I welcome the Minister.
Legal Services Regulation Bill 2011: Report Stage (Resumed)
Government amendment No. 42:
In page 37, line 38, to delete “2011” and substitute “2015”.
Amendment agreed to.
Government amendment No. 43:
In page 38, in paragraph (b)(ii) of the section 37 inserted by amendment 40 at Committee Stage in the Seanad, to delete “practitioner,” and substitute “practitioner, or”.
Amendment agreed to.
Amendments Nos. 44 to 48, inclusive, are related and may be discussed together.
Government amendment No. 44:
In page 38, in the section 38 inserted by amendment 41 at Committee Stage in the Seanad, to insert the following new subsection after subsection (1):
“(2) Subject to subsection (4), an inspector may use reasonable force, if necessary, to enter any place referred to in subsection (1)(a), to exercise his or her powers under this section.”.
Senators will recall that we inserted a new Part into the Bill relating to the powers of the authority to inspect premises and dwellings. The amendments in this group make some minor adjustments to these powers.
Amendment No. 44 has been tabled on the advice of the Attorney General to ensure that an inspector may use reasonable force to enter a place in the exercise of his or her functions under this section. Amendment No. 45 involves the insertion of the word "deletes" into the phrase "destroys, defaces or conceals." The intention is to ensure a person who deletes or otherwise tampers with evidence is committing an offence and is subject to the penalties outlined in the section. This is needed, in particular, for material held on a computer.
Will the Minister give a definition of "reasonable force"? One sees on television all the time drug enforcement people, particularly in the United Kingdom, using battering rams to whack down the doors of private houses. I assume this practice is not entirely unknown in this jurisdiction. How much physical force is regarded as appropriate or legal?
I would have thought the word "destroys" would also cover "deletes," but I presume this is a nod in the direction of the computerised world in which, so regrettably, we are forced to live.
Senator David Norris rightly raises a point on reasonable force. The issue has occupied or exercised the courts. It is a phrase that is well used throughout criminal justice legislation in respect of offences and the powers of the Garda. There is well established jurisprudence on how it is defined. It is determined on a case by case basis in terms of what is reasonable in the circumstances. I do not believe a more specific definition could or should be placed in legislation.
The work we have done on this section strengthens the provisions in the original Bill. It is based on the legislation concerning search warrants and money laundering.
Amendment agreed to.
Government amendment No. 45:
In page 38, in subsection (1)(b) of the section 41 inserted by amendment 44 at Committee Stage in the Seanad, to delete “destroys, defaces or conceals” and substitute “deletes, destroys, defaces or conceals”.
Amendment agreed to.
Government amendment No. 46:
In page 38, in subsection (2) of the section 42 inserted by amendment 45 at Committee Stage in the Seanad, to delete “of that section” and substitute “of that paragraph”.
Amendment agreed to.
Government amendment No. 47:
In page 38, in subsection (4) of the section 42 inserted by amendment 45 at Committee Stage in the Seanad, to delete “subsection (3) of section 42” and substitute “subsection (4) of section 42”.
Amendment agreed to.
Government amendment No. 48:
In page 38, in subsection (6) of the section 42 inserted by amendment 45 at Committee Stage in the Seanad, to delete “subsection (3) of section 44” and substitute “subsection (4) of section 42”.
Amendment agreed to.
Government amendment No. 49:
In page 38, line 18, to delete “Solicitors Acts 1954 to 2013” and substitute “Solicitors Acts 1954 to 2015”.
I wish to ask a question out of curiosity. The difference seems to be simply that one phrase is in italics. Is there any legal force to a phrase being in italics?
There is a difference, because the amendment changes the reference from the Solicitors Acts up to 2013 to the Solicitors Acts up to 2015. It is not a question of italics but the difference in year.
Then why the italics? Why is it different?
It is in italics in the first Bill.
I see. Therefore, it is following the Bill it is amending. Is that correct?
Yes.
Amendment agreed to.
Government amendment No. 50:
In page 38, to delete lines 21 to 34, and in page 39, to delete lines 1 to 24.
This is to deal with something in the original Bill, but there is a different situation now. It deletes the provisions relating to the ability of the authority to make regulations about interest on client moneys. This is being done to reflect the fact that the Law Society of Ireland will perform this role as part of its retained functions for the financial and compensation fund spheres. Until such time as barristers can hold client money, the authority will not need to exercise this power in its own right. This power is not relevant or necessary for the functioning of the new authority at this point. Obviously, regulations in this area made by the Law Society will be subject to approval by the new regulatory authority.
I discussed this question at the beginning of Committee Stage. I made the point that we do not want the Government to be liable for any of these issues. A clear decision was made by the previous Minister in respect of the complex issues relating to the compensation fund. The fund has been handled by solicitors up to now, and it will continue to be handled by them.
It is quite a big move because it involves the deletion of an entire section dealing with the requirement for a legal practitioner to hold separate accounts and so on. I am not going to fight this because it is obviously a hopeless battle, and we battled the other day. I was glad to see this reflected in a report on "The Week in Politics". It was rather gratifying to see the Seanad included in the discussions on a major Act.
Will the Minister comment on whether this is one of the areas in which the Bar Council of Ireland exerted pressure on the Department to alter matters? That is concerning. The former Minister, Deputy Alan Shatter, a worthy predecessor to the current Minister, had an article in The Irish Times in which he said 85% of the Bill that he had envisaged had gone through but that 15% had not, which he very much regretted. It very much seems as though the Bar Council has exerted considerable pressure and has had a considerable impact on this legislation. I know that the Minister will be required politically to massage this, but it is a fact.
Not at all.
I beg the Senator's pardon.
Senator David Norris to continue, without interruption.
As I am getting a little hard of hearing, I wish those who wish to interrupt - something I always welcome - would take note of my hard-of-hearing status and shout out the interruptions. I would be grateful for this as I always enjoy them. Perhaps I might come back to that. That is all I wanted to say.
I am interested to know whether this is one of the areas in which the Bar Council exerted pressure on the Government to alter the Bill. Can the Minister give me a reading on this?
I do not normally wait, but I will on this occasion because I am going to ask a question, if that is all right with the Cathaoirleach.
Does the Senator mean on other sections or other amendments?
No. I would just like to ask if there is a substitution involved? Do we have another form of words to cover this or is it a simple deletion, getting rid of it and that is it? If it is just a deletion, it is a little worrying because it governs the idea of opening and maintaining a separate deposit account for the benefit of the client for the holding of money received from the client. Accountability for clients' money is very important. I know that we have distinguished leaders of the Bar here. This is one of the areas where there are always rows and always trouble and it is an area where, regrettably, there is sometimes fraud in the legal profession; therefore, one would need to keep an eye on this if this entire section is going to be got rid of. It is about 50 lines, which is not an insignificant amount. It looks after the safeguarding and the well-being of a client's money. I would be interested in what the Minister has to say to reassure the House that the interests of the client are still very much being protected. I see the Minister nodding. I am sure she can be satisfied on this issue. Is this the result of Bar Council lobbying and is there a substitution?
This is a decision that was taken before I took over dealing with the Bill. The decision on the compensation fund was taken by the previous Minister and he took that decision for very good reasons. When the Bill was published originally, some of the detail of the work had clearly not been done. I have had a huge amount of detailed work to do in regard to the filling out of the various provisions of the Bill. The majority of the amendments I have tabled today have to do with the fact we now have an independent inspection and disciplinary oversight from the regulatory authority, and they also deal with the transitional issues, with the new disciplinary tribunal body and with various other issues on which none of the detailed work had been done. That is what I have been doing primarily.
On the point raised by the Senator, this is not about the Bar Council but about the Law Society of Ireland. It is about the compensation because barristers do not hold clients' moneys. The decision was taken that the compensation fund, in all its complexity, which has been handled by the Law Society of Ireland for many decades would continue to be handled by it and that the State would not be liable in any way for that type of compensation should it arise. What we are doing is protective of the State. The key point is that the legal services regulatory authority, LSRA, still has complete oversight. There is a new independent regulatory authority which has oversight. There is also provision for people to sit on the committee. I will deal with that section later. This was a decision that was taken at an earlier point in the development of the Bill. I think it is an appropriate decision. If one were to move the compensation fund with all its complexities, involvement and management, one would be talking about a different sort of body. We are talking about an oversight body that has approximately 40 staff. If one were to move everything that is currently handled by the Law Society of Ireland and the Bar Council, one would be talking about a different body taking over all that detailed work and the liability issues that arise. The purpose of section 50 is to take out what was in the original published Bill. However, there has been a journey in relation to it since. The reason it is being left with the Law Society of Ireland is well founded. There is still the independent regulation in terms of financial activities, standards and monitoring of the various complex issues that can arise in regard to compensation.
In regard to the Senator's point about the Bar Council and comments that have been made about it, I have explained that I was given very strong advice on this issue and the constitutional difficulties that would arise due to forcing membership on a particular body. That is the reality of the advice I was given and the Government has decided it wants to see the legal services regulatory authority established rather than being tied up in potential constitutional issues that would undermine the whole legislation.
Amendment agreed to.
Amendments Nos. 51 to 55, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 51:
In page 39, in the section 38 inserted by amendment 47 at Committee Stage in the Seanad, to delete subsection (2) and substitute the following:
"(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 that partnership or practice concerned which—
(a) in the case of a partnership or practice which is comprised of practising barristers only, complies with regulations made under section 39 in respect of such partnership or practice,
(b) in the case of partnership or practice which is comprised of practising solicitors only, complies with regulations made under section 26 of the Act of 1994 relating to practising solicitors in such partnerships or practices, or
(c) in the case of a partnership or practice which is comprised of both practising barristers and practising solicitors—
(i) complies with regulations made under section 26 of the Act of 1994 relating to practising solicitors in such partnerships or practices, and
(ii) complies with regulations made under section 39 in respect of practising barristers in such partnerships or practices.”.
This is the section where I accept the amendment proposed by Senator Sean D. Barrett to change the language from "may" to "shall" in regard to the new regulatory authority's discretion to make regulations requiring legal practitioners to main professional indemnity insurance. That is in amendment No. 54. Government amendment No. 51 makes additional provision to the section. It does this to make clear that all configurations of a legal partnership between barristers or solicitors must be compliant with the Bill and have the requisite professional indemnity insurance in place. The amendment arises because it is necessary to cater separately for legal partnerships which consist of solicitors and barristers and those which contain barristers only. We are accepting the Senator's amendment.
I welcome the Minister and thank her for accepting my amendment No. 54. We have compulsory insurance to drive a car. I agree with the Minister that indemnity insurance in this case seems eminently sensible. That is the reason for the word "shall". The new authority should draw up the regulations to implement it. Again, I thank the Minister.
I also welcome the acceptance of Senator Sean D. Barrett's amendment because the word "may" is far too weak. This is a question about legal professional indemnity and without that the client might be exposed to damage. That is very good and I am glad the Minister has accepted it.
With regard to amendment No. 51, this is window dressing because I do not see much prospect of partnerships between solicitors and barristers because, as I understand it - perhaps I am wrong and the Minister will correct me if I am - if a barrister enters into an agreement for a legal practice of some kind with a solicitor, he or she will be exiled from the Law Library and that is quite a severe penalty. To include things that speculate about practices where solicitors and barristers will happily combine together in a legal practice is to a certain extent a bit of pie in the sky if they are going to be subject to this sanction from the Bar Council. If this is correct, and I am speaking from memory of newspaper articles, it is a rather nasty form of bullying that the Bar Council should seek to disadvantage a member of its profession who sets up a professional relationship with a solicitor.
The Bill provides for legal partnerships. That is the reality. The Bill also has a strong section providing that no professional body can take any action that would interfere with the setting up of a partnership and cannot do anything that would be considered to be an interference with the setting up of such a practice. There are 100 barristers operating outside of the Bar Council. There is also a provision in the Bill to provide that if a barrister is employed by a charity NGO, a homeless group or by any of the advocacy groups, that person can represent those bodies in court. All these are new provisions aimed at giving people opportunities to be involved in different ways. All that is in the Bill. I have mentioned the constitutional advice I received about the Bar Council.
Will the Minister confirm the potential exiling of barristers from the Law Library? Is that a fact or a possibility that might happen?
That is a description used by the Senator.
The Bill provides a situation where no professional body can take action that would be seen to interfere with the setting up of a partnership. The Bar Council has its rules and I have taken constitutional advice regarding forcing membership onto it.
Amendment agreed to.
Government amendment No. 52:
In page 39, in the section inserted by amendment 48, in subsection (2), to delete “each professional body” and substitute “professional bodies”.
Amendment agreed to.
Government amendment No. 53:
In page 39, in the section inserted by amendment 48, in subsection (7), to delete “as appears to the Authority” and substitute “as appear to the Authority”.
Amendment agreed to.
I move amendment No. 54:
In page 39, line 26, to delete “may” and substitute “shall”.
I second the amendment.
Amendment agreed to.
Government amendment No. 55:
In page 41, line 16, to delete “section 38” and substitute “section 39 or section 26 of the Act of 1994, as the case may be”.
Amendment agreed to.
Government amendment No. 56:
In page 41, in subsection (1) of the section 41 inserted by amendment 51 at Committee Stage in the Seanad, to delete “An act” and substitute “For the purposes of this Act, an act”.
Amendment agreed to.
Government amendment No. 57:
In page 41, in subsection (1)(c) of the section 41 inserted by amendment 51 at Committee Stage in the Seanad, to delete “practice of law” and substitute “provision of legal services”.
Amendment agreed to.
Government amendment No. 58:
In page 41, in subsection (1)(i) of the section 41 inserted by amendment 51 at Committee Stage in the Seanad, to delete “(within the meaning of those terms under Part 8)” after “multidisciplinary practice”.
Amendment agreed to.
Government amendment No. 59:
In page 41, in subsection (1)(i) of the section 41 inserted by amendment 51 at Committee Stage in the Seanad, to insert “(within the meaning of Part 8)” after “managing legal practitioner”.
Amendment agreed to.
Government amendment No. 60:
In page 41, in the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to delete subsection (1) and to insert the following:
“(1) A client of a legal practitioner, or person acting on behalf of such a client, may make a complaint to the Authority in respect of a legal practitioner where the client considers that—
(a) the legal services provided to the client by the legal practitioner were or are of an
inadequate standard, or
(b) an amount of costs sought by the legal practitioner in respect of legal services
provided to the client by the legal practitioner was or is excessive.
(2) A person may make a complaint to the Authority in respect of a legal practitioner
where the person considers that an act or omission of the legal practitioner constitutes
misconduct.”.
Amendment agreed to.
Government amendment No. 61:
In page 41, in subsection (2) of the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to delete “to which subsection (1) applies”.
This series of amendments Nos. 61 to 65 are discussed separately and are relevant to the numbering of the various paragraphs and subsections.
Amendment agreed to.
Government amendment No. 62:
In page 41, in subsection (3) of the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to delete “subsection (1)” and substitute “subsection (2)”.
Amendment agreed to.
Government amendment No. 63:
In page 41, in subsection (4) of the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to delete “subsection (5)” and substitute “subsection (6)”.
Amendment agreed to.
Government amendment No. 64:
In page 41, in subsection (4) of the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to delete “subsection (1)” and substitute “subsection (2)”.
Amendment agreed to.
Government amendment No. 65:
In page 41, in subsection (5) of the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to delete “subsection (4)” and substitute “subsection (5)”.
Amendment agreed to.
Amendment Nos. 66 to 72, inclusive, 78, 83 to 85, inclusive,104,106,108,111,114,117 and 215 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 66:
In page 41, in subsection (5)(a) of the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to insert “the opinion of the Law Society is that” before “the act”.
What will be the effect of inserting "the opinion of the Law Society"? There are 105 amendments on pages 8 to 28 of the amendments list which all relate to page 41 of the Bill. This is confusing.
I presume I can speak after the Minister?
The Senator can speak only once.
I can speak once, just after the Minister has spoken?
The Senator must speak before the Minister.
There should be a fair amount of latitude in these matters when there are so many amendments scattered throughout the Bill and one has to root around looking to find them. I would like to know what the opinion of the Law Society of Ireland was on this matter that has been so persuasive with the Minister. Page 41 of the Bill is amended on a spectacular number of occasions. Some are just technical amendments. According to my colleague, Senator Sean D. Barrett, page 41 of the Bill is amended 105 times. That is absolutely astonishing. It is no wonder we are at sea; at least I am at sea, I am not suggesting the Minister is at sea.
If a Member has not spoken then it would be no harm, even on Report Stage, for a Member seeking to be informed by the Minister's contribution to be allowed to speak after the Minister - if he or she reserves the position and decides to not speak until after the Minister and taking into account that the Member can still only speak once. It would seem good parliamentary practice to allow a Member who decides to hold his or her fire, to make use of the information the Minister has contributed to the House in making an informed comment, especially when there are so many amendments joined together by leave of the House.
The Chair usually facilitates Members to a great degree.
Therefore, the Chair could have allowed me to speak after the Minister. You miserable git.
These amendments are included to ensure a smooth transition to the new regulatory authority in regard to these issues and for clarity and consistency for the handover. Many amendments are improvements in the drafting. There are a lot of improvements in the drafting. The core of the amendments is to make crystal clear that all new complaints will go to the new authority after enactment. The amendments also place a three-year limit on the complaints about inadequate service but there will be no time limit on complaints about professional misconduct by a solicitor or a barrister.
With regard to the point raised by Senator SEan D. Barrett, the amendment is because they will be dealing with the solicitors' accounts regulations and will have to come to a view in relation to the particular issue. It is they who will come to that view and that is why we have inserted the wording "in the opinion of the Law Society" as they are the people who will be dealing with this, coming to a view as to the irregularity or not. This would always be subject, as the Law Society of Ireland and the Bar Council will be, to the independent regulation of the legal services regulatory authority.
I ask the Minister if it would have been more sensible to delete the whole of page 41 of the Bill and introduce a new page 41 to save the trouble of dealing with this myriad of amendments.
It is a complex Bill and it has had a long run of amendments since it was published. It does engage complex legal and constitutional issues and it covers a very wide span; the inspection, the complaints, the new business models, the new office of the legal costs adjudicator, the charter, and powers for the new authority and the levy which the authority can impose. There has been much involvement and work by the drafters. These amendments are to improve the Bill and to allow for clarity, consistency and a smoother transitional phase. The core rationale is to make it clear that all new complaints will go to the new authority after enactment.
The Minister has not answered my question about whether having a new page 41 would be a good idea.
I have not. I am recommending these amendments.
Senator SEan D. Barrett has yet to speak on amendment No. 66.
We are on amendment No. 66. It is a group of amendments. The Minister spoke to amendment No. 66. The group includes amendments Nos. 66 to 72, inclusive, 78, 83 to 85, inclusive, 104,106,108,111,114,117 and 215. They are being discussed together.
Amendment No. 66 seeks to insert "the opinion of the Law Society". It refers to page 41, subsection (5)(a). I cannot find subsection (5)(a) in the Bill. I do not know where a reference to the opinion of the Law Society of Ireland is to be inserted.
It was inserted by amendment No. 52 on Committee Stage.
Therefore, it is not in the version we have, I presume?
It was inserted on Committee Stage.
I cannot see where the opinion of the Law Society of Ireland would fit in. Section 42 is quite short. It is extremely confusing.
It is very confusing. On a point of order, some of these amendments would be better taken out of the general discussion and discussed separately in order to give us time to reread the Bill and inform ourselves. However, that will not happen.
I discussed that issue on Committee Stage. I have explained why it would be a decision arrived at by the Law Society of Ireland. The phrase "the opinion of the Law Society" has been used because it will regulate the solicitors' accounts regulations.
I have held my counsel until now. I have listened very closely to the debate. It appears to me that the debate is becoming a little shambolic because of the number of amendments to Committee Stage amendments, etc. I am concerned that we and the Government may make some grave mistakes in the Bill because we are amending parts of it that we cannot see in front of us.
I call on the Minister to suspend the debate on the Bill. Committee Stage amendments should be incorporated into a new Bill, which should be published properly in order that we could then debate the Report Stage amendments properly and consider them in the context of the amendments the Government wants to make to ensure it does not make mistakes. Even at this late stage, amendments on Report Stage are still coming into our inboxes. It is an absolute shambles, to be quite honest. I am afraid that we will make a major mistake. Rushing the Bill in this manner is absolutely diabolical.
I have said it is a complex Bill. These are a series of amendments which are very much drafting improvements. There is no change whatsoever in the policy issue we discussed on Committee Stage. In fact, these are detailed amendments to improve the Bill from a drafting point of view, the drafter having taken a further look at the overall section. As I said, the purpose of the amendments is to provide clarity and consistency.
The key policy point is that there will be independent access. All new complaints will go to the new authority after the enactment of the Bill. This is a major change. In future, all complaints about legal services, rather than going to a committee within the Law Society of Ireland, which has operated under legislation to date, or the Bar Council, which provided an annual report on its activities, will go to an independent body. I ask Senators to reflect on that key policy point. I appreciate that there are a lot of amendments, but they are to improve the drafting of the Bill, for the purposes of consistency and clarity and to ensure a smooth transition from those committees to the new legal services regulatory authority.
I wish to make a point of order. I sympathise with the Minister's difficulty; this is a complex Bill. It has been rendered more complex by amendments, amendments on Report Stage, proposed amendments and all the rest. There are 23 pages of amendments to one page of the Bill. That is astonishing. How can 23 pages of amendments be squeezed onto one page? The mind just boggles. It is daft. Surely it would be better to reconstitute the relevant page and leave the original version in the Bill as passed by the Dáil and present a revised version to Seanad Éireann? That would seem to be the sensible thing to do. I cannot get over the fact that there are 23 pages of amendments to one page of the Bill.
There are asterisks, footnotes and various other things, as the Senator will see when he reads the amendments.
There are a lot of asterisks in 23 pages.
An amendment can take up that much room and there are many technical amendments.
Amendment put:
The Seanad divided: Tá, 18; Níl, 6.
Tá
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Brien, Mary Ann.
- O'Neill, Pat.
- Sheahan, Tom.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- Ó Murchú, Labhrás.
- O'Donovan, Denis.
- Power, Averil.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
On a point of order, Members on both sides find the proceedings chaotic, disorientating and very difficult to follow given that we are presented with an unclean text. The Bill we have before us does not contain the Committee Stage amendments that have already been made. Would the Minister be prepared to suspend the debate and produce a copy of the Bill with the Committee Stage amendments included in it in order that we can see where we are? We have just examined an important amendment which adds the words "the opinion of the Law Society" regarding a matter of fact, namely, whether there has been a breach of regulations. It is not a matter of opinion but a matter of fact. We have just allowed a fact to be overwhelmed by an opinion of a professional body, and it is worrying. The Members on this side will not be particularly co-operative and will call a number of votes to reflect the disquiet throughout the House. Although the Government side is inhibited from making these points, in discussions during the division we found there is considerable concern on that side. Every December, Bills are rammed through because we must get them done before Christmas. This is why we are sitting five days next week and the week after. It is not good parliamentary practice and does not treat the Seanad with the respect it is due.
How could it possibly be in order for us to discuss amendments without having the Bill as passed on Committee Stage? It is very confusing.
It is perfectly in order and is a normal procedure, although we probably never had this volume of amendments before.
Although I have the list of amendments, we are working from the Bill as passed by Dáil Éireann, not the Bill as passed on Committee Stage in the Seanad.
Second Stage took place.
To my knowledge, this is the first time we have been in this situation, even with other rushed legislation.
A list of the Committee Stage amendments has been made available.
We do not have a copy of the Bill, as amended.
This is very important legislation.
Although the amendments are not included in the Bill, they are available.
They should be included in the Bill.
They never are in the Seanad.
Government amendment No. 67:
In page 41, in subsection (6) of the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to delete “under subsection (1)”.
Amendment put:
The Seanad divided: Tá, 18; Níl, 6.
Tá
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Brien, Mary Ann.
- O'Neill, Pat.
- Sheahan, Tom.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- Ó Murchú, Labhrás.
- O'Donovan, Denis.
- Power, Averil.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 68:
In page 41, in subsection (6) of the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to delete ", or deemed under this Part to have been made, or referred under section 43".
Amendment put:
The Seanad divided: Tá, 18; Níl, 5.
Tá
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Brien, Mary Ann.
- O'Neill, Pat.
- Sheahan, Tom.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- Power, Averil.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 69:
In page 41, in the section 42 inserted by amendment 52 at Committee Stage in the Seanad, to insert after subsection (8) the following:
"(9) A complaint shall be made in writing and in accordance with this Part and regulations under section 46.
(10) This section is subject to section 49.".".
Amendment put and declared carried.
Government amendment No. 70:
In page 41, in the section 43 inserted by amendment 53 at Committee Stage in the Seanad, to delete subsections (1) and (2) and insert the following:
“(1) The Bar Council or the Honorable Society of King’s Inns shall refer to the Authority a complaint that is made to the body concerned—
(a) by a client, or a person acting on behalf of such a client, of a barrister, and
(b) in respect of an act or omission of the barrister to which subsection (1) or (2) of section 42 applies, that occurred on or after that date on which this subsection comes into operation.
(2) The Law Society shall refer to the Authority a complaint that is made to it—
(a) by a client, or a person acting on behalf of such a client, of a solicitor, and
(b) in respect of an act or omission of the solicitor to which subsection (1) or (2) of section 42 applies, on or after the date on which this subsection comes into operation.
(3) Where a complaint is referred to the Society under subsection (1) or (2), the Authority shall invite the person who made the complaint to make a complaint under section 42.”.
Amendment agreed to.
Government amendment No. 71:
In page 41, in the section 44 inserted by amendment 54 at Committee Stage in the Seanad, to delete “and ending 2 months after the complaint is determined under this Part shall be disregarded.” and insert the following:
“or, where the complaint is made on the invitation of the Authority under section 43(3), on the making of the complaint referred to in subsection (1) or (2) of section 43, and ending—
(a) on the date on which the complaint is withdrawn by the complainant, or
(b) where the complaint is not withdrawn by the complainant, on the date that is 2 months after the date on which complaint is determined under this Part,
shall be disregarded.”.
Amendment agreed to.
Government amendment No. 72:
In page 41, in the section 45 inserted by amendment 55 at Committee Stage in the Seanad, to insert the following new subsection:
“(2) The Authority shall notify the complainant and the legal practitioner concerned where it decides under subsection (1) to continue or proceed to deal with a complaint.”.
Amendment put:
The Seanad divided: Tá, 18; Níl, 5.
Tá
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Brien, Mary Ann.
- O'Neill, Pat.
- Sheahan, Tom.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- Power, Averil.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 73:
In page 41, in the section 47 inserted by amendment 57 at Committee Stage in the Seanad, to delete “The Authority may, with the consent of the” and substitute “The Authority may, with the approval of the Minister given with the consent of the”.
Amendment declared carried.
Government amendment No. 74:
In page 41, in subsection (1) of the section 48 inserted by amendment 58 at Committee Stage in the Seanad, to delete “under section 49”.
Amendments Nos. 74 to 77, inclusive, provide simply for the changes in numbering of the sections.
It was not agreed to discuss them together.
That is right. As there are some extra sections in the Bill, particularly dealing with complaints and disciplinary issues which we inserted in Part 5, there is a change in the numbering of sections. This is simply a change in the numbering.
Amendment put:
The Seanad divided: Tá, 16; Níl, 5.
Tá
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Neill, Pat.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- Power, Averil.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 75:
In page 41, in subsection (5) of the section 48 inserted by amendment 58 at Committee Stage in the Seanad, to insert “, in accordance with section 49,” after “shall”.
As I have said, many of the amendments being introduced are technical amendments required because of the change and the new insertions in the Bill. That has led to a renumbering of the amendments. Obviously, when one inserts a new section, all the numbers on the other sections have to be changed. This is one of a series of amendments reflecting the change to the number of the section we are dealing with. It is normal with any Bill where there are insertions as there was regarding the disciplinary procedures. This has meant there is a change in the section numbers. This amendment changes the numbering of the section.
Obviously, once one inserts a new section, all the numbers on the other sections have to be changed. This is one of a series of amendments where it is literally just reflecting the change that has been brought about to the number of the section we are dealing with. It is a normal thing that would happen in any Bill one would discuss in the Seanad or the Dáil where there are insertions into the Bill, as there was on disciplinary procedures. It has meant that there is a change in the way the sections are numbered and this is a change to the numbering of the section.
I would like to request a little information of a technical nature from the Minister. I accept completely the renumbering and all the rest of it. In the normal course of events we would just let this legislation slide through, but we are not prepared to do that. I seek clarification on the following. I noticed that hash marks were included in the amendment which says: "inserted by amendment 58# .... in accordance with section 49##". In some cases there are up to four or five hash marks inserted. Does a hash mark indicate the number of times an amendment has been amended? What is the purpose of a hash mark in this instance?
The Bills Office put a hash mark in as an aid to Senators following the Bill and there is a reference. That is all that it is in the Bill.
What does the reference mean?
It is a reference to a change.
A slight new change. It is a rehash.
Yes, that is all.
Why is there one hash sign on some of them, two on another, three on another and four on another?
They are simply footnotes that reference difference sections. The first hash refers to the first section that is being changed and the second hash refers to the second change. It is just to differentiate the amendments being made. The Bills Office did so to make it clearer what was happening with these amendments.
I will make a point which might be helpful to the discussion about the various changes in the Bill. The Senator commented on the number of amendments relating to one page. That was a reference point for a large number of amendments that were made by the House on Committee Stage on the subject of complaints. It is a virtual page number to allow for the insertion of the various amendments that had been made but it was not changing any of those amendments. It was literally just providing a place where those amendments were to be inserted into the Bill that had been agreed on Committee Stage.
A huge number of the amendments I am bringing forward are to do with the drafters. It was always going to be necessary at this point in the Bill to look at the overall development of the Bill and the kind of changes made and see how it all stood together. Many of the changes in these amendments are genuine, as Senators will see when they look at the amendments. We are not brining in any policy changes. The policy discussion we have had, both on Second Stage and on Committee Stage, is very much the drafters looking over the Bill as a whole. I appreciate that there are many amendments. The drafters have looked over them and effectively made the technical changes and the minor corrections that are needed for the Bill to flow as a whole. I apologise that there are so many of them, but it is very much the drafters looking at the Bill as a whole and making the various changes. I accept that it is a complex and large Bill with many amendments. These ones we are discussing at this point are very much the technical ones about the numbering changes where one puts the amendments in and so forth.
I have detailed notes which I am happy to share on some of the other amendments that have to do with inserting monitoring elements, for example, which we will deal with in the Bill at a later stage, and some of the other key points about transitions and the kind of periods of transition we are putting into the Bill when we move from the Bar Council and the Law Society of Ireland to the LSRA. I hope I have been helpful.
Yes. May I elucidate a little more? Am I right in thinking that four hash marks means an amendment has been through four transitional stages?
No. It just means it is the fourth point referenced. It is the fourth amendment being referenced on a particular page. It is just a note on the fourth. There is just one hash mark for the first one. The Bill Office has done this in terms of being helpful in relation to the Bill.
It is not a bit helpful. It is not at all helpful.
The amendment reads: "In page 41, in subsection (5) of the section 48 inserted by amendment 58 at Committee Stage in the Seanad, to insert “, in accordance with section 49,” after “shall”. In section 48 there are six uses of the word "shall". Therefore, we should have the legislation printed up again incorporating all those amendments because it is very difficult to keep track.
Which "shall" is it?
Is amendment No. 75 agreed to?
Not agreed.
Amendment put:
The Seanad divided: Tá, 14; Níl, 6.
Tá
- Burke, Colm.
- Coghlan, Eamonn.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Neill, Pat.
- Sheahan, Tom.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- O'Sullivan, Ned.
- Power, Averil.
Tellers: Tá, Senators Marie Moloney and Michael Mullins; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 76:
In page 41, in subsection (5)(c) of the section 48 inserted by amendment 58 at Committee Stage in the Seanad, to delete “section 49(5)” and substitute “section 49(6)”.
Like many subsequent amendments, as there is a new line inserted, this is effectively saying where the authority makes a determination referred to in subsection (4). As one can see from page 22 of the Committee amendments, the Report Stage amendment is literally changing 4(b) to 5(b). Some of these are the result of a new line being inserted and the reference changes. It is one of the many technical changes because there are changes in the composition of the Bill with new sections inserted, there is a change in the reference. Instead of 4(b) it reads 5(b). It is a numerical change reflecting an extra sentence.
Amendment agreed to.
Government amendment No. 77:
In page 41, in subsection (7) of the section 48 inserted by amendment 58 at Committee Stage in the Seanad, to delete “subsection (4)(b)” and substitute “subsection (5)(b)”.
This is a numerical change to the ordering as I have explained. This is another amendment we agreed to take separately. It is the numbering of the sections reflecting the changes.
Amendment agreed to.
Government amendment No. 78:
In page 41, in the section 49 inserted by amendment 59 at Committee Stage in the Seanad, to insert the following new subsection (1):
“(1) This section applies to a preliminary review conducted under section 48 by the Authority to determine whether or not a complaint is admissible.”.
Amendment agreed to.
Government amendment No. 79:
In page 41, in subsection (1) of the section 49 inserted by amendment 59 at Committee Stage in the Seanad, to delete “under this Part”.
Amendment put:
The Seanad divided: Tá, 15; Níl, 6.
Tá
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Neill, Pat.
- Sheahan, Tom.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- O'Sullivan, Ned.
- Power, Averil.
Tellers: Tá, Senators Marie Moloney and Michael Mullins; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 80:
In page 41, in subsection (2) of the section 49 inserted by amendment 59 at Committee Stage in the Seanad, to delete “under this Part”.
Amendment agreed to.
Government amendment No. 81:
In page 41, in subsection (3) of the section 49 inserted by amendment 59 at Committee Stage in the Seanad, to delete “under this Part”.
Amendment agreed to.
Government amendment No. 82:
In page 41, in subsection (4) of the section 49 inserted by amendment 59 at Committee Stage in the Seanad, to delete “under this Part”.
Amendment agreed to.
Government amendment No. 83:
In page 41, in the section 49 inserted by amendment 59 at Committee Stage in the Seanad, after subsection (5) to insert the following new subsections:
“(6) The Authority shall determine a complaint under section 42(1) to be inadmissible where it is satisfied that the complaint was made more than 3 years after the later of the following:
(a) the date on which the legal services concerned were provided or the bill of costs concerned was issued, or
(b) the date on which the client first became aware, or ought reasonably to have become aware, that it would be reasonable to consider that paragraph (a) or (b) of section 42(1) applied in respect of the legal practitioner concerned.
(7) In reckoning any period of time for the purposes of the limitation period under subsection (6), the period between the date of receipt of a complaint by the body referred to in subsection (1) or (2) of section 43 and the making, on invitation by the Authority under section 43(3), of a complaint under section 42 in respect of
the act or omission concerned, shall be disregarded.
(8) Where the Authority does not determine a complaint to be inadmissible under this section, it shall determine the complaint to be admissible.”.
Amendment agreed to.
Government amendment No. 84:
In page 41, in subsection (3)(b) of the section 50 inserted by amendment 60 at Committee Stage in the Seanad, to delete “and the Authority, provide the Authority” and substitute “and the Authority, the Complaints Committee or the Disciplinary Tribunal, as the case may be, provide the Authority, Complaints Committee or Disciplinary Tribunal”.
Amendment agreed to.
Government amendment No. 85:
In page 41, in the section 51 inserted by amendment 61 at Committee Stage in the Seanad, to delete subsection (1) and substitute the following:
“(1) Where the Authority determines under section 48 that a complaint to which section 42(1)(a) applies is admissible, or where a complaint is remitted to it under section 53, it 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.”.
Is the amendment agreed to?
Amendment put:
The Seanad divided: Tá, 17; Níl, 6.
Tá
- Bacik, Ivana.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Neill, Pat.
- Sheahan, Tom.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- O'Sullivan, Ned.
- Power, Averil.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 86:
In page 41, in subsection (2)(a) of the section 51 inserted by amendment 61 at Committee Stage in the Seanad, to delete "it" and substitute "the matter".
This amendment was discussed with amendment No. 5. Is it agreed to?
No. I just want to say-----
It has already been discussed.
All right. We will leave it.
Amendment put and declared carried.
Government amendment No. 87:
In page 41, in subsection (7) of the section 51 inserted by amendment 61 at Committee Stage in the Seanad, to delete "the person aggrieved" and substitute ", he or she".
This amendment was discussed with amendment No. 5. Is it agreed to?
No. On a point of order, this amendment seems to be redundant. The original line states: "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". It is being changed to "he or she", but that has precisely the same meaning. What is the point in changing it?
It is like some of the other amendments in that it is a technical drafting change. That is what I have said about many of these amendments.
What is the difference between "the person aggrieved" and-----
It is a drafting recommendation to insert "he or she" as opposed to "the person aggrieved".
Grammatically, it has exactly the same meaning and impact.
As with the previous two amendments on which we voted, many of these effectively replace "it" with "the matter". In another, we deleted "in this Part". Using this language instead of the other is a straightforward recommendation from the draftsperson to improve the flow of the Bill. Many of the amendments are extremely technical. One could argue about them all.
I am sorry, but they are not technical because they mean exactly the same thing. There is no technical difference between one and the other.
Why make a big deal out of it then?
All I can say is I am advised by the draftspersons who have been working on the Bill that it is a better formulation.
And the draftsperson is W. Shakespeare, I presume?
Come on. This is getting-----
Ridiculous. There is a sense of style here. Someone believes it is worthwhile wasting the time of the Seanad on a matter of style. It is complete nonsense.
Amendment agreed to.
Amendments Nos. 88, 90, 92 to 100, inclusive, 113 and 118 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 88:
In page 41, in subsection (7) of the section 51 inserted by amendment 61 at Committee Stage in the Seanad, to delete "the Review Committee" and substitute "a Review Committee".
These are mainly refinements to the new section 51 inserted on Committee Stage to deal with the informal resolution of inadequate services. The substantive amendment in this group provides that an appeal of the outcome of a complaint of inadequate services or excessive costs shall be via a review committee to the High Court.
Amendment No. 88 replaces subsection (1). The intention is that the authority will, in every case where the matter at hand relates to inadequate services or where the review committee has remitted a complaint to the authority, invite the parties to seek to resolve the matter by informal means. The subsection removes the requirement that the authority should form an opinion as to whether the matter is suitable for resolution by informal means, which it was felt was too subjective.
Amendments Nos. 90 to 101 and 113 to 118 relate to the resolution and review of the complaints sections. The intention behind the amendments being proposed is to make clear how procedures regarding the resolution of complaints will operate and to better define the role of the review committee. Amendment No. 90 makes a change to one of the options available to the new review committee to be established under section 53 of the Bill, as inserted by amendment No. 63 of the Committee Stage amendments. The option that the review committee had, that is, to find that a complaint was not well founded, is being replaced by an option to remit the complaint to the committee with such direction as the review committee considers appropriate. It provides that a remittance can be for a complaint against either inadequate service or excessive costs.
Amendment No. 92 inserts an important new section into the Bill which will enable a party to appeal to the High Court against a decision of the review committee. Subsection (1) provides that the party, within 21 days of a notification from the review committee, may appeal to the High Court for an order to rescind or vary the determination of the review committee. Subsection (2) makes it clear, however, that if no such appeal is made within the 21 days, the determination of the review committee is absolutely binding on the parties. Subsection (3) gives the authority the right to have an appeal dismissed if it considers that the appeal has only been made to delay the conclusion of the complaint. Subsection (4) provides that a failure by a legal practitioner to comply with the determination of the review committee will constitute an offence under the Act.
Amendment No. 93 proposes a new subsection which makes it clear that where there is an admissible complaint which, if proven, would constitute misconduct, the authority should invite the complainant and legal practitioner to make efforts to resolve the matter promptly and in line with guidelines published by the authority.
Amendment No. 94 proposes to replace section 56, which was inserted on Committee Stage, with a different wording, although the thrust of the section remains the same - that agreement by a legal practitioner to participate in attempts to resolve an issue is not an admission of liability. We had some discussion on this on Committee Stage and I think these amendments were welcomed.
Amendment No. 101 relates to the procedures that the authority must carry out in dealing with complaints. I have decided that there needs to be a clear statement that a complaint about an act or omission which could constitute misconduct, if not resolved by informal means, will be passed to the complaints committee for consideration.
Amendment No. 113 involves the deletion of subsection 14. This is about improving the case management of complaints. Under subsection 14, the divisional committee could refer a case back to the authority to see if it could be resolved by informal means. Having looked at it again, we believe cases that reach the divisional committee have already been through the process; therefore, we are not referring them back to the authority.
Amendment No. 118 makes it clear that an appeal by a legal practitioner against a determination of a divisional committee will be to the High Court and not to the disciplinary tribunal. The disciplinary tribunal will have a specific function to investigate certain complaints involving alleged misconduct on the part of legal practitioners. I am providing that an appeal by a legal practitioner against a determination made or a direction issued by a divisional committee will be by way of application to the High Court.
We also have a subsection that states that in certain circumstances the authority may also appeal to the High Court against determinations or directions of the divisional committee. The authority may also appeal against a decision by the divisional committee not to refer a complaint to the disciplinary tribunal. Subsection (3) outlines the orders that the High Court may make on receipt of an appeal under this section. Effectively, these are refinements to the resolution of inadequate services. The substantive amendment in this group provides that an appeal on the outcome of a complaint about inadequate services or excessive costs shall be by way of the review committee to the High Court. It outlines the various stages that complaints of inadequate service or excessive costs go through within the body and how the authority becomes involved.
I welcome the Minister's very detailed explanation of these amendments. I am interested, however, in her remark that the view of the authority is too subjective. Despite the fact that the Minister provided for the wording that refers to the view of one of the legal bodies - I cannot remember which - she said before that it was too subjective, yet here it is now popping up. I am sorry; I will clarify that. The Minister put in the wording that refers to the authority forming a view of something, yet now she is saying it is too subjective; therefore, there is a conflict.
I welcome the option of appealing to the High Court the determination of the review committee. I think that is a good thing. The Minister referred to the fact that during Second Stage, or during an earlier debate on this Bill, we commended the provision that an apology would not constitute an admission of liability. The tendency of the Bill is to urge the parties towards reconciliation and so on without actually resorting to court procedures, but such recourse to these proceedings to try to reach an accommodation shall not be taken as admission of liability. That is good because it frees up the system and encourages people to take a course of moderation and to try to sort things out without recourse to the law, which can be extremely expensive.
I have a query about one of the amendments, but by and large they are good. They are fairly substantive amendments dealing with big matters that need a certain amount of thought.
I will deal with the point made by Senator David Norris in respect of forming an opinion. The authority in this instance would be referring the matter for informal resolution; therefore, we do not want it to prejudge the matter. Thus, we are removing the section that refers to the authority forming an opinion.
I think the Senator is correct about the question of liability. We discussed this in the context of the pre-action protocols for medical negligence also, where we have provided for a similar wording in order that an apology is not seen as an admission of liability.
Government amendment No. 91:
In page 41, in subsection (5)(c) of the section 53 inserted by amendment 63 at Committee Stage in the Seanad, to insert “or section 52(6), as the case may be” after “section 51(6)”.
Amendment agreed to.
Government amendment No. 89:
In page 41, to delete the section 52 inserted by amendment 62 at Committee Stage in the Seanad and substitute the following:
“Authority to facilitate resolution of complaints made under this Part relating to excessive costs
52. (1) Where the Authority determines under section 48 that a complaint to which section 42(1)(b) applies is admissible, or where a complaint is remitted to it under section 53, it 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 the matter 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 amount of costs sought by the legal practitioner in respect of legal services provided to the client by the legal practitioner was or is excessive, and that it is, having regard to all the circumstances concerned, appropriate to do so, may direct the legal practitioner to do one or more of the following:
(a) refund without delay, either wholly or in part as directed, any amount already paid by or on behalf of the client in respect of the practitioner’s costs in connection with the bill of costs;
(b) waive, whether wholly or in part as directed, the right to recover those costs.
(7) Where the client or legal practitioner is aggrieved by a direction made by the Authority under subsection (6) or its failure to make a direction, he or she 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 a Review Committee established under section 53 of the direction or the failure.
(8) Where a bill of costs which has been the subject of complaint under section 42(1)(b) has subsequently been adjudicated, then—
(a) where the Authority has given a direction under subsection (6), the direction shall cease to have effect, or
(b) where the Authority has not given a direction under subsection (6), it shall not proceed to investigate such a complaint or otherwise apply the provisions of this section.
(9) Where the Authority has notified a legal practitioner under section 48(6) that a complaint under section 42(1)(b) in respect of a bill of costs issued by the legal practitioner is admissible, the legal practitioner shall not—
(a) issue or cause to be issued civil proceedings (whether on his own behalf or on behalf of any other person or persons), or
(b) if already issued, proceed further with civil proceedings, in respect of the amount (or any part thereof) of a bill of costs without the written consent of the Authority before the Authority has determined the matter under subsection (6) unless, on application by that legal practitioner, on notice to the Authority, a Court orders otherwise.
(10) 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.
(11) The determination under this section of a complaint shall be without prejudice to any legal right of the client.”.
Amendment agreed to.
Government amendment No. 90:
In page 41, in subsection (5)(b) of the section 53 inserted by amendment 63 at Committee Stage in the Seanad, to delete “finding that the complaint is not well founded” and substitute“remitting the complaint to the Authority, with such directions as the Review Committee considers appropriate or necessary, to be dealt with again under section 51 or 52, as the case may be”.
Amendment agreed to.
Amendment No. 91 is one of the technical changes relating to the numbering of the amendment.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 92:
In page 41, between lines 22 and 23, to insert the following:
“Appeal to High Court from determination of Review Committee
54. (1) Where a Review Committee determines a review under section 53, the client or the legal practitioner concerned may, within a period of 21 days of the notification of such determination or direction to him or her, apply to the High Court for an order directing the Review Committee to rescind or to vary such determination and on hearing such application the Court may make such order as it thinks fit.
(2) Where no application under subsection (1) is made within the period specified in that subsection, the determination of the Review Committee shall become absolutely binding on the client and legal practitioner immediately upon the expiration of such period.
(3) Where an application has been made by a legal practitioner under subsection (1), the Authority may apply to the High Court and the Court may dismiss the application of the legal practitioner if it is satisfied that such application has no merits and has been made purely for the purposes of delay.
(4) Where a legal practitioner, in respect of whom a determination of the Review Committee is binding, without reasonable excuse refuses, neglects or otherwise fails to comply with such determination, he or she shall be guilty of an offence and be liable on summary conviction thereof to a Class B fine.”.
Amendment agreed to.
Government amendment No. 93:
In page 41, in the section 54 inserted by amendment 64 at Committee Stage in the Seanad, to delete subsection (1) and to insert the following:
“(1) Where the Authority decides under section 48 that a complaint under section 42(2) is admissible, and that the act or omission of the legal practitioner to which the complaint relates, if the complaint were substantiated, would constitute misconduct within the meaning of section 41(1)(b), it shall invite the complainant and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint in a prompt manner in accordance with guidelines published by the Authority pursuant to section 57.".
Amendment agreed to.
Government amendment No. 94:
In page 41, to delete the section 56 inserted by amendment 66 at Committee Stage in the Seanad and substitute the following:
“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 51, 52 or 54 shall not be taken as an admission of any allegation of an act or omission by the legal practitioner to which paragraph (a) or (b) of section 42(1), or of misconduct insofar as such misconduct consists of an act or omission of the legal practitioner that the legal services provided by the practitioner were, to a substantial degree, of an inadequate standard.”.
Government amendment No. 95:
In page 41, in the section inserted by amendment 67 at Committee Stage in the Seanad, to delete “mediation or”.
Amendment agreed to.
Government amendment No. 96:
In page 41, in paragraph (a) of the section 57 inserted by amendment 67 at Committee Stage in the Seanad, to delete “mediation or”.
Amendment agreed to.
Government amendment No. 97:
In page 41, in paragraph (c) of the section 57 inserted by amendment 67 at Committee Stage in the Seanad, to insert “Authority, the” before “complainant,”.
Amendment agreed to.
Government amendment No. 98:
In page 41, in paragraph (c) of the section 57 inserted by amendment 67 at Committee Stage in the Seanad, to insert “, where applicable,” after “concerned and”.
Amendment agreed to.
Government amendment No. 99:
In page 41, in paragraph (c) of the section 57 inserted by amendment 67 at Committee Stage in the Seanad, to delete “mediation or”.
Amendment agreed to.
Government amendment No. 100:
In page 41, in paragraph (d) of the section 57 inserted by amendment 67 at Committee Stage in the Seanad, to delete “mediation or”.
Amendment agreed to.
Government amendment No. 101:
In page 41, to delete the section 58 inserted by amendment 68 at Committee Stage in the Seanad and substitute the following:
“Authority to refer complaints relating to misconduct to Complaints Committee
58. The Authority shall refer a complaint under section 42(2) to the Complaints Committee where the client and legal practitioner concerned do not succeed in resolving a matter in accordance with section 54.”.
Amendment agreed to.
Government amendment No. 102:
In page 41, in subsection (1) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to delete “it” and substitute “the Complaints Committee”.
Amendment agreed to.
Government amendment No. 103:
In page 41, in subsection (2) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to delete “When referring a complaint to a Divisional Committee the Authority shall furnish to the Divisional Committee” and substitute “Where the Authority refers a complaint to the Complaints Committee, the Authority shall furnish to the Divisional Committee concerned”.
Amendment agreed to.
Government amendment No. 104:
In page 41, in the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to delete subsection (3) and substitute the following:
“(3) On receipt of the documents referred to in subsection (2), the Divisional Committee shall—
(a) request the legal practitioner to whom the complaint relates to furnish to the Divisional Committee, within such reasonable period as is specified by the Divisional Committee, his or her response to the complaint, and
(b) unless the legal practitioner has already been furnished with the documents concerned, furnish a copy of the documents referred to in subsection (2) to him or her.”.
Amendment agreed to.
Government amendment No. 105:
In page 41, in subsection (5) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to delete “Chapter” and substitute “Part”.
Amendment agreed to.
Government amendment No. 106:
In page 41, in subsection (6)(a) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to insert “the complainant and the legal practitioner,” after “Authority,”.
Amendment agreed to.
Government amendment No. 107:
In page 41, in subsection (6)(c) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to delete “may” and substitute “may,”.
Amendment agreed to.
Government amendment No. 108:
In page 41, in the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to insert the following after subsection (6)(c)(ii):
“(iii) require that information requested under subparagraph (ii) be verified by affidavit or otherwise;”.
Amendment agreed to.
Government amendment No. 109:
In page 41, in subsection (9)(c) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to delete “explanation” and substitute “response”.
Amendment agreed to.
Government amendment No. 110:
In page 41, in subsection (9)(d) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to delete “subsection (3)” and substitute “subsection (4)”.
Amendment agreed to.
Government amendment No. 111:
In page 41, in subsection (11)(b) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to insert “and, where it does so, shall notify the Authority, the complainant and the legal practitioner concerned of the fact” after “withdrawn”.
Amendment agreed to.
Government amendment No. 112:
In page 41, in subsection (13)(c) of the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to insert “referred to it” after “complaints”.
Amendment agreed to.
Government amendment No. 113:
In page 41, in the section 60 inserted by amendment 70 at Committee Stage in the Seanad, to delete subsection (14).
Amendment agreed to.
Government amendment No. 114:
In page 41, in subsection (1)(a) of the section 61 inserted by amendment 71 at Committee Stage in the Seanad, to delete “issue” and substitute “subject to subsection (9), issue”.
Amendment agreed to.
Government amendment No. 115:
In page 41, in subsection (6)(b) of the section 61 inserted by amendment 71 at Committee Stage in the Seanad, to delete “by” and substitute “of”.
Amendment agreed to.
Government amendment No. 116:
In page 41, in subsection (6)(b) of the section 61 inserted by amendment 71 at Committee Stage in the Seanad, to insert “, in accordance with Part 10” after “impose”.
Amendment agreed to.
Government amendment No. 117:
In page 41, in the section 61 inserted by amendment 71 at Committee Stage in the Seanad, to insert the following new subsection:
“(9) In issuing a direction specified in paragraph (c)(ii), (g), (h) or (i) of subsection (5), the Divisional Committee shall have regard to the means of the legal practitioner concerned.
(10) The Divisional Committee shall notify the Authority of its determination under subsection (1).”.
Amendment agreed to.
Government amendment No. 118:
In page 41, in the section inserted by amendment 72 at Committee Stage in the Seanad, to delete section 62 and substitute the following:
“Appeal of determination of Divisional Committee
62. (1) Where the Divisional Committee issues a direction under section 61(1)(a) to a legal practitioner, the legal practitioner may, within a period of 21 days of the date of such issue, appeal to the High Court against either or both of the following:
(a) the determination of the Divisional Committee under section 61(1), or
(b) the direction.
(2) The Authority may, within a period of 21 days of the notification under section 61(9) of the determination of the Divisional Committee under section 61(1), appeal to the High Court against one or more than one of the following:
(a) where a direction is issued under section 61(1)(a)—
(i) the determination of the Divisional Committee under section 61(1), or
(ii) the direction;
(b) a failure of the Divisional Committee to make an application under section 61(7).
(3) The High Court, on an application under subsection (1) or (2), may—
(a) in an appeal to which subsection (1)(a) or (2)(a)(i) applies—
(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 appeal to which subsection (1)(b) or (2)(a)(ii) of section 62 applies, may—
(i) confirm the direction concerned,
(ii) set aside the direction, or
(iii) set aside the direction and impose another sanction that the Divisional Committee could have imposed under section 61(1),
and
(c) in an appeal to which subsection (2)(b) applies, affirm or set aside the decision of the Divisional Committee not to make an application under section 61(7).”.
Amendment agreed to.
Government amendment No. 119:
In page 41, in the section 63 inserted by amendment 73 at Committee Stage in the Seanad, in subsection (2)(d)(iv), to insert “the Complaints Committee made a determination under section 61(1), and where” after “where”.
Amendment agreed to.
Government amendment No. 120:
In page 41, in subsection (6) of the section 65 inserted by amendment 75 at Committee Stage in the Seanad, to insert “hearing the inquiry” after “Tribunal”.
Amendment agreed to.
Government amendment No. 121:
In page 41, in subsection (7) of the section 65 inserted by amendment 75 at Committee Stage in the Seanad, to insert “hearing the inquiry” after “Tribunal”.
Amendment agreed to.
Amendments Nos. 122 to 140, inclusive, are related and may be discussed together.
Government amendment No. 122:
In page 41, in the section 66 inserted by amendment 76 at Committee Stage in the Seanad, to delete subsection (1) and substitute the following:
“(1) The person appointed as chairperson of the Disciplinary Tribunal shall, where the person is a legal practitioner, have practised as a barrister or solicitor for not less than 10 years.”.
On Committee Stage, we introduced a number of new sections dealing with the establishment and operation of the legal practitioners disciplinary tribunal. This group of amendments relates to those sections and have been tabled to provide greater clarity in respect of the tribunal. Amendment No. 122 is no longer necessary, given that we are repeating the qualifications that were to be expected. There is no need to repeat them here.
Does this mean the Minister is not moving amendment No. 122?
I am moving it.
If it is not needed, why is the Minister moving it?
I will go into the details. Amendment No. 122 is a drafting amendment to eliminate repetition of qualifications for lay membership of the disciplinary tribunal. The purpose of the amendment is to replace subsection (1) of section 66 which was inserted on Seanad Committee Stage by amendment No. 76. The subsection (1) which was inserted includes paragraphs (a) and (b). Paragraph (a) carried over the reference to the requirement for ten years practice which was in the published Bill, and my intention is to retain it. However paragraph (b) referred to the types of knowledge and expertise which a person must have if he or she is to be appointed a lay chairperson of the disciplinary tribunal. Since these elements of knowledge and expertise are already set down in Section 65(3) of the Bill, inserted on Committee Stage, as requirements for lay membership of the tribunal, there is no need for them to be repeated here. The effect of the amendment proposed is thus to delete paragraph (b) of subsection (1) of section 66, thereby removing the repetition. I am keeping one part and taking out one other part.
Amendments Nos. 123 and 125 are consequential amendments arising from the substitution of a new section 62 under amendment No. 118. Amendment No. 124 substitutes a new subsection (1) within the section dealing with the property of a limited liability partnership regarding the enforcement against it of any debt, obligation or liability. It is a drafting amendment to ensure there is no ambiguity as to the access to the property of the partnership to meet the debts of the partnership.
Amendments Nos. 126 to 129, inclusive, 134 and 139 are technical drafting amendments designed to clarify the meaning of the provisions concerned. Amendment No. 130 is a consequential amendment arising from the substitution of the new section 62, which provides for appeals to the High Court. Amendments Nos. 131 and 132 are consequential amendments arising from the deletion of the subsection (8) in amendment No. 130. Amendments Nos. 135 and 136 have been tabled to change the terminology of the sanctions in the Bill and bring them in line with those already in place in the Solicitors Acts.
Amendment No. 137 has been inserted to make it clear that the sanction to be imposed under subsection (1)(l) will apply only where the misconduct consists of a breach of the solicitors accounts regulations. This is in line with the sanctions already in place under the Solicitors Acts. Amendment No. 138 inserts a new sanction into the Bill regarding practising barristers. The amendment allows the disciplinary tribunal to direct the authority to impose restrictions on the practice of a barrister. Amendment No. 133 is a consequential, tidy up amendment arising from amendments Nos. 137 and 138.
Regarding amendment No. 140, the intent behind the new subsections is to ensure the aggregate amount of fines which can be imposed on a legal practitioner is €15,000 and that the means of the legal practitioner must be taken into account. I have based this on legal advice from the Attorney General. If we do not take a legal practitioner’s means into account, a fine could be open to challenge in the courts.
The amendments relate to the operation of the legal practitioners disciplinary tribunal and will give greater clarity to the work of the tribunal.
The Minister mentioned the word "clarity". Everything about the Bill is unclear. It is like asking an artist to paint a picture with a blindfold on. The amendments are all very confusing. The fact that amendment No. 122 is to delete an amendment the Minister made on Committee Stage adds credence to the argument that the farce should be stopped and the Bill suspended until a copy of the Bill with the Committee Stage amendments inserted is supplied in order to give us a better picture of what it looks likes. If the Bill is passed in this manner, it will be full of holes and contradictions and will lead to problems that will require further amendment, perhaps by the next Government. It is ridiculous that the Minister is continuing in this manner.
I agree with the Senator and said something similar recently. Amendment No. 135 states, "In page 41, in subsection (1)(a) of the section 72 inserted by amendment 82 at Committee Stage in the Seanad, to delete “a reprimand” and substitute “an advice”." It refers to the section which states:
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...
The first option listed is "a reprimand". The amendment will remove this and substitute the term "an advice". What is advice? It sounds like a very neutral and meaningless term to use. What does it mean to give an advice to somebody? Does one advise a person that he or she is behaving badly? A reprimand is clear. It means that a person has done something wrong and is receiving a smack on the wrist.
I do not understand why we need to take out the term "reprimand" and put in the term "an advice".
Further down, the reverse of that is included in paragraph (c), where the term "caution" is to be removed and the term "essential" inserted. Something that is mild is to be removed and replaced with something that is fairly strong. It looks to me as if the left hand does not know what the right hand is doing. Paragraph (a) removes a lot of the point and neutralises it, but in paragraph (c) the big guns are brought in.
I agree with Senator Trevor Ó Clochartaigh. I wish to God that somebody would give instruction in plain English. During the debate on the Assisted Decision-Making (Capacity) Bill, I referred to a group of people with mental disabilities. They said one of the things they wanted was for legislation to be written in a way that they could understand. I am not sure it is completely beyond the wit of man to make things more comprehensible. Amendment No. 138 states, "[W]here the legal practitioner is a practising barrister, a direction to the chief executive of the Authority directing him or her to impose a specified restriction or condition on the legal practitioner in respect of his or her practice as a barrister." I am not quite sure what that means. Does that mean that the barrister cannot deal with particular kinds of cases? Does it mean that he or she can give advice but cannot appear in court? What are the restrictions and what do they consist of? What does the term "condition" mean? Does it mean a barrister can only do such and such if he or she had previously satisfied some requirements?
This is fairly vague. I do not know what a "specified restriction" is. It would be useful to have examples of them or a limited number to give us an idea of what is contemplated by the Bill. The same applies to the term "condition". I do not really follow what is meant by a condition. Obviously, the meaning of the word etymologically is that one can only do something if such and such applies or under certain circumstances. It is not at all clear what is intended. I would be very grateful if the Minister could elucidate.
There is a history in terms of how issues have been dealt with by the Law Society of Ireland or the Bar Council and various approaches have been taken. In the Bill we are introducing some new models of dealing with complaints. For example, there will be a new disciplinary tribunal. We are also making sure the LRSA has an oversight role. In section 135 we are moving from reprimand and advice, admonishment and censure. This is very much to align the language of sanctions being used for solicitors and barristers, under traditional terminology, in the Bill. It is taking account of the previous practice and language used in dealing with complaints.
This is not the sort of thing that should be introduced on Report Stage. If we are discussing traditional language-----
Traditional terminology.
-----that should have been known long before we got to Report Stage. That seems to be obvious and logical, if we are talking about tradition and traditional language. That is very basic stuff. It should not come in on Report Stage. This is bad draftsmanship; about which there is no doubt. It is rather an insult to the Seanad to present material of this kind to the House. Let the record show that the Minister was nodding. I do not know whether she is agreeing with me.
The overall thrust and ethos of what is being achieved has not changed at all. With the passing of Committee Stage, perhaps the language has evolved somewhat to make it seem more reflective and powerful. We have come a long way on this journey and Report Stage is what it should be, namely, reporting and ensuring the Bill is properly and effectively bedded down.
That is a good try but a bit weak.
Amendment put:
The Seanad divided: Tá, 15; Níl, 5.
Tá
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Neill, Pat.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- O'Sullivan, Ned.
Tellers: Tá, Senators Aideen Hayden and Pat O'Neill; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 123:
In page 41, in the section 67 inserted by amendment 77 at Committee Stage in the Seanad, to delete paragraphs (b) and (c).
Amendment agreed to.
Government amendment No. 124:
In page 41, in subsection (1) of the section 68 inserted by amendment 78 at Committee Stage in the Seanad, to delete “, (b), or (c)”.
Amendment agreed to.
Government amendment No. 125:
In page 41, in subsection (2) of the section 68 inserted by amendment 78 at Committee Stage in the Seanad, to delete “paragraph (d)” and substitute “paragraph (b)”.
Amendment agreed to.
Government amendment No. 126:
In page 41, in subsection (2) of the section 70 inserted by amendment 80 at Committee Stage in the Seanad, to delete “concerned” where it secondly occurs.
Amendment agreed to.
Government amendment No. 127:
In page 41, in subsection (3) of the section 70 inserted by amendment 80 at Committee Stage in the Seanad, to delete “may” where it secondly occurs.
Amendment agreed to.
Government amendment No. 128:
In page 41, in subsection (6) of the section inserted by amendment 80 at Committee Stage in the Seanad, to delete “referred to in subsection (4)” and substitute “of the making of the order”.
Amendment agreed to.
Government amendment No. 129:
In page 41, in subsection (1) of the section 71 inserted by amendment 81 at Committee Stage in the Seanad, to delete “respondent”.
Amendment agreed to.
Government amendment No. 130:
In page 41, in the section 71 inserted by amendment 81 at Committee Stage in the Seanad, to delete subsection (8).
Amendment agreed to.
Government amendment No. 131:
In page 41, in subsection (9) of the section 71 inserted by amendment 81 at Committee Stage in the Seanad, to delete “(other than an inquiry to which subsection (8) applies),”.
Amendment agreed to.
Government amendment No. 132:
In page 41, in subsection (10) of the section 71 inserted by amendment 81 at Committee Stage in the Seanad, to delete “or (9)”.
Amendment agreed to.
Government amendment No. 133:
In page 41, in subsection (10)(c) of the section 71 inserted by amendment 81 at Committee Stage in the Seanad, to delete “or, as the case may be, imposed pursuant to section 72(1) or recommended under section 72(2)”.
Amendment agreed to.
Government amendment No. 134:
In page 41, in subsection (1) of the section 72 inserted by amendment 82 at Committee Stage in the Seanad, to delete “may make and order” and substitute “may, subject to subsections (3)and (4), make an order”.
Amendment agreed to.
Government amendment No. 135:
In page 41, in subsection (1)(a) of the section 72 inserted by amendment 82 at Committee Stage in the Seanad, to delete “a reprimand” and substitute “an advice”.
Amendment put:
The Seanad divided: Tá, 15; Níl, 4.
Tá
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Neill, Pat.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
Tellers: Tá, Senators Aideen Hayden and Pat O'Neill; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 136:
In page 41, in subsection (1)(c) of the section 72 inserted by amendment 82 at Committee Stage in the Seanad, to delete “a caution” and substitute “a censure”.
Amendment put and declared carried.
Government amendment No. 137:
In page 41, in the section 72 inserted by amendment 82 at Committee Stage in the Seanad, to delete subsection (1)(l) and substitute the following:
“(l) where the legal practitioner is a practising solicitor, and the misconduct concerned consists of a breach of the Solicitors Accounts Regulations, a direction that he or she pay a sum not exceeding €15,000 to the Compensation Fund;”.
Is the amendment agreed to?
No. Senator Sean D. Barrett wants to contribute.
The amendment has already been discussed. Senator Sean D. Barrett may make a brief contribution.
On the €15,000 penalty, we have seen headlines to the effect that top Irish law firms earn €250 million in fees and that the figure for revenue per lawyer is €850,000 and €950,000 for revenue by partner. We are not serious about proposing a fine of €15,000 as a deterrent for such people. The Bill states that in making an order the tribunal shall have regard to the means of the legal practitioner concerned. These are millionaires. We should have regard to their means and impose a fine greater than €15,000.
The legal advice I have is that this is the highest amount that can be imposed outside a court setting. If the various issues we are discussing are dealt with in court, there is the potential for different amounts, but this is the highest amount outside that setting that can be put into the legislation in regard to the tribunal.
Amendment put:
The Seanad divided: Tá, 16; Níl, 4.
Tá
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- O'Neill, Pat.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 138:
In page 41, in the section 72 inserted by amendment 82 at Committee Stage in the Seanad, to insert the following new paragraph:
"(m) where the legal practitioner is a practising barrister, a direction to the chief executive of the Authority directing him or her to impose a specified restriction or condition on the legal practitioner in respect of his or her practice as a barrister.".
Amendment put and declared carried.
Government amendment No. 139:
In page 41, in subsection (2) of the section 72 inserted by amendment 82 at Committee Stage in the Seanad, to delete "Chapter" and substitute "Part".
From where did the word "Chapter" come in the first place? This is another example of very sloppy draftsmanship.
It was inserted on Committee Stage.
The word "Chapter" is not appropriately used. It obviously should be "Part" as that is the language of legislation. We have unearthed another example of poor draftmanship.
Parts are divided into Chapters when they are very long in the Bill.
Amendment put and declared carried.
Government amendment No. 140:
In page 41, in the section 72 inserted by amendment 82, after subsection (2) to insert the following:
"(3) Where the Disciplinary Tribunal under subsection (1) makes an order imposing one or more of the sanctions specified in paragraphs (g), (i), (j) or (l) of that subsection, the aggregate amount of the sums to be paid by the legal practitioner under the order concerned shall not exceed €15,000.
(4) In making an order referred to in subsection (3), the Disciplinary Tribunal shall have regard to the means of the legal practitioner concerned.".
Amendment put and declared carried.
Government amendment No. 140a:
In page 41, in subsection (2) of the section 73
inserted by amendment 83 at Committee Stage in the Seanad, to delete "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—" and substitute "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(1), an appeal may be brought to the High Court—".
Can we hear the Minister on this amendment?
Amendment No. 140a, from the third additional list, fixes an error that went into the Bill on Committee Stage in the Seanad in the new section 73(2). The amendment is of no policy consequence at all but rectifies an error in wording.
Will the Minister explain what the error was?
A number of words were missing, namely, "that the act or omission concerned constitutes misconduct and deals with the issue of sanction under section 72". It goes on to state "an appeal may be brought to the High Court". This amendment inserts those words.
I thought it might have been something to do with the phrase "sue of sanction". The original is garbage. It is inexplicable and incapable of being comprehended by the human intellect. It states, "In page 41, in subsection ... to delete "Where the Disciplinary Tribunal makes a determination under section 71(9) sue of sanction...". What is "sue of sanction"? Is it "sue" as in "A Boy Named Sue"? What kind of sanction is referred to? What is the meaning of "under section 71(9)##"?
That is unparliamentary language.
I am trying to represent the sound of the asterisks. I compliment the final drafter, whoever he or she is, because the substitute text is comparatively easy to understand. There is no sue of sanction at all. It states "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(1), an appeal may be brought to the High Court". That is perfectly clear and obvious. Well done to whoever created this, but this is the 14,000th list of amendments.
I am concerned that we are getting additional amendments on Report Stage because mistakes or omissions have been spotted on Committee Stage.
If we continue with this charade of amendments, I am concerned that a similar situation will arise when the Bill is passed. We will have to go back and have a look because omissions and mistakes will have been made because we are not working on the composite version of the Bill. It is an absolutely ridiculous situation. Again, I call on the Minister to withdraw the Bill. I ask her to give us a full copy of the Bill that includes the Committee Stage amendments so that we can read it properly and thus ensure no omissions or mistakes are made.
The amendment should have read "issue"; therefore, it was a simple typo that was made at a point along the way. As I say, it is substituted now and I have read my note. Under section 71(9), the act or omission concerned constitutes misconduct and deals with the issue of sanction under section 72. The Senator is right when he said that it did not make sense. It was a typo.
Amendment put and declared carried.
Amendments Nos. 141 to 156, inclusive, are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 141:
In page 41, in subsection (1) of the section 75 inserted by amendment 85 at Committee Stage in the Seanad, to delete “consideration” and substitute “recommendation”.
Amendment No. 141 is being tabled by the Government to correct a wrong word used in subsection (1) of the section 75 that we agreed to insert into the Bill under amendment No. 85. The word "consideration" was used when, in fact, the word "recommendation" should have been used and that is being rectified.
There are a number of references in the amendments to legal practitioners who are to be informed in the event of a striking off of a barrister and listing additional directions which may be issued by the High Court having considered a matter referred to it by the Legal Practitioners Disciplinary Tribunal.
Amendments Nos. 142 and 143 involve the deletion of the term "legal practitioners". Amendment No. 144 inserts the words "legal practitioner" before the word "solicitor." It is a drafting amendment to ensure the person referred to is a legal practitioner, as well was being a solicitor.
The purpose of amendment No. 145 is to include the Chief Justice as a person who is required to be notified of a decision of the High Court to direct the removal of the name of a barrister from the new authority's roll of practising barristers.
The purpose of amendment No. 146 is to include three new sanctions which may be imposed on a legal practitioner by the High Court, following an application to it on foot of a complaints process. These new sanctions are to direct the practitioner to take specific action at his or her own expense in the interest of the complainant, to pay a sum of money as restitution to an aggrieved party and to pay the costs of the disciplinary tribunal's inquiry into his or her misconduct. These sanctions were, in fact, available to the disciplinary tribunal under the amendments made on Committee Stage. However, on the advice of the Attorney General, the power to impose these additional financial sanctions has been transferred to the High Court which will act on the application of the disciplinary tribunal.
Amendment No. 147 is a drafting amendment which makes a decision or order and simply adds the words "decision or" before the word "order."
Amendment No. 148 is an order to ensure any decision or order of the High Court relating to a solicitor is furnished to the Registrar of Solicitors. In other words, it must be referred to the Law Society of Ireland. This is in order to ensure the registrar has notice and may take whatever action is required in relation to that solicitor.
Amendment No. 149 is a straightforward drafting amendment which replaces the word "its" with the word "the."
Amendments Nos. 150 to 153, inclusive, are a composite of drafting amendments in order that the lead-in refers to a decision of the High Court rather than an order. The amendments ensure the word "under" does not have to be repeated in each of the three following subsections.
The purpose of amendment No. 154 is to change the reference to a finding of misconduct of the High Court in order that it covers any decision of the High Court under the relevant section, not just a finding of misconduct.
The purpose of amendment No. 155 is to replace the reference to a determination by the disciplinary tribunal in that subsection with a reference to a direction, determination or order as comprehended to the new subsection which is being inserted by amendment No. 156. The purpose, overall, is to ensure the power of the new authority to apply to the High Court, in section 80, is to enforce compliance by a legal practitioner with a direction, determination or order of the authority of a review committee, of a divisional committee such as the complaints committee, or of the disciplinary tribunal, as the case may be.
The purpose of amendment No. 156 is to set out the bodies and entities whose directions, determinations or orders are covered by the High Court enforcement power contained in the revised section 81, inserted by amendment No. 155.
The Minister has said the purpose of amendment No. 145 is to include the Chief Justice. That is part of it, but there is a part of it that the Minister did not explain. The earlier part of the amendment reads: "where the legal practitioner is a barrister, that the Authority, in accordance with Part 9". I refer to the original amendment No. 85 on Committee Stage which proposed section 75(7)(e) should read: "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". The original amendment did not mention the authority. That is a crucial difference between it and the substituted amendment which clearly specified that the authority shall do it. The original amendment seeks "that the name of the barrister be struck off" and does not specify. That is a fairly significant amendment.
Amendment No. 146 is a very practical method, in my opinion, of redress.
I am concerned and interested in amendment No. 151 which reads:
In page 41, in subsection (4)(a) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete “under”.
The provision refers to where the High Court makes an order and then goes straight into whatever section. I would have thought that the word "under" was required and wonder if the call for its removal is a mistake. The authority is quoted in the section. The amendment does not even make grammatical sense. The original amendment No. 88 reads:
78. (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).
Amendments Nos. 150 to 153, inclusive, seek to get rid of the word "under" which I do not understand. It seems to be common practice to say "under" and quote the section of the Bill coming into force. Getting rid of the word "under" seems very odd to me. Perhaps the Minister might explain.
I have stayed silent on a lot of this.
Amendment No. 155 is puzzling. Is it included in this grouping?
Yes.
What is amazing is that the note to the amendment reads, "For the information of Senators, the text proposed to be deleted above was inserted by amendment 90 at Committee Stage in the Seanad". Are we going around in circles? It is confusing, to say the least. We made an amendment to this section a week or ten days ago and now we are deleting it. There is a quagmire of confusion. I do not want to add to the Minister's woes, but that there has been a substantial number of votes is understandable. I have been in the Oireachtas for nearly 20 years and I have never seen a Bill so often amended and re-amended in the same House. I made my comments on Second Stage and I am concerned that the end product, whether we get it next week, this week or whenever, will be a cause for great confusion and be a source of joy and exploration for many lawyers in the Four Courts.
Great care has been taken by everyone in the Office of the Parliamentary Counsel and my Department involved in working on the Bill. It is complex and detailed legislation. It was necessary for the drafters to take an overview of the Bill. The new and, in some instances, composite sections have led to quite a few of the changes that I am outlining. It is important that we recommend improvements to the Bill. I am conscious of the large number of amendments, but we are determined to enact a Bill that is fit for purpose. One of the purposes of Report Stage is to consider anything that needs to be clarified, dealt with or amended and ensure consistency. I hope we can continue to work through the amendments.
Regarding Senator David Norris's point on the deletion of subsection (7)(e), the relevant amendment is No. 145 on page 25 of the Report Stage amendments. It reads:
In page 41, in the section 75 inserted by amendment 85 at Committee Stage in the Seanad, to delete subsection (7)(e) and substitute the following:
"(e) where the legal practitioner is a barrister, that the Authority, in accordance with Part 9, strike the name of the person off the roll of practising barristers and inform the Chief Justice and the Honorable Society of King's Inns of the fact;".
The Minister has also inserted the words "the Authority".
They were not there before.
And the words "the Chief Justice". That is right.
The purpose of amendment No. 155 is to replace the reference to a determination by the tribunal in that subsection with a reference to a direction, determination or order. This is to ensure the power of the new authority to apply to the High Court to enforce compliance by a legal practitioner with a direction, determination or order of the authority.
The drafters have considered this matter. It is a long and detailed Bill. At this point, the drafters are making any recommendation that they see fit.
Senator David Norris raised a point about the words "under this Part". A composite of drafting amendments tidy up section 78(4) in order that the lead in refers to a decision of the High Court rather than an order. As such, the word "under" does not have to be repeated in each of the following subsections. That is the best drafting advice that I have on the use of this word.
It does not arise in subsection (4) on where the High Court makes an order. The word "under" is removed right at the beginning and cites the section under which the order is made. Removing it is madness and I have not yet heard an explanation as to why it should not remain.
I am bewildered. I am not making personal or derogatory comments towards the Minister or the draftspersons, but something is wrong and does not sit appropriately with me. To the best of my knowledge on reflection, we agreed to the amendment the week before last like lambs being shepherded by a sheep dog. A couple of weeks later, it looks like we were either stupid or naive. The note reads, "the text proposed to be deleted above was inserted by amendment 90 at Committee Stage in the Seanad". It was agreed - there was no vote - yet the amendment to which we agreed is now being amended. How can we have trust or faith in a Bill that has major drafting problems? On a point of principle, I must call a vote on this issue for the first time.
Will the Minister explain the point on the word "under" further?
Regarding Senator David Norris's point on amendment No. 150, the reference is inserted in the top line, or chapeau, of the subsection rather than elsewhere. Therefore, it does not have to be repeated in each paragraph.
Frankly, that is complete nonsense. The order is made "under" a section. It is just daft. Currently, it reads:
Where the High Court makes an order--
(a) under section 74(3)(b),
(b) under section ...
These are the sections under which the order is made. It could not be clearer. The Minister is making the Bill worse. This is disastrous and dreadful stuff.
Obviously, I have no intention of making the Bill worse and neither does any of the drafting amendments I am introducing. They will improve the Bill, clarify it or allow for greater consistency.
They will not.
My understanding is that they will. The reference is made in the chapeau of the subsection so that it will not be repeated three times.
Of course, it is necessary. Subsection (1) reads, "A copy of every order made by the High Court under section" such and such. Of course it has to be repeated. This is dreadfully bad drafting. It means absolutely nothing new. It is not even in brackets. If it were in brackets, one could make some feeble argument.
It will now read:
Where the High Court makes a decision under--
(a) section 74(3)(b),
(b) section 74(4) ...
(c) section 75 ...
The first line is followed by a list of the sections. That reads as perfectly straightforward.
No, it does not.
I do not understand what the Senator finds difficult about this. It continues, "the Authority shall arrange for the publication of" the nature of the decision, the nature of the misconduct, etc. This is straightforward.
It is not because the Minister is removing "under".
No. We are inserting the words "a decision under". Where the High Court-----
Amendment No. 151 reads, "In page 41, in subsection (4)(a) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete "under"." The Minister is removing the word "under".
No. I am leaving it as "Where the High Court makes a decision under". The words "a decision under" will replace the words "an order" before listing the sections.
Senator David Norris is a master of English, but I think he is confusing himself.
It now refers to where the High Court makes "a decision under" the various sections.
I am totally nonplussed, because the amendment states:
In page 41, in subsection (4)(a) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete “under”.
That is amendment No. 151.
Yes. That is what I am talking about.
We are discussing amendment No. 150.
No, I am referring to amendment No. 151.
We are discussing them all together, including amendments Nos. 150 and 151.
My understanding is Senator David Norris is speaking to amendment No. 150 and the phrase relating to where the High Court makes "an order".
No. I am talking about amendment No. 151. I am sorry if there is any confusion.
Amendment No. 151 is linked with amendment No. 150. There is no need for the word "under" because, as I have been saying to the Senator, the top line now states-----
Where is the top line? Is the Minister referring to page 40?
I am referring to subsection (4) and the reference to where the High Court makes "an order".
The High Court makes "an order" and the amendment deletes the word "under".
The Senator is not looking at the first amendment. Amendment No. 150 refers to where the High Court makes a decision "under". This allows us to eschew the word "under" in each of the subsequent lines. Let us go down through it - I am sorry if I am repeating myself. The reference is to where the High Court makes a decision "under". At that point we need not refer to where the High Court makes a decision "under" in the following subsections. One follows from the other. Amendment No. 151 follows from the fact that amendment No. 150 incorporates the reference to a decision "under". We need to consider amendment No. 151 in the light of the reference to where the High Court makes a decision "under". At that point we no longer need to have the word "under" in each of the subsequent subsections.
Amendment agreed to.
Government amendment No. 142:
In page 41, in subsection (5) of the section 75 inserted by amendment 85 at Committee Stage in the Seanad, to delete “Legal Practitioners”.
Amendment agreed to.
Government amendment No. 143:
In page 41, in subsection (6) of the section 75 inserted by amendment 85 at Committee Stage in the Seanad, to delete “Legal Practitioners”.
Amendments Nos. 142 and 143 propose to delete the words "Legal Practitioners". I have set out how I feel and why I have made certain remarks as we have gone through the Bill. The amendments will delete the reference to "Legal Practitioners". I might insert the phrase when we discuss the conveyancing monopoly.
Amendment agreed to.
Government amendment No. 144:
In page 41, in subsection (7)(a) of the section 75 inserted by amendment 85 at Committee Stage in the Seanad, to insert “legal practitioner who is a” after “in the case of a”.
Amendment agreed to.
Government amendment No. 145:
In page 41, in the section 75 inserted by amendment 85 at Committee Stage in the Seanad, to delete subsection (7)(e) and substitute the following:
“(e) where the legal practitioner is a barrister, that the Authority, in accordance with Part 9, strike the name of the person off the roll of practising barristers and inform the Chief Justice and the Honorable Society of King’s Inns of the fact;”.
Amendment agreed to.
Government amendment No. 146:
In page 41, in subsection (7) of the section 75 inserted by amendment 85 at Committee Stage in the Seanad, to insert the following between paragraphs (g) and (h):
“(h) that the legal practitioner do one or more than one of the following:
(i) take, at his or her own expense, such other action in the interests of the complainant as the Court may specify;
(ii) pay a sum as restitution or part restitution to any aggrieved party, without prejudice to any legal right of such party;
(iii) pay 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 concerned (which costs shall be assessed by a Legal Costs Adjudicator in default of agreement);”.
Amendment agreed to.
Government amendment No. 147:
In page 41, in subsection (1) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to insert “decision or” after “every”.
Amendment agreed to.
Government amendment No. 148:
In page 41, in subsection (1) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to insert “shall be furnished to the registrar of solicitors in the case of an order relating to a practising solicitor,” after “sections 71 and 72”.
Amendment agreed to.
Government amendment No. 149:
In page 41, in subsection (3)(a) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete “its” and substitute “the”.
Amendment agreed to.
Government amendment No. 150:
In page 41, in subsection (4) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete “an order” and substitute “a decision under”.
Amendment agreed to.
Government amendment No. 151:
In page 41, in subsection (4)(a) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete “under”.
Amendment agreed to.
Government amendment No. 152:
In page 41, in subsection (4)(b) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete “under”.
Amendment agreed to.
Government amendment No. 153:
In page 41, in subsection (4)(c) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete “under”.
Amendment agreed to.
Government amendment No. 154:
In page 41, in subsection (4)(c)(i) of the section 78 inserted by amendment 88 at Committee Stage in the Seanad, to delete “finding of misconduct” and substitute “decision”.
Amendment agreed to.
Government amendment No. 155:
In page 41, in the section 80 inserted by amendment 90, to delete subsection (1) and substitute
the following:
“(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 direction, determination or order to which subsection (4) applies, 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 direction, determination or order.”.
Amendment put:
The Seanad divided: Tá, 15; Níl, 5.
Tá
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- O'Neill, Pat.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- O'Sullivan, Ned.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and Ned O'Sullivan.
Amendment declared carried.
Government amendment No. 156:
In page 41, in the section 80 inserted by amendment 90, after subsection (3) and to insert the following:
“(4) This subsection applies to the following—
(a) a direction of the Authority under section 51(6) or 52(6);
(b) a determination of a Review Committee under section 53(5);
(c) a direction of a Divisional Committee under section 61(1)(a);
(d) an order of the Disciplinary Tribunal under section 72(1).”.
Amendment agreed to.
Amendments Nos. 157 and 158 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 157:
In page 41, to delete the section 81 inserted by amendment 91 at Committee Stage in the Seanad and substitute the following:
“Transitional provisions in relation to solicitors
81. (1) 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 the Solicitors Acts 1954 to 2011, the provisions of those Acts shall continue to apply to the complaint as if those amendments had not been made.
(2) Where, on or after the date on which this subsection comes into operation—
(a) a complaint is made under section 42(1) in respect of a solicitor, and
(b) the act or omission to which the complaint relates occurred before that date, the complaint shall be dealt with under this Part and this Act shall apply accordingly.
(3) Where, on or after the date on which this subsection comes into operation—
(a) a complaint is made under section 42(2), in respect of a solicitor, and
(b) the act or omission to which the complaint relates occurred before that date, the complaint shall be dealt with under this Part and this Act shall apply accordingly, subject to the modification that “misconduct” shall, for the purposes of the complaint, be deemed to have the meaning it has under section 3 of the Solicitors (Amendment) Act 1960 as if the amendment of that section by section 158 had not been made.”.
The purpose of the proposed amendment No. 157 which inserts a new section 81 into the Bill is to provide for what happens in relation to the handling of complaints concerning solicitors in the changeover from the existing complaints regime operated by the Law Society of Ireland to the new regime to be operated by the legal services regulatory authority, LSRA. These are effectively transitional provisions.
The situation will be as follows. Where the Law Society of Ireland has received a complaint about a solicitor before the commencement of the relevant provisions of this Act then it will process the complaint via its existing mechanisms and applying the provisions of the Solicitors Acts. Where complaints relating to inadequate services or excessive fees are made in relation to a solicitor on or after the date of commencement of this legislation, even though the complaint relates to an act or omission before commencement, it will be dealt with by the LSRA under the new legislation. It is really important that all disciplinary issues and complaints will now be dealt with by the LRSA; therefore, there will be a completely independent authority dealing with disciplinary issues or complaints about solicitors or barristers. That is a central element of this legislation and its importance.
Where a complaint relates to misconduct, as opposed to inadequate service or excessive fees, and it relates to an act or omission of a solicitor before the commencement of this legislation, it will be dealt with by the new authority but using the old definitions of misconduct from the Solicitors Acts. This is to protect against a situation in which a misconduct complaint about a solicitor regarding something that happened before commencement of this Bill would be evaluated against a new definition of misconduct. The new definition cannot be applied retrospectively.
Where a complaint about a solicitor which relates to an act or omission occurring after the commencement of this legislation is received by the authority, it will be processed by the authority under the provisions of Part 5 of this new legislation. When the Bill was first published, we had a Part 5 and Part 6 relating to the handling of disciplinary and complaint issues. They are now all being dealt with under Part 5.
These transitional provisions are complex and rather elaborate, but they are necessary in order to ensure all of the necessary legalities are taken care of.
That is critical in any legislative regime that covers the misconduct of professionals. We are talking here about potential misconduct by solicitors and barristers.
The purpose of amendment No. 158 which inserts a new section 82 is to provide for what happens regarding the handling of complaints concerning barristers in the changeover from the existing complaints regime operated by the Bar Council and partly by the Honourable Society of King's Inns to the new regime, which, as I have said, will be operated fully by the legal services regulatory authority. The transitional provisions concerning barristers are slightly different from those concerning solicitors. This is because complaints regarding solicitors are currently dealt with by the Law Society of Ireland. The process is currently under a statutory regime set out in the Solicitors Acts. Senators will be aware that five Solicitors Acts have been passed to date.
At present, complaints regarding barristers are handled under the rules of the Bar Council and involve the Honourable Society of King's Inns where recommendations are required to be made regarding serious misconduct leading to disbarment of the barrister, which is handled by the benchers of the society under its rules and long-standing common law. To this extent, by contrast with the regime for solicitors, we have no reference point before the commencement of the new Act for a definition of barrister misconduct. The authority, therefore, cannot deal with complaints about barristers' acts or omissions that will have occurred before the commencement of the new Bill. Such complaints will continue to be handled under the existing Bar Council regime, where applicable, and the processes of the Honourable Society of King's Inns, where relevant.
The transitional provisions concerning complaints about barristers will be as follows. Disbarment by the benchers of the Honourable Society of King's Inns in respect of pre-commencement misconduct of a barrister will be required to be notified by the society to the new authority, and the new authority will bring the matter before the High Court. The High Court will, after due process, make an order either striking the name off the authority's roll of practising barristers or imposing another sanction, as appropriate. All other cases, that is, cases regarding a complaint regarding an act or omission of a barrister after the commencement of the legislation, will be dealt with by the new authority.
With regard to both solicitors and barristers, these are necessary transitional provisions. Older cases will be dealt with through the system fairly quickly leading to a situation where everything will be dealt with by the new authority. As I stated, there are different transitional provisions for solicitors and barristers, and that is because, up to now, solicitors have been dealing with these complaints under the Solicitors Acts whereas barristers have been dealing with misconduct internally, thus requiring a slightly different process. However, both processes require new sections to spell out quite clearly the transitional provisions as we move towards the new legal services regulatory authority.
On amendment No. 157, my complaint is not so much on the propriety of the proposal but on another matter. It is very annoying that the amendment states, "In page 41, to delete the section 81 inserted by amendment 91 at Committee Stage in the Seanad and substitute the following". We debated amendment No. 91 at length on Committee Stage and the Minister read a footnote in this regard approximately two weeks ago. We expect that when an amendment is put to us, it is well researched, well meant and well intended.
It is a new section.
We are on amendment No. 157.
I accept that, but I am saying it is very frustrating for Senators. We were present here for Committee Stage. There were very few votes, if any, but now we are being asked to amend what we agreed on Committee Stage, more or less. I object on principle. We have been waiting for this Bill for four years; it was published four years ago. At this late stage, coming up to the Christmas recess, we are dealing with a plethora of amendments that should have been dealt with months ago. I have no problem being here - I will stay here until morning - but it is unfair on the House and the Cathaoirleach. Some of the amendments are technical. I am not questioning the propriety or merit of some of these amendments. We had a long lead-up to this Bill. The amendments we are now dealing with should have been dealt with on Committee Stage. We are amending amendments that were made and deleting some of them. We accepted amendments to the original Bill on Committee Stage. What is occurring is very disconcerting and worrying. If the Bill is brought back again from the Dáil, are we to amend amendments we made twice?
Amendment No. 157 is not amending anything agreed to on Committee Stage. It is, in fact, proposing the insertion of a new section, section 81, on the transitional provisions.
The amendment states: "In page 41, to delete the section 81 inserted by amendment 91 at Committee Stage in the Seanad and substitute the following". We are repealing the amendment made on Committee Stage. I accept there is a new section but the Minister has introduced-----
More detail.
Two weeks ago, amendment No. 91 was accepted on Committee Stage, but we are now deleting what we agreed to in good faith in this House at the time and inserting a new section. If we were to come back here in three weeks, would we be making further changes? There is a lot of uncertainty. This is probably the most significant Bill that has faced the legal profession in my lifetime, yet it is as if we are in a maze. We are unsure of where we are going. We are amending amendments and deleting provisions we agreed to two weeks ago. It is disconcerting and worrying. Are we going to get it right in the end? I am not sure.
I understand from where Senator Denis O'Donovan is coming to a point, but I believe that what has come back in here enhances the legislation and what we agreed on Committee Stage. To be fair to the Minister and her officials, that is what we are all trying to achieve. I acknowledge that it is what Senator Denis O'Donovan is trying to achieve also.
Report Stage is a late Stage to be enhancing it in this very significant manner.
That is what Report Stage is for.
Putting that aside, I draw the attention of the House to the fact that, in amendment No. 145, we have substituted "where the legal practitioner is a barrister, that the Authority, in accordance with Part 9, strike the name of the person off the roll"? Amendment No. 158, however, states: "Where, on or after the date on which this subsection comes into operation, the Benchers of the Honourable Society of King’s Inns disbar a person [...]". In one amendment, we are saying the authority disbars barristers and in another we are giving free rein to the Honourable Society of King's Inns to do the disbarring. Perhaps the Minister might explain this or elucidate on it in some way for me.
What I had said on that was that because of the different ways in which solicitors and barristers have done their business up to now, I had to make such provision. Senator Denis O'Donovan, whose point I understand, should note this is why I have had to make an amendment on Report Stage. We had thought we would be in a position to deal with the two professions in a similar way but it was felt, on having sought further legal advice, that I should insert a new section allowing, at the transitional stage, for different means of handling of both. The solicitors previously disbarred members of their profession under statute while the barristers did not. As I stated when going into the details, since disbarment of barristers will have been carried out informally in-house before the commencement of this Bill, we will not really have a reference point regarding how cases will have been dealt with.
The recommendation is that before the commencement of this new Bill for a definition of barristers’ misconduct - we have no reference point for that definition - the authority thus cannot deal with complaints about barristers acts or omissions which occurred before commencement of the new Bill. Such complaints will have to continue to be handled under the existing Bar Council regime. This refers to old complaints but as soon as they have been dealt with, any new complaints coming in can then be dealt with under the new sections that deal with complaints and will be dealt with by the Legal Services Regulation Authority, LRSA, in the way I have outlined.
Amendment put:
The Seanad divided: Tá, 15; Níl, 6.
Tá
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- O'Neill, Pat.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Leyden, Terry.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- O'Sullivan, Ned.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and Ned O'Sullivan.
Amendment declared carried.
Government amendment No. 158:
In page 41, after the section 81 inserted by amendment 91 at Committee Stage in the Seanad, to insert the following:
“Transitional provisions in relation to barristers
82. (1) Where, on or after the date on which this subsection comes into operation, the Benchers of the Honorable Society of King’s Inns disbar a person for an act or omission of the person that occurred before that date, the Honorable Society of King’s Inns shall notify the Authority of the disbarment, which notification shall be accompanied by a report of the act or omission concerned.
(2) The Authority, on receipt of a notification and report under subsection (1), shall examine the report and, where it considers that the act or omission of the person constitutes misconduct, shall make an application to the High Court for the making by it of an order under this section.
(3) An application under subsection (2) shall be on notice to the person concerned and the Honorable Society of King’s Inns.
(4) The High Court, on an application under subsection (2), having considered the report under subsection (1) and given the Authority, the persons concerned and the Honorable Society of King’s Inns an opportunity to appear and to make submissions in connection with the application, decide whether to impose a sanction on the person.
(5) The Court, under this subsection, may by order direct one or more than one of the following:
(a) that the person 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;
(b) that the person be suspended from practice as a barrister for a specified period and subject to such terms and conditions as the Court considers appropriate;
(c) that the Authority, in accordance with Part 9, strike the name of the person off the roll of practising barristers and inform the Chief Justice and the Honorable Society of King’s Inns of the fact.”.
Amendment agreed to.
Amendments Nos. 159 and 267 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 159:
In page 41, after the section 81 inserted by amendment 91 at Committee Stage in the Seanad, to insert the following:
“Authority may appoint monitor for purposes of section 14C of Act of 1994
83. (1) The Authority may appoint such and so many members of its staff as it thinks fit to perform the functions of a monitor under section 14C of the Act of 1994.
(2) The Authority may, at any time, request a report from a monitor in relation to the performance by him or her of his or her functions referred to in subsection (1).”.
This straightforward amendment concerns the appointment of a monitor as an additional legislative safeguard over the retained functions of the Law Society of Ireland in relation to the financial regulation of solicitors, and to the maintenance of the solicitors' compensation fund. The purpose of amendment No. 159 is to amend the Legal Services Regulation Bill to provide the new authority with the power to appoint a member or members of staff to be a monitor for the purposes of attending meetings of relevant committees of the Law Society of Ireland which are dealing with the investigation of solicitors in respect mainly of the solicitors' accounts regulation.
As pointed out to the House, the Law Society of Ireland will retain oversight of solicitors' accounts, financial conduct and associated matters. Part of the oversight role of the new authority in relation to the Law Society of Ireland's retained functions is the presence of the LRSA monitor at committees where decisions are being made regarding the action to be taken in relation to a solicitor.
The role of the monitor will be to attend and observe. It is provided that the authority may request reports from the monitor from time to time in relation to the performance of their functions. The new authority is also empowered under the legislation to make recommendations to the Minister for legislative change. The intention is that any recommendations arising from the monitor's attendance at Law Society of Ireland committee meetings would feed into these recommendations. Therefore, this is to ensure that the LRSA has access to what is happening in those committees, can report back, and can make recommendations based on his or her observations of the Law Society's committee meetings in relation to these matters.
The purpose of amendment No. 267 which dovetails with this amendment is to amend the Solicitors Acts so as to provide in the legislation governing the Law Society of Ireland that an LRSA monitor may attend and observe at any relevant meeting, and oblige the society to inform the authority of the place and time of any such meeting. This makes it clear that we now have an independent authority with the power to send somebody to attend meetings of the Law Society of Ireland at any point in time. Equally, the Law Society of Ireland has to tell the LRSA when and where it is having its meetings.
This inserts a new section 14C into the Solicitors Act 1994, which provides for the presence of a monitor appointed by the LRSA to attend at meetings of Law Society of Ireland committees which have powers or functions of investigating alleged misconduct by a solicitor. It mirrors the power to appoint such a monitor which has been inserted into the Legal Services Regulation Bill by amendment No. 159.
Senators will recall that a key part of the strategy, which involves the retention of certain solicitors' oversight and misconduct issues by the society, is that the operation of these functions will be subject to oversight by the new authority. One of the key components of the oversight is that we have this monitoring arrangement and engagement in a practical way between the LRSA and the committees of the Law Society of Ireland.
I take it that we are reliant on section 14C of the 1994 Act for a definition of "monitor", because I do not see one at any point in the Bill. Would it not have been useful to put a definition of "monitor" into the early part of the Bill which contains definitions?
My understanding is that it is defined in the section by the details of the tasks that the person is actually carrying out.
As we go from local authority to Minister, to practising barrister, there is no definition of "monitor" in the definitions section.
No and it is not defined in amendment No. 159. It just state "perform the functions of a monitor", but it does not state what a monitor is. It could be a monitor lizard.
I would be concerned that it is not somebody moving across either from the Bar Council or the Law Library. They seem to have had a particular influence on the Bill, securing posts in the new authority. Who is the monitor and what is he or she supposed to be doing? I think we need a definition.
The section provides the new authority, the LRSA, with the power to appoint the member. I do not know what Senator Sean D. Barrett said, but it was something in relation to who that person would be. The authority has the power to appoint a member or members of staff to be a monitor for the purposes of attending the meeting. The new independent authority decides who the monitor is; therefore, it is very much a function of the new authority to put the monitor in place.
There is no definition of "monitor".
On page 44 of the Report Stage amendments, the definition of "monitor" means "a person appointed by the authority under section 83 of the Legal Services Regulation Act 2015, to perform the functions of a monitor under this section". That is how it is dealt with.
Will the Minister give me the page number?
It is page 44 of the Report Stage amendments.
I thank the Minister very much and I am grateful for her guidance.
In section 173(3), "committee" means any committee of the society to which the powers or functions of investigating alleged misconduct by a solicitor have been delegated.
The monitor is then the person appointed by the authority to perform the functions of the monitor under this section.
It is still rather weak that there is no definition of "monitor". There is no definition of "monitor" in the Bill. That is not a definition of a monitor; it is a description of some of the activities.
It is a monitor for the purposes of attending meetings, to give feedback from them and to bring back to the authority any matter of relevance that arises at the meetings which may indicate a need for change. That is the job the monitor has to do.
With respect, this is quite an important point and I am not filibustering on it. The section does not define "monitor"; it states the monitor may attend and observe any meeting. It does not state anything about reporting back. It refers to performing the functions of a monitor under the section. I see nothing about reporting back or the duties of a monitor. It states simply that the monitor will attend and observe and perform the functions of a monitor under the section. The functions are not defined, apart from the reference to observing and attending.
It is provided that the authority may request reports from the monitor from time to time in relation to the performance of his or her functions. The authority is also empowered under the legislation to make recommendations to the Minister for legislative change and the intention is that any recommendations arising from the monitor's attendance at Law Society of Ireland committee meetings would feed into these recommendations. If one has a committee and makes a decision that somebody should go along to the meeting to monitor what is happening there, it is obvious and a common practice that the person would come back to the executive and say what has been happening at those meetings. Reports would be requested. There is provision for reports to be made. It is common sense that the person will come back and make recommendations on foot of attendance at the meeting. That is what the authority is empowered to ask the person to provide.
Does the legislation specify the making of recommendations? I may have missed that.
No. The reports would come from the monitor and then it would be up to the LRSA to act on them.
I am afraid that we are not going to get anywhere with it. It is very vague and lacking in definition.
This was inserted by way of amendment No. 52 on Committee Stage in the Seanad. I cannot find any reference to the monitor in that section either. It has been a long day and it may be that somebody else will find it. We do not define him or her and I do not think we can rely on section 42 as inserted by amendment No. 52 on Committee Stage. The monitor is not mentioned if I have read it correctly.
The job of the monitor is to attend and observe. The functions of the monitor are clearest between the two amendments. We do not believe a further definition is needed. The monitor's function is to report where required. Given the normal ways a CEO or board acts where a monitor attends at a committee under his or her control or oversight, I would have thought it is clear they would ask the monitor to provide reports back. If there are issues arising from the reports, I would expect them to act on them. That is normal practice.
In the definitions section, "chief executive" is defined, "committee" is defined and "complainant" is defined, but the Minister does not define "monitor" anywhere.
It is defined. The job is defined.
Amendment put:
The Seanad divided: Tá, 15; Níl, 6.
Tá
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- O'Neill, Pat.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Leyden, Terry.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- O'Sullivan, Ned.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Amendment No. 160 has already been discussed with amendment No. 24. Senator Sean D. Barrett has indicated he will not move the amendment as the text he is proposing to amend was deleted on Committee Stage.
I do not recall that.
The Senator cannot move it because the text has been deleted.
I was unaware of that and beg the Cathaoirleach's pardon as it was no discourtesy to him. Page 41 had 38 lines and it has now been amended 105 times. That must be an entry for the Guinness Book of Records.
Amendment No. 160 not moved.
Government amendment No. 161:
In page 68, line 33, to delete "for Public Expenditure and Reform".
This gives functions to the Minister-----
The amendment has already been discussed.
It deals with the Minister for Public Expenditure and Reform and the Minister, Deputy Brendan Howlin, was not mentioned in my hearing. Very important functions are being taken away from him. As a person who monitors public expenditure-----
He is a monitor.
The amendment has already been discussed.
I bow to the Cathaoirleach's experience. I did not hear the Minister, Deputy Brendan Howlin, mentioned once. I do not wish to have him deleted from the Bill. He has important functions in his role in appraising public expenditure.
Amendment put:
The Seanad divided: Tá, 16; Níl, 6.
Tá
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- Hayden, Aideen.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- O'Neill, Pat.
- Sheahan, Tom.
- van Turnhout, Jillian.
Níl
- Barrett, Sean D.
- Leyden, Terry.
- Norris, David.
- Ó Clochartaigh, Trevor.
- O'Donovan, Denis.
- O'Sullivan, Ned.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 162:
In page 69, to delete lines 25 and 26 and substitute the following:
"(ii) complaints in respect of barristers who were, at the time of the act or omission to which the complaint relates, members of the Law Library, and
(iii) complaints in respect of barristers who were, at the time of the act or omission to which the complaint relates, not members of the Law Library.".
Amendment agreed to.
Government amendment No. 163:
In page 69, to delete lines 32 and 33 and substitute the following:
"(b) complaints in respect of barristers who were, at the time of the act or omission to which the complaint relates, members of the Law Library, and
(c) complaints in respect of barristers who were, at the time of the act or omission to which the complaint relates, not members of the Law Library.".
Amendment agreed to.
Government amendment No. 164:
In page 70, line 6, to delete "barristers" and substitute "practising barristers".
Amendment agreed to.
Government amendment No. 165:
In page 70, line 9, to delete "barristers" and substitute "practising barristers".
Amendment agreed to.
Government amendment No. 166:
In page 70, line 13, to delete "barristers" and substitute "practising barristers".
Amendment agreed to.
Government amendment No. 167:
In page 70, to delete lines 15 to 21 and substitute the following:
"calculated under paragraph (b) of subsection (4), of those expenses that were incurred by the Authority in the consideration and investigation of complaints in respect of each category of legal practitioner referred to in subparagraphs (i), (ii) and (iii) of that paragraph;".
Amendment agreed to.
Government amendment No. 168:
In page 70, line 23, to delete "barristers" and substitute "practising barristers".
Amendment agreed to.
Government amendment No. 169:
In page 70, line 25, to delete "the number of barristers" and substitute "the number of practising barristers".
Amendment agreed to.
Government amendment No. 170:
In page 70, line 26, to delete "barristers" and substitute "practising barristers".
Amendment put and declared carried.
Debate adjourned.