Legal Services Regulation Bill 2011: Report Stage (Resumed) and Final Stage

I move amendment No. 210:

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

I welcome the Minister back to the House. This amendment relates to barristers and provides that the authority shall engage in public consultation within a year of being established in order to progress the work of reform that the Minister is seeking.

The objective of the amendment is already provided for in the Bill. I refer the Senator to the current timeline for those consultations, which is one year, as per section 104(2)(d). I hope he is satisfied that the aim of his amendment is already covered in the Bill. I cannot accept his amendment because the one-year time period is already provided for in the aforementioned section.

I welcome the Minister's response.

I wish to speak to the amendment.

Is the Senator seconding the amendment?

Yes, I second the amendment and appreciate the Minister's clarification on that point. However, I am curious about the wording of the section. The Bill states:

The Authority shall engage in a public consultation process on—

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

I ask the Minister to outline the classes of solicitors who are not allowed-----

That is not relevant to the amendment.

I know, but I am seeking clarification from the Minister on the classes of solicitors who are not allowed hold moneys.

The amendment is very specific.

I know. Having read the section, is the Minister saying that, as a solicitor, one can be a little bad? I ask her to address that point.

I thank the Minister for her response.

Amendment, by leave, withdrawn.

To respond to Senator Fidelma Healy Eames, it is all solicitors.

I do not think it is because there is a clarification-----

We are dealing with amendment No. 210 which was tabled by Senator Sean D. Barrett who has withdrawn it.

Will the Minister clarify-----

The House has agreed to the withdrawal of the amendment.

-----that all solicitors are not allowed to hold moneys. Why is that?

We are on Report Stage, not Committee Stage. Senator Sean D. Barrett has withdrawn his amendment.

It is important for the record.

It may well be, but Senator Sean D. Barrett has withdrawn his amendment.

Perhaps the Minister might have another opportunity to clarify the matter for me.

I move amendment No. 211:

In page 86, to delete lines 34 to 40, and in page 87, to delete lines 1 to 13.

I second the amendment.

I welcome a former Member of Dáil Éireann to the Visitors Gallery, Mr. Paul McGrath.

Amendment put:
The Seanad divided: Tá, 8; Níl, 20.

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Daly, Mark.
  • Healy Eames, Fidelma.
  • Mooney, Paschal.
  • Ó Clochartaigh, Trevor.
  • O'Donovan, Denis.
  • Wilson, Diarmuid.

Níl

  • Brennan, Terry.
  • Burke, Colm.
  • Cahill, Máiría.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Keane, Cáit.
  • Moloney, Marie.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • Noone, Catherine.
  • O'Neill, Pat.
  • van Turnhout, Jillian.
Tellers: Tá, Senators Sean D. Barrett and Trevor Ó Clochartaigh; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.

I move amendment No. 212:

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

I second the amendment.

Amendment put and declared lost.
Government amendment No. 213:
In page 87, in the section 107 inserted by amendment 126 at Committee Stage in the Seanad, to insert the following new subsection after subsection (3):
"(4) Subsection (1) shall not apply to a partner in a limited liability partnership to the extent that the debt or obligation referred to in that subsection relates to any tax (within the meaning of section 960A of the Taxes Consolidation Act 1997).".
Amendment agreed to.
Government amendment No. 214:
In page 87, in the section inserted by amendment 127 at Committee Stage in the Seanad, to delete subsection (1) and substitute the following:
"(1) Section 107 shall not operate to prevent or restrict the enforcement against the property of a limited liability partnership of any debt, obligation or liability.".
Amendment agreed to.
Government amendment No. 215:
In page 88, to delete line 13.
Amendment agreed to.
Government amendment No. 216:
In page 88, line 14, to delete "section 74(3)(b)(v)" and substitute "section 75(7)(e)".

This is a drafting amendment to reconcile section references with the various amendments that have been made to the Bill since its inception. It is a question of maintaining correct numbering as we go through the numerous amendments to a Bill of this complexity.

Amendment agreed to.
Government amendment No. 217:
In page 88, line 21, to delete "section 74(3)(b)(iv)" and substitute "section 75(7)(d)".

This is also a numbering issue.

Amendment agreed to.

I move amendment No. 218:

In page 89, to delete lines 16 and 17.

I second the amendment.

Amendment put and declared lost.
Government amendment No. 219:
In page 90, line 15, to delete "arbitration;" and substitute "arbitration, mediation or conciliation;".
Amendment agreed to.

I move amendment No. 220:

In page 92, to delete lines 28 and 29.

I second the amendment.

Amendment put and declared lost.
Government amendment No. 221:
In page 93, to delete lines 23 and 24 and substitute the following:
"(8) The register of determinations shall be available for inspection without payment, during office hours by any person who applies to inspect it, and on a website of the Courts Service.".
Amendment agreed to.
Government amendment No. 222:
In page 95, line 35, to delete "section 115" and substitute "section 117".

This is a technical amendment to section numbers.

Amendment agreed to.
Government amendment No. 223:
In page 96, line 40, to delete "person."," and substitute "person.".
Amendment agreed to.
Government amendment No. 224:
In page 96, after line 40, to insert the following:
"8A. Each Legal Costs Adjudicator shall, in respect of the discharge of his or her functions and exercise of his or her powers, be subject to the general direction of the Chief Legal Costs Adjudicator.
8B. The hours of attendance and sitting times for oral hearings of the Chief Legal Costs Adjudicator and of each Legal Costs Adjudicator shall be regulated by the Chief Legal Costs Adjudicator.",".
Amendment agreed to.
Government amendment No. 225:
In page 99, to delete lines 19 to 22 and substitute the following:
"(c) has a declaration under section 819 of the Companies Act 2014 made against him or her or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,
(d) is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Companies Act 2014, whether by virtue of that Chapter or any other provisions of that Act,".
Amendment agreed to.
Government amendment No. 225a:
In page 99, line 23, to delete "(d) is sentenced" and substitute "(e) is sentenced".
Amendment agreed to.
Government amendment No. 225b:
In page 99, line 25, to delete "(e) is removed" and substitute "(f) is removed".
Amendment agreed to.

I move amendment No. 226:

In page 100, to delete lines 9 to 12.

I second the amendment.

Amendment put and declared lost.
Government amendment No. 227:
In page 101, line 13, to delete "barrister" and substitute "practising barrister".
Amendment agreed to.
Government amendment No. 228:
In page 101, line 32, to delete "barrister" and substitute "practising barrister".
Amendment agreed to.
Government amendment No. 229:
In page 102, line 17, to delete "solicitor" and substitute "practising solicitor".
Amendment agreed to.
Government amendment No. 230:
In page 102, line 18, to delete "barrister" and substitute "practising barrister".
Amendment agreed to.

I move amendment No. 231:

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

I second the amendment.

Amendment put:
The Seanad divided: Tá, 10; Níl, 20.

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Daly, Mark.
  • Healy Eames, Fidelma.
  • Heffernan, James.
  • Leyden, Terry.
  • Mooney, Paschal.
  • Ó Clochartaigh, Trevor.
  • O'Donovan, Denis.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Cahill, Máiría.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Keane, Cáit.
  • Moloney, Marie.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • Noone, Catherine.
  • O'Brien, Mary Ann.
  • O'Donnell, Marie-Louise.
  • O'Neill, Pat.
  • van Turnhout, Jillian.
Tellers: Tá, Senators Sean D. Barrett and Fidelma Healy Eames; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.
Government amendment No. 232:
In page 103, line 30, after “explanation” to insert “in writing”.
Amendment agreed to.
Government amendment No. 233:
In page 104, line 22, to delete “solicitor” and substitute “practising solicitor”.
Amendment agreed to.
Government amendment No. 234:
In page 104, line 23, to delete “barrister” where it firstly occurs and substitute “practising barrister”.
Amendment agreed to.

I move amendment No. 235:

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

If I was to suggest 21 days instead of 28, would that be acceptable to the Senator if there is a mechanism for the House to agree to that? I intended to bring forward an amendment. I missed that one. I would be agreeable to a figure of 21 days, if that is acceptable.

I thank the Minister. If that were possible, I would second what the Minister said.

Is it 21 days instead of 14?

It is an appeal period. I support the Minister.

My party will support that also, if it is possible to do it.

Amendment to amendment agreed to.
Amendment No. 235, as amended, agreed to.

I move amendment No. 236:

In page 109, line 33, to delete "than 15 per cent lower".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 237:

In page 109, line 35, after "adjudication" to insert the following:

"provided that no client shall be responsible for costs incurred by the practitioner where the said practitioner has not disclosed the legal costs that will be incurred in relation to the matter concerned irrespective of whether the said practitioner has set out the basis on which the legal costs are to be calculated".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 238:

In page 110, between lines 2 and 3, to insert the following:

"(5) A legal practitioner who does not comply with section 122(1) shall not be entitled to recover from the client any legal costs in relation to the matter concerned.".

I second the amendment.

Amendment put:
The Seanad divided: Tá, 10; Níl, 20.

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Daly, Mark.
  • Healy Eames, Fidelma.
  • Heffernan, James.
  • Leyden, Terry.
  • Mooney, Paschal.
  • Ó Clochartaigh, Trevor.
  • O'Donovan, Denis.
  • Wilson, Diarmuid.

Níl

  • Brennan, Terry.
  • Burke, Colm.
  • Cahill, Máiría.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Keane, Cáit.
  • Moloney, Marie.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • Noone, Catherine.
  • O'Brien, Mary Ann.
  • O'Neill, Pat.
  • van Turnhout, Jillian.
Tellers: Tá, Senators Sean D. Barrett and Fidelma Healy Eames; Níl, Senators Paul Coghlan and Aideen Hayden.
Amendment declared lost.
Government amendment No. 239:
In page 113, line 2, after “functions of” to insert “the Chief Legal Costs Adjudicator or of”.
Amendment agreed to.
Government amendment No. 240:
In page 113, line 4, after “functions of” to insert “the Chief Legal Costs Adjudicator or of”.
Amendment agreed to.
Government amendment No. 241:
In page 113, line 5, after “she were” to insert “the Chief Legal Costs Adjudicator or”.
Amendment agreed to.

I move amendment No. 242:

In page 116, to delete lines 11 and 12.

The term "senior counsel" is a term we acknowledge in law and it refers to members of the inner Bar. Under the legislation, a solicitor can be called a senior counsel. While I am not particularly enamoured of titles, it meant something in the past which it will not in future, given that it will be extended to somebody who, previously, would not have been a senior counsel. We can all call ourselves professors or doctors; it does not mean those titles inherit the qualifications that existed in the past. I regret that the title is being shared around to people who previously did not qualify.

I second the amendment.

Amendment No. 242, if accepted, would mean a patent of precedence would not be conferrable with the title of senior counsel on a solicitor. The purpose of the patents of precedence provision in the Bill is to codify the process of becoming a senior counsel while also making it amenable to legal practitioners, whether barrister or solicitor, who have the requisite excellence in advocacy, specialist knowledge or special litigation. The amendment is somewhat contradictory to what the Senator has been arguing. To remove solicitors from the provision would defeat the opening up of this area of legal excellence to a significant cohort of persons who may have met the required standard. Given that solicitors already have the right of audience before the courts and can become senior members of the Judiciary, that there are procedures for solicitors and barristers to switch professions and that the two professions already work closely together, I am not sure why the Senator is proposing this deletion. It seems contrary to the points he has been making about the need for more flexibility in the system. It is incongruous with some of the other amendments the Senator has suggested. Perhaps I am missing something in the points he is making. It is intended to open up the title of senior counsel to solicitors and it is reflective of the changes and flexibilities more and more between the two professions.

I thank the Minister. I was hoping people could approach a barrister without having a solicitor present. I appreciate the Minister's point.

Amendment, by leave, withdrawn.
Government amendment No. 243:
In page 118, line 27, to delete “section 74(3)(b)(vii)” and substitute “section 75(7)(g)”.

This is another of the amendments to do with numbering.

Amendment agreed to.

Amendments Nos. 244 to 250, inclusive, 252 to 266, inclusive, 268 to 271, inclusive, 273 to 277, inclusive, 286 to 289, inclusive, 302 and 303 are related and may be discussed together.

Government amendment No. 244:
In page 120, between lines 3 and 4, to insert the following:
“PART 13
AMENDMENTS OF SOLICITORS ACTS 1954 TO 2011
Amendment of section 3 of Act of 1954
150. Section 3 of the Act of 1954 is amended by the insertion of the following definition:
“ ‘the Authority’ means the Legal Services Regulatory Authority;”.”.

As a result of the introduction of the new regulatory framework being put in place by the enactment of the Bill, a series of amendments need to be made to the existing provisions of the Solicitors Acts. We have a new framework. We already have a series of Solicitors Acts in place. The new Legal Services Regulatory Authority will change the various issues regarding solicitors and barristers, including how complaints are dealt with. There will be a new regulatory framework and new oversight of financial management and all of the issues we have been discussing. We have taken great care with this group of amendments. We were unable to do the work until we had the exact framework of the Bill in place. Only at this point could we work out the detailed amendments needed to all the Solicitors Acts in order to incorporate what was in the Legal Services Regulation Bill.

What is being done in the entirety of this section is very technical. It involves detailed drafting in respect of which we engaged a lot of expertise and on which we spent a great deal of time to ensure the technical amendments to the Solicitors Acts reflected accurately the work being done in the legal services regulatory authority, LSRA, and the implications it had for the practice of the profession of solicitor. The series of amendments is being made to the existing five Solicitors Acts. In the longer term what will be required is the consolidation of the Solicitors Acts, but that is a separate job. For now, we suggest this range of amendments in respect of each of the Acts in place. There is no policy change other than what we have been discussing throughout the course of the debate on the Bill. This is merely about the transition into the Solicitors Acts of the LSRA and the implications it has for the Acts.

If I give an overview on the tabling of the amendments, it might be helpful to Senators. The tabling of these Government amendments is intended to ensure all complaints about the conduct of legal practitioners who are solicitors will, from the date of commencement, be taken under the relevant procedures of the new Legal Services Regulatory Authority. The amendments support the transitional arrangements for dealing with complaints already being dealt with within the Law Society of Ireland's remit which will have to be completed by it under the existing regulations and processes. They remove any existing powers of the Law Society of Ireland in relation to solicitors which will now be conferred instead on the new regulatory authority. They will ensure the existing powers and functions of the Law Society of Ireland relating to the financial regulation of solicitors and to the solicitors' compensation fund are retained and firewalled. They will make the Law Society of Ireland subject to and compliant with the relevant provisions and regulations of the new Bill under the new Legal Services Regulatory Authority. They will ensure relevant matters of misconduct can be amenable to the new legal practitioners' disciplinary tribunal, whether they arise from public complaints made to the legal services regulatory authority or as a result of the Law Society of Ireland's retained financial and accounts regulation work. They will ensure that, when requested by the Legal Services Regulatory Authority, the Law Society of Ireland will furnish the relevant investigating accountants reports in support of the handling of any public complaints relating to financial infringements. They will also ensure no regulatory gap is created between the existing regulations that need to remain in place and those that may be introduced in the future under the new regulatory authority regime.

Senators can see from the foregoing that the changes we are making must be reflected in the Solicitors Acts. These are the range of amendments, of which there are quite a few, to the five Acts that must be made to ensure they comply with the provision for the new regulatory authority.

Amendment agreed to.

Amendment agreed to.
Government amendment No. 245:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 5 of Act of 1954
151. Section 5(1) of the Act of 1954 is amended by the substitution of “may, with the approval of the Authority, make” for “may make”.”.
Amendment agreed to.
Government amendment No. 246:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 47 of Act of 1954
152. Section 47(8) of the Act of 1954 is amended by the substitution of “Authority” for “Minister”.”.
Amendment agreed to.
Government amendment No. 247:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 48 of Act of 1954
153. Section 48(3) of the Act of 1954 is amended by the substitution of “Authority” for “Chief Justice” in both places where it occurs.”.
Amendment agreed to.
Government amendment No. 248:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 49 of Act of 1954
154. Section 49 of the Act of 1954 is amended—
(a) in subsection (1)(q)—
(i) by the substitution, in subparagraph (ii), of “years,” for “years, or”,
(ii) by the substitution, in subparagraph (iii), of “clients, or” for “clients.”, and
(iii) by the insertion of the following after subparagraph (iii):
“(iv) the number and nature of complaints made to the Authority in respect of the solicitor under section 42 of the Legal Services Regulation Act 2015, within the preceding two practice years;”,
(b) by the insertion of the following after subsection (1)(q):
“(r) he has failed to comply with a notice issued to him under section 60(6)(c) of the Legal Services Regulation Act 2015 by the Complaints Committee of the Authority;
(s) he has failed to comply with a direction issued to him under section 61(1)(a) of the Legal Services Regulation Act 2015;
(t) he has been convicted of an indictable offence;
(u) he has contravened the Solicitors Acts 1954 to 2015;
(v) he has contravened the Legal Services Regulation Act 2015 or regulations made under it.”,
and
(c) by the insertion of the following after subsection (7):
“(8) The Society, where it has reason to consider that a solicitor may not befit to carry on the practice of a solicitor having regard to the state of his physical or mental health, may, for the purposes of subsection (1)(p), direct that the solicitor be examined by a registered medical practitioner nominated by the Society.
(9) In subsection (8), ‘registered medical practitioner’ means a person who is a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007.”.”.
Amendment agreed to.
Government amendment No. 249:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 66 of Act of 1954
155. Section 66 of the Act of 1954 is amended in subsection (1) by the substitution of “the Authority” for “the President of the High Court”.”.
Amendment agreed to.
Government amendment No. 250:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 71 of Act of 1954
156. Section 71 of the Act of 1954 is amended in subsection (8) by—
(a) the deletion of “Notwithstanding paragraph (d) of subsection (2) and subsection(3) of this section;” and
(b) the deletion of “, whether an advertisement or otherwise,”.
Amendment agreed to.
Amendment No. 251 not moved.
Government amendment No. 252:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 3 of Act of 1960
158. Section 3 of the Act of 1960 is amended by the insertion of the following definitions:
“ ‘Authority’ means the Legal Services Regulatory Authority;
‘misconduct’ shall be construed in accordance with section 41 of the Legal Services Regulation Act 2015, in so far as that section relates to solicitors;”.”.
Amendment agreed to.
Government amendment No. 253:
In page 120, between lines 3 and 4, to insert the following:
“Solicitor shall not have connection, accept instructions, from certain persons
159. The Act of 1960 is amended by the insertion of the following after section 3:
“3A. A solicitor shall not, in the course of his or her practice as a solicitor, other than where permitted to do so under the Legal Services Regulation Act 2015—
(a) have any direct or indirect connection, association or arrangement with any person (other than a client) whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of section 55 or 56 or section 58 of the Principal Act, or section 5 of the Solicitors (Amendment) Act 2002, or
(b) accept instructions to provide legal services to a person from another person whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of the enactments referred to in paragraph (a).”.”.
Amendment agreed to.
Government amendment No. 254:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 7 of Act of 1960
160. Section 7 of the Act of 1960 is amended in subsection (1) by the substitution of “made by the person before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation, or made by the Society” for “or by the Society”.
Amendment agreed to.
Government amendment No. 255:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 9 of Act of 1960
161. Section 9 of the Act of 1960 is amended by the substitution of “Law Society” for “Disciplinary Committee” in each place where it occurs.”.
Amendment agreed to.
Government amendment No. 256:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 10 of Act of 1960
162. Section 10 of the Act of 1960 is amended by the insertion of the following after subsection (4):
“(5) The Law Society shall inform the Authority of the making of an order, or the refusal of an application, under subsection (3).”.”.
Amendment agreed to.
Government amendment No. 257:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 14 of Act of 1960
163. Section 14 of the Act of 1960 is amended—
(a) in paragraph (e), by the substitution of “application,” for “application, and”,
(b) by the insertion of the following after paragraph (f):
“(g) the making of a complaint under Part 5 of the Legal Services Regulation Act 2015 to the Authority and documents created or furnished to the parties entitled to receive them under that Part,
(h) an interim report and final report, referred to in section 50 of the Legal Services Regulation Act 2015, of the Society of an investigation carried out by it in compliance with a request under that section, and
(i) proceedings and documents associated with an inquiry held by the Legal Practitioners Disciplinary Tribunal under Part 5 of the Legal Services Regulation Act 2015.”.”.
Amendment agreed to.
Government amendment No. 258:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 17 of Act of 1960
164. Section 17 of the Act of 1960 is amended—
(a) in subsection (1)—
(i) by the substitution, in paragraph (a), of “Act” for “Act, and”,
(ii) by the substitution, in paragraph (b), of “Act, and ” for “Act,”, and
(iii) by the insertion of the following after paragraph (b):
“(c) a copy of any decision or order made by the High Court and any determination made by the Legal Practitioners Disciplinary Tribunal under Part 5 of the Legal Services Regulation Act 2015 in relation to a complaint under that Part in respect of a solicitor,”,
(b) in subsection (3)—
(i) by the substitution, in paragraph (b), of “Disciplinary Committee, and” for “Disciplinary Committee.”, and
(ii) by the insertion of the following after paragraph (b):
“(c) on a file to be termed File C, there shall be entered each decision or order made by the High Court under section 74 or 75 of the Legal Services Regulation Act 2015 and any determination made by the Legal Practitioners Disciplinary Tribunal under section 72 of the Legal Services Regulation Act 2015, in relation to a complaint under that Part in respect of a solicitor.”,
(c) in subsection (4), by the substitution of “File A, File B or File C” for “File A or File B”, and
(d) in subsection (5)(a), by the substitution of “File A, File B or File C” for “File A or File B”.”.
Amendment agreed to.
Government amendment No. 259:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 24 of Act of 1960
165. Section 24 of the Act of 1960 is amended by the substitution of “Authority” for “President of the High Court”.”.
Amendment agreed to.
Government amendment No. 260:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 31 of Act of 1960
166. Section 31 of the Act of 1960 is amended in subsection (2) by the substitution of “Authority” for “President of the High Court”.”.
Amendment agreed to.
Government amendment No. 261:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 2 of Act of 1994
167. Section 2 of the Act of 1994 is amended by the insertion of the following definition:
“ ‘Authority’ means the Legal Services Regulatory Authority;”.”.
Amendment agreed to.
Government amendment No. 262:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 8 of Act of 1994
168. Section 8 of the Act of 1994 is amended—
(a) in subsection (1), by the substitution of “Where the Society, before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation,” for “Where the Society”, and
(b) in subsection (8), by the substitution of “Authority” for “President of the High Court”.”.
Amendment agreed to.
Government amendment No. 263:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 9 of Act of 1994
169. Section 9 of the Act of 1994 is amended—
(a) in subsection (1), by the substitution of “Where the Society, before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation,”for “Where the Society”, and
(b) in subsection (2), by the substitution of “basis, or to the Chief Legal Costs Adjudicator for adjudication under Part 10 of the Legal Services Regulation Act 2015.” for “basis.”,
(c) in subsection (3)—
(i) by the substitution of “basis, or to the Chief Legal Costs Adjudicator for adjudication under Part 10 of the Legal Services Regulation Act 2015,” for“basis,” and
(ii) “taxation, or to the Chief Legal Costs Adjudicator for adjudication under Part 10 of the Legal Services Regulation Act 2015.” for “taxation.”,
and
(d) in subsection (7), by the substitution of “Authority” for “President of the High Court”.”.
Amendment agreed to.
Government amendment No. 264:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 10 of Act of 1994
170. Section 10 of the Act of 1994 is amended by the substitution of “made, before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation, to the Society -” for “made to the Society -”.
Amendment agreed to.
Government amendment No. 265:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 14 of Act of 1994
171. Section 14 of the Act of 1994 is amended in subsection (1)—
(a) by the deletion of “whether as a result of a complaint or otherwise,” and
(b) by the insertion of the following after paragraph (a):
“(aa) a matter for the purposes of compliance with a request under section 50 of the Legal Services Regulation Act 2015,”.”.
Amendment agreed to.
Government amendment No. 266:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 14A of Act of 1994
172. The Act of 1994 is amended by the substitution of the following for section 14A:
“14A. (1)For the avoidance of doubt, it is hereby declared that the power of the Society to investigate alleged misconduct by a solicitor may be exercised whether or not the Society receive—
(a) a complaint in relation to the solicitor, or
(b) a request under section 50 of the Legal Services Regulation Act 2015 for the investigation into any matter that is relevant to a complaint under Part 5 of that Act in relation to the solicitor.
(2) The Society shall, in addition to exercising its power referred to in subsection (1), conduct an investigation in compliance with a request under section 50 of the Legal Services Regulation Act 2015 for the investigation into any matter that is relevant to a complaint under Part 5 of that Act in relation to the solicitor.
(3) Where the Society, following an investigation, considers that the act or omission the subject of the investigation is not one to which subsection (6) applies, but determines that it warrants the imposition of a sanction under this section, it may—
(a) in accordance with section 61 of the Legal Services Regulation Act 2015, issue a direction to the solicitor concerned to take such measures as are specified in the determination of the Society, being measures specified in respect of solicitors in subsection (5) of that section, or
(b) where the solicitor concerned so consents in writing, take the measure, being the measure specified in section 61(6)(a) of the Legal Services Regulation Act 2015, specified in the determination of the Society.
(4) Where the Society issues one or more than one direction in accordance with subsection (3)(a) and the solicitor complies with each such direction, the complaint shall be considered as determined.
(5) Where the Society (with the consent of the solicitor concerned) takes the measure specified in subsection (3)(b), the complaint shall be deemed to be determined.
(6) (a) Subject to subsection (7), where the Society has commenced its investigation on or after the date on which the Legal Services Regulation Act 2015 comes into operation, and it considers that the act or omission the subject of the investigation is of a kind that is more appropriate for consideration by the Legal Practitioners Disciplinary Tribunal than by it, it may make an application in respect of the matter to it for the holding of an inquiry under section 73 of the Legal Services Regulation Act 2015.
(b) In determining whether it be more appropriate for the matter to be considered by the Legal Practitioners Disciplinary Tribunal, the Society shall have regard to the gravity of the concerns raised and matters disclosed in the complaint and in its investigation.
(7) (a) Where the Society considers that the measure specified in section 61(6)(a) of the Legal Services Regulation Act 2015 is the appropriate measure to be taken as respects the finalisation of its investigation, it shall notify the solicitor concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be placed on the practising certificate of the solicitor, the precise restriction or condition) it proposes to take.
(b) The notification referred to in paragraph (a) shall indicate that unless the solicitor concerned furnishes to the Society his or her consent in writing to the imposition of the specified measures within 21 days of the issue of the notification, the Society will apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015.
(c) Where the Society issues a notification pursuant to paragraph (b) and does not receive the written consent of the solicitor concerned within 21 days to the imposition of the specified measures, it shall apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015 into the matter, in so far as the Society has not found that the concerns giving rise to its investigation of the matter are unfounded or that the act or omission concerned does not warrant the imposition of a sanction under this section or an application under subsection (7) to the Legal Practitioners Disciplinary Tribunal.
(8) The Society shall notify the Authority of its determination under subsection (3).”.”.
Amendment agreed to.
Government amendment No. 267:
In page 120, between lines 3 and 4, to insert the following:
“Monitor appointed by Authority may attend committee meetings
173. The Act of 1994 is amended by the insertion of the following after section 14B:
“14C. (1) Where a committee is investigating an act or omission of a solicitor to which section 42(5) of the Legal Services Regulation Act 2015 applies, a monitor may attend and observe any meeting of the committee in relation to the investigation.
(2) The Society shall inform the Authority of the time and place of a meeting referred to in subsection (1).
(3) In this section—
‘committee’ means any committee of the Society to which the powers or functions of investigating alleged misconduct by a solicitor has been delegated;
‘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.”.”.
Amendment agreed to.
Government amendment No. 268:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 22 of Act of 1994
174. Section 22 of the Act of 1994 is amended by the insertion of “or the Legal Practitioners Disciplinary Tribunal” after “Tribunal” in both places where it occurs.”.
Amendment agreed to.
Government amendment No. 269:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 26 of Act of 1994
175. Section 26 of the Act of 1994 is amended—
(a) in subsection (1)—
(i) by the substitution of “The Society may, with the consent of the Authority, make regulations” for “The Society may make regulations”,
(ii) in paragraph (a), by the substitution of “solicitor,” for “solicitor, or”,
(iii) in paragraph (b), by the substitution of “as a solicitor, or” for “as a solicitor.”, and
(iv) by the insertion of the following paragraph after paragraph (b):
“(c) by a solicitor arising from his practice as a solicitor in a legal partnership, multi-disciplinary practice or limited liability partnership (within the meaning of the Legal Services Regulation Act 2015).”,
(b) by the insertion of the following new subsection after subsection (1):
“(1A) In making indemnity regulations under subsection (1), regard shall be had to the objective of ensuring, in relation to solicitors in a legal partnership, multi-disciplinary practice or limited liability partnership referred to in paragraph (c) of that subsection, that there is adequate indemnity against losses in place respect of each solicitor and other person in such partnership or practice concerned who is required to be covered.”.
(c) in subsection (5), by the substitution of “the Authority” for “the Minister”, and
(d) by the deletion of subsection (6).”.
Government amendment No. 270:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 35 of Act of 1994
176. Section 35 of the Act of 1994 is amended by the substitution of “Society and to the Authority,” for “Society,”.”.
Amendment agreed to.
Government amendment No. 271:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 38 of Act of 1994
177. Section 38 of the Act of 1994 is amended in subsection (1)—
(a) by the substitution of “the Solicitors Acts 1954 to 2015 or the Legal Services Regulation Act 2015,” for “the Solicitors Acts, 1954 to 1994,”, and
(b) by the insertion of “or the Authority” after “Society”.”.
Amendment agreed to.
Amendment No. 272 not moved.
Government amendment No. 273:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 58 of Act of 1994
179. Section 58 of the Act of 1994 is amended—
(a) in subsection (1), by the substitution of “Where a solicitor fails to comply with any provision of the Solicitors Acts 1954 to 2015 or the Legal Services Regulation Act 2015, or with any regulations made thereunder or with any conditions specified in a direction relating to a practising certificate under section 59 of this Act, or has been convicted of an indictable offence and sentenced to a term of imprisonment, and the Society are of the opinion that such failure to comply or, as the case may be, such conviction and sentence is serious and warrants the making of an application under this section” for “Where a solicitor fails to comply with any provision of the Solicitors Acts 1954 to 1994, or with any regulations made thereunder or with any conditions specified in a direction relating to a practising certificate under section 59 of this Act, and the Society are of the opinion that such failure to comply is serious and warrants the making of an application under this section”, and
(b) by the substitution of the following for subsection (3):
“(3) Any application made by the Society pursuant to subsection (1) shall be without prejudice to the right of the Society under—
(a) section 7 of the Act of 1960 to apply to the Disciplinary Tribunal for an inquiry into the conduct of the solicitor concerned on the ground of alleged misconduct, or
(b) section 14A to make an application to the Legal Practitioners Disciplinary Tribunal in respect of the conduct of the solicitor concerned for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015.”.”.
Amendment agreed to.
Government amendment No. 274:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 59 of Act of 1994
180. Section 59(2) of the Act of 1994 is amended by the substitution of “section 49(1)(c) to (v)” for “section 49(1)(c) to (p) (as substituted by this Act)”.”.
Amendment agreed to.
Government amendment No. 275:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 1 of Act of 2002
181. Section 1 of the Act of 2002 is amended by the insertion of the following definition:
“ ‘the Authority’ means the Legal Services Regulatory Authority;”.”.
Amendment agreed to.
Government amendment No. 276:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 5 of Act of 2002
182. Section 5 of the Act of 2002 is amended by—
(a) the substitution of the following paragraph for paragraph (b):
“(b) which, if published or caused to be published by a solicitor, would contravene regulations made under section 158 of the Legal Services Regulation Act 2015.”, and
(b) by the substitution of the following subsection for subsection (2):
“(2) In subsection (1), ‘advertisement’ has the meaning assigned to it by section 158(8) of the Legal Services Regulation Act 2015 with the substitution, where appropriate, of ‘a person who is not a solicitor’ for ‘a legal practitioner’.”.”.
Amendment agreed to.
Government amendment No. 277:
In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 19 of Act of 2002
183. Section 19 of the Act of 2002 is amended—
(a) by the substitution of “Legal Practitioners Disciplinary Tribunal” for “Disciplinary Tribunal” in each place in which it occurs, and
(b) by the substitution of the following for subsection (7):
“(7) In this section, ‘misconduct’—
(a) means, in relation to an act or omission that occurred before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation—
(i) the commission of an offence under section 55, 56 or 58 of the Principal Act or of an arrestable offence (within the meaning of the Criminal Law Act 1997),
(ii) conduct outside the State which constitutes an offence under the law of the jurisdiction concerned and which, if that conduct took place within the State, would constitute an arrestable offence (within that meaning), or
(iii) any other conduct which, if engaged in by a solicitor, would tend to bring the solicitors’ profession into disrepute,
and
(b) in relation to an act or omission that occurred on or after the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation, shall be construed in accordance with section 41 of that Act, in so far as that section relates to solicitors.”.”.
Amendment agreed to.

Amendments Nos. 278 and 279 are related and may be discussed together.

Government amendment No. 278:
In page 120, between lines 5 and 6, to insert the following:
“Immunity
150. (1) Neither the Authority nor a member, or member of staff, of the Authority shall be liable in damages in respect of any act done or omitted to be done by it or him or her in the performance, or purported performance, of its or his or her functions under Part 3 or 5, unless the act or omission concerned was done in bad faith.
(2) The State shall not be liable in damages in respect of any act done or omitted to be done by the Authority or a member, or member of staff, of the Authority in the performance, or purported performance, by the Authority or such member of its, his or her functions under Part 3 or 5, unless the act or omission concerned was done in bad faith.
(3) Neither the State nor the Authority shall be liable in damages in respect of any act done or omitted to be done by the Law Society in the performance, or purported performance, by the Law Society of its functions under Part 5 or the Solicitors Acts 1954 to 2015.
(4) In this section—
‘Authority’ includes a Review Committee established under section 53, the Complaints Committee and the Disciplinary Tribunal;
‘member of staff’ includes an inspector appointed in accordance with section 31(1)(b).”.

Amendment No. 278 proposes to insert a new section 150 in the Bill to provide a standard immunity clause which relates in general to acts and omissions of the new authority in the performance of its functions with regard to inspections and complaints against legal practitioners unless the act or omission was done in bad faith. It provides immunity in damages to the authority and its staff and the State. Section 150(3) of the new section provides for immunity of the authority and the State from liability in damages for any acts or omissions of the Law Society of Ireland in the performance of its functions.

Amendment No. 279 proposes the insertion of a new section 151 as a complement to the new section 150 to protect the State or the authority from any liabilities of the solicitors' compensation fund. When I was discussing that the compensation fund was staying with solicitors, I mentioned that obviously we did not want the State to take on any of the liabilities which might accrue from this.

Having reached amendment No. 279, I note that since amendment No. 244, we have dealt with more than 14 pages of amendments. We have made 36 amendments. This is the same as the page 41 issue we had last night. Page 120 should have been reprinted for this Stage of the discussion. It is unrecognisable from page 120 in the Bill.

It is the normal consequential implication of new amendments. That is why that has been done. It is the same as page 41 last night. It was not about amendments, as Senator David Norris said, to one page. That was literally the virtual location of where the amendments started. They went from page 41 and were being inserted because they were new amendments.

Amendment agreed to.
Government amendment No. 279:
In page 120, between lines 5 and 6, to insert the following:
“No indemnification of Compensation Fund
151. (1) The State shall not indemnify the Compensation Fund in respect of any liability of that Fund howsoever arising and, accordingly, no public moneys shall be paid into that Fund for any purpose or be otherwise used to meet any liability of that Fund.
(2) This section shall apply whether or not the moneys standing to the credit of the Compensation Fund are sufficient to meet the liabilities of that Fund.
(3) In this section “public moneys” means moneys charged on or issued out of the Central Fund or the growing produce thereof or provided by the Oireachtas.”.
Amendment agreed to.
Government amendment No. 280:
In page 121, line 34, to delete “Part 6” and substitute “Part 5”.

This is a technical amendment to delete Part 6 and substitute Part 5. It is because we have amalgamated Parts 5 and 6.

Amendment agreed to.

Amendments Nos. 281, 282 and 301 are related and may be discussed together, by agreement. Is that agreed? Agreed. Recommittal is necessary as the amendments do not arise out of Committee proceedings.

Bill recommitted in respect of amendments Nos. 281 and 282.
Government amendment No. 281:
In page 122, to delete lines 9 to 41, to delete page 123, and in page 124, to delete line 1.

The Protected Disclosures Act of 2014 which was steered by the Minister for Public Expenditure and Reform is intended to provide a statutory framework within which public and private sector workers can raise concerns regarding potential wrongdoing that has come to their attention in the workplace, with the comfort of employment and other protections if they are penalised or otherwise disadvantaged as a result of the disclosure. Sections 155, 156 and Schedule 2 to the Bill which contain specific provisions relating to whistleblowing in the context of legal practitioners were always intended to be a temporary placeholder for whistleblower protection in the event that the Act of 2014 did not materialise.

It was assumed at the time of the publication of the Legal Services Regulation Bill in 2011 that this matter would ultimately be dealt with in other legislation of general application and the provisions here deleted. As this has now come to pass, the presence of sections 155, 156 and Schedule 2 in the Bill need to be deleted.

The Minister for Public Expenditure and Reform is also keen that this should happen in line with the Government's decision to discontinue a sector by sector approach to whistleblowing, as well as the need to ensure there is no confusion and cross-cutting between parallel regimes. The Act of 2014 is understood to be comprehensive for these purposes. Since the Bill was published we have had new legislation for whistleblowers and do not need to replicate the protected disclosures legislation in the Bill as obviously it applies to legal practitioners.

Amendment agreed to.
Government amendment No. 282:
In page 124, to delete lines 2 to 33.
Amendment agreed to.
Bill reported with amendments.

Amendments Nos. 283 to 285, inclusive, are related and may be discussed together.

I move amendment No. 283:

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

Amendment No. 283 expresses concern about the fact the authority can waive educational qualifications by regulation. The Bill states people may be exempted from additional requirements to attend a course of education or training, sit and pass an examination or serve a period of apprenticeship or pupilage. If solicitors want to become barristers or barristers want to become solicitors, they should take the examinations, pursue the courses and have the period of apprenticeship. We want to raise the standard, I presume, rather than give exceptions of this kind.

I second the amendment.

I am a practising solicitor. Someone who has done a science degree and goes on to do a medical degree is given certain exemptions. Certain exemptions and exceptions should be in place for members of the legal profession. At the end of the day, we are all lawyers and have very similar qualifications and abilities. Certain exemptions should be made for members of both legal professions in these circumstances.

As I indicated on Committee Stage, I cannot accept amendment No. 283 as it would negate an intended regulatory power of the new authority on movement between the professions of solicitor and barrister. Barristers and solicitors can already move between professions and it is intended that the authority can look at ways to enhance this.

The fusion of the two professions will be looked at comprehensively by the authority in time, but this cannot be done immediately as it would require further legislation and other administrative and educational arrangements. If I were to agree to amendment No. 283, I would prohibit the authority from regulating movement between the professions of barrister and solicitor. This is something that happens all the time and the Bill is about facilitating such change of legal career rather than restricting it or banning it altogether.

The proposed references to qualifications in amendments Nos. 284 and 285 are considered unnecessary, as the question of being duly qualified to practise as a solicitor or barrister is already comprehended by the definitions of solicitors and barristers who are entitled to practise under the Bill. I dealt with this issue at an earlier stage and the definitions in the Bill are very clear. The Senator wants to see more movement, but amendment No. 283 would restrict movement and not attain the goal the Senator wants to achieve.

With regard to amendments Nos. 284 and 285, the definitions have been dealt with already.

I thank the Minister and the Senator for their responses. There should be no dumbing down of standards and exemptions should be granted extremely parsimoniously.

It is not dumbing down.

This is the point I am trying to make. In all of our colleges most people take their courses and pass examinations and I would not support the thought of any mass exemption.

I am not trying to go into combat with my good colleague, Senator Sean D. Barrett, but my long experience is that for some reason there is a misnomer that barristers are better qualified than solicitors. It takes solicitors six years to qualify and I have no doubt whatsoever that most qualified solicitors are well capable of doing any barrister's work. Some of them are brighter.

Some barristers who specialised went on to become senior counsel and that is fair enough, but the vast majority of solicitors are quite capable of representing anyone in court and would do a much better job than some of the barristers who may have little interest in the case. With all due respect, there is little between a qualified barrister and a qualified solicitor except for the fact they have gone down different roads. In most countries, including the United States, Australia and European countries, there is no difference between them and they are all lawyers. On this occasion I believe the Minister is correct and I beg to differ with my good colleague, Senator Sean D. Barrett.

The Law Society of Ireland is well represented this evening.

Amendment, by leave, withdrawn.
Amendments Nos. 284 and 285 not moved.
Government amendment No. 286:
In page 127, to delete the section 159 inserted by amendment 154 at Committee Stage in the Seanad.
Amendment agreed to.
Government amendment No. 287:
In page 127, to delete the section 160 inserted by amendment 155 at Committee Stage in the Seanad.
Amendment agreed to.
Government amendment No. 288:
In page 127, to delete the section 161 inserted by amendment 156 at Committee Stage in the Seanad.
Amendment agreed to.
Government amendment No. 289:
In page 127, to delete the section 162 inserted by amendment 157 at Committee Stage in the Seanad.
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 290 to 292, inclusive.
Government amendment No. 290:
In page 127, after line 30, to insert the following:
"PART 15
CLINICAL NEGLIGENCE ACTIONS
Clinical negligence actions
159. (1) The Civil Liability and Courts Act 2004 is amended by inserting the following Part after Part 2:
"PART 2A
CLINICAL NEGLIGENCE ACTIONS
Interpretation of Part 2A
32A. (1) In this Part—
'clinical negligence' means anything done or omitted to be done in the provision of a health service by a health service provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death;
'clinical negligence action' means an action for the recovery of damages brought—
(a) by or on behalf of a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence, and
(b) against the health service provider alleged to have committed the act or omission giving rise to liability or any other person alleged to be liable in respect of that act or omission;
'health service' means—
(a) the carrying out of a clinical investigation, diagnosis, procedure, treatment or research,
(b) the provision of clinical advice or information, or
(c) the provision of clinical care;
'health service provider' means a person whose name is on—
(a) the register of medical practitioners,
(b) a register maintained by the Dental Council,
(c) a register maintained by the Optical Registration Board,
(d) a register set up under section 13(1) of the Pharmacy Act 2007,
(e) a register maintained under section 46 of the Nurses and Midwives Act 2011, or
(f) a register maintained by any health and social care profession which has been designated for the purposes of the Health and Social Care Professionals Act 2005 and which the Minister has prescribed by regulations;
'pre-action protocol' means the pre-action protocol mentioned in section 32B.
Pre-action protocol
32B. (1) There shall be a pre-action protocol relating to clinical negligence actions.
(2) The pre-action protocol shall include requirements that must be complied with by the parties to clinical negligence actions before such actions are brought.
(3) The Minister shall by regulations make provision specifying the terms of the pre-action protocol.
(4) Before making regulations under subsection (3), the Minister shall consult—
(a) the Minister for Health,
(b) the State Claims Agency,
(c) any such bodies involved in the regulation of persons providing legal services as the Minister considers appropriate,
(d) any such bodies involved in the regulation or training of persons providing health services as the Minister considers appropriate,
(e) any such bodies representative of the interests of patients as the Minister considers appropriate, and
(f) any such other bodies as the Minister considers appropriate.
(5) The Minister shall, in making regulations under subsection (3), have regard to the desirability of—
(a) encouraging the early resolution of enquiries or allegations relating to possible clinical negligence,
(b) promoting timely communication between persons who are enquiring into or making allegations about possible clinical negligence and those whom they consider may be liable in respect of it,
(c) reducing the number of cases in which clinical negligence actions are brought,
(d) facilitating the early identification of the issues in dispute in clinical negligence actions, and
(e) encouraging the early settlement of clinical negligence actions.
(6) The terms of the pre-action protocol specified by regulations under subsection (3) shall in particular include provision relating to—
(a) the disclosure of medical and other records relating to persons enquiring into or alleging possible clinical negligence (including charges for disclosure),
(b) the giving of notifications of enquiries into, and allegations of, possible clinical negligence, the acknowledgment of notifications of enquiries and the giving of responses to notifications of allegations,
(c) the specification of the time at or within which records shall be disclosed and notifications given and acknowledged or responded to,
(d) the form of, and particulars to be included with, requests for disclosure or notifications of enquiries or allegations and acknowledgments of and responses to such notifications,
(e) the disclosure of material relevant to allegations and responses, and
(f) agreements to submit issues for resolution otherwise than by a court.
Powers of court
32C. The court in which a clinical negligence action is brought, on hearing the action, may do any of the following:
(a) direct that the action shall not proceed any further until steps which are required by the pre-action protocol to have been taken by any of the parties have been taken;
(b) order that a party who has not complied with a requirement of the pre-action protocol pay the costs, or part of the costs, of the other party or parties (including, where appropriate, on an indemnity basis);
(c) if an award of damages is made in favour of the plaintiff but the plaintiff either has not complied with a requirement of the preaction protocol or has rejected an offer to settle made in accordance with the pre-action protocol for an amount equal to or greater than that awarded, order that the plaintiff shall be deprived of interest on all or part of the award or that all or part of the award shall carry interest at a lower rate than it otherwise would;
(d) if an award of damages is made against a defendant but the defendant either has not complied with a requirement of the preaction protocol or has rejected an offer to settle made in accordance with the pre-action protocol for an amount equal to or less than that awarded, order that the defendant pay interest on all or part of the award at a rate higher by no more than 10 percentage points than the rate for the time being standing specified under section 26 of the Debtors (Ireland) Act 1840.
Apology not to constitute admission of liability or invalidate insurance
32D. (1) An apology made in connection with an allegation of clinical negligence—
(a) shall not constitute an express or implied admission of fault or liability, and
(b) shall not, despite any provision to the contrary in any contract of insurance and despite any other enactment, invalidate or otherwise affect any insurance coverage that is, or but for the apology would be, available in respect of the matter alleged.
(2) Despite any other enactment, evidence of an apology referred to in subsection (1) is not admissible as evidence of fault or liability of any person in any proceedings in a clinical negligence action.".
(2) The amendment made by subsection (1) does not apply to clinical negligence actions where the cause of action accrues before the coming into operation of that subsection.".
Amendment agreed to.
Government amendment No. 291:
In page 127, after line 30, to insert the following:
"Other amendments of Civil Liability and Courts Act 2004
160. (1) Section 8 of the Civil Liability and Courts Act 2004 is amended—
(a) in subsection (1), by substituting "Subject to subsection (3), where” for "Where", and
(b) by inserting the following subsection after subsection (2):
"(3) This section does not apply to a clinical negligence action within the meaning of Part 2A.".
(2) Section 17 of the Civil Liability and Courts Act 2004 is amended—
(a) in subsection (1), by substituting “Subject to subsection (6A), the" for "The", and
(b) by inserting the following subsection after subsection (6):
"(6A) This section does not apply to a clinical negligence action within the meaning of Part 2A if an offer to settle the claim had, before the bringing of the action, been made by any party to the action in accordance with the pre-action protocol.".
(3) The Civil Liability and Courts Act 2004 is amended by inserting the following section after section 17:
"Pre-action offers of settlement in clinical negligence claims
17A. (1) In a case of an action to which section 17 does not apply by virtue of subsection (6A) of that section, a copy of the offer of settlement shall be lodged in court by, or on behalf of, the party by which it was made.
(2) The terms of the offer of settlement shall not be communicated to the judge in the trial of the clinical negligence action until after he or she has delivered judgment in the action.
(3) The court shall, when considering the making of an order as to the payment of the costs in the action, have regard to—
(a) the terms of the offer of settlement, and
(b) the reasonableness of the conduct of the party by whom the offer was made in making the offer.
(4) This section is in addition to and not in substitution for any rule of court providing for the payment into court of a sum of money in satisfaction of a cause of action or the making of an offer of tender of payment to the other party or parties to an action.".
Amendment agreed to.
Government amendment No. 292:
In page 127, after line 30, to insert the following:
“Amendments of Statute of Limitations (Amendment) Act 1991
161. (1) The Statute of Limitations (Amendment) Act 1991 is amended—
(a) in section 3, by substituting the following subsection for subsection (1):
“(1) An action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of—
(a) in the case of a clinical negligence action within the meaning of Part 2A of the Civil Liability and Courts Act 2004, 3 years, or
(b) otherwise, 2 years, from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”,
(b) in section 4(1), by substituting “the period so specified” for “2 years”,
(c) in section 5(1), by substituting “the period specified in the said section 3 from the date when he ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period so specified” for “2 years from the date when he ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period specified in the said section 3”, and
(d) in section 6—
(i) in subsection (1), by substituting “the relevant period” for “2 years”, and
(ii) by inserting the following subsection after subsection (1):
"(1A) In subsection (1) 'the relevant period' means—
(a) in the case of a clinical negligence action within the meaning of Part 2A of the Civil Liability and Courts Act 2004, 3 years, and
(b) otherwise, 2 years.”.
(2) The amendments made by subsection (1) do not have effect where the date of accrual of the cause of action, or the date of knowledge of the person concerned as respects that cause of action, is before the coming into operation of that subsection.".".
Amendment agreed to.
Bill reported with amendments.

Amendments Nos. 293 to 298, inclusive, have been ruled out of order.

Amendments Nos. 293 to 298, inclusive, not moved.
Government amendment No. 298a:
In page 128, line 9, to delete "matters:" and substitute "matters, where applicable:"

I introduced this amendment to Schedule 1 on the third additional list. It makes changes to section 2 of Schedule 1. In determining whether legal costs are reasonable, a legal costs adjudicator shall consider the listed matters, where applicable. This safeguards the adjudicator's discretion on the matters listed which will not all be applicable in every case.

The amendments have all been discussed with the Competition and Consumer Protection Commission which has welcomed their introduction. The commission suggested the amendments would simplify the legal costs adjudication process and I am very happy to introduce them. I hope Senators will support them. They are intended to ensure there will be a more transparent costs system and that varying factors can be taken into account when adjudicating on costs. Given that the commission has recommended their introduction, I am very happy to go along with this.

Government amendment No. 303:

In page 134, to delete line 7 and substitute the following:

1994, No. 27

Solicitors (Amendment) Act 1994

Sections 68 and 74

”.

Amendment agreed to.
Government amendment No. 299:
In page 128, to delete lines 10 and 11 and substitute the following:
“(a) the complexity and novelty of the issues involved in the legal work;”.
Amendment agreed to.
Government amendment No. 300:
In page 128, to delete lines 16 to 19 and substitute the following:
“(e) the urgency attached to the matter by the client and whether this requires or required the legal practitioner to give priority to that matter over other matters;”.
Amendment agreed to.
Bill recommitted in respect of amendment No. 301.
Government amendment No. 301:
In page 129, to delete lines 1 to 42, to delete pages 130 to 132, and in page 133, to delete lines 1 to 18.
Amendment agreed to.
Bill reported with amendment.
Government amendment No. 302:
In page 134, between lines 6 and 7, to insert the following:

1954, No. 36

Solicitors Act 1954

Section 71(2), (3), (4), (5), (6) and (10)

”.
Amendment agreed to.
Amendment agreed to.
Bill, as amended, received for final consideration and passed.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 9.25 p.m. until 10.30 a.m. on Thursday, 3 December 2015.