issuing of a direction under section 61(1)(a) or the taking of a measure under section 61(1)(b), it shall so advise the complainant and the legal practitioner in writing, giving reasons for the determination.
(13) The Divisional Committee shall make reasonable efforts to ensure that—
(a) the complainant is kept informed of all decisions made by the Committee in relation to the complaint concerned,
(b) the Committee acts expeditiously, and
(c) complaints are processed in a timely manner.
(14) Where the Divisional Committee, in the investigation by it under this section of a complaint forms the opinion that the complaint is one that would be more appropriately resolved in the manner referred to in section 51 or 52, it shall refer the complaint to the Authority to be dealt with in accordance with the provision concerned.”.
Amendment agreed to.
Government amendment No. 71:
In page 41, between lines 22 and 23, to insert the following:
“Power of Divisional Committee to specify measures
61. (1) Where the Divisional Committee, following an investigation under section 60, considers that the act or omission the subject of the complaint is not one to which subsection (7) applies, but determines that it warrants the imposition of a sanction under this section, it may—
(a) issue a direction to the legal practitioner concerned to take such measures as are specified in the determination of the Divisional Committee, being measures specified in paragraphs (a) to (i) of subsection (5), or
(b) where the legal practitioner concerned so consents in writing, take the measure specified in the determination of the Divisional Committee, being a measure specified in subsection (6).
(2) Where the Divisional Committee issues one or more than one direction in accordance with subsection (1)(a) and the legal practitioner complies with each such direction, the complaint shall be considered as determined.
(3) Where the Divisional Committee (with the consent of the legal practitioner concerned) takes a measure specified in subsection (1)(b), the complaint shall be considered as determined.
(4) The Divisional Committee shall not impose a sanction under subsection (1) unless the Committee considers it to be a reasonable and appropriate manner of determining the complaint.
(5) The measures referred to in subsection (1)(a) are the following:
(a) a direction to the legal practitioner to perform or complete the legal service the subject of the complaint or a direction to the legal practitioner to arrange for the performance or completion of the legal service the subject of the complaint by a legal practitioner nominated by the complainant at the expense of the legal practitioner the subject of the complaint;
(b) a direction to the legal practitioner that he or she participate in one or more modules of a professional competence scheme and that he or she furnish evidence to the Authority of such participation within a specified period;
(c) a direction to the legal practitioner—
(i) that he or she waive all or a part of any fees otherwise payable by the complainant to the legal practitioner concerned, or
(ii) that he or she refund to the client some or all of any fees paid to the legal practitioner concerned in respect of the legal services the subject of the complaint;
(d) a direction that the legal practitioner take such other action in the interest of the client as the Committee may specify;
(e) a direction to the legal practitioner to comply with (in whole or in part) an undertaking given by the legal practitioner to another legal practitioner or to another person or body;
(f) a direction to the legal practitioner to withdraw or amend an advertisement;
(g) a direction to the legal practitioner to pay a sum not exceeding €5,000 as compensation for any financial or other loss suffered by the client in consequence of any inadequacy in the legal services provided or purported to have been provided by the legal practitioner, provided that any such payment made in compliance with the direction shall be without prejudice to any legal right of the client;
(h) a direction to the legal practitioner to pay to the Authority a sum not exceeding €5,000 by way of contribution towards the costs incurred by the Authority in investigating the complaint;
(i) where the Divisional Committee has determined that the legal practitioner has in the course of the investigation refused, neglected or otherwise failed, without reasonable cause, to respond appropriately in a timely manner, or at all, to a written request from the Divisional Committee and that the Authority has incurred additional costs in relation to the investigation of the complaint in consequence of that refusal, neglect or failure, a direction to the legal practitioner to pay to the Authority a sum not exceeding €2,500 by way of contribution towards those additional costs incurred by the Authority in investigating the complaint.
(6) The measure referred to in subsection (1)(b) is the issue of a notice—
(a) in the case of a legal practitioner who is a solicitor, to the Law Society informing the Law Society of the decision of the Divisional Committee to impose a sanction under subsection (1)(b) and directing the Law Society to impose a specified restriction or condition on the practising certificate of the legal practitioner concerned, or
(b) in the case of a legal practitioner who is a barrister, to the chief executive of the Authority of the decision by the Divisional Committee to impose a sanction under subsection (1)(b) and directing the chief executive to impose a specified restriction or condition on the legal practitioner concerned in respect of his or her practice as a barrister.
(7) (a) Subject to subsection (8), where the Divisional Committee considers that the act or omission the subject of the complaint is of a kind that is more appropriate for consideration by the Legal Practitioners Disciplinary Tribunal than under this section, it may make an application in respect of the matter to it for the holding of an inquiry under section 71.
(b) In determining whether it would be more appropriate for the complaint to be considered by the Legal Practitioners Disciplinary Tribunal, the Complaints Committee shall have regard to the gravity of the concerns raised and matters disclosed in the complaint and in the investigation under this section.
(8) (a) Where the Divisional Committee considers that a measure specified in subsection (6) is the appropriate measure to be taken as respects the complaint, it shall notify the legal practitioner concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be imposed on the practising certificate of the legal practitioner or on the legal practitioner in respect of his or her practice as a barrister, the precise restriction or condition) it proposes to take.
(b) The notification referred to in paragraph (a) shall indicate that, unless the legal practitioner concerned furnishes to the Divisional Committee his or her consent in writing to the imposition of the specified measures within 21 days of the issue of the notification, the Divisional Committee will apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry into the complaint by the Tribunal under this Part.
(c) Where the Divisional Committee issues a notification pursuant to paragraph (b) and does not receive the written consent of the legal practitioner concerned within 21 days to the imposition of the specified measures, it shall apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry by it into the complaint in so far as the Committee has not found that the complaint is unfounded or that the act or omission concerned does not warrant the imposition of a sanction under this section or an application under subsection (7) to the Disciplinary Tribunal.”.
Amendment agreed to.
Government amendment No. 72:
In page 41, between lines 22 and 23, to insert the following:
“Appeal of determination of Divisional Committee
62. (1) The legal practitioner concerned may appeal to the Disciplinary Tribunal against—
(a) a determination under section 61(1), or
(b) a sanction imposed under section 61(1)(a).
(2) The Authority may appeal to the Disciplinary Tribunal against—
(a) a determination under section 61(1),
(b) a sanction imposed under section 61(1)(a), or
(c) a failure of the Divisional Committee to make an application under section 61(7).
(3) An appeal under subsection (1) or (2) shall—
(a) take the form of an application to the Disciplinary Tribunal for an inquiry by it under this Part,
(b) be made within 15 days of the sending to the legal practitioner concerned of the direction under section 61(1)(a) and in accordance with regulations (if any) made under section 46.”.
Amendment agreed to.
Government amendment No. 73:
In page 41, between lines 22 and 23, to insert the following:
“Publication of reports by Authority relating to its functions under this Part
63. (1) The Authority shall publish, in such manner as the Authority considers appropriate, a report on the performance of its functions under this Part.
(2) A report referred to in subsection (1) shall include information in respect of the relevant reporting period of—
(a) the number and type of complaints received by the Authority under this Part during the relevant reporting period,
(b) the general nature and outcome of those complaints,
(c) the number of complaints referred to the Complaints Committee in the relevant reporting period, and
(d) the outcome of those complaints which were considered by the Complaints Committee during the relevant reporting period including—
(i) the sanction imposed by the Complaints Committee,
(ii) where a sanction was imposed, the nature of the act or omission that was the subject of the complaint,
(iii) the measures taken by the Complaints Committee, and
(iv) where the Authority considers it appropriate, the name of the legal practitioner concerned.
(3) A report published under subsection (1) shall be published by the Authority at intervals no greater than 6 months.”.
Amendment agreed to.

Amendments Nos. 74 to 92, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 74:
In page 41, between lines 22 and 23, to insert the following:
“Establishment of Legal Practitioners Disciplinary Tribunal
64. There shall stand established a body to be known as the Legal Practitioners Disciplinary Tribunal to consider applications brought before it under section 67 and to perform the other functions assigned to it by this Act.”.

This is a long series of amendments which relate to a core aspect of the complaints and discipline elements of Part 5 – the legal practitioners disciplinary tribunal.

A new section 64 is inserted by Amendment No. 74. That is providing for the establishment, in law, of the new legal practitioners disciplinary tribunal. Unlike the existing disciplinary framework where each legal profession has its own disciplinary tribunal, the new tribunal will deal, from the enactment of the Bill, with the professional conduct of both solicitors and barristers.

Amendment No. 75 inserts a new section 65 into the Bill. The new section being inserted under this amendment largely replicates the existing section 63 of the Bill. It increases the threshold of membership and that better reflects the combined workload of the existing tribunals under which each panel of three averages ten meetings per year. The initially proposed membership of 16 would have been inadequate to deal with the new disciplinary tribunal's anticipated workload and I would have been afraid that would have led to a backlog of cases.

Another key change made under this amendment is that each division of the disciplinary tribunal shall be not less than three persons. The existing text of the Bill had provided in addition that each division should not be more than five members. However, having considered this aspect further, it was decided that for the sake of consistency of procedure and fairness all divisions of the tribunal should be of three persons.

Amendment No. 76 is similar to what was in place previously. It corresponds to section 64 of the Bill as passed by the Dáil and Second Stage of which was passed by the Seanad.

Amendment No. 77 inserts a new section 67 which expands the existing two-line provision in the Bill as passed by the Dáil to take account of additional functions - the ones I have outlined - that will now be carried out by the disciplinary tribunal. These will include, for example, appeals from the regulatory authority or from the Law Society to the tribunal in relation to determinations or sanctions, about which we have just spoken, that the complaints committee might put in place.

It will also include appeals by a legal practitioner against a determination or sanction made against him or her by the complaints committee. For its part, the complaints committee will also be able to refer matters to the disciplinary tribunal where it considers this appropriate.

Amendment No. 78 inserts a new section. This amendment is necessary to allow for the fact that the legal services regulatory authority and the Law Society will present evidence to the new legal practitioners disciplinary tribunal grounding the contention that there has been misconduct by a legal practitioner. Whereas the legal services regulatory authority will do so in relation to public complaints, including those where it requests a financial report about a solicitor from the Law Society, the Law Society will do so in relation to matters that have come to its attention in overseeing the solicitor accounts regulations. They will deal with different elements.

Section 69 is with regard to the regulations that will need to be made for an effectively functioning disciplinary tribunal, with some slight adjustments to allow leeway for parties besides the regulatory authority and the legal practitioner concerned to make submissions to the disciplinary tribunal.

Amendment No. 80 is quite long but is largely the same as its precursor, which is section 69 of the Bill as passed by the Dáil. It contains a suite of supporting powers which enable the legal services regulatory authority to enforce attendance at its hearings, to compel the discovery under oath or affirmation of documents and to sanction obstructive or unco-operative behaviour, including by imprisonment or fine. However, there is one new subsection, which enables the Law Society to come within the remit of the disciplinary tribunal in the prosecution of financial infringements which come to its attention under its retained financial regulatory role.

Amendment No. 81 reflects section 69 of the Bill and sets out the steps to be taken by the disciplinary tribunal in holding an inquiry, with regard to how it deals with witnesses, takes evidence and takes advice. There are new additional provisions in the new version of the section, which cover those cases in which the legal services regulatory authority will make appeals to the tribunal against determinations or sanctions imposed by a division of the complaints committee. In other words, the additions to the original section 69 now found in section 71 are there to facilitate the new and additional appellate functions of the disciplinary tribunal.

Amendment No. 82 inserts a new section 72 into the Bill. This reiterates what was in the Dáil in section 70. It sets out the range of sanctions that can be applied by the legal practitioners disciplinary tribunal. One can see as we go through the Bill that in each case one must describe how each body deals with complaints, the complaints it can handle, the sanctions it can impose and whether there is the possibility of the decisions of one body being appealed by another. This section examines the role of the disciplinary tribunal which, as I have stated, will take over from the two committees which previously dealt with disciplinary issues. We will now have one body, namely, the legal practitioners disciplinary tribunal.

Amendment No. 83 deals with appeals against a decision of the disciplinary tribunal.

Amendment No. 84 relates to appeals to the High Court, and leaves the menu of sanctions that can be imposed through the High Court to a separate section. In its new configuration, the section deals with the High Court’s ability to hear appeals by persons so entitled under the new section 73, which we have discussed.

Amendment No. 85 provides that where the legal practitioners disciplinary tribunal decides to pursue a case for High Court sanction and the legal practitioner takes an appeal against this, the court is first to consider that appeal. In so doing the High Court can either confirm the disciplinary tribunal’s determination that the matter is for sanction before it or determine that the act or omission by the legal practitioner was not misconduct.

The new section inserted by amendment No. 86 mirrors that which was in Bill as passed by the Dáil, and merely sets out how the jurisdiction vested in the High Court under the preceding sections we have discussed shall be exercised by the President of the High Court as he or she may direct.

Amendment No. 87 inserts section 77, which mirrors that previously contained in the Bill save for the fact that it updates relevant references to cite the Court of Appeal rather than the Supreme Court, as would have applied prior to the establishment of the new Court of Appeal, which has been up and running for the past year.

Amendment No. 88 inserts a new section 78 which sets out the way in which orders made by the High Court or determinations made by the disciplinary tribunal are to be furnished to the Registrar of Solicitors in the case of solicitors, and to the Honorable Society of King's Inns with regard to barristers.

Amendment No. 89 is a short provision regarding the various documents involved and the legal privilege that applies.

Amendment No. 90 allows for a High Court order to be made on application of the regulatory authority where it is shown that a legal practitioner or any other person has refused, neglected or otherwise failed without reasonable cause to comply in whole or in part with a determination made by the legal practitioners disciplinary tribunal.

Amendment No. 91 is a transitional provision, and amendment No. 92 makes it clear that the authority in the performance of its functions where a complaint refers to a solicitor may exercise all the powers conferred on the Law Society under the Solicitors Acts.

Amendment agreed to.
Government amendment No. 75:
In page 41, between lines 22 and 23, to insert the following:
“Membership of Disciplinary Tribunal
65. (1) The Disciplinary Tribunal shall be appointed by the President of the High Court on the nomination of the Minister and shall consist of not more than 33 members of whom—
(a) the majority shall be lay persons,
(b) not fewer than 6 shall be persons, nominated by the Law Society, each of whom has practised in the State as a solicitor for more than 10 years,
(c) not fewer than 6 shall be persons, nominated by the Bar Council, each of whom has practised in the State as a barrister for more than 10 years, and
(d) at least 40 per cent, calculated to the nearest whole number, shall be men and at least 40 per cent, as so calculated, shall be women.
(2) One of the persons appointed under subsection (1) shall be appointed as chairperson of the Disciplinary Tribunal.
(3) The Minister shall ensure that those lay persons nominated to be members of the Disciplinary Tribunal are persons who are independent of the Government and the professional bodies and have knowledge of and expertise in one or more than one of the following:
(a) the provision of legal services;
(b) the maintenance of standards in a profession (including those regulated by a statutory body);
(c) the investigation and consideration of complaints relating to services;
(d) commercial matters;
(e) the interests of consumers of legal services.
(4) The Disciplinary Tribunal shall act in divisions consisting of—
(a) an uneven number of members,
(b) a majority of lay members, and
(c) not fewer than 3 members.
(5) The chairperson of each division of the Disciplinary Tribunal shall be one of the lay members.
(6) Where a complaint relates to a solicitor, the division of the Disciplinary Tribunal shall include at least one solicitor.
(7) Where a complaint relates to a barrister, the division of the Disciplinary Tribunal shall include at least one barrister.”.
Amendment agreed to.
Government amendment No. 76:
In page 41, between lines 22 and 23, to insert the following:
“Chairperson of Disciplinary Tribunal
66. (1) The person appointed as chairperson of the Disciplinary Tribunal shall—
(a) where the person is a legal practitioner, have practised as a barrister or solicitor for not less than 10 years, and
(b) where the person is not a legal practitioner, have knowledge of and expertise in one or more than one of the following:
(i) the provision of legal services;
(ii) the maintenance of standards in a profession (including those regulated by a statutory body);
(iii) the investigation and consideration of complaints relating to services;
(iv) the interests of consumers of legal services.
(2) The term of office of the chairperson shall be 5 years, and the chairperson may be appointed for a second term not exceeding 5 years.
(3) The chairperson shall retire on attaining the age of 70 years.
(4) The chairperson shall be appointed by the President of the High Court from the persons nominated by the Minister for membership of the Tribunal.”.
Amendment agreed to.
Government amendment No. 77:
In page 41, between lines 22 and 23, to insert the following:
“Applications to Disciplinary Tribunal
67. The Disciplinary Tribunal may hear the following applications that are brought to it in accordance with regulations under section 69(1):
(a) an application by the Complaints Committee under subsection (7) or (8)(c) of section 61;
(b) an application by a legal practitioner under section 62(1);
(c) an application by the Authority under section 62(2);
(d) an application by the Law Society under subsection (6) or (7)(c) of section 14A of the Solicitors (Amendment) Act 1994;”.
Amendment agreed to.
Government amendment No. 78:
In page 41, between lines 22 and 23, to insert the following:
“Presentation of case to Disciplinary Tribunal
68. (1) The Authority, or a person appointed to do so on its behalf, shall, in an application referred to in paragraph (a), (b), or (c) of section 67, present the evidence to the Disciplinary Tribunal grounding the contention that misconduct by the legal practitioner concerned has occurred.
(2) The Law Society, or a person appointed to do so on its behalf, shall, in an application referred to in paragraph (d) of section 67, present the evidence to the Disciplinary Tribunal grounding the contention that misconduct by the solicitor concerned has occurred.”.
Amendment agreed to.
Government amendment No. 79:
In page 41, between lines 22 and 23, to insert the following:
“Regulations relating to Disciplinary Tribunal
69. (1) The Disciplinary Tribunal may make Regulations, consistent with this Act, regulating—
(a) the making of applications to the Disciplinary Tribunal under this Act, and
(b) the proceedings of the Disciplinary Tribunal under this Act.
(2) Regulations made under subsection (1) may make provision for the parties, other than the Authority, and the legal practitioner concerned, who may make submissions to the Disciplinary Tribunal.
(3) The Disciplinary Tribunal, in making regulations under subsection (1), shall have as objectives that the manner of making applications, and the conduct of proceedings, be as informal as is consistent with the principles of fair procedures, and that undue expense is not likely to be incurred by any party who has an interest in the application.
(4) The Disciplinary Tribunal may consider and determine an application to it under this Part on the basis of affidavits and supporting documentation and records where the legal practitioner, and the Authority consent.”.
Amendment agreed to.
Government amendment No. 80:
In page 41, between lines 22 and 23, to insert the following:
“Powers of Disciplinary Tribunal as to taking of evidence, etc.
70. (1) The Disciplinary Tribunal shall, for the purposes of any inquiry under this Part, have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action, in respect of—
(a) the enforcement of the attendance of witnesses and their examination on oath or on affirmation,
(b) the compelling of the production of documents, and
(c) the compelling of the discovery under oath or under affirmation of documents, and a summons signed by a member of the Disciplinary Tribunal may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production and the discovery under oath or under affirmation of documents.
(2) The Disciplinary Tribunal may require the Authority and the legal practitioner concerned to submit in writing an outline of the evidence expected to be given by each of the concerned witnesses whom they propose to have summoned to attend the hearing.
(3) The Disciplinary Tribunal may, if of opinion that the evidence expected to be given by any witness whom it is proposed to have summoned to attend the hearing is irrelevant or does not add materially to that proposed to be given by other witnesses and that accordingly the attendance of the witness at the inquiry is likely to give rise to unnecessary delay or expense, may so inform the Authority or the legal practitioner concerned, as the case may be, and bring to the attention of the Authority or legal practitioner the provisions of subsection (4).
(4) On the completion of the inquiry the Disciplinary Tribunal, whether or not it has acted in accordance with subsection (3), may, if of opinion that the attendance of any witness summoned at the request of the Authority was unnecessary and thereby involved the witness in avoidable expense, by order direct that the Authority or the legal practitioner concerned, as the case may be, shall pay a specified amount or amounts not exceeding €1,000 to the witness in respect of the expense incurred, and the witness may recover the sum or sums from the Authority or legal practitioner, as the case may be, as a simple contract debt.
(5) Before making an order under subsection (4), the Disciplinary Tribunal shall notify in writing the Authority or the legal practitioner concerned that it proposes to do so and shall consider any representations that may be made to it in writing by the person concerned within 14 days after the notification.
(6) The Authority or the legal practitioner concerned in respect of whom an order has been made under subsection (4) may appeal to the High Court against the order within 21 days of the receipt by him or her of notification referred to in subsection (4), and the Court may make such order on the appeal as it thinks fit.
(7) If a person—
(a) on being duly summoned as a witness before the Disciplinary Tribunal, without just cause or excuse disobeys the summons,
(b) being in attendance as a witness before the Disciplinary Tribunal, refuses to take an oath or make an affirmation when required by the Disciplinary Tribunal to do so, or to produce or discover under oath or under affirmation any documents in his or her possession or under his or her control or within his or her procurement required by the Disciplinary Tribunal to be produced or discovered under oath or under affirmation by him or her, or to answer any question to which the Disciplinary Tribunal may require an answer,
(c) wilfully gives evidence to the Disciplinary Tribunal which is material to its inquiry which he or she knows to be false or does not believe to be true,
(d) by act or omission, obstructs or hinders the Disciplinary Tribunal in the performance of its functions, or
(e) fails, neglects or refuses to comply with the provisions of an order made by the Disciplinary Tribunal, the person shall be guilty of an offence.
(8) A witness before the Disciplinary Tribunal shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.
(9) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 6 months or to both, or
(b) on conviction on indictment, to a fine not exceeding €30,000 or to imprisonment for a term not exceeding 2 years or to both.
(10) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence under this section as if, in lieu of the penalties specified in subsection (3) of that section, there were specified therein the penalties provided for by subsection (9), and the reference in subsection (2)(a) of that section to the penalties provided for in subsection (3) of that section shall be construed accordingly.
(11) A reference in this section and section 71 to the Authority shall be deemed, in the case of an inquiry the application for which was made by the Law Society under section 67(d), to include a reference to the Law Society.”.
Amendment agreed to.
Government amendment No. 81:
In page 41, between lines 22 and 23, to insert the following:
“Inquiry by Disciplinary Tribunal
71. (1) Where the Disciplinary Tribunal receives an application referred to in section 67 for the holding of an inquiry, it shall arrange a date for the hearing and notify in writing the respondent legal practitioner and the Authority.
(2) An inquiry under this section shall be conducted by way of oral hearing and, subject to subsection (3), shall be heard in public.
(3) Where the Disciplinary Tribunal is satisfied that it is necessary to do so in the interests of justice, it may direct that the hearing of the inquiry or any part thereof be held otherwise than in public.
(4) The legal practitioner concerned and the Authority may be represented at any hearing before the Disciplinary Tribunal by a legal practitioner.
(5) Witnesses appearing before the Disciplinary Tribunal shall give evidence on oath or on affirmation.
(6) The legal practitioner concerned and the Authority shall have an opportunity to examine every witness giving evidence to the Disciplinary Tribunal.
(7) If the Tribunal considers that, for the purposes of the inquiry, it requires the advice or assistance of an expert in respect of any matter, it may, subject to such terms and conditions as it may determine, appoint such number of persons having expertise in relation to the matter concerned as it considers necessary to provide it with such advice or assistance.
(8) Where the application was made under section 62, the Disciplinary Tribunal, having conducted the inquiry, and on the basis of the evidence properly before it—
(a) in an application to which subsection (1)(a) or (2)(a) of section 62 applies, may—
(i) confirm the determination of the Divisional Committee under section 61(1), or
(ii) set aside the determination of the Divisional Committee under section 61(1),
and
(b) in an application to which subsection (1)(b) or (2)(b) of section 62 applies, may—
(i) confirm the sanction imposed by the Divisional Committee under section 61(1)(a), or
(ii) set aside the sanction imposed by the Divisional Committee under section 61(1)(a) and impose another sanction that the Divisional Committee could have imposed under section 61(1) or a sanction referred to in subsection (9),
and
(c) in an application to which subsection (2)(c) of section 62 applies, may affirm or set aside the decision of the Divisional Committee not to make an application under section 61(7).
(9) Having conducted the inquiry (other than an inquiry to which subsection (8) applies),
the Disciplinary Tribunal shall make a determination whether or not, on the basis of the evidence properly before it, each act or omission to which the inquiry relates constitutes misconduct and, in that event, make a determination as to whether the issue of sanction should be dealt with pursuant to subsection (1) or (2) of section 72.
(10) A determination referred to in subsection (8) or (9) shall—
(a) be in writing,
(b) specify the reasons for the determination,
(c) specify the sanction (if any) to be imposed under subsection (8) or, as the case may be, imposed pursuant to section 72(1) or recommended under section 72(2), and
(d) be notified to the legal practitioner, and the Authority.”.
Amendment agreed to.
Government amendment No. 82:
In page 41, between lines 22 and 23, to insert the following:
“Sanctions following finding of misconduct by Disciplinary Tribunal
72. (1) Where, pursuant to the holding of an inquiry under section 71, the Disciplinary Tribunal makes a determination under section 71(9) that there has been misconduct on the part of a legal practitioner and determines that the issue of sanction should be dealt with pursuant to this subsection, the Disciplinary Tribunal may make an order imposing one or more of the following sanctions on the legal practitioner:
(a) a reprimand;
(b) an admonishment;
(c) a caution;
(d) a direction that the legal practitioner participate in one or more modules of a professional competence scheme and furnish, within a specified period, evidence to the Disciplinary Tribunal of such participation;
(e) a direction that the legal practitioner concerned—
(i) waive all or a part of any costs otherwise payable by the complainant to the legal practitioner concerned in respect of the matter the subject of the complaint,
(ii) refund all or any part of any costs paid to the legal practitioner concerned in respect of the matter the subject of the complaint;
(f) a direction that the legal practitioner arrange for the completion of the legal service to which the inquiry relates or the rectification, at his or her own expense, of any error, omission or other deficiency arising in connection with the provision of the legal services the subject of the inquiry, as the Disciplinary Tribunal may specify;
(g) a direction that the legal practitioner take, at his or her own expense, such other action in the interests of the complainant as the Disciplinary Tribunal may specify;
(h) a direction that the legal practitioner transfer any documents relating to the subject matter of the complaint (but not otherwise) to another legal practitioner nominated by the client or by the Authority with the consent of the client, subject to such terms and conditions as the Authority may deem appropriate having regard to the circumstances, including the existence of any right to possession or retention of such documents or any of them vested in the legal practitioner or in any other person;
(i) a direction that the legal practitioner pay a sum, not exceeding €15,000, as restitution or part restitution to any aggrieved party, without prejudice to any legal right of such party;
(j) a direction that the whole or a part of the costs of the Disciplinary Tribunal or of any person making submissions to it or appearing before it, in respect of the inquiry be paid by the legal practitioner concerned (which costs shall be assessed by a Legal Costs Adjudicator in default of agreement);
(k) where the legal practitioner is a practising solicitor, a direction that a specified condition be imposed on his or her practising certificate;
(l) where the legal practitioner is a practising solicitor, a direction that he or she pay a sum not exceeding €15,000 to the Compensation Fund.
(2) Where, pursuant to the holding of an inquiry under this Chapter, the Disciplinary Tribunal makes a determination under section 71(9) that there has been misconduct by a legal practitioner and determines that the issue of sanction should be dealt with pursuant to this subsection, the Disciplinary Tribunal shall make a recommendation to the High Court that the Court make one or more than one of the orders specified in section 75(7).”.
Amendment agreed to.
Government amendment No. 83:
In page 41, between lines 22 and 23, to insert the following:
“Persons who may appeal determination of Disciplinary Tribunal and matters in respect of which appeal may be brought
73. (1) Where the Disciplinary Tribunal makes a determination under section 71(9) that the act or omission concerned does not constitute misconduct, the Authority may appeal that finding to the High Court.
(2) Where the Disciplinary Tribunal makes a determination under section 71(9) sue of sanction under section 72(1), an appeal may be brought to the High Court—
(a) by the legal practitioner concerned as respects the determination of misconduct or the sanction imposed, or
(b) by the Authority as respects the sanction imposed.
(3) Where the Disciplinary Tribunal makes a determination under section 71(9) that the act or omission concerned constitutes misconduct and deals with the issue of sanction under section 72(2), the legal practitioner concerned may appeal that determination to the High Court.
(4) Where the application to the Disciplinary Tribunal was brought by the Law Society, a reference in this section to the Authority shall be construed as including a reference to the Law Society.
(5) An appeal under this section shall be brought within the period of 28 days of the date on which the notification under section 71(9)(d) of the determination concerned was sent to the person making the appeal.”.
Amendment agreed to.
Government amendment No. 84:
In page 41, between lines 22 and 23, to insert the following:
“Appeals to High Court from Disciplinary Tribunal
74. (1) The High Court shall determine an appeal brought in accordance with section 73 in accordance with this section and any rules of court made in relation to such appeals.
(2) Each party who was a party participating in the inquiry of the Disciplinary Tribunal shall be entitled to appear and make submissions in connection with the matter under appeal.
(3) In an appeal under section 73(1), the High Court may—
(a) confirm the determination of the Disciplinary Tribunal, or
(b) allow the appeal, and—
(i) impose a sanction which the Disciplinary Tribunal could impose pursuant to section 72(1), or
(ii) consider, in accordance with that section, the imposition of a sanction under section 75.
(4) In an appeal under section 73(2)(a), the High Court may—
(a) confirm the determination of the Disciplinary Tribunal, or
(b) determine that the act or omission the subject of the inquiry does not constitute misconduct.
(5) In an appeal under section 73(2)(b), or where the High Court makes a confirmation under subsection (4)(a), the Court may—
(a) confirm the sanction imposed under section 72(1), or
(b) impose a sanction which the Disciplinary Tribunal could have imposed under section 72(1), or
(c) consider, in accordance with that section, the imposition of sanction under section 75.”.
Amendment agreed to.
Government amendment No. 85:
In page 41, between lines 22 and 23, to insert the following:
“Consideration of matter by High Court where referred by Disciplinary Tribunal
75. (1) Where the Disciplinary Tribunal makes a consideration to the High Court under section 72(2) and the legal practitioner concerned appeals in accordance with section 73(3) against the determination of misconduct, the Court shall first determine the appeal.
(2) In an appeal under section 73(3), the High Court may—
(a) confirm the determination of the Disciplinary Tribunal, or
(b) determine that the act or omission the subject of the inquiry does not constitute misconduct.
(3) Where—
(a) the legal practitioner concerned does not appeal under section 73(3) the determination of the Disciplinary Tribunal,
(b) the High Court confirms under subsection (2) the determination of the Disciplinary Tribunal, or
(c) the High Court makes a decision referred to in subsection (3)(b)(ii) or (5)(c) of section 74,
the Court shall, having considered (where applicable) the recommendation of the Disciplinary Tribunal under section 72(2) and given each party who was a party participating in the inquiry of the Disciplinary Tribunal an opportunity to appear to make submissions in connection with the matter, decide upon the sanction to be imposed on the legal practitioner.
(4) The sanction referred to in subsection (3) may be—
(a) one or more of the sanctions which the Disciplinary Tribunal could impose under section 72(1), or
(b) the making of an order under subsection (6).
(5) Before imposing a sanction under subsection (3), the High Court may, if it thinks fit, remit the case to the Legal Practitioners Disciplinary Tribunal to take further evidence for submission to it and to make a supplementary report, and the Court may adjourn the hearing of the matter pending the submission to it of such further evidence and the making of such supplementary report.
(6) In imposing a sanction under subsection (3), the High Court shall take account of any finding of misconduct on the part of the legal practitioner concerned previously made by the Legal Practitioners Disciplinary Tribunal and not rescinded by the Court and of any order made by the Court under this Act or under the Solicitors Acts 1954 to 2015.
(7) The Court, under this subsection, may by order direct one or more than one of the following:
(a) that the legal practitioner be censured or that he or she be censured and required to pay an amount of money to the Authority or, in the case of a solicitor, to the Compensation Fund, as the Court considers appropriate;
(b) that the legal practitioner be restricted as to the type of work which he or she may engage in, for such period as the Court considers appropriate and subject to such terms and conditions as the Court considers appropriate;
(c) that the legal practitioner be prohibited from practising as a legal practitioner otherwise than as an employee, and subject to such terms and conditions as the Court considers appropriate;
(d) that the legal practitioner be suspended from practice as a legal practitioner for a specified period and subject to such terms and conditions as the Court considers appropriate;
(e) where the legal practitioner is a barrister, that the name of the barrister be struck off the roll of practising barristers and the Honorable Society of King’s Inns informed of the fact;
(f) where the legal practitioner is a solicitor, that the name of the solicitor be struck off the roll of solicitors;
(g) in the case of a legal practitioner to whom a Patent has been granted, that the Authority make an application referred to in section 148(2) in respect of that grant;
(h) where the legal practitioner is a solicitor:
(i) that a specified bank shall furnish any information in its possession that the
Law Society may require relating to any aspect of the financial affairs of the
practice of the solicitor;
(ii) that the solicitor shall swear an affidavit disclosing all information relating to or contained in accounts, held in his or her own name or in the name of his or her firm or jointly with third parties with any bank within a specified duration of time, to be fixed by the Court;
(iii) that the solicitor make restitution to any aggrieved party the Court thinks fit;
(iv) on the application of the Law Society or the Authority, that the solicitor swear an affidavit (within a specified duration of time to be fixed by the Court) disclosing all information as to his or her assets either then in his or her possession or control or within his or her procurement and, if no longer in his or her possession or control or within his or her procurement, his or her belief as to the present whereabouts of those assets;
(v) that the solicitor make himself or herself available before the Court on a specified day and at a specified time for oral examination under oath or under affirmation in relation to the contents of any affidavit of assets sworn by him or her pursuant to subparagraph (iv);
(vi) on the application of the Law Society or the Authority and where it is shown that the conduct of the solicitor or of any clerk or servant of that solicitor arising from that solicitor’s practice as a solicitor has given or is likely to give rise to the making by the Law Society of a grant or grants out of the Compensation Fund, direct that the solicitor shall not reduce his assets below a certain specified amount or value unless the Court otherwise directs;
(vii) on the application of the Law Society or the Authority, the delivery to any person appointed by the Law Society or Authority of all or any documents in the possession or control or within the procurement of the solicitor arising from his practice as a solicitor;
(viii) either—
(I) that no bank shall, without leave of the Court, make any payment out of an account in the name of the solicitor or his firm, or
(II) that a specified bank shall not without leave of the Court, make any payment out of any account in the name of the solicitor or his or her firm;
(ix) that the solicitor shall not attend at the place of business of his or her practice as a solicitor unless otherwise permitted by the Court;
(x) that the solicitor shall not represent himself or herself as having, or hold himself or herself out as having, any connection with his or her former practice as a solicitor, or permit any other person to so represent that solicitor, unless otherwise permitted by the Court.
(8) In making an order under subsection (6), the Court may, in addition—
(a) make such order as to costs incurred in the proceedings before it and the Legal Practitioners Disciplinary Tribunal as the Court thinks fit;
(b) make an ancillary order in relation to the matter which the Court thinks fit.
(9) In this section, “Patent” has the same meaning as it has in Part 12, and includes a Patent granted in the State before the coming into operation of this section.”.
Amendment agreed to.
Government amendment No. 86:
In page 41, between lines 22 and 23, to insert the following:
“Exercise of jurisdiction of High Court under sections 74 and 75
76. The jurisdiction vested in the High Court by sections 74 and 75 shall be exercised by the President of the High Court or, if and whenever the President of the High Court so directs, by an ordinary judge of the High Court for the time being assigned in that behalf by the President of the High Court.”.
Amendment agreed to.
Government amendment No. 87:
In page 41, between lines 22 and 23, to insert the following:
“Appeals to Court of Appeal
77. The Authority or the legal practitioner concerned may appeal to the Court of Appeal against an order of the High Court made under section 75 within a period of 21 days beginning on the date of the order and, unless the High Court or the Court of Appeal otherwise orders, the order of the High Court shall have effect pending the determination of such appeal.”.
Amendment agreed to.
Government amendment No. 88:
In page 41, between lines 22 and 23, to insert the following:
“Orders made by High Court or determinations made by Authority
78. (1) A copy of every order made by the High Court under section 74 or 75 and any determination made by the Disciplinary Tribunal under sections 71 and 72 or and to the Honorable Society of King’s Inns in the case of an order relating to a practising barrister.
(2) Where an order—
(a) striking the name of a legal practitioner who is a solicitor off the roll of solicitors,
(b) striking the name of a legal practitioner who is a barrister off the roll of practising barristers, or
(c) suspending a legal practitioner from practice,
is made by the High Court under section 74 or 75, the Authority shall as soon as practicable thereafter cause a notice stating the effect of the operative part of the order to be published in Iris Oifigiúil and shall also cause the notice to be published in such other manner as the Authority may consider appropriate.
(3) Where a matter is determined by the Disciplinary Tribunal in accordance with section 72(1) and the time for lodging an appeal has expired the Authority shall arrange for the publication of—
(a) its determination,
(b) the nature of the misconduct,
(c) the sanction imposed, and
(d) the name of the legal practitioner concerned.
(4) Where the High Court makes an order—
(a) under section 74(3)(b),
(b) under section 74(4) (other than section 74(4)(b)),
(c) under section 75 (other than section 75(2)(b)),
the Authority shall arrange for the publication of—
(i) the finding of misconduct,
(ii) the nature of the misconduct,
(iii) the sanction imposed, and
(iv) the name of the legal practitioner concerned.”.
Amendment agreed to.
Government amendment No. 89:
In page 41, between lines 22 and 23, to insert the following:
“Privilege ( Part 5 )
79. The following shall be absolutely privileged:
(a) complaints made to the Authority under this Part and documents created or furnished to the parties entitled to receive them under this Part;
(b) proceedings and documents associated with an inquiry held by the Disciplinary Tribunal under this Part;
(c) a report made by the Disciplinary Tribunal to the High Court in accordance with this Part;
(d) a notice authorised by section 78 to be published or communicated.”.
Amendment agreed to.
Government amendment No. 90:
In page 41, between lines 22 and 23, to insert the following:
“Enforcement of order of Disciplinary Tribunal under this Part
80. (1) Where, on application by the Authority in circumstances where the matter is not otherwise before the High Court, it is shown that a legal practitioner or any other person has refused, neglected or otherwise failed, without reasonable cause, to comply in whole or in part with a determination made by the Disciplinary Tribunal under this Part, the Court may by order direct the legal practitioner or other person, as the case may be, to comply in whole or in part as may be appropriate, with the determination of the Disciplinary Tribunal.
(2) An application by the Authority pursuant to subsection (1) shall be on notice to the legal practitioner or other person concerned unless the High Court otherwise orders.
(3) An order of the High Court under subsection (1) may contain such provisions of a consequential nature as the Court considers appropriate.”.
Amendment agreed to.
Government amendment No. 91:
In page 41, between lines 22 and 23, to insert the following:
“Transitional ( Part 5 )
81. Where, before the date on which this subsection comes into operation, a complaint under section 8 or 9 of the Solicitors (Amendment) Act 1994 has been received by the Law Society, then, notwithstanding the amendment by this Act of Solicitors Acts 1954 to 2008, the provisions of those Acts shall continue to apply to the complaint as if those amendments had not been made.”.
Amendment agreed to.
Government amendment No. 92:
In page 41, between lines 22 and 23, to insert the following:
“Power of Authority under Part 5
82. The Authority, in the performance by it of its functions under this Part in relation to a complaint made as respects a solicitor, may exercise any power conferred on the Law Society under the Solicitors Acts 1954 to 2015.”.
Amendment agreed to.
Sections 40 to 45, inclusive, deleted.
Amendment No. 93 not moved.
Sections 46 to 57, inclusive, deleted.
Amendments No. 94 to 96, inclusive, not moved.
Sections 58 to 79, inclusive, deleted.

Amendment No. 97 has been ruled out of order due to a potential charge on the Exchequer.

Amendment No. 97 not moved.
SECTION 80

I move amendment No. 98:

In page 71, to delete lines 10 to 15.

The issue is how we determine the costs. The key point is whether the costs will be averaged over all the members or whether more of the costs will be paid by those about whom the most complaints are made. If the costs are averaged then a moral hazard arises since everybody pays but those who perform least successfully, according to their clients, can share the bill with others. I find that difficult. Subsection (10) states "the amount of levy payable by the professional body or person concerned". Will the Minister clarify the principles? Will the people about whom most complaints are made pay bigger levies or will it be averaged over all the people, including those about whom no complaints are made?

Amendment No. 98 as proposed by Senator Barrett would prevent the new regulatory authority from raising a levy on those barristers who will be regulated by it and who choose to practise outside the Law Library model. It would also prevent the authority from issuing the relevant notice to those practitioners or professional bodies which would give rise to its regulatory costs each year. I am not sure if that was the Senator's intention but this would be the impact of the amendment. I would be concerned about this. The complaints and the work that arises from them in respect of each branch of the profession will determine the levy which is payable on the basis of the actual costs incurred by each branch the previous year. It will be ongoing and the levy will be calculated on the previous year's costs of the work that needed to be done by the authority and the number of complaints incurred by each branch.

I thank the Minister for her clarification. It seems that if a barrister is employed by a company and satisfies all the duties the company requires him or her to discharge, then that barrister may face a levy because somebody else is dealing in an unsatisfactory way with his or her own clients. The general principle should be that those who give rise to the complaints should bear the costs rather than having them averaged over people about whom no complaints have been made.

I thank the Senator. Is he pressing amendment No. 98?

No, I was glad to have the opportunity to explain to the Minister what I had in mind.

Amendment, by leave, withdrawn.
Question proposed: "That section 80 stand part of the Bill."

It is ironic that section 80 is about the levy, and when we try to amend the section, we are not allowed to do that because we are told it would incur a cost to the Exchequer. I find this strange and it seems like a technicality to try to kick it to touch. The amendments are a genuine attempt to improve the legislation because we have said that we are very positive about this legislation. We believe the Minister may need to look once more at the levy. We wish to raise the concerns of people in the Bar Council in particular that the levy is a fair one and that it reflects the volume of complaints against barristers. They have also expressed concerns that the levy is too high and could negatively impact on many barristers who are at the earlier stage of their career or who are struggling financially with their practice. It might affect rural barristers also and those who may work in less lucrative practices. This is why we tabled our amendment. It is unfortunate that it has not been taken into consideration but perhaps the Minister might take on board the sentiment which we put forward and she might consider it for Report Stage. We may consider trying to amend on Report Stage in a way that might not incur a cost to the Exchequer.

The Senators should keep in mind that the practitioners are just responsible for a block of 10% of costs. The remainder is divided between other bodies.

Question put and declared carried.
Sections 81 to 83, inclusive, agreed to.
SECTION 84

Amendments Nos. 99 to 111, inclusive, are related and will be discussed together.

Government amendment No. 99:
In page 74, to delete lines 9 to 15 and substitute the following:
“ “limited liability partnership” means a relevant business in respect of which an authorisation, granted under section 109, is for the time being in force;
“relevant business” means—
(a) a partnership of solicitors, or
(b) a legal partnership.”.

The Bill allows for the introduction of a range of new business models. These include legal partnerships which are partnerships between solicitors and barristers or between barristers only and multidisciplinary practices and which allow for the provision of legal and other services by one firm. As a result of amendment No. 99 and other amendments tabled, the Bill will provide for the introduction of limited liability partnerships in respect of both solicitors partnerships and legal partnerships.

I will deal with the contextually minor amendments in this grouping before discussing amendment Nos. 100 and 101. As per amendment No. 102, complaints relating to the proposed business models will be handled by the authority. Under amendments Nos. 103 and 105, a small fee may be charged by the authority concerning the notification of a legal partnership or a multidisciplinary partnership that is about to commence business. Obviously, such partnerships will have to have strict indemnity insurance. A further amendment in this grouping aims to bring the Bill into line with the new personal insolvency culture whereby a person should no longer be prevented from operating within a business environment merely because he or she has entered into a formal debt arrangement.

I will now deal with amendments Nos. 100 and 101. The relevant sections currently provide that no professional code which is a code of practice drawn up by a legal professional body such as the Law Society of Ireland or the Bar Council shall prevent a legal practitioner from providing legal services within a legal partnership or a multidisciplinary practice. Senators will be aware that a legal partnership is a partnership between either solicitors and barristers or between barristers only. It is a new creature of this Bill which has been prohibited up to now under professional rules. Multidisciplinary practices are firms that will be able to provide both legal and other services together under one roof. These are also currently prohibited under professional rules and the Bill provides for their introduction, subject to the outcome of a formal public consultation process under Part 8. I was advised by the Attorney General that the approach in the Bill, as published, which seeks to directly interfere with the professional codes of the legal professional bodies is at high risk of vulnerability to legal challenge on the grounds of undue interference with the professional bodies' constitutional rights of association. The original sections would, in effect, dictate to the legal professional bodies whom they may include and exclude from their membership and it is this, in particular, that opens up the provisions to the possibility of successful legal challenge. As it is understood that such a legal challenge is not unlikely and in the interests of achieving the overall goal of the Bill, I am tabling these amendments because these new provisions still provide, as a matter of law, that barristers and solicitors may provide their services through one of the new business models, that is, they will have a statutory right to do so but the provisions have been reworked so as to avoid the risk of undue interference in the legal professional bodies' control over their own membership. In effect, this will mean that any lawyers who want to work through legal partnerships, multidisciplinary practices or limited liability partnerships or as employees will be able to do so. It will clearly remain the right of the legal professional bodies to decide whether such lawyers can also become members of their associations, such as, for example, the Law Library. However, Senators should note that subsection (2) of both revised sections explicitly prevents any legal professional bodies from preventing their own members from doing business with other lawyers who choose to operate within the new business models. These are very important provisions.

Amendment put and declared carried.
Question proposed: "That section 84, as amended, stand part of the Bill."

On this section and all of those sections relating to multidisciplinary practices, the Minister and I have a difference of opinion from a philosophical point of view. The amendments that the Opposition has tabled relating to the sections which deal with multidisciplinary practices are based on our opposition to those practices where solicitors, barristers and accountants operate under the same roof and for the same company. Our understanding is that this model has failed internationally and our fear is that the best and brightest of the legal profession will be secured by the wealthiest companies in society, namely, big businesses and large corporations, to the detriment of the average citizen seeking legal representation. Sinn Féin wants a level playing pitch for all citizens and is particularly concerned that those in rural communities will be able to access - through the offices of local solicitors and as is generally the case at present - the services of barristers with the appropriate skills to represent them. We fear that corporatisation will happen with the multidisciplinary practices and that we will see a centralisation of the most skilled in the area so that when people with less money in their pockets seek top-quality representation, they will find it difficult to access. Sinn Féin will be opposing the elements of this Bill that relate to multidisciplinary practices for this reason.

A significant number of qualified solicitors and barristers do not work as solicitors or barristers but work for the firms to which Senator Ó Clochartaigh has referred. They work for accountancy firms, multinational companies, financial services organisations and so forth. If this provision makes any difference it all, it will allow them to compete with such firms on a more level playing field. As a qualified solicitor with some experience of this area, I welcome this provision.

Section 84 is related to section 86. The former defines a contentious matter as "a matter that arises in, and that relates to the subject matter of, proceedings before any court, tribunal or other body or person before which the respective legal rights and obligations of two or more parties are determined, to which the person instructing the barrister concerned is a party". Section 86 provides that "No professional code shall operate to prevent a barrister from providing legal services in relation to a matter, other than a contentious matter where his or her instructions on that matter were received directly from a person who is not a solicitor." Almost everything can be defined as a contentious matter unless one wants to ask a barrister for a tip for the races at Leopardstown, for example. Section 84 undermines the recommendation of bodies such as the Competition and Consumer Protection Commission to the effect that consumers should be able approach a barrister without having a solicitor involved.

Question put and declared carried.
NEW SECTION
Government amendment No. 100:
In page 74, between lines 15 and 16, to insert the following:
“Legal partnerships and professional codes
85. (1) Subject to this Part, a legal practitioner may provide legal services as a partner in, or an employee of, a legal partnership.
(2) A professional body shall not, through its professional codes or otherwise, prevent or restrict a legal practitioner who is a member of that body from working with, or otherwise doing business with, a legal practitioner providing legal services in a legal partnership in accordance with subsection (1).”.
Amendment put and declared carried.
SECTION 85
Question proposed: "That section 85 be deleted."

For the reasons I outlined earlier, I am opposing the section.

This is David versus Goliath. There was an access through country solicitors to sole trader barristers. I disagree with my learned friend, Senator Hayden. Corporatisation holds dangers for the average citizen facing these corporate law firms. It will also be David versus Goliath in the courts.

Question put and declared carried.
SECTION 86
Question proposed: "That section 86 stand part of the Bill."

This section is all about contentious matters. One can talk to one’s barrister without a solicitor being there, provided the matter is not contentious. That seems to retain the prohibition that I have been against since the debate began some hours ago.

Question put and declared carried.
NEW SECTION

Acceptance of amendment No. 101 involves the deletion of section 87.

Government amendment No. 101:
In page 74, between lines 22 and 23, to insert the following:
“Multi-disciplinary practices and professional codes
87. (1) Subject to this Part, a legal practitioner may provide legal services as a partner in, or an employee of, a multi-disciplinary practice. (2) A professional body shall not, through its professional codes or otherwise, prevent or restrict a legal practitioner who is a member of that body from working with, or otherwise doing business with, a legal practitioner providing legal services in a multidisciplinary practice in accordance with subsection (1).”.
Amendment put and declared carried.
Question, "That section 87 be deleted", put and declared carried.
NEW SECTION
Government amendment No. 102:
In page 74, between lines 25 and 26, to insert the following:
“Complaints under Part 5 in respect of legal practitioners in limited partnerships, multidisciplinary practices and limited liability partnerships
88. For the avoidance of doubt, nothing in this Part shall be construed as preventing a person making a complaint to the Authority under Part 5 in respect of a legal practitioner who provides a legal service as a partner or employee of a legal partnership, a multidisciplinary practice or a limited liability partnership.”.
Amendment put and declared carried.
SECTION 88
Government amendment No. 103:
In page 74, line 35, to delete “in such form as may” and substitute “in such form and subject to such fee (if any) as may”.
Amendment put and declared carried.
Question, "That section 88, as amended, stand part of the Bill", put and declared carried.
NEW SECTION

Acceptance of amendment No. 104 involves the deletion of section 89.

Government amendment No. 104:
In page 75, between lines 1 and 2, to insert the following:
“Legal partnership to have professional indemnity insurance
89. A legal partnership shall not provide legal services unless there is in force, at the time of the provision of such services, a policy of professional indemnity insurance which complies with regulations made under section 39 and section 26 of the Act of 1994 (if applicable).”.
Amendment put and declared carried.
Question, "That section 89 be deleted", put and declared carried.
SECTION 90
Government amendment No. 105:
In page 75, line 27, to delete “in such form as may” and substitute “in such form and subject to such fee (if any) as may”.
Amendment put and declared carried.
Question, "That section 90, as amended, stand part of the Bill", put and declared carried.
SECTION 91
Government amendment No. 106:
In page 76, line 19, to delete “himself” and substitute “himself or herself”.
Amendment put and declared carried.
Government amendment No. 107:
In page 76, line 22, to delete “practice” and substitute “practise”.
Amendment agreed to.
Government amendment No. 108:
In page 76, line 36, to delete “undischarged bankrupt” and substitute “undischarged bankrupt in this or another jurisdiction”.
Amendment agreed to.
Government amendment No. 109:
In page 76, to delete lines 37 to 39.
Amendment put and declared carried.
Government amendment No. 110:
In page 77, between lines 10 and 11, to insert the following:
“(6) A person who contravenes subsection (4), and is not the subject of an order under subsection (5), commits an offence.
(7) A person who commits an offence under subsection (6) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.”.
Amendment agreed to.
Government amendment No. 111:
In page 77, line 19, to delete “his or her” where it firstly occurs.
Amendment agreed to.
Question proposed: "That section 91, as amended, stand part of the Bill".

In subsection (7), unqualified person means a solicitor not qualified to practise within the meaning of the Solicitors Act. I am confused. The person is either qualified or not. What is this intended to convey?

Which amendment is the Senator referring to?

We have acknowledged that the person is a solicitor. That is a qualification.

This essentially states that one cannot be a partner in a multidisciplinary partnership if one is unqualified which is defined elsewhere.

I do not wish to delay this, but we grant that he or she is qualified. Perhaps this is something we can return to on Report Stage.

When somebody becomes a qualified solicitor they are eligible to be registered on the Roll of Solicitors but to practise as a solicitor they must hold a practising certificate. As Senator O'Donovan knows, they may have their name struck off the Roll of Solicitors or be suspended for practising because they do not hold a practising certificate. However, the fact that they do not hold a practising certificate does not mean that they are not a qualified solicitor. I believe this section is attempting to distinguish between persons who are qualified solicitors, as such, and those who are unqualified pursuant to the section.

I understand why the Senator raises this, but subsections (a), (b), (c), (d) and (e) of the section outline the circumstances in which somebody who was a solicitor now comes under the term "unqualified person" under the Solicitors Act because they had been struck off the Roll of Solicitors, been suspended from practising, had the issue of a practising certificate to him or her refused under section 49 of that Act, and so forth. Once one reads the definition of "unqualified" under the Solicitors Act that makes sense.

To be helpful, would the word "disqualified" be more appropriate and cause less confusion? Disqualified indicates that for whatever reason, be it suspension or being struck off, one is disqualified. It is similar to a person being disqualified from driving. It would read more easily and make more sense if the word "disqualified" was used instead of "unqualified".

In terms of definition, that word has been there since 1954 and there is precedent in that regard. It is the definition in the Solicitors Acts. We are amending those Acts but there is no information available to me that it has led to any problems. I will check it out, but I do not believe it has.

Perhaps the Minister would examine it and we can discuss it on Report Stage.

Senator O'Donovan is correct. One qualifies the day one graduates, but one can get oneself disqualified afterwards.

It is just a technical description.

Question put and declared carried.
SECTION 92

Amendments Nos. 112 and 113 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 112:
In page 78, line 2, to delete “shall take all reasonable action” and substitute “shall, within a period of 14 days, take all reasonable action”.

Amendment No. 112 obliges the managing legal partner in a multidisciplinary practice to manage the practice in such a way as to ensure that the provision of legal services is in accordance with the provisions of the Bill and adheres to the professional principles set out in the Bill. Amendment No. 113 places positive obligations on the managing legal partner to ensure this happens.

Amendment agreed to.
Government amendment No. 113:
In page 78, between lines 5 and 6, to insert the following:
“(5) Where a managing legal practitioner fails, within the period referred to in subsection (4)—
(a) in accordance with paragraph (a) of that subsection, to ensure compliance as referred to in that paragraph, or
(b) to remedy any defaults in accordance with paragraph (b) of that subsection, he or she shall, within 7 days of the expiration of that period, notify the Authority of such failure.
(6) A managing legal practitioner who fails to notify the Authority in accordance with subsection (5) commits an offence.
(7) A person who commits an offence under subsection (6) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.”.
Amendment put and declared carried.
Question proposed: "That section 92, as amended, stand part of the Bill."

As previously outlined, we are opposed to multidisciplinary practices and we therefore oppose this section.

Is it envisaged that there could be a person managing a multidisciplinary practice who is not a qualified barrister, solicitor or accountant, such as a CEO who has experience of management? I understand that is prevalent in some of the practices at present; there might be somebody who is good at getting people together.

The managing legal partner will manage the legal services.

That person must be a qualified solicitor or barrister.

Yes, on the legal side.

Question put and declared carried.
SECTION 93
Question proposed: "That section 93 stand part of the Bill."

Due to our previously outlined opposition to multidisciplinary practices, we oppose this section.

Question put and declared carried.
SECTION 94
Question proposed: "That section 94 stand part of the Bill."

We oppose this section due to the principle of multidisciplinary practices being included.

I worry about subsection (5) and the Chinese walls. There are some law and accounting firms in this city of which it is said that there are so many Chinese walls that there are rickshaws parked outside. The subsection provides that a legal practitioner who is a partner in, or an employee of, a multidisciplinary practice shall not in the provision by him or her of legal services for a client disclose the affairs of the client to a partner or employee of the practice who is not engaged in the provision of legal services to that client without the express consent of the client. There will be the coffee corner and the drinks fountain, so there is a risk there. I agree with Senator Ó Clochartaigh on this.

Question put and declared carried.
SECTION 95

I move amendment No. 114:

In page 79, between lines 35 and 36, to insert the following:

“(f) specify the cost to the client of the services specified at (a) to (e) inclusive”.

The letter of engagement provides for many worthy things, such as specifying the services to be provided, specifying the services referred to in paragraph (a), specifying which of the services are services other than legal services, specifying the services under various sections, and providing such additional information as may be prescribed. I propose that it also specify the costs. One of the major problems consumers have is that the bill gets out of control and they are not told in advance what it will cost. It would be a pro-consumer step to insert this. The person must know what this costs. They might decide there are other ways to resolve the matter or they might decide to drop it. Specifying the costs in advance must be part of the engagement. One of the complaints traditionally made about the legal profession is that it does not do that, and the clients are at a disadvantage thereafter in the transaction.

If I accepted the new subsection proposed by Senator Barrett in amendment No. 114 it would create confusion about the letter of engagement, which is intended to clearly delineate for a customer which services are being provided by a legal practitioner in a multidisciplinary practice by making it simultaneously a bill of costs. This would clash with the extensive legal costs transparency obligations now being placed on legal practitioners elsewhere under the Bill.

Legal obligations are now being placed on practitioners in respect of cost. That is very consumer friendly. Under Part 10 all legal practitioners will be required, under section 123, to issue a notice to clients, written in clear and understandable language, which will set out the legal costs that will be incurred or are likely to be incurred when they take on the work. That addresses the precise point the Senator made. Section 123(4) sets out in great detail what the notice must contain. The purpose of that section is to oblige all legal practitioners to disclose likely costs up front or, where this is not possible due to complexity, to give detailed and meaningful estimates. The Senator is correct that this matter has frequently been the subject of complaint in the past. Clients will also be given the option of a cooling-off period before they finally agree with the notice of costs.

There are substantial provisions in the Bill relating to costs. There is the move from the Taxing Master to the new adjudicator, and there are detailed provisions relating to costs, how they are done at present and how that must change.

There are those sections I have just read into the record as well. There are many initiatives to give greater transparency and clients being more aware of the likely costs before they embark on any legal course. That is a very important part of the Bill. It takes us from the Taxing Master situation completely to a new office of adjudication costs.

Section 124 on agreement regarding legal costs, etc. states, "A legal practitioner and his or her client may make an agreement". I have asked for "shall" to replace "may". As the Minister has said, it is necessary that those costs be stated upfront given the level of complaints. I am inclined to agree with the Minister providing that the amendment to section 124 is acceptable but we have not reached that one. We might come back on Report Stage. I agree with what the Minister has said but the costs must be brought upfront. The Minister cannot rely on section 124 and it might be necessary to look at the word "may" the next day.

I will accept the word "shall" in a later amendment. That is not a problem.

Amendment, by leave, withdrawn.
Question proposed: "That section 95 stand part of the Bill."

As we are opposing the multidisciplinary practice model, we oppose the section.

Section 96 deleted.

Question put and declared carried.
NEW SECTION
Government amendment No. 115:
In page 79, between lines 35 and 36, to insert the following:
“Multi-disciplinary practice to have professional indemnity insurance
96. A multi-disciplinary practice shall not provide legal services unless there is in force, at the time of the provision of such services, a policy of professional indemnity insurance which complies with regulations made under section 39 and section 26 of the Act of 1994 (if applicable).”.
Amendment put and declared carried.
SECTION 97
Question proposed: "That section 97 stand part of the Bill."

As we are opposed to the principle of multidisciplinary practices, we are opposed to the section.

Question put and declared carried.
SECTION 98
Question, "That section 98 stand part of the Bill", put and declared carried.
SECTION 99

Amendments Nos. 116 to 120, inclusive are related and may be discussed together by agreement.

Government amendment No. 116:
In page 82, line 9, to delete “Supreme Court” and substitute “Court of Appeal”.

This is a technical amendment reflecting that we now have the Court of Appeal so the references to the Supreme Court are changed to references to the Court of Appeal.

Amendment agreed to.
Government amendment No. 117:
In page 82, line 11, to delete “Supreme Court” and substitute “Court of Appeal”.
Amendment agreed to.
Question proposed: "That section 99, as amended, stand part of the Bill."

As we have noted, we are in opposition to multidisciplinary practices, so we are in opposition to the section.

Government amendment No. 119:

In page 83, line 19, to delete “maintained by a legal practitioner” and substitute “maintained (or cause to be maintained) by a legal practitioner”.

Question put and declared carried.
SECTION 100
Government amendment No. 118:
In page 82, line 30, to delete “services” and substitute “legal services”.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 120:
In page 83, line 29, to delete “himself” and substitute “himself or herself”.
Amendment agreed to.
Question proposed: "That section 100, as amended, stand part of the Bill."

Owing to our opposition to multidisciplinary practices, we are opposed to the section.

Question, "That section 102 stand part of the Bill", put and declared carried.

Question put and declared carried.
SECTION 101
Question, "That section 101 stand part of the Bill", put and declared carried.
SECTION 102
SECTION 103

I move amendment No. 121:

In page 85, line 2, after “operation” to insert “concentration ratio”.

Among the matters that need to be discussed is the increasing concentration of power in a small number of firms in the sector. That is the reason for the amendment.

I believe there will be sufficient leeway afforded by the current provisions for this and many other relevant aspects to be raised and taken into account in the reviews.

The Minister is talking about the establishment regulating the operation. Concerns about monopoly or oligopoly are important. I know the Minister has expressed that sentiment several times in this debate. I will not press the amendment.

Amendment, by leave, withdrawn.
Question, "That section 103 stand part of the Bill", put and declared carried.
SECTION 104

Amendments Nos. 122 and 123 are related and may be discussed together by agreement.

I move amendment No. 122:

In page 85, line 33, after “engage” to insert “within one year following the establishment day”.

Section 104 states:

(1) The Authority shall engage in a public consultation process on—

(a) the extent, if any, to which the restriction on legal practitioners, other than solicitors, holding the moneys of clients, as provided under section 36, should be retained,

This has been another of those long-standing grievances along with the ones we mentioned of not providing bills upfront and having a conveyancing monopoly. In fact, I believe solicitors have a cheaper rate of probate than non-solicitors. It is an issue we need to discuss urgently to ensure this profession lives up to all our aspirations of efficiency.

I am concerned that this amendment would compound the burdens of reviewing and reporting of the new authority in its first year of operations. We have put considerable thought into this and I have made some changes to it, as the Senator knows. It has been carefully laid out and sequenced under the Bill so as to make them realisable within achievable timeframes. I do not want to upset the timeframe that has been carefully thought through. We want to see the legal partnerships coming into operation in 2016. We want work done on the multidisciplinary partnerships within a certain timeframe. I have told the Senator that I would look at the issue of conveyancing and come back to him on Report Stage to see if I could suggest or accept anything specific in that regard. I will not accept the amendment.

I thank the Minister. I do not wish to press the amendment.

Amendment, by leave, withdrawn.
Government amendment No. 123:
In page 86, to delete line 4 and substitute the following:
“(c) the circumstances and manner in which a barrister may hold clients’ monies and the mechanisms to be applied for the protection of clients’ monies which may be so held.”.
Amendment agreed to.
Question, "That section 104, as amended, stand part of the Bill", put and declared carried.
SECTION 105

I move amendment No. 124:

In page 86, line 36, to delete “4 years after the commencement of section 85, and every 5 years” and substitute “2 years after the commencement of section 85, and every 2 years”.

I will not press the amendment. The Minister has been most patient when we have discussed having certain things done faster. We should aspire to do things faster and meet the public's wish for reform in the sector.

NEW SECTIONS

Amendment, by leave, withdrawn.
Question, "That section 105 stand part of the Bill", put and declared carried.

Amendments Nos. 125 to 135, inclusive, are related and may be discussed together by agreement.

Government amendment No. 125:
In page 87, between lines 13 and 14, to insert the following:
“CHAPTER 3
Limited Liability Partnerships
Limited liability partnership and professional codes
106. A professional body shall not, through its professional code or otherwise, prevent or restrict a legal practitioner who is a member of that body from working with, or otherwise doing business with, a legal practitioner providing legal services as a partner in, or as an employee of, a limited liability partnership.”.

Amendments No. 125 relates to the insertion of a new Chapter 3 of Part 8. The new Chapter provides for the introduction of an option for solicitors' firms and legal partnerships to operate with the benefits of limited liability within a limited liability partnership business model with protection for the consumer in the form of both professional indemnity insurance and ongoing regulatory oversight by the authority. The amendments include the introduction of an option for both ordinary solicitors' firms and legal partnerships which are partnerships between solicitors and barristers or between barristers only, as provided for under Part 8, to operate with the benefit of limited liability within a limited liability partnership model. It is proposed to allow such firms, subject to certain safeguards, to limit the personal liability of the individual partners of the firm for its debts, obligations and liabilities. This is in line with precedent in several other comparable common law jurisdictions in which partnerships have been changed to allow for LLPs.

On amendment No. 126, it should be noted that the LLP provisions are not at this stage being extended to cover multidisciplinary practice provisions. As it is considered that the business forms which may be assumed by MDPs when they come into being and, in particular, whether they should be able to operate in full as LLPs when some of the professions participating may not be otherwise entitled to avail of such partnerships, is something which should be covered in the research and consultation process. The specific features of the new regime for LLPs include a system of authorisation and registration subject to appropriate fees through the LSRA of those partnerships that wish to become an LLP and the maintenance of a publicly available register of these. Protection will be provided for the consumer in the form of an obligation on the firms to have substantial professional indemnity insurance. We discussed the PII earlier. The authority will have the power to set higher limits for the personal indemnity insurance if it sees fit in respect of the legal firms operating as LLPs as opposed to traditional partnerships. The authority will be required to maintain a register of limited liability partnerships. It provides for automatic loss of the shield from personal liability for partners who are found to have committed misconduct or crime in certain circumstances.

There is a clawback provision where a partner takes money out of the business when its assets exceed its liabilities, ongoing oversight by the legal service regulatory authority with an option to direct compliance and enforce by recourse to the High Court as necessary to enforce compliance. LLPs will be required to notify clients and creditors upon registration and commencement as an LLP. In the event of an insolvency of an LLP, the property of the partnership will be available to the creditors. In addition, there is a new section 113 which outlines the procedures involved in the cessation of operations as a limited liability partnership. Amendment No. 133 inserts a new section that permits the authority to make regulations on the operation of limited liability partnerships.

Amendment No. 134 disapplies section 3 of the Registration of Business Names Act 1963 with regard to partnerships operating in this Bill. Instead, anyone changing name as such a partner will be covered by the relevant provisions of the Bill.

The final amendment in this section makes it clear that although section 27 of the Companies Act 2014 prohibits the use of the description "limited" in business names, in certain circumstances under the Bill, the description can be used for limited liability practices.

Amendment agreed to.
Government amendment No. 126:
In page 87, between lines 13 and 14, to insert the following:
“Liability of partner in a limited liability partnership
107. (1) A partner in a limited liability partnership shall not, by reason only of his or her being a partner or being held out as being a partner in that partnership, be personally liable directly or indirectly, by way of contribution or otherwise, for any debts, obligations or liabilities arising in contract, tort or otherwise of—
(a) the limited liability partnership,
(b) himself or herself,
(c) any other partner in that limited liability partnership, or
(d) any employee, agent or representative of that limited liability partnership.
(2) Subsection (1) shall not apply to a partner in a limited liability partnership to the extent that—
(a) the debt, obligation or liability referred to in that subsection is incurred as a result of an act or omission of the partner involving fraud or dishonesty, and
(b) that act or omission—
(i) was the subject of a finding of misconduct under Part 5, or
(ii) constituted an offence of which the partner was convicted.
(3) Subsection (1) does not affect the liability of a partner in a limited liability partnership in respect of a debt, obligation or liability incurred by that partner for a purpose not connected with the carrying on of the business of the limited liability partnership.
(4) Subsection (1) does not affect the personal liability of a partner in a limited liability partnership for any debt, obligation or liability referred to in that subsection where the debt, obligation or liability was incurred by reason of an act or omission of the partner which occurred prior to the date of authorisation to operate as a limited liability partnership notified under section 109(6).
(5) The Partnership Act 1890 shall apply to limited liability partnerships to the extent that it is not inconsistent with this Chapter.”.
Amendment agreed to.
Government amendment No. 127:
In page 87, between lines 13 and 14, to insert the following:
“Property of partnership
108. (1) Section 107 shall not operate to prevent or restrict the enforcement against the property of a limited liability partnership of any debt, obligation or liability that, apart from that section, would be enforceable against such property.
(2) The transfer of any partnership property out of the joint ownership of some or all of the partners in a limited liability partnership for the benefit of any one or more of those partners shall constitute a conveyance for the purposes of section 74 of the Land and Conveyancing Law Reform Act 2009 and section 7 of the Bankruptcy Act 1988.”.
Amendment agreed to.
Government amendment No. 128:
In page 87, between lines 13 and 14, to insert the following:
“Application for limited liability partnership
109. (1) A relevant business shall not operate as a limited liability partnership unless authorised by the Authority to so operate under this section.
(2) An application for authorisation to operate a relevant business as a limited liability partnership shall be made to the Authority.
(3) An application under subsection (2) shall be in such form and be accompanied by—
(a) such information, and
(b) such fee (if any),
as may be prescribed in regulations made under section 114.
(4) Subject to subsection (5), where the Authority receives an application in accordance with subsection (3) and the Authority is satisfied that the relevant business has professional indemnity insurance in place which complies with regulations made under section 39 in relation to limited liability partnerships and under section 26 of the Act of 1994 (if applicable), the Authority shall authorise a relevant business to operate as a limited liability partnership.
(5) An authorisation under subsection (4) is subject to the condition that the limited liability partnership has professional indemnity insurance in place which complies with regulations made under section 39 in relation to limited liability partnerships and under section 26 of the Act of 1994 (if applicable) at all times in respect of that partnership.
(6) An authorisation given by the Authority under subsection (4) shall be in writing and shall have effect from such date as is specified in the notice.
(7) A limited liability partnership shall, as soon as practicable after receipt of the authorisation under subsection (4), notify its clients and creditors of the fact that it is operating as a limited liability partnership and setting out the information prescribed in regulations made under section 114(2)(c).
(8) A limited liability partnership shall—
(a) conduct the business of the partnership using a name that ends with either the expression “limited liability partnership” or the abbreviation “LLP”,
(b) use the name referred to in paragraph (a) on all contracts, invoices, negotiable instruments, orders for goods and services, advertisements, invitations to treat, websites or any other publication published in any format by or on behalf of the limited liability partnership, and
(c) comply with any obligations imposed on limited liability partnerships by or under this Act.
(9) The Authority shall make a decision under subsection (4) not later than 60 days after receipt of an application which complies with subsection (3).”.
Amendment agreed to.
Government amendment No. 129:
In page 87, between lines 13 and 14, to insert the following:
“Authority to maintain register of limited liability partnerships
110. (1) The Authority shall establish and maintain a register (in this section referred to as the “register”) of limited liability partnerships.
(2) The Authority shall enter the following details in the register in relation to a limited liability partnership:
(a) the name and address of each of the partners in that partnership;
(b) the full name of the partnership and address at which the partnership ordinarily carries on business;
(c) the date on which the authorisation is to take effect under section 109(6);
(d) details of any order under section 112 suspending an authorisation issued under section 109, the period for which the suspension is to operate and any conditions imposed by the High Court under that section;
(e) details of any order under section 112 which revokes an authorisation issued under section 109.
(3) If a particular entered in the register is incorrect, the limited liability partnership to which the particular relates shall, as soon as may be after becoming aware of its being incorrect, inform the Authority thereof accordingly.
(4) The Authority shall, upon becoming aware that any particular entered in the register is incorrect or has ceased to be correct, make such alterations to that register as it considers necessary.
(5) The Authority shall record in the register the date from which an authorisation stands revoked under subsection (2) or subsection (3) of section 113.
(6) The Authority shall make the register available for inspection free of charge to members of the public in such form and manner as it thinks appropriate.”.
Amendment agreed to.
Government amendment No. 130:
In page 87, between lines 13 and 14, to insert the following:
“Power of Authority to issue direction for failure to comply with statutory requirements
111. (1) Where the Authority reasonably believes that a limited liability partnership is contravening or has contravened subsection (8) of section 109 it may, in accordance with this section, give a direction in writing to that partnership to do or refrain from doing such acts as are specified in the direction.
(2) Where the Authority proposes to issue a direction under subsection (1), it shall send the limited liability partnership a notice in writing—
(a) setting out the nature of the contravention that the Authority reasonably believes to be occurring or to have occurred and the reason it so believes,
(b) setting out the measures that it proposes to direct the limited liability partnership concerned to take in order to bring such contravention to an end, and
(c) inviting the limited liability partnership to make observations within such period as is specified in the notice in relation to the belief of the authority referred to in paragraph (a) or the measures proposed under paragraph (b) or both.
(3) The Authority may, having considered any observations made by the limited liability partnership under subsection (2) within the time specified in the notice, give a direction in writing to the partnership, directing it to take such measures within such period as may be specified in the direction, as the Authority considers necessary to ensure compliance by that partnership with any requirements under section 109(8).
(4) A limited liability partnership may, not later than 21 days after the giving of a direction under this section by the Authority, appeal that direction to the High Court.
(5) An appeal under subsection (4) shall be on notice to the Authority.
(6) The High Court, on hearing an appeal under this section, may—
(a) confirm the direction concerned, or
(b) where it considers that the direction is oppressive, unreasonable or unnecessary, revoke or vary the direction.”.
Amendment agreed to.
Government amendment No. 131:
In page 87, between lines 13 and 14, to insert the following:
“Application to High Court for order in respect of failure to comply with direction under section 111
112. (1) Where a limited liability partnership fails to comply with a direction under section 111, the Authority may apply to the High Court for an order—
(a) requiring the partnership to comply with the direction,
(b) suspending the authorisation issued under section 109, or
(c) revoking the authorisation issued to that partnership under section 109.
(2) An application under subsection (1) shall be on notice to the limited liability partnership concerned.
(3) The High Court, on hearing an application for an order under subsection (1) may make an order—
(a) directing the limited liability partnership to comply with the direction under section 111, or
(b) setting aside the direction.
(4) The High Court, on hearing an application for an order referred to in subsection (1)(b), may make an order suspending the authorisation issued under section 109 to the limited liability partnership concerned for such period as is specified in the order and subject to such conditions (if any) as the Court may specify.
(5) The High Court, on hearing an application for an order referred to in subsection (1)(c), may make an order—
(a) suspending the authorisation issued under section 109 to the limited liability partnership concerned for such period as is specified in the order and subject to such conditions (if any) as the Court may specify, or
(b) revoking the authorisation issued under section 109 to the limited liability partnership concerned.
(6) The jurisdiction vested in the High Court under this section shall be exercised by the President of the High Court or, if and whenever the President of the High Court so directs, by an ordinary judge of the High Court for the time being assigned in that behalf.
(7) The Authority or the limited liability partnership concerned may appeal to the Court of Appeal against an order of the High Court made under this section not later than 21 days from the date of the making of the order and, unless the High Court or the Court of Appeal otherwise directs, the order of the High Court shall have effect pending the determination of such appeal.
(8) Where an order is made by the High Court under subsection (3) or (4), the Authority shall as soon as practicable thereafter cause—
(a) a notice to be published in Iris Oifigiúil stating the effect of the order, and
(b) such notice to be published in such other manner as the Authority may consider appropriate.”.
Amendment agreed to.
Government amendment No. 132:
In page 87, between lines 13 and 14, to insert the following:
“Ceasing to operate as a limited liability partnership
113. (1) Where a limited liability partnership intends to cease operating as a limited liability partnership it shall notify the Authority in writing of its intention and the date on which it intends to cease to so operate.
(2) An authorisation issued to a limited liability partnership under section 109 shall stand revoked from such date as is specified in a notification given to the Authority in accordance with subsection (1).
(3) An authorisation issued to a limited liability partnership under section 109 shall stand revoked from such date as the limited liability partnership ceases to have professional indemnity insurance in place as required by that section.
(4) A notification under subsection (1) shall be in such form and accompanied by such fee (if any) as may be prescribed by regulations made under section 114.”.
Amendment agreed to.
Government amendment No. 133:
In page 87, between lines 13 and 14, to insert the following:
“Regulations on operation of limited liability partnerships
114. (1) The Authority shall make regulations in relation to the operation and management of limited liability partnerships.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for—
(a) the form of application for authorisation under section 109,
(b) the information to accompany any application for authorisation under section 109, including the name and address of each of the partners in the relevant business making the application and the full name of the partnership and the address at which the partnership ordinarily carries on business,
(c) the information (including the standard of such information) to be provided by a limited liability partnership to its clients and creditors as to the nature and effect of limited liability partnerships,
(d) the information to be provided by a limited liability partnership to the Authority for the purposes of enabling the Authority to ensure compliance by that partnership with any requirements imposed on such partnerships by or under this SECTION 106 Act, and
(e) the fee to accompany an application under section 109 or a notification under section 113.”.
Amendment agreed to.
Government amendment No. 134:
In page 87, between lines 13 and 14, to insert the following:
“Disapplication of section 3 of Registration of Business Names Act 1963
107. Section 3 of the Registration of Business Names Act 1963 shall not apply to a limited liability partnership.”.
Amendment agreed to.
Government amendment No. 135:
In page 87, between lines 13 and 14, to insert the following:
“Amendment of section 27 of Companies Act 2014
108. Section 27 of the Companies Act 2014 is amended by the insertion of the following subsection after subsection (3):
“(3A) Subsection (1) as it relates to the use of the word “limited”, or any abbreviation of that word, shall not apply to a limited liability partnership (within the meaning of the Legal Services Regulation Act 2015).”.”.
Amendment agreed to.
Sections 106 to 108, inclusive, agreed to.
SECTION 109

I move amendment No. 136:

In page 89, to delete lines 16 and 17.

This is something that arose before and Senator O'Donovan has made a suggestion on it. The section refers to an "unqualified person" and goes on to say "notwithstanding that he or she is a qualified barrister" but they are qualified if they have qualifications. I think disqualified was the meaning that Senator O'Donovan stressed. It requires clarification because it declares people not qualified yet the same legislation says they are qualified.

Amendment, by leave, withdrawn.
Section 109 agreed to.
Sections 110 to 112, inclusive, agreed to.
SECTION 113

I move amendment No. 137:

In page 92, to delete lines 28 and 29.

This relates to the chief legal costs adjudicator and the wish to have a pro-consumer element in this. It says at subsection (b) that the adjudicator will not operate where "the adjudication relates to an application for adjudication of legal costs as between a legal practitioner and his or her client". That is the opt-out clause. I would have thought that from the consumer point of view that is when we want the chief legal costs adjudicator to adjudicate on legal costs between a legal practitioner and his or her client. If we are not going to apply it here, where is the adjudication to apply? That is part of the earlier problem we referred to, the fear that clients have that legal bills get out of control. The word "unless" used here withdraws the ability of a client to go to the chief legal costs adjudicator.

I will have that provision looked at again in case there are any unintended consequences. I will come back on Report Stage.

I thank the Minister.

Amendment, by leave, withdrawn.
Section 113 agreed to.
Sections 114 to 121, inclusive, agreed to.
SECTION 122

I move amendment No. 138:

In page 100, to delete lines 9 to 12.

This concerns the prohibition on no foal, no fee. Section 122(1) states: "A legal practitioner shall not charge any amount in respect of legal costs if ... they are legal costs in connection with contentious business expressed as a specified percentage or proportion of any damages (or other moneys) that may be or become payable to his or her client, other than in relation to a matter seeking only to recover a debt or liquidated demand". Is it not a good idea for there to be a bit of price competition in this area? That is why I have tabled this amendment.

With this amendment, the Senator wishes to remove a basic principle of the Bill whereby legal costs are prohibited from being expressed as a specific percentage or proportion of damages or other moneys payable to a client. The Senator mentioned this earlier. That would be the impact of this amendment so I cannot accept it.

I thank the Minister.

Amendment, by leave, withdrawn.
Section 122 agreed to.
Section 123 agreed to.
SECTION 124

I move amendment No. 139:

In page 102, line 31, to delete “may” and substitute “shall”.

As this is a point of agreement between the Minister and me, we will reconsider the matter on Report Stage.

Amendment, by leave, withdrawn.
Section 124 agreed to.
SECTION 125

I move amendment No. 140:

In page 103, line 30, after “explanation” to insert “in writing”.

This is the explanation of what is happening in the matter of legal costs.

We want to make sure the explanation that has to be provided for a client of the procedures available to deal with a dispute about legal costs will have to be in writing. As I accept the Senator's point that it might be somewhat ambiguous, I will also look at that issue.

I thank the Minister.

Amendment, by leave, withdrawn.
Section 125 agreed to.
SECTION 126

I move amendment No. 141:

In page 104, line 30, to delete “14 days” and substitute “28 days”.

When a client disputes any aspect of a bill of costs, he or she shall within 14 days of the bill of costs being provided for him or her set the machinery in motion. I wonder whether there is a need for more time because of the imbalance between the client and the solicitor. I put the matter to the Minister for consideration. People from a legal background and with legal qualifications said they would like a client to have more time in that instance.

The only point I make in that regard is that it would have implications for other periods of time that will apply under the Bill in relation to legal costs and where they are in dispute. I am taking all timeframes into account. I will consider the 14 day period and see whether it is feasible to make it a little longer without impacting too much on the other carefully calibrated sections in relation to time periods.

Amendment, by leave, withdrawn.
Section 126 agreed to.
Sections 127 and 128 agreed to.
SECTION 129

I move amendment No. 142:

In page 108, to delete lines 7 to 9.

The amendment relates to holding hearings in public. As I would like to think about the matter adgain between now and Report Stage, I will not press the amendment today.

Amendment, by leave, withdrawn.
Section 129 agreed to.
Section 130 agreed to.
SECTION 131

Amendments Nos. 143 to 145, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 143:

In page 109, line 33, to delete “less than 15 per cent”.

As it stands, the Bill reads,

Where an adjudication concerns only legal costs as between a legal practitioner and his or her client, and the Legal Costs Adjudicator has determined that the aggregate of the amounts to be paid is less than 15 per cent lower than the aggregate of those amounts set out in the bill of costs, the party chargeable to those costs shall pay the costs of the adjudication.

Does that mean that if I cannot secure a 15% reduction, I must pay the costs of the adjudication? That is why I am seeking the change. If one can secure any reduction, does that not justify the adjudication process, in particular, with its general pro-consumer emphasis? The Minister is setting the barrier high if one has to negotiate a 15% reduction.

The 15% margin is fair. It is fairly well accepted that one can have spurious and nebulous claims in relation to bills of cost. Determining bills of cost is very expensive and it is a well established legal precedent, not just in the area of law but in other areas also, that one does need to have some margin where there has to be some justification established to pursue very expensive procedures put in place. That is reasonable. The idea that one might secure a 5% reduction does not justify the level of administration involved in such instances. A figure 15% is, therefore, reasonable. However, I will leave it to the Minister to make her point.

Amendments Nos. 143 to 145, inclusive, are not acceptable as they would take the one sixth rule out of the equation in relation to who would pay the bill for a legal costs adjudication. As section 122, as passed by the Dáil, provides that a legal practitioner shall not charge any amount in legal costs in the circumstances set out in the section, I do not see the need for amendments Nos. 144 and 145 to be accepted in this instance. I refer Senator Sean D. Barrett to the section.

Amendment No. 144 was an attempt to deal with the matter of disclosure. The wording is, "provided that no client shall be responsible for costs incurred by the practitioner where the said practitioner has not disclosed the legal costs that will be incurred in relation to the matter concerned irrespective of whether the said practitioner has set out the basis on which the legal costs are to be calculated". We do ask for it in writing and quantification earlier, the purpose being to remove a defence. I will not move the amendment today, but I will think about it between now and Report Stage.

Amendment, by leave, withdrawn.
Amendments Nos. 144 and 145 not moved.
Section 131 agreed to.
Sections 132 to 145, inclusive, agreed to.
SECTION 146
Government amendment No. 146:
In page 117, to delete lines 29 to 33 and substitute the following:
“(ii) professional independence; and
(iii) one or more of the following—
(I) a proven capacity for excellence in the practice of advocacy,
(II) a proven capacity for excellence in the practice of specialist litigation, or
(III) specialist knowledge of an area of law;”.

Section 146 makes statutory provision for the awarding and revocation of "patents of precedence", which are more commonly known as the title of senior counsel. This title is typically awarded to barristers with considerable experience and expertise in their field. It is a form of recognition for high-end legal skills and depth of legal knowledge – a quality stamp of sorts. In the interests of both transparency and fairness, this section places on a statutory footing a committee, consisting of the persons listed in section 145(2), to consider applications for the granting of this title in accordance with a range of balanced criteria. Traditionally, this title has only been accorded to barristers, but for the first time it will soon be available to solicitors also.

The original text needed some changes as it was considered to have missed the requirement for excellence in the granting of the title. That is the only amendment being proposed. In order to gain the honorary title of senior counsel in the future, a solicitor or a barrister will have to demonstrate a track record of competence and professional independence, as well as excellence in advocacy or in specialist litigation or a specialist knowledge of an area of law. The section, as it stands, merely requires "a capacity for" rather than "excellence in" these things. The amendment, therefore, brings the section more into line with what we intuitively know the title should stand for. It is a slight amendment.

Amendment agreed to.
Section 146, as amended, agreed to.
Sections 147 to 149, inclusive, agreed to.
SECTION 150

I move amendment No. 147:

In page 120, line 23, after “exercised” to insert “solely”.

The purpose of the amendment is to have a right of access to a barrister without a solicitor being present. We discussed this matter, which is why I have suggested the following wording: after “exercised” to insert “solely”.

The current wording covers both barristers and solicitors, whether they are acting solely or together.

Amendment, by leave, withdrawn.
Section 150 agreed to.
NEW SECTION
Government amendment No. 148:
In page 120, between lines 30 and 31, to insert the following:
“Barrister in employment may provide legal services to his or her employer
151. (1) A barrister whose name is entered on the roll of practising barristers in accordance with Part 9 may—
(a) take up paid employment, and
(b) as part of that employment, provide legal services to his or her employer, including by appearing on behalf of that employer in a court, tribunal or forum for arbitration.
(2) A professional body shall not, through its professional codes or otherwise, prevent or restrict a barrister who is a member of that body from working with, or otherwise doing business with, barristers providing legal services in accordance with subsection (1).
(3) In this section “employment” includes part-time employment.”.

This is a technical amendment which is designed to bring clarity. The section provides that employee barristers will be able to act on behalf of their employers in court. Senator Hayden spoke on a related point. They are currently prohibited from doing so under Bar Council rules. The section also provides that the legal professional representative bodies will not be able to prevent their own members from working with such employee barristers. The essence of the proposed new section has not changed. Instead, it has been reworked to ensure it is clear and coherent in the overall context of the Bill. It is an important provision. As Senator Hayden explained, many barristers work as employees in various organisations including financial institutions and NGOs. They will have the possibility of being in court and representing their employers.

Amendment agreed to.
Section 151 deleted.
Section 152 agreed to.
NEW SECTION
Government amendment No. 149:
In page 121, between lines 16 and 17, to insert the following:
“Amendment of Criminal Justice (Money Laundering and Terrorist Financing) Act 2010
153. Section 60 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 is amended in subsection (2)—
(a) in paragraph (d), by the insertion of the words “who is a member of the Law Library” after “barrister”, and
(b) by the insertion of the following paragraph after paragraph (d):
“(da) in the case of a designated person who is a barrister who is not a member of the Law Library, the Legal Services Regulatory Authority;”.”.

The Bill creates the conditions for a new type of barrister to emerge, namely, one who chooses to provide his or her legal services outside the traditional Law Library model. In that context, the amendment provides that the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 will be amended to allow the legal services regulatory authority to become the designated authority in monitoring for money laundering compliance regarding that new group of barristers. The Act of 2010 will remain unchanged in all other ways and, appropriately, the Law Society’s and Bar Council’s functions regarding money laundering compliance for their own members will also remain unchanged.

Amendment agreed to.
Sections 153 to 156, inclusive, agreed to.
SECTION 157

Amendments Nos. 150 to 152, inclusive, are related and may be discussed together by agreement.

I move amendment No. 150:

In page 124, line 35, after “may” to insert “not”.

I am concerned that the authority may, by regulation, declare people qualified. In this day and age, people should acquire the qualifications. Particular emphasis is placed on experience. If we are trying to upgrade to a smart economy and a society of well-qualified individuals, then people who want to be solicitors should be qualified as solicitors, people who want to be barristers should be qualified as barristers and people who want to be both should be qualified as both. We have educational institutions and law schools which can provide this education, rather than doing it by regulation by an administrative body as proposed in the Bill. With a fair amount of common ground, we need a very well educated legal profession and it requires the traditional way of acquiring qualifications rather than just experience.

The Senator's amendments would negate an intended regulatory power of the new regulatory authority regarding movement between the professions of solicitor and barrister. The proposed references to “qualifications” are considered unnecessary in light of the fact that the question of being duly qualified to practise as a solicitor or barrister is already comprehended by the definitions of solicitors and barristers who are entitled to practise under the Bill.

Amendment, by leave, withdrawn.
Amendments Nos. 151 and 152 not moved.
Section 157 agreed to.
NEW SECTION

Amendment No. 153 and amendments Nos. 1 to 4, inclusive, to amendment No. 153, may be discussed together by agreement.

Government amendment No. 153:
In page 126, between lines 13 and 14, to insert the following:
“Advertising of legal services
158. (1) No professional code shall operate to prevent—
(a) a legal practitioner from advertising his or her legal services,
(b) a legal partnership, a multi-disciplinary practice or a limited liability partnership from advertising their legal services, or
(c) a group of legal practitioners, who share a facility, premises or cost of practice, from advertising themselves as such a group.
(2) The Authority may make regulations in relation to the advertising of legal services, including in relation to the information that may be contained in advertisements published or caused to be published by legal practitioners in relation to legal services they provide and any areas of law to which those services relate.
(3) Before making regulations under subsection (2), the Authority shall consult, in such manner as it considers appropriate, with—
(a) a professional body, the members of which will be subject to the regulations when made, and
(b) such other interested parties, including legal practitioners who are not members of a body referred to in paragraph (a) who will be subject to the regulations when made, as the Authority considers appropriate.
(4) Regulations made under subsection (2) may not restrict the advertising of legal services unless such restriction is—
(a) necessary for—
(i) the protection of the independence, dignity and integrity of the legal profession, and
(ii) an overriding reason relating to the public interest,
and
(b) non-discriminatory and proportionate.
(5) Without prejudice to the generality of subsection (2), regulations made under that subsection may—
(a) specify the category or categories of legal practitioner to whom such regulations apply,
(b) make provision in relation to advertisements that may be published or caused to be published by or on behalf of a legal practitioner, including provision in respect of their content and size,
(c) provide for the manner in which the Authority is to determine whether any particular advertisement published or caused to be published by a legal practitioner is in contravention of this section or any regulations under this section, and
(d) restrict the publication by or on behalf of a legal practitioner of any advertisement which in the opinion of the Authority—
(i) is likely to bring the legal profession into disrepute,
(ii) is in bad taste,
(iii) reflects unfavourably on other legal practitioners,
(iv) is false or misleading in any material respect,
(v) is published in an inappropriate location,
(vi) subject to subsection (7), expressly or impliedly solicits, encourages or offers any inducement to any person or group or class of persons to make claims for personal injuries or seek legal services in connection with such claims.
(6) A legal practitioner shall not publish or cause to be published an advertisement which does not comply with regulations made under subsection (2).
(7) Nothing in subsection (5)(d)(vi) shall be taken to authorise the Authority to impose a restriction on the inclusion in an advertisement published by or on behalf of a legal practitioner of the words “personal injuries” as part of the legal services provided by the legal practitioner.
(8) In this section—
“advertisement” means any communication (whether oral or in written or other visual form and whether produced by electronic or other means) which is intended to publicise or otherwise promote a legal practitioner in relation to the provision by him or her of legal services, including any—
(a) brochure, notice, circular, leaflet, poster, placard, photograph, illustration, emblem, display, stationery, directory entry, article or statement for general publication,
(b) electronic address or any information provided by the legal practitioner that is accessible electronically,
(c) audio or video recording, or
(d) presentation, lecture, seminar or interview,
which is so intended but excluding a communication which is primarily intended to give information on the law;
“inappropriate location” means a hospital, clinic, doctor’s surgery, funeral home, cemetery, crematorium or other physical location of a similar character.”.

I move amendment No. 1 to amendment No. 153:

In section 158(1), after “No professional code” to insert “or regulation”.

The amendment proposes the insertion of a replacement section 158 which deals with the advertising of legal services. A key purpose of the amendment is to bring the State into compliance with Article 24 of the EU services directive. That EU directive requires, in general terms, the elimination of any rules, practices or regulations that are unreasonably restrictive on a lawyer's right to advertise. The European Commission had expressed a view that some advertising practices in Ireland, particularly those regarding barristers, are too restrictive and had issued a letter of formal notice in October 2014 to the effect that infringement proceedings for a breach of the directive could be taken at any time. In this context, my Department worked with the Commission, and, later, with our own draftspersons at home, to ensure the new wording of section 158 would bring Ireland’s legal services advertising regime up to date and into line with the directive.

The new section begins by providing a general entitlement for legal practitioners to advertise their services, whether as individuals or as lawyers, working within the range of partnerships that will be created by this reforming Bill. It goes on to provide a regulation-making power for the new authority to make advertising regulations that will be applicable to both solicitors and barristers. As a matter of common sense, the section provides for some consultation on the making of the regulations with the legal professional bodies or with any other bodies the authority considers appropriate but it is the authority that will have the ultimate say in what the regulations will contain.

Subsection (4) provides, in line with Article 24 of the EU services directive, that the regulations shall not impose any restrictions on the advertisements unless such restrictions are necessary both for the protection of the independence, dignity and integrity of the legal profession and for an overriding reason relating to the public interest. Any restriction must be both non-discriminatory and proportionate. These caveats clearly impose a high threshold regarding the imposition of restrictions, so the overall message is clear, namely, that all lawyers will be able to advertise freely and widely and across an unlimited range of media. This is in line with the Commission and the EU directive.

As a matter of public policy, and given the need to ensure high standards will still prevail, subsection (5)(d) sets out that it will not be permitted for lawyers to advertise in a way that, in the opinion of the authority, is in bad taste or materially false, or offers an inducement to any person to make personal injuries claims. The clause on personal injuries advertising is considered essential for the continued avoidance of the ambulance-chasing culture that is in evidence in some other jurisdictions. While lawyers will still be able to advertise the fact that they handle personal injuries cases and have an expertise in the area, the prohibition in place since 1994 on specific inducements to make personal injury claims will stand. In a similar vein, it will remain prohibited to advertise in inappropriate locations such as hospitals, funeral homes and cemeteries. It will bring us into full compliance with the directive.

A small amendment will be made to the Solicitors Acts on Report Stage to strengthen the existing and necessary prohibition on non-solicitors operating inappropriate, so-called "legal harvesting" websites which can avoid any requirements for accuracy or good taste and refer potential clients on to solicitors, for a referral fee, in full contravention of the Solicitors Acts. Senators van Turnhout and Heffernan have proposed some amendments to the amendment regarding legal services advertising. The insertion of the word "regulation" after "professional code" is unnecessary due to the fact that the definition of "professional code" in section 2 of the Bill already comprehends "regulations". It would be an unnecessary duplication.

I cannot accept the second amendment, which proposes the deletion of subsection (5) because this is a crucial "principles and policies" provision without which the authority's regulation-making power would be utterly without boundaries and without meaning. The authority must be able to specify what types of advertising are acceptable and Senators will please note that the subsection is prefaced with the word "may" as opposed to "shall", so it does not mean that the authority will necessarily confine itself in these ways. In this instance, it is given flexibility. It will have a menu of criteria from which to draw when drafting the regulations. Some might think that such advertising should not be restricted in any way at all, but I have sought in the drafting process to maintain a very careful balance between allowing lawyers to advertise completely freely, while maintaining certain balances around what those advertisements contain, which I believe are in the public interest. We do need to maintain standards. As I have said, the wording of section 158 has met with the approval of the European Commission. Governments had not complied with the directive, so there were threatened infringement proceedings, but if we accept this section 158, they will disappear, so I would be very slow to undo the section, given that this section is fully compliant with the European directive and has the agreement of the Commission in that regard.

The switching around of the wording in the third amendment seems to make no difference in the intended meaning, so I do not think it is necessary. On the final amendment, the definition of "inappropriate location" has long been on the Statute Book without controversy and it gives clarity to the overall intention to maintain certain standards in advertising. It has long been public policy not to allow lawyers to engage in "ambulance chasing" or to prey upon distressed or bereaved persons in order to gain work and I see no good reason for that to change now or for standards to drop in that regard. I hope I have addressed the various relevant points regarding whether 158 meets the directive and why I do not believe the amendments being proposed are necessary, because most are already comprehended within the existing definitions, and, in the case of the final one, the definition of "inappropriate location" has long been on the Statute Book and has not given rise to any particular problems.

On the section, Senator van Turnhout was very au fait with many of the deliberations involved and asked me to give her some cover in the Chamber today as she is unable to attend for various reasons. On section 158, I am glad the Minister has clarified that it was under direct threat from the European Commission. I was a little concerned about whether fines had been issued but she has clarified that is not the case.

On section 158(5), Senator van Turnhout has asked me to put it on the record that she feels this subsection should be deleted as it serves no justifiable purpose that section 158(2) does not already cover. Section 158(2) provides for the only permissible purposes under the services directive that restrictions can be put on advertising. All the extra specifications in subsection (5) will leave the State open to enforcement and litigation. They also illegally restrict competition for legal services to the detriment of customers and the competitive market. I have been asked to put this on the record and I thank the Cathaoirleach for allowing me to do so.

Amendment No. 1 to amendment No. 153, by leave, withdrawn.
Amendment No. 2 to amendment No. 153 not moved.

I move amendment No. 3 to amendment No. 153:

In section 158(8)(b), to delete “electronic address or any information provided by the legal practitioner that is accessible electronically” and substitute “any advertisement provided by the legal practitioner that is accessible electronically”.

On that-----

We have discussed them already.

Has it been discussed already?

Yes, they are all discussed together.

Is amendment No. 3 to amendment No. 153 being pressed?

Amendment No. 3 to amendment No. 153, by leave, withdrawn.
Amendment No. 4 to amendment No. 153 not moved.
Amendment No. 153 agreed to.
Section 158 deleted
NEW SECTIONS
Government amendment No. 154:
In page 127, after line 30, to insert the following:
“PART 14
Amendments to Solicitors Acts 1954 to 2008
Amendment of section 3 of Solicitors (Amendment) Act 1960
159. Section 3 of the Solicitors (Amendment) Act 1960 is amended by the substitution of the following definition for the definition of “misconduct”:
“ ‘misconduct’ shall be construed in accordance with section 41 of the Legal Services Regulation Act 2015, in so far as that section relates to solicitors;”.”.
Amendment agreed to.
Government amendment No. 155:
In page 127, after line 30, to insert the following:
“Amendment of section 2 of Solicitors (Amendment) Act 1994
160. Section 2 of the Solicitors (Amendment) Act 1994 is amended by the insertion of the following definition:
" ‘Authority’ means the Legal Services Regulatory Authority;”.”.
Amendment agreed to.
Government amendment No. 156:
In page 127, after line 30, to insert the following:
“Amendment of section 14A of Solicitors (Amendment) Act 1994
161. The Solicitors (Amendment) Act 1994 is amended by the substitution of the following for section 14A:
“14A. (1) For the avoidance of doubt, it is hereby declared that the power of the Society to investigate alleged misconduct by a solicitor may be exercised whether or not the Society receive—
(a) a complaint in relation to the solicitor, or
(b) a request under section 50 of the Legal Services Regulation Act 2015 for the investigation into any matter that is relevant to a complaint under Part 5 of that Act in relation to the solicitor.
(2) The Society shall, in addition to exercising its power in referred to in subsection (1), conduct an investigation in compliance with a request under section 50 of the Legal Services Regulation Act 2015 for the investigation into any matter that is relevant to a complaint under Part 5 of that Act in relation to the solicitor.
(3) Where the Society, following an investigation, considers that the act or omission the subject of the investigation is not one to which subsection (6) applies, but determines that it warrants the imposition of a sanction under this section, it may—
(a) issue a direction to the solicitor concerned to take such measures as are specified in the determination of the Society, being measures specified in respect of solicitors in section 61(5) of the Legal Services Regulation Act 2015, or
(b) where the solicitor concerned so consents in writing, take the measure, being the measure specified in section 61(6)(a) of the Legal Services Regulation Act 2015, specified in the determination of the Society.
(4) Where the Society issues one or more than one direction in accordance with subsection (3)(a) and the solicitor complies with each such direction, the complaint shall be considered as determined.
(5) Where the Society (with the consent of the solicitor concerned) takes one of the measures specified in subsection (3)(b), the complaint shall be deemed to be determined.
(6) (a) Subject to subsection (7), where the Society has commenced its investigation on or after the date on which the Legal Services Regulation Act 2015 comes into operation, and it considers that the act or omission the subject of the investigation is of a kind that is more appropriate for consideration by the Legal Practitioners Disciplinary Tribunal than by it, it may make an application in respect of the matter to it for the holding of an inquiry under section 73 of the Legal Services Regulation Act 2015.
(b) In determining whether it would be more appropriate for the matter to be considered by the Legal Practitioners Disciplinary Tribunal, the Society shall have regard to the gravity of the concerns raised and matters disclosed in the complaint and in its investigation.
(7) (a) Where the Society considers that the measure specified in section 61(6)(a) of the Legal Services Regulation Act 2015 is the appropriate measure to be taken as respects the finalisation of its investigation, it shall notify the solicitor concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be placed on the practising certificate of the solicitor, the precise restriction or condition) it proposes to take.
(b) The notification referred to in paragraph (a) shall indicate that unless the solicitor concerned furnishes to the Society his or her consent in writing to the imposition of the specified measures within 21 days of the issue of the notification, the Society will apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015.
(c) Where the Society issues a notification pursuant to paragraph (b) and does not receive the written consent of the solicitor concerned within 21 days to the imposition of the specified measures, it shall apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015 by it into the matter, in so far as the Society has not found that the concerns giving rise to its investigation of the matter are unfounded or that the act or omission concerned does not warrant the imposition of a sanction under this section or an application under subsection (7) to the Legal Practitioners Disciplinary Tribunal.”.
Amendment agreed to.
Government amendment No. 157:
In page 127, after line 30, to insert the following:
“Amendment of section 26 of Solicitors (Amendment) Act 1994
162. Section 26 of the Solicitors (Amendment) Act 1994 is amended—
(a) in subsection (1)—
(i) by the substitution of “The Society may, with the consent of the Authority, make regulations” for “The Society may make regulations”,
(ii) in paragraph (a), by the substitution of “solicitor,” for “solicitor, or”,
(iii) in paragraph (b), by the substitution of “as a solicitor, or” for “as a solicitor.”, and
(iv) by the insertion of the following paragraph after paragraph (b):
“(c) by a solicitor arising from his practice as a solicitor in a legal partnership, multi-disciplinary practice or limited liability partnership (within the meaning of the Legal Services Regulation Act 2015).”,
(b) by the insertion of the following new subsection after subsection (1):
“(1A) In making indemnity regulations under subsection (1), regard shall be had to the objective of ensuring, in relation to solicitors in a legal partnership, multi-disciplinary practice or limited liability partnership referred to in paragraph (c) of that subsection, that there is adequate indemnity against losses in place in respect of each solicitor and other person in such partnership or practice concerned who is required to be covered.”.
(c) in subsection (5), by the substitution of “the Authority” for “the Minister”, and
(d) by the deletion of subsection (6).”.
Amendment agreed to.
Schedules 1 to 3, inclusive, agreed to.

Is it possible for me to make a number of points on some of the points that emerged for Report Stage?

The Minister can do it after the next part.

TITLE
Question proposed: "That the Title be the Title to the Bill."

I wanted to make a point in respect of a number of amendments that I want to bring on Report Stage. We have discussed some of them today. Some relate to pre-action protocols in clinical negligence cases and some transitional provisions which we discussed earlier. There is also an amendment to update the protected disclosure section of the Bill in light of the Protected Disclosures Act of 2014 with some cross-references and to provide for some repeals and amendments to the solicitors Act. Quite a number have been suggested by various Senators, including one in respect of non-residence in the State and the inconsistencies between sections 17 and 19. There is a question here on the disclosure of information by the authority and its interchange with the principle of legal privilege.

An amendment may be inserted to require consultation with the Competition and Consumer Protection Commission by the authority when it is conducting the review and to give clarity around the timeline policy for the administration of complaints, which continues to be three years as a matter of policy. Another amendment may clarify how appeals from claim amounts on the compensation fund will be handled and there may be a reference for information to be passed to the Chief Justice if and when a barrister is struck down from the role of practising barrister due to serious misconduct. Another amendment will ensure the authority proves in regard to its resolution of complaints regarding excessive fees. There may be an amendment to section 153 to make a small distinction between solicitors and barristers to take account of their slightly different roles, as well as an amendment to the definition of "practising barrister" to ensure all barristers, like solicitors, have to complete a period of apprenticeship before offering legal services to the public.

Some improvements may be required to clarify Part 5, the complaints section, in regard to timeframes and there may be more consequences for Parts 9 and 10. There may also be an amendment to section 1 to deal with some of the issues that have arisen in regard to competition. Many issues have arisen from today's discussion, but they relate to amendments and issues I will deal with on Report Stage.

It would be helpful if the proposed amendments for Report Stage were provided to us as soon as possible.

I thank the Minister for her patient and courteous responses to the many questions raised today. We are indebted to her.

Question put and agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Report Stage ordered for Tuesday, 24 November 2015.

When is it proposed to sit again?

At 2.30 p.m. next Tuesday.

The Seanad adjourned at 6.15 p.m. until 2.30 p.m. on Tuesday, 24 November 2015.

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