Legal Services Regulation Bill 2011: Committee Stage (Resumed)

I welcome everybody back and wish members a happy new year and all the best for 2014. I also welcome the Minister and his officials and the people in the gallery who have come to observe the proceedings. Apologies have been received from Deputy Anne Ferris. I remind members to turn off their mobile phones and not to leave them in silent mode, or else they should place them a good distance from the microphone in order that they do not interfere with the sound system as it is not fair on the officials who listen in, monitor and record what we say. It is best that members turn off their mobile phones completely.

I propose that we sit from 10 a.m. to 1 p.m., take a break and resume at 2.30 p.m. and continue until 6 p.m. Is that agreed? Agreed. I ask members to make their observations and put their questions through the Chair. I also ask them to keep their interventions on the amendments and sections as concise, precise and focused as possible. They should try not to ramble into other areas. I will be as helpful as I possibly can in reminding them what we are about and to focus on the amendments and sections with which we are dealing.

The debate is being resumed on section 10. Amendments Nos. 36 and 37 are related and will be discussed together.

SECTION 10

I move amendment No. 36:

In page 17, subsection (1)(a), line 35, to delete “functions.” and substitute the following:

"functions, but in each year shall hold not less than one meeting in each period of three months.".

As this is the first meeting of the new year, without wishing to be accused of rambling, I wish all members of the committee a happy new year.

To deal directly with amendments Nos. 36 and 37, amendment No. 36 is a minor amendment, the primary aim of which is to ensure the authority will begin to meet promptly after it becomes established and not become moribund at any future stage. Amendment No. 37 is pragmatic and has been designed to ensure the authority will not become hamstrung by an inability to ensure there is always a majority of lay members at every meeting. It provides for a better balance than the original provision which required a lay majority of three at every meeting.

Amendment agreed to.

I move amendment No. 37:

In page 17, lines 40 to 43, to delete subsection (2) and substitute the following:

"(2) The quorum for a meeting of the Authority shall be 5, of whom not fewer than 2 shall be lay members, and not fewer than 2 shall be members other than lay members.".

Amendment agreed to.

I move amendment No. 38:

In page 18, subsection (3), line 1, to delete "The Minister shall, in consultation with the Chairperson," and substitute "The Chairperson shall".

This amendment removes any ministerial involvement from determining when and where the authority should first meet. The chairperson will determine this alone within three months of the authority's establishment day. This is another of the many amendments I am tabling to protect the independence of the authority from ministerial influence and any perception of any nature that there will be ministerial influence in the day-to-day workings of the authority.

I join the Chairman in welcoming everybody back and wish everybody a happy new year.

I welcome this amendment, particularly as it concerns the independence of the authority which is crucial.

Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11

I move amendment No. 39:

In page 18, subsection (1)(c), line 28, to delete "to that Parliament to fill a vacancy" and substitute "to be a member of the European Parliament".

This is a technical, drafting amendment which I am told by the Parliamentary Counsel is necessary.

Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12

I move amendment No. 40:

In page 19, subsection (2)(a), line 27, to delete “committee,” and substitute “committee, and”.

This is a technical drafting amendment recommended by Parliamentary Counsel.

Amendment agreed to.

Amendments Nos. 41 to 43, inclusive, 66 to 69, inclusive, and 74 are related and will be discussed together.

I move amendment No. 41:

In page 19, subsection (5), line 39, to delete “the Minister given with the consent of”.

The proposed amendments to sections 21 and 27 are part of a suite of amendments aimed at removing ministerial influence, or any perception of ministerial influence, over the authority, while retaining a role for the Minister for Public Expenditure and Reform with a view to helping to control the costs of the authority, which are to be recouped through the levy on legal practitioners.

Each of the amendments deals with the giving of ministerial consent for a variety of issues. They reflect the standard architecture for other bodies in the legislation that existed when the original Bill was being drafted. It was never the Government's intention that this would be a body controlled in any shape or form by the Minister of the day. As members will be aware, there were concerns that such a perception had developed. The amendments delete references to the authority requiring a variety of what are clearly unnecessary ministerial consents, which gave rise to the wrong perception.

Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13

I move amendment No. 42:

In page 20, subsection (1), lines 13 and 14, to delete “the Minister and”.

Amendment agreed to.

I move amendment No. 43:

In page 20, subsection (2), lines 22 and 23, to delete “the Minister given with the consent of”.

Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14
Question proposed: "That section 14 be deleted."

I have proposed that section 14 be deleted. The Department of Public Expenditure and Reform has requested that section 14 be deleted from the Bill because it duplicates provisions contained in the Ethics in Public Office Act 1995. The authority and tribunal will fall within the scope of the 1994 Act, the first Schedule of which, in section 1(12), provides that a body, organisation or group appointed by the Government or a Minister constitutes a public body for the purposes of the Act. Apparently this section is not necessary.

Question put and agreed to.
SECTION 15

Amendments Nos. 44 and 45 are related and will be discussed together.

I move amendment No. 44:

In page 22, lines 13 to 28, to delete subsection (3).

This amendment deals with concerns about confidentiality and privileged information in documents.

I am aware of the concerns that have been expressed about this section. I am, however, opposed to this amendment. While I am happy to consider any concerns the Deputy may have about aspects of section 15 of the Bill as published, I am still considering this section, along with section 17, in response to concerns that have been expressed by the Law Society. I will, therefore, revert to the committee on this matter on Report Stage and will be guided by the views of advisory counsel. It is likely that we will be amending the section on Report Stage. I am advised by Parliamentary Counsel that the proposed Government amendment No. 45 is an appropriate amendment to the section by way of comprehending the applicable ethics in public office legislation. I assure Deputy Collins that we will revisit sections 15 and 17. It is important that information relating to clients has the appropriate privilege extended to it and that matters which should not be disclosed are not disclosed. However, other issues arise in respect of the section which need to be considered.

In regard to the same issue that Deputy Niall Collins raised, I cannot understand why we are now almost two years into this process. This section was included in the initial Bill and it deals with client confidentiality, which is at the core of the relationship between the legal fraternity and the justice system, but it has not yet been dealt with. It is a cause of concern and, despite the Minister's assurance that it may be addressed on Report Stage, it is frustrating that something that is staring us in the face has not yet been amended two years down the road. I hope Deputy Niall Collins presses the amendment and I will support him in doing so.

I am sorry to hear about the Deputy's frustration. The purpose of Committee Stage is to tease out issues arising in the legislation. In the framing of amendments, we have had particular regard to submissions received from various groups and organisations. Technical issues arise in respect of sections 15 and 17 and Parliamentary Counsel required further time to deal with them. I was anxious that we would progress Committee Stage. This Bill has been unduly delayed as a consequence of the pressures on the Attorney General's office arising from the legislative programme prescribed by the troika and the need to enact the insolvency legislation. I would have preferred to have taken Committee Stage on this Bill at least 12 months ago but that did not prove possible.

As we go through Committee Stage I will be putting down markers to members on issues we have not yet finalised on a technical level and to which we will be reverting on Report Stage. This is one such issue. Certain of the issues have been raised some time ago but the reality was that the necessary technical work could only be undertaken in recent months, not only because the insolvency legislation has been completed but also because of issues arising in regard to the additional rules and regulations that had to be made in respect of the legislation and to fulfil a promise I made at the time of its enactment. It was an enormous piece of legislation and it was inevitable once it was up and running that certain issues would arise in practice that could create technical difficulties. As members will be aware, we have moved with great speed to address any issue that arose in the workings of the legislation. That, of course, has taken up the time of the Parliamentary Counsel. I am personally frustrated this legislation has not been fully enacted and enforced by now and I empathise with Deputy Mac Lochlainn's frustration.

The Deputy knows well from dealing with me that if I say we will come back to an issue and address it, we do so. The focus is on having legislation completed, with any changes required to ensure we have the best possible legislation and to iron out any glitches or issues that need it. That is my purpose in saying we will come back to this and to section 17 on Report Stage.

With regard to section 15, I have major concerns about the issue. While I understand the technical problems the Minister and the Department have, it is important the issue is addressed. The Minister said it may be addressed but we should look for a serious commitment from the Minister to deal with the issue. Despite our political differences on the Legal Services Regulation Bill, we all support the idea of independent regulation and we want improved access and competition. We all want to make legal costs transparent and we want to deal with the consumer complaints issue. We do not want ifs, buts or maybes. The Minister should give a commitment today that the section will be dealt with.

It is important to point out, for emphasis of context, that section 15(1) is a safeguard provision prohibiting the disclosure of confidential information obtained in the performance by specified persons of their functions on behalf of the regulatory authority. The thrust of the entire section is to prohibit unauthorised disclosure of information but it is important to retain certain instances relating to the commission of indictable offences. Deputy Niall Collins has raised the issue in good faith to allow us to tease it out and I am sure it was not his intention to delete the entirety of the section. Section 15(1) states that, save as otherwise provided by law etc., a person shall not make information available. One of the areas in which information can currently be made available is in cases of money-laundering. There are strict obligations in respect of money-laundering with regard to informing the Garda Síochána. There are strict obligations to allow matters to be investigated. These are some of the exceptions in circumstances where the privacy of a solicitor's offices may be invaded and an investigation conducted. There are exceptions to the rule of privilege and they must be taken account of. I am sure members of the committee agree this is the case. In the context of reasonable concerns that have been expressed that the manner in which some aspect of the section is framed could give rise to concerns that it goes further than intended, it must be reframed. This must be done carefully to ensure that where indictable offences are being committed, such as by a member of the legal profession, the matter can be fully and properly investigated. The sad reality is that we have had indictable offences committed by some members of the legal profession and some have been convicted and imprisoned for committing such offences. The section is designed and intended to be a protection for clients while ensuring that, where there is serious criminality, it can be properly investigated. There is an issue of examining the section and the Parliamentary counsel is already doing so. We were not in a position to have the appropriate amendment circulated in time for these meetings. We will come back to it on Report Stage.

I note what the Minister says about his intention on Report Stage. The earliest possible publication of his proposal on Report Stage would be very helpful because it is important. We must get the balance right. I hear the Minister's point about money-laundering and trying to strike a balance between privileging confidentiality and obligations under money-laundering to try to root out criminality. Perhaps we can have the proposal as early as possible because it will be both contentious and sensitive.

Amendment put and declared lost.

I moved amendment No. 45:

In page 22, between lines 28 and 29, to insert the following subsection:

“(4) Nothing in subsection (1) shall prevent the disclosure of information by a person in the circumstances referred to in section 35(2) of the Ethics in Public Office Act 1995.”.

Amendment agreed to.
Section 15, as amended, agreed to.
NEW SECTION

Acceptance of amendment No. 46 involves the deletion of section 16 of the Bill. Amendments Nos. 47 to 53, inclusive, are alternatives to amendment No. 46. Amendment No. 48 is an alternative to amendment No. 47. Amendments Nos. 50 and 51 are alternatives to amendment No. 49. Amendment No. 53 is an alternative to amendment No. 52. Amendments Nos. 46 to 53, inclusive, are related and will be discussed together.

I move amendment No. 46:

In page 22, before section 16, to insert the following new section:

“16.—(1) The Authority shall, as soon as practicable after the establishment day and thereafter within 6 months before each third anniversary of the establishment day, prepare and submit to the Oireachtas Joint Committee on Justice, Defence and Equality, or any Oireachtas Joint Committee that may replace that Committee, for approval by the said Committee with or without amendment, a strategic plan for the ensuing 3 year period.

(2) A strategic plan shall—

(a) comply with any directions issued from time to time by the aforesaid Committee in respect of the form and manner of the plan’s preparation,

(b) set out the key objectives, outputs and related strategies of the Authority, including the use of its resources, and

(c) have regard to the need to ensure the most beneficial and efficient use of the Authority’s resources.

(3) The Committee shall, as soon as practicable after a strategic plan has been so approved, cause a copy of it to be laid before each House of the Oireachtas.”.

The amendment is in the spirit of the Minister's amendment. It is strange to speak through the Chair when I am asking the Minister to agree with me. The Chairman is a nice guy and I will speak to him.

The Deputy can talk to me about the Minister.

If there is a good cop and a bad cop, I will speak to the good cop. The amendment is in the spirit of the earlier amendments tabled by the Minister that try to demonstrate the independence of the authority. Rather than being accountable to the Minister, it is accountable to the Houses of the Oireachtas. It is accountable specifically to this committee or to any other committee that might replace it.

Government amendments Nos. 47, 49 and 52 are part of a suite of amendments aimed at removing any perception of ministerial influence over the authority by way of required consent or otherwise in relation to the matters concerned. The new provisions also refer to joint committee instead of the Minister and effectively achieve the objectives of the Deputy.

To clarify, is the Minister suggesting he is dealing with this matter in his amendment?

That is what I am saying. The body will report to the Oireachtas joint committee, not the Minister in the manner as it was originally framed in the Bill. I come back to the point that there are all sorts of interesting and exciting motives attached to the way we approached this originally. The way we approached it was based on the precedent of similar bodies. The Deputy knows that there was concern that I, or some future Minister with responsibility for justice, might in a fit of insanity want to control the entirety of the legal profession. This is designed to ensure the message goes out, based on the principles already enunciated and specified in the Bill from day one, that the independence of the legal professions are important. The body must be independent and must be accountable to somebody. It cannot be free-floating and not accountable to anyone. It is accountable to the Joint Committee on Justice, Defence and Equality in the context of reporting to it on issues of concern. The committee can engage with the authority but not in any shape or form to impact on the independence of the legal professions, nor on the important principles prescribed in the Bill, which underwrite the approach to be taken by the regulatory authorities.

I support the amendment, which is an important one. Two important issues arise within the amendment, including the three-year strategic plan. The wording of the objectives, outputs and related strategies of the authority is important. Paragraph (c) includes the "efficient use of the Authority’s resources". These are key sections within the amendment that, in light of the use of public money and the debate in the past week or so, make them important amendments. I strongly support amendment No. 46.

The Deputy's name and that of Deputy Niall Collins is attached to a number of other amendments that we are also discussing at this time.

I have nothing really further to add and we are all the same page.

I should point out to the Deputy that the amendments I am proposing address the issue. We can consider section 16(1) in the Bill as originally framed, which reflects all the language in the amendment proposed by the Deputy in so far as it is necessary to do so. The suite of amendments we are proposing address the matter in an appropriate way so I suggest to the Deputy that there is no need to move his amendment, as we have dealt with the matter. He is clearly free to make his own decision.

I am trying to double-check that what the Minister has stated is absolutely correct.

Amendment, by leave, withdrawn.
SECTION 16

I move amendment No. 47:

In page 22, subsection (1), line 36, to delete "Minister, for approval by the Minister with or without amendment," and substitute "Minister".

Amendment agreed to.
Amendment No. 48 not moved.

I move amendment No. 49:

In page 22, subsection (2), lines 39 to 41, to delete paragraph (a).

Amendment agreed to.
Amendments Nos. 50 and 51 not moved.

I move amendment No. 52:

In page 23, lines 5 to 7, to delete subsection (3) and substitute the following:

"(3) The Minister shall cause a copy of a strategic plan prepared pursuant to this section to be laid before each House of the Oireachtas as soon as practicable after the plan has been received by him or her.".

Amendment agreed to.
Amendment No. 53 not moved.
Section 16, as amended, agreed to.
NEW SECTION

Amendment No. 54 is in the name of Deputy Mac Lochlainn. Acceptance of this amendment would involve the deletion of section 17 of the Bill. Amendments Nos. 55 to 59, inclusive, are alternatives to amendment No. 54. Amendment No. 57 is an alternative to amendment No. 56 and amendment No. 59 is an alternative to amendment No. 58. The amendments will be discussed together.

I move amendment No. 54:

In page 23, before section 17, to insert the following new section:

17.—(1) The Authority shall, not later than 30 of April in each year, make a report (in this section referred to as the “annual report”) to the Minister and to the Oireachtas Joint Committee on Justice, Defence and Equality, or any Oireachtas Joint Committee that may replace that Committee, on the performance of its functions during the preceding year.

(2) The annual report shall be in such form and shall include information in respect of such matters as the Authority considers appropriate.

(3) (a) The authority may make such other reports to the Oireachtas as it thinks fit.

(b) A report under paragraph (a) may include recommendations to the Oireachtas in relation to any matter for which the Authority has a regulatory function under this Act including recommendations in relation to the desirability or necessity of amending legislation governing the provision of legal services in the State.

(4) The Authority shall give to the Oireachtas such other information as the Oireachtas may request in respect of—

(a) the performance by the Authority of its functions and its policies in respect of such performance,

(b) any specific document or account prepared by it, or

(c) the annual report or any report referred to in subsection (2).

(5) For the purposes of subsection (1), the period between the establishment day and the following 31 December shall be deemed to be a preceding year.

(6) The Committee shall, as soon as practicable after it has received the annual report, or a report under subsection (3), of the Authority, causes copies of it to be laid before each House of the Oireachtas.".

This is similar to a previous amendment in that this intends to strengthen the independence of the authority as seen in the public eye and remove any suggestions of the Minister providing direction. It is purely about having the body accountable to the Oireachtas. There is an existing phrase in the Bill, "as the Minister may direct", and this amendment is part of an effort to remove that type of language, with the body being accountable to the Oireachtas.

Government amendments Nos. 56 and 58 are again designed to remove any perception of ministerial influence or real ministerial influence over the authority with regard to the matters concerned and cite the joint committee, where appropriate. I am therefore opposing amendments Nos. 54, 55, 57 and 59. In subsection (2), the annual report will now be in such form and include information in respect of such matters as the authority considers appropriate. I have deleted the reference to "or as the Minister may direct" in that subsection.

I have also replaced the authority giving "to the Minister such other information as the Minister may require" with the authority now giving such information "to the Oireachtas Joint Committee on Justice, Defence and Equality, or any Oireachtas joint committee that may replace that committee". I hope the Members agree that these enhancements are desirable and acceptable while addressing any issues of concern.

It is similar to previous amendments and in fairness we had a meeting of minds. I acknowledge that the Minister has addressed the very significant concern of the independence of the authority in previous amendments. There is consistency in the amendments he is introducing. In that spirit I will withdraw the amendment when the question is put.

Does Deputy Niall Collins wish to comment on the amendments in his name?

I am quite pleased that the Minister has moved from the position as in the original Bill. It is good for democracy and oversight. We can look at what has happened with Irish Water, although I do not wish to go on a tangent.

Please do not.

There was no opportunity for public representatives to play an oversight role in that regard. We can see what happened in my native city of Limerick over Christmas with regard to the city of culture.

The Deputy should stick to the Bill.

There was no opportunity for public representatives to have oversight in that case. I am making the comparison as we are moving to a position where people on this committee - ourselves and those who come after us - will have the opportunity to play an important role, which is very welcome.

The point is well made. Does Deputy Finian McGrath wish to comment?

I promise not to mention NAMA.

Please do not.

I welcome the Minister's position on the amendment. The independence of the authority and the accountability issued to the Oireachtas is important.

The legislation was framed in a certain manner as it was always intended that the authority would operate as an independent body. The Bill was prepared with extraordinary speed; Deputies will recall that the Government was formed on 9 March 2011 and operated under an agreement entered into by the previous Government with the troika. The legislation was supposed to be published by the end of September 2011 and when I came to the Department, no work had been done on it of any great significance. As a result of the complexity and breadth of the issues which arose, it was inevitable that a considerable amount of fine-tuning would be required following a consultative process on the Bill. In different circumstances it would have been preferable to publish - as I do with the majority of legislation coming from the Department - a draft Bill for public consultation. The timeframe for meeting the troika's requirements rendered that wish completely impossible.

I am anxious to emphasise that it was never intended for this authority to operate in any manner other than independently. These are important amendments and there should be no perception otherwise. I know Deputy Niall Collins wanted to make a bit of a splash on the water issue.

Let us not go there.

We will all stay away from that.

Who was directed to The Phoenix over the Christmas? We were never told about that.

I was only joking. The Deputy should not look so serious.

Amendment, by leave, withdrawn.
Amendment No. 55 not moved.
SECTION 17

I move amendment No. 56:

In page 23, subsection (2), line 16, to delete "or as the Minister may direct".

Amendment agreed to.
Amendment No. 57 not moved.

I move amendment No. 58:

In page 23, to delete lines 19 and 20 and substitute the following:

"(4) The Authority shall give to the Oireachtas Joint Committee on Justice, Defence and Equality, or any Oireachtas Joint Committee that may replace that committee such other information it may require in respect of—".

Amendment agreed to.
Amendment No. 59 not moved.
Section 17, as amended, agreed to.
NEW SECTION

Acceptance of amendment No. 59a involves the deletion of section 18 of the Bill.

Is this concerned with the Law Society?

I do not know. It is amendment No. 59a.

I move amendment No. 59a:

In page 23, before section 18, to insert the following new section:

“18.—(1) The Authority shall, after consultation with the professional bodies—

(a) develop policies, and

(b) prepare and publish codes of practice, for the purpose of establishing and maintaining standards for the provision of legal services in the State.

(2) The Law Society shall—

(a) develop policies, and

(b) prepare and publish professional codes of practice in relation to the provision of legal services by practising solicitors in the State.

(3) The Bar Council shall—

(a) develop policies, and

(b) prepare and publish professional codes of practice in relation to the provision of legal services by practising barristers in the State.

(4) Before publishing a code of practice under this section the Authority may/shall publish, in such manner as it considers appropriate, a draft of the code of practice and shall allow persons 60 days from the date of that publication within which to make representations in writing to the Authority in relation to the draft code or such further period, not exceeding 30 days, as the Authority thinks fit.

(5) Before publishing a professional code of practice under this section the Law Society or, as appropriate, the Bar Council may/shall publish, in such manner as it considers appropriate, a draft of the relevant professional code of practice and shall allow 60 days from the date of that publication within which to make representations in writing to the Law Society or as appropriate, Bar Council in relation to the draft code or such further period, not exceeding 30 days, as the Law Society or, as appropriate, Bar Council thinks fit.

(6) Where the Authority publishes a code of practice under this section the Minister shall cause a notice to that effect to be published in Iris Oifigiúil—

(a) identifying or specifying the code,

(b) specifying the legal services in respect of which the code is so published, and

(c) specifying the date from which the code of practice shall have effect.

(7) The Authority may amend or revoke a code of practice under this section.

(8) Subsections (4) and (6) shall, with all necessary modifications, apply to any amendments to a code of practice that the Authority proposes to make under subsection (7).

(9) Where a professional code is published under this section the Law Society or, as appropriate, Bar Council shall inform the Authority of any amendments made to that code.

(10) The Authority, the Law Society and the Bar Council shall make available for inspection free of charge to members of the public at their principal office during normal working hours a copy of any code of practice or professional code published by them under this section.".

The concern about section 18 relates to the codes of practice section in that the Minister had himself very much upfront and at the centre. At a conference in 2012 he stated it was his intention that professional bodies would continue to set their rules, regulations and practices and codes of conduct for their members. We considered that section 18 ran counter to his stated intention. We have framed the amendment in consultation with the Bar Council and the Law Society.

This is a matter of concern for a number of important stakeholders and I assume that in the spirit of what the Minister has done previously he will accept the amendment. It would not be acceptable for the Minister to be perceived to have control of codes of practice and other such matters. The separation of powers comes to mind. The Irish Council for Civil Liberties has expressed concern about the matter. I assume that in the spirit of the amendments the Minister has made to date he will accept there is a need to change this section to reflect clearly that it is the authority, in consultation with the various representative groups of the legal fraternity, that will agree on codes of practice rather than the Minister signing off on them.

I thank the Deputies for tabling the amendment to give me an opportunity to discuss the issue. The adoption and taking on board of the Deputy’s amendment would result in the deletion of section 18 as it now stands. I cannot agree to the deletion of section 18 and its substitution with the proposed amendment, but I am certainly interested in revisiting this provision. I will return to the section on Report Stage with further enhancements following detailed consideration of it by advisory counsel in the Office of the Attorney General. The reconfigured text had not been settled to the satisfaction of the Parliamentary Counsel in time for us to deal with the issue when we tabled this group of amendments last July. It was too late for me to table an amendment to it in the context of where we stood. Work has been done, but, as previously stated, I will bring forward a specific amendment to the section to remove ministerial consents. Issues arise in that regard, but there are also other matters that we are considering in regard to codes of practice.

In the context of the Deputy’s amendment, it is inconceivable that codes of practice issued by an independent regulatory authority would be, in essence, subservient to the professional bodies which it seeks to regulate. Obviously, there would be consultative engagement that would be important in regard to codes of practice. Again, that is a matter I intend to revisit. I am not happy with the manner in which the amendment tabled by the Deputies is framed. If they are agreeable, I invite them not to press the amendment today but to retable it on Report Stage. We will bring forward amendments on Report Stage, at which time we can revisit the matter.

Will the Minister flesh out his concerns about the particular aspect of the amendment to which he objects?

There are issues around this and I do not wish to create any unnecessary disagreement. Let me put it this way: there are issues about the manner in which the amendment is framed and we want to give careful consideration to the matter. Careful consideration has been given to looking at this section, but the Parliamentary Counsel is not entirely happy with what has been submitted. While it is important that there be engagements by the legal services regulatory authority with the professional bodies and others deemed appropriate by it on codes of practice, it is also important that we very carefully ensure there are no unnecessary constraints on the authority. I merely suggest to the Deputies that the matter be put back and that we will revisit it on Report Stage.

A leap of faith is required in many of the assurances on such matters. Will the Minister assure us that in advance of Report Stage we will have sight of his amendments in advance of the deadline to submit amendments? We will have to resubmit the amendment on Report Stage, but if we had advance notice of the Minister’s changes – the previous one and the one under discussion – it would assist us in our work. I can only speak for myself. The Minister is asking me to hold back the amendment for now on the clear understanding that the matter will be addressed at a later stage. Will he give an assurance that we will receive an advance copy of the amendment before Report Stage so we will not have to go through this rigmarole again? That is all I ask.

I appreciate the drafting work that has been done on the amendment. It clearly provides for a consultative process and ultimately facilitates the legal services regulatory authority in prescribing a code of practice deemed appropriate based on the principles of the legislation but some other issues must be considered in the context of the section. It was always my intention and hope which I articulated to Deputies that the various amendments published last week would be made available to Deputies immediately prior to the Christmas break. It proved impossible to achieve this because of the technical work being done and pressures on the Attorney General’s office. I appreciate that the timeframe I envisaged in early December for making the amendments available - the amendments we are discussing were tabled in July 2013 – was not fulfilled. It is reasonable that amendments are furnished in order to give Deputies adequate time to furnish amendments to amendments if they wish to do so. All I can say to the Deputies is that I will do my best to ensure an adequate period of time will be available for them to consider Report Stage amendments and facilitate any work that needs to be done on them.

Are we still on section 18?

We are dealing with amendment No. 59a. We will deal with the section in due course and come back to the Deputy at that stage.

Amendment put and declared lost.
Question proposed: "That section 18 stand part of the Bill."

I wish to make a couple of broad general points. First, in terms of legal services, codes of practice and professionalism, it is appropriate to deal with the Law Society and its administration staff. I refer to a group of people who are highly skilled in a situation where there is no room for administrative errors. Does the Minister have a concern about staff of the Law Society being made redundant? I feel strongly that one needs people with the highest standards working in this area and it is important that we highlight the issue.

The Deputy is stretching things a little, but I will allow it.

I do not think the Deputy is talking about the codes of practice; the issue he is raising is a matter of some concern and relates to the staff within the Law Society who deal with complaints and allegations of misconduct by solicitors and what their position will be. Ultimately, the legal service regulatory authority will deal with allegations of misconduct. As the Deputy will note from the amendments tabled, we are also making extensive provision for consumer complaints to be dealt with in a mediated fashion, without the necessity to invoke the full disciplinary panoply of the legislation in circumstances where there are no allegations of misconduct but what could be described as a consumer complaint. We are giving thought to and have been engaged in discussions with the Law Society on the position of its staff. I understand approximately 16 members of staff will be affected by the changes, but I do want to go into all of the issues publicly. I am genuinely interested in the views of members of the committee on this issue and invite their comments. It is very important that this body, when established, be seen to operate independently of the legal professions. The purpose of providing for a legal services regulatory authority is to ensure, among its variety of functions, disciplinary issues and allegations of misconduct made against members of the legal profession will be dealt with by a body not connected directly with the professional bodies which represent either branch of the profession. It is to be a body that is clearly independent of the branches of the profession and to be perceived to be independent by the public. The difficulty is that despite much of the good work done by both professional bodies, there is still public doubt about the independence of the process. I am very conscious that both bodies assert that where there are allegations of misconduct, they investigate them independently and properly. I know, for example, that the Law Society could point to cases taken by it which resulted in members of the legal profession being struck off. We are now trying to establish a body about which there can be no perception other than that it will be independent.

There are two particular issues relating to staff within the Law Society. They clearly have substantial expertise in this area-----

Let me intervene to say the Minister is deviating from the amendment.

I will complete this quickly. The staff concerned clearly have substantial expertise. It will be necessary to recruit individuals to the new body and it may be possible to put together a legal structure which will facilitate some of these individuals in becoming members of this body or working for it, but there are a number of issues involved. Would there be a suggestion that this would undermine the independence of the body?

I am sorry, but I must intervene and ask the Minister to conclude.

We will come back to that matter later.

I try to be as helpful as I can to members and keep the debate as open as possible, but we will be here forever unless we focus on the specific amendments. Please try not to deviate from amendments. I am sure all of the other issues will be covered in time. I wish to draw a line under this issue now.

Question put and agreed to.
SECTION 19

Amendments Nos. 60 and 61 are related and will be discussed together.

I move amendment No. 60:

In page 25, lines 5 to 22 to delete subsections (1) and (2) and substitute the following:

“(1) There shall be a chief executive officer of the Authority who shall be appointed by the Authority and who shall be known, and is referred to in this Act, as the “chief executive”.

(2) The chief executive shall hold office under a written contract of service (which contract may, at the discretion of the Authority, be renewed) for such period as is specified in the contract, and subject to such terms and conditions (including terms and conditions relating to remuneration) as are determined by the Authority with the approval of the Minister for Public Expenditure and Reform.”.

The proposed amendments, like other amendments tabled, are primarily aimed at simplifying the CEO provision, while removing any ministerial role in the specific matters concerned. The new provisions in regard to the process of appointment of the chief executive of the authority will, if accepted, be similar to those for the new Irish Human Rights and Equality Commission. Deputies will note that the Minister for Public Expenditure and Reform will have a role in approving the terms, conditions and remuneration of the chief executive, which is in keeping with my desire to ensure the costs of the new authority will be kept within a reasonable and sustainable level for the legal practitioners who must fund it.

Is it correct that the Minister is not putting a time constraint on the term of office of the CEO?

The legislation does not place a time constraint on the term, but that is an interesting issue. If the Deputy has a view on that issue, I am interested in hearing it.

No, I was just reading the Bill. The Bill provides that a person who has held office as chief executive shall be eligible for reappointment but shall not hold office for a period the aggregate of which exceeds ten years. Is it correct that this provision is being deleted?

Therefore, the CEO can now hold office for more than ten years.

Yes. Ultimately, it will be a matter for the legal services regulatory authority to determine what the period of office should be and how to deal with that issue. The Bill leaves the authority with that discretion.

How will the position of the CEO relate to similar positions in the Civil Service and the public service? At what level will the appointment be made? Will it be at assistant secretary, principal officer or Secretary General level? What grade is being considered?

That will be a matter for the authority in consultation with the Department of Public Expenditure and Reform. I may be able to provide the Deputy with further clarification on Report Stage.

Amendment agreed to.

I move amendment No. 61:

In page 25, subsection (7), lines 44 and 45, to delete all words from and including “and” in line 44 down to and including “Minister” in line 45.

Amendment agreed to.

Amendments No. 62, 63 and 73 are related and will be discussed together.

I move amendment No. 62:

In page 26, subsection (12), line 21, to delete “, with the consent of the Minister,”.

The proposed amendment to section 25, which is dealt with in amendments Nos. 62, 63 and 73 all of which part of the suite of amendments aimed at removing ministerial consents, is to provide for greater clarity in the workings of the legislation.

Amendment agreed to.

I move amendment No. 63:

In page 26, subsection (12)(i), lines 24 and 25, to delete all words from and including “an” in line 24 down to and including “subsection (2)” in line 25 and substitute the following:

“a new chief executive is appointed in accordance with this section”.

Amendment agreed to.
Section 19, as amended, agreed to.
NEW SECTION

Amendment No. 64 is in the name of the Minister. Acceptance of this amendment involves the deletion of section 20. If amendment No. 64 is agreed to, amendment No. 65 cannot be moved. Amendment No. 65 is an alternative to amendment No. 64. Amendments Nos. 64 and 65 will be discussed together.

I move amendment No. 64:

In page 26, before section 20, to insert the following new section:

“20.—(1) The Authority may appoint persons to be the staff of the Authority and may determine their duties.

(2) The Authority, with the approval of the Minister for Public Expenditure and Reform, shall determine —

(a) the terms and conditions of employment (including terms and conditions relating to remuneration and allowances) of staff appointed under this section, and

(b) the grades of the staff of the Authority and the numbers of staff in each grade.

(3) The remuneration and allowances of the Authority’s staff are payable by the Authority to the staff out of funds at the Authority’s disposal.”.

The proposed amendment is a revision of section 20 and removes the Minister's role in the appointment of staff to the authority, while maintaining a role for the Minister for Public Expenditure and Reform in regard to the relevant conditions of employment and remuneration. This is consistent with the architecture we discussed.

It is only right that the new regulatory authority, as an independent entity, will appoint its own staff and not have its human resources determined or in any way fettered by a Minister. This further enhances and protects the independence of the body on an ongoing basis, while not compromising on the need to control regulatory costs. However, I will maintain continued consultation with the Minister for Public Expenditure and Reform on the HR and other aspects of the establishment of the new authority.

I am opposed to amendment No. 65. As the authority is being established as an independent body, it is not within my remit as a member of the Government to predetermine its decisions on the configuration and recruitment of staff in order to perform its statutory functions effectively.

It will be open to the existing staff of the legal professional bodies who possess the relevant skills to apply for positions advertised by the legal services regulatory authority. Of course it will be open to the existing staff, based on the Bill as it is currently framed, to apply for positions, but I wish to refer to concerns raised in this area. First, I recognise the substantial expertise within the Law Society among a group of individuals who have been dealing with conveyance in relation to misconduct. When these matters are ultimately taken over by the legal services regulatory authority, those individuals will cease to have a role. It has been suggested that they should be transferred from the Law Society to the legal services regulatory authority. However, provisions are not usually put in place to facilitate the transfer of staff from a private body to a public body. There are certain legal complications around that issue. As I said already, it is open to members of the Law Society who are working in these areas to apply to the legal services regulatory authority when it advertises positions. Quite clearly, such people would have an advantage in the context of the experience and expertise that they have. From a human perspective, I can appreciate that it would be very helpful to the individuals concerned if they could be recruited to the body without the matter being unduly complicated, not to mention the practical perspective of the body benefiting from their experience. However, there is an issue surrounding this which I am quite happy to air publicly and which should be publicly aired. It is not simply an issue of protecting the jobs of 16 individuals. There is the wider public issue relating to the independence of the regulatory authority. We have just gone through a range of amendments which seek to ensure that there can be no perception of any ministerial control over the authority. The purpose of the legislation is to provide for an independent authority which is not merely independent of the Minister of the day but also of the professional bodies. There are two or three issues at play here. If arrangements were to be put in place which facilitated this, by some legislative mechanism and with the agreement of the Minister for Public Expenditure and Reform, itself an uncertainty, would it create a risk that the public would perceive the body to be less than independent because a proportion of the existing staff of the Law Society have simply been transferred to the authority as opposed to going through a recruitment process open to many individuals who would be independently assessed and interviewed?

When the legislation was published, had I included a provision in it for the transfer of all of the existing Law Society staff who deal with these issues to the new body, I would have been open to the accusation that it would not be an independent body and that we were just recreating the Law Society's disciplinary process under a different name. Deputy McGrath would probably have been one of the first out of the hatches in suggesting that. People certainly did not lose any time in suggesting that because we reflected the structure of other similar bodies in requiring ministerial consents in certain areas, I was deliberately setting out to undermine the independence of those bodies. I am interested in the views of the Deputies on this. Would those present be supportive of an arrangement which would facilitate such a staff transfer? Would they not see it as undermining the independence of the authority? Would they be supportive of this and would they regard it as being within the objectives of the legislation to allow for such a transfer? Should members of the staff of the Law Society - I do not like talking about individuals publicly but there is no point in avoiding the complexity of this - not be in the same position as others, whereby if they wish to work for the authority, they apply for the positions available? I am very interested in the views of Members on this, taking into account the complexities of it as opposed to simply representing a concern, although it is a perfectly legitimate one which has been expressed to me very forcibly and understandably by the Law Society on behalf of its staff. However, I must ensure I do nothing that undermines the public perception that this is an independent body. Having said all of that, I am happy to listen to what Deputies have to say on the matter. This is not something that I can resolve as Minister for Justice and Equality because it also involves the Department of Public Expenditure and Reform. Furthermore, there are certain legal complexities around this that I do not want to publicly air that would be relevant to the staff members individually, to the Law Society and to the authority. There is also the fact that one cannot transfer staff from a private to a public body without all of the staff within the private body wanting to be so transferred. Whether all of them would wish to be so transferred is a matter for their individual decision. I am conscious of the fact that there are various issues involved here and am very interested in the views of the Deputies on this issue.

One of the issues that have been debated here is the public perception that under the current system, the Law Society or the Bar Council, in investigating complaints through their respective structures, are essentially investigating themselves. However, if one actually examines in an honest way the structures of the Law Society and the Bar Council, one will see that they were very robust and fair. Indeed, within the Law Society structures, the option exists of going to an independent party if one is not happy with the decision of the society. However, there was a public perception and the allegation was made many times that the systems amounted to the legal fraternity investigating the legal fraternity, especially if an outcome was reached with which an individual was not happy.

In Britain the regulatory authority allows the various law fraternities to continue to investigate cases. The various fraternities continue to have their own investigative structures which are under the supervision of the authority. The authority does not carry out investigations directly. That is the system that operates in Britain. The Law Society here has accepted that there is a negative public perception and has supported the concept being put forward by the Minister of an independent regulatory authority. Clearly, there is going to be a change. The reality is that the staff who are working there at the moment are dealing with very complex matters which require people of substantial expertise. The staff have many years of experience in dealing with these cases. There is precedent here in terms of changes and new structures being put in place under which the existing staff who work in the area, as a matter of natural justice, continue on in the new structure. In that way, the new structure takes all of that expertise and hits the ground running. It would be very helpful to have a new authority that is clearly independent, that is strengthened in many regards by this legislation and that has a core element of staff who have the expertise and knowledge needed so that the authority starts in the best way possible.

If we allow this legislation to progress as it is, all of the staff to whom we refer will be made redundant. Then the authority will incur advertising and hiring costs. There will be a cost - not just to the Law Society, which will be making a substantial contribution to the new regulatory authority anyway, but also to the taxpayer - due to hiring and re-hiring. I understand the concerns expressed by the Minister and he has invited the Opposition to express its view. I believe that the transfer of the staff who have worked in this area and have significant expertise would not undermine the independence of the new authority.

They would bring that level of expertise over.

I do not assume we will resolve this today in this committee session, but I ask the Minister to consider our points and engage with the Minister for Public Expenditure and Reform, Deputy Howlin, the Law Society and the other interested parties to see what kind of solution can be found. We have had representations from the trade unions on this matter. They have expressed concern that we have a new body that performs the same work that these 16 staff perform. There is no question mark over the 16 staff and their independence, professionalism and fairness and how they have carried out their work. I am not aware that they have ever been castigated or found not to have carried out their work with professional and independent diligence. I appreciate that there was a perception that the legal fraternity was investigating the legal fraternity but there is no question mark over them and no wrongdoing has ever been found. We would be creating a new independent authority that the Law Society has chosen to support, but we would be punishing the staff and creating all sorts of difficulties.

A solution is here to be found if everybody approaches it with a will. The Minister has asked for the view and maybe the comfort of the Opposition's perspective. I will not attack the Minister. I have made clear my position that there is a natural justice issue with regard to transferring the staff over and putting in place whatever criteria or protections are needed. I appreciate that the Minister will not take 16 staff and directly put them into new positions. He may want to put in place protections. There is a way of transferring these staff and taking advantage of their expertise while protecting the independence and the perception of the independence of the new authority. It has happened. There are precedents. The Minister may not support this amendment. It is a very safe amendment. It just allows the authority to appoint these people; it does not say it will or shall, but merely allows the option. Would the Minister consider examining this before Report Stage and engaging with the various interested parties to see if there is some solution that can address all of our concerns?

Deputy Mac Lochlainn covered much of what I was going to say about the staff. There is no question that these individuals are competent, experienced and professional individuals who, perhaps, are exactly what the new authority will require in terms of their experience. I accept what the Minister is saying about the need for independence but he has alluded to it by referring to the Minister for Public Expenditure and Reform, Deputy Howlin and discussions with this committee and himself regarding an exception being made on this occasion.

Taking on board his point about the requirement for independence and the perception of independence and the prerequisite of experience, I imagine any individual applying for a role in the new regulatory authority will go through some form of Public Appointments Service-type interview process and the skills and experience gained while working for the Law Society are going to be of great benefit to those applicants. That does not necessarily give any comfort to those 16 individuals. This should be teased out with further discussions, particularly with the Minister, Deputy Howlin. In any normal scenario when we are considering the establishment of a new authority and bringing in competent individuals I would assume these individuals are the type we seek. I understand the Minister's predicament but further discussions are required. I am in favour of a reasonable approach regarding the future employment of these individuals.

The Minister has asked for our views and I concur with Deputies Mac Lochlainn and Farrell. We must have a sense of proportion on this. We are talking about 16 individuals. We are not getting into hundreds and thousands. We seek a transfer of undertakings regarding these staff. Am I right that the number is 16?

To be accurate, I think approximately 20 individuals are affected, but some work part-time, so it is the equivalent of 16 full-time posts.

So it is not going to bring down the Government.

In terms of a sense of proportion, that is it. The points have been very well made about expertise and working knowledge. In establishing the Criminal Assets Bureau, CAB, or the Garda Síochána Ombudsman Commission, we put in place people who had knowledge and skill in those areas of work in those organisations, and we need to do the same here. Deputy Mac Lochlainn made the point very well that they can hit the ground running. That is important. These people know the legal services providers around the country and a mechanism must be found to accommodate them. Otherwise, we will be left with duplication.

I strongly support amendment No. 65. I am delighted that the Minister seems to have become very ethical with regard to the independence of the authority and is worried about undermining the independence of the authority. Minister, you said-----

Through the Chair, please, Deputy.

The Minister is concerned about the complications. He thinks some of us will be running onto the plinth denouncing him over this amendment. We all had representations from the Law Society and Mandate trade union. It is their democratic right to lobby us as Members of the Oireachtas to protect their jobs and their terms and conditions, and good luck to them. I stand up for them today and make no apologies for it. It is very important that the Minister does not get carried away with the independence issue. I have heard it from my colleagues here. There will be standards and procedures when one applies for these positions, but these experienced staff have great skills that might not necessarily be out there in the broader society among other people applying for the positions. They are a highly skilled group of people and should be transferred to the authority.

In case the Minister is still feeling ethical and is really worried about undermining the independence of the authority, I offer the example of my previous job as a primary school teacher. Many teachers become inspectors in the Department of Education and Science and they go around assessing primary and secondary school teachers. Some even go on to become members of the Teaching Council. There are examples of this. It is time for the Minister to get real. This is about administrative staff who are highly skilled people, and I strongly support the transfer of these 16 positions to the authority. These people should be given the option to fill the positions and not be made redundant. The Minister does not have to worry. I will not be pirouetting around the plinth in the next couple of days on this issue.

The mind boggles at that image.

I take up the Minister's offer to listen to the views of the committee members on this question of the staff. Like other Deputies, I have received representations from a constituent who expressed concern about her future employment with the Law Society. She has legitimate concerns. As other Deputies said, we all got a letter from Mandate. Everything should be done to ensure that people who are competent, qualified and doing the job, and who may have long experience in that field, be allowed to transfer or be interviewed, or can go through whatever process is necessary to ensure their employment continues.

Earlier the Minister mentioned that this was different because it was about a public body and a private body.

What is happening is that because a public entity is being established a private entity is being closed down. This precedent is being set and should be taken into account. Does the Minister wish to respond to the Deputies?

Is this a transfer of employment undertakings?

There is some precedent, although much of it is in the public to public area. I thank the Deputies for their considered comments. I hope Deputy McGrath will forgive me for stating I know he rarely misses the opportunity for a pirouette on the plinth.

That is the Minister, Deputy Rabbitte, actually.

I appreciate Deputy McGrath not pirouetting on this issue, which is a serious one for the individuals concerned. We cannot deal with it simply on the basis that we must make a particular decision because representations have been made. We must make a decision in the public interest while also being conscious of the position of these individuals. I certainly recognise they are people with expertise who would be of value to the body when established. I do not know personally whether all 20 individuals who make up the 16 full-time equivalent positions would wish to be employed by the body. I am sure it is information which is readily ascertainable. We have been engaged in discussions with the Law Society and received its submissions on the issue.

The amendment tabled by Deputy Mac Lochlainn, which has been a useful focal point for discussing the issue, would not achieve his objective. His objective is that individuals be transferred to the body. His amendment states the Minister may permit the authority to appoint members of the Law Society's and the Bar Council's administrative staff with the requisite qualifications and whose positions would be displaced with the commencement of the authority. At present nothing prevents the authority recruiting or employing a member of the Law Society who does this work. I will come back to where I started on this; this would facilitate or ensure no barrier existed to an individual working in the Law Society in this area at present applying for a job and there would be no barrier to him or her being given the job, based on what the Deputy proposes, but what the Deputy proposes does not achieve what he is speaking about, which is providing for positions for all 20 individuals, if we assume all 20 would like them, within the body. It merely states there would be no barrier to them being recruited but does not provide for their recruitment. It does not achieve this objective.

This is an issue of complexity because from a human position we would all like to see individuals who do their job carefully retain their employment. There are complexities in this, which is we still have public service constraints in the context of new bodies coming into being. We are trying to reduce the number of bodies we have. It has been necessary to create a new body here. One means of staffing is through transfers from other parts of the public service where there are individuals with the relevant expertise who can be so transferred, and this keeps down expenditure which is important. Quite clearly this body will have to recruit some individuals of experience and expertise, and we do not have within the public service individuals who have worked in this particular area to any significant degree. This is an important issue.

I thank Deputies for allowing me to be able to go back to the Government and state there is support across all sides represented in the House for what is being proposed in this context. I am afraid it does not necessarily mean I will get sanction for it, but I will enter into further discussions with the Law Society on it. There are issues of importance to the individuals concerned to which Deputies have not adverted. These include issues relating to pensions. I do not have the detail of the pension positions with regard to their current employment, but quite clearly if they are party to private pension schemes these could not be continued when in the public service. This is an issue of complexity.

There are also issues with regard to redundancy legislation, in the context of what is being proposed. With regard to individuals employed at present by the Law Society, it is not like the takeover of a private company by another company. They could not be compelled to work for the legal services regulatory authority if they did not wish to do so. In circumstances in which their employment was terminated they would have certain redundancy entitlements. There is much complexity in this and it is not as simple, even if it were feasible in principle, as the Minister, Deputy Howlin, simply making a decision and it being effected, because it brings into play pension issues, redundancy legislation and the rights of each of the individuals concerned.

This has been a very helpful discussion in our continuing to see how we address the issue and I genuinely thank members for the discussion and for what they stated. I know I seem to do this with some regularity, but I invite Deputy Mac Lochlainn not to press his amendment because it would not achieve the objective he set out to achieve. It has achieved the objective of facilitating an important discussion on the issue. I will report back to the House on Report Stage. I cannot make a commitment that the legal services regulatory authority will take all of the individuals if they all wish to be taken. The commitment I can make is that I will further engage with the Law Society and the Department of Public Expenditure and Reform on the issues and on some of the complex matters we have not discussed which I mentioned.

I appreciate the Minister's commitment to engage with the Law Society and the Department of Public Expenditure and Reform on this issue. There is no doubt about the independence of the new body because when it is finalised the legislation will enshrine it clearly in the public eye. The Minister knows better than most the issues the staff in the new authority will deal with are complex matters and will require people of considerable expertise from the get go. A request, yet to be acceded to, is that on the day the new regulatory authority commences it will take all cases, ongoing and new, so there would be a fresh start and not two parallel processes running simultaneously. I share the hope we will have a fresh start with a new regulatory authority with all cases coming under its umbrella.

The concern, to which the Minister alluded, is there would be a temptation to transfer civil servants to the new authority, but with all due respect it would be very difficult to find the range of staff required. It may solve a numbers exercise in the overall public service and it may be tempting for the Minister, Deputy Howlin, to do so, but it would not be a good outcome for the public in terms of resolving matters. We want this regulatory authority to be a fresh start and to win the hearts and minds of the public from the get go. We want it to have capacity and capability. The Minister knows the staff already working in the field would make a huge contribution to making this happen, rather than transferring people for a numbers exercise from other Departments.

I appreciate the Minister's commitment. I accept the amendment I tabled is not world class and does not achieve what I want, but I wanted to have a discussion on this matter today. Another amendment was ruled out of order-----

The Deputy cannot-----

I am just alluding to the fact it was ruled out of order and nothing more. It was important to have a discussion on this matter today. I know the Minister cannot assure us today it will be resolved and I accept this, but if he is making a commitment he will engage with the parties and try to find a solution to this I will withdraw the amendment.

In his consideration of what he has heard - I think we are all on the same page - will the Minister undertake to sit down and negotiate with the Mandate trade union which represents the 16 workers involved? I ask him to bear in mind my comment on proportionality. Some of the 16 post holders may wish to retire.

I noted that the Minister talked about the Law Society, but he did not mention the Mandate trade union. I encourage him to do so because we want sensible options for these administrative staff.

I wish to correct one thing I said when I referred to staff members. There may, of course, be someone employed in this area who is on the Bar Council side of things and he or she would be in a similar position.

It is important to state that, too.

I do not want to exclude them from the discussion which has been important. It was quite clear from an early stage that the Law Society had a concern about its staff. By the time it had expressed support for the new independent system which was being put in place to deal with disciplinary matters, it would have raised the issue well before the trade union dealt with or raised it. I will not get into trade union negotiations on this matter. There are technical legal issues that remain of concern and there are certain practical matters that will need to be addressed with the Minister, Deputy Brendan Howlin's Department. Frankly, there is not an issue that would require engagement with the Mandate trade union. There is an issue that does require each individual being clear on what he or she would like to do if it proves possible that we can develop this. I want to keep on emphasising this because I do not want to be accused of misleading anyone in using the phrase "if it proves possible". There are difficulties in this area and I do not want to suggest they are ones that would be made by my ministerial colleague. I do not know to what extent issues relating to pensions and redundancy rights and legislation have been factored in to the considerations. That is something we will discuss directly with the Law Society. If the Bar Council has a similar issue, we will discuss it with it.

On the issue raised by Deputy Pádraig Mac Lochlainn, this is about trying to provide for a new start and ensure there will be no perception on the public's part that when allegations of misconduct are made, they will be investigated by anything other than an independent body. In an ideal world a seamless transition whereby outstanding issues would be taken over by this body has a lot to commend it. That is a matter to which consideration is being given, but there are very substantial legal issues to which careful consideration has to be given. One could not have a situation where a serious allegation was made against a member of the legal profession whose alleged conduct had detrimentally impacted on a member or members of the public, where that matter was in the course of being addressed within the current structure and legislation was enacted that would ultimately have an effect whereby the current structure would be instantly dismantled and there was a legal barrier to the matter being progressed under the new structure. I will not go into the technical legal issues, but I do think there is a difficultly with the transitional proposal that has been made to me being implemented in the context of the legal and constitutional rights of individuals who are in the course of having an issue, for example, adjudicated upon under the existing structure. These are issues on which we are going to have to be very careful in dealing with and matters at which we are looking further very carefully in order that there will not be unintended consequences contrary to the public interest in our seeking to provide for that type of transitional measure.

We have had a good discussion and everyone is satisfied.

I will put my question again to the Minister. Will it be possible for the Minister to make available to us the amendments before Report Stage? Obviously, I will withdraw my amendment, but I ask for good faith and obviously reserve the right to table a stronger amendment on Report Stage. I hope I will receive something from the Minister on this and other matters before Report Stage that will assist me in this process. This is not typical legislation on which one can table amendments and work away. The topic is heavy and we could do with advance notice of amendments because it would help us in drafting amendments before Report Stage. I do not have a full Department at my disposal.

I am anxious to move on.

Most of the legislation with which we or I seem to deal can be properly described as heavy stuff in terms of its volume and importance in different areas.

We are tackling heavy stuff.

The only assurance I can give the Deputy is that I do not think it is satisfactory that Report Stage amendments are published at the last minute on the final day allowed by the Houses of the Oireachtas. I certainly hope that before we take Report Stage whatever amendments there will be will be published at least an additional week over and above what is stated in the provision. That would allow Members time to consider the amendments. I will try to ensure that will happen.

If everyone is satisfied, I shall move on. I remind Members and the Minister that acceptance of amendment No. 64 involves the deletion of section 20 and if the amendment is agreed to, amendment No. 65 cannot be moved. I also remind Members that it is perfectly in order for any issue raised on Committee Stage, whether by way of an amendment or through discussion, to be raised on Report Stage.

Amendment agreed to.

The next amendment is out of order.

Amendment No. 65 not moved.
Section 20 deleted.
SECTION 21

I move amendment No. 66:

In page 27, subsection (1), line 2, to delete “the Minister and the consent of”.

Amendment agreed to.

I move amendment No. 67:

In page 27, subsection (3), lines 11 and 12, to delete “the Minister and the consent of”.

Amendment agreed to.

I move amendment No. 68:

In page 27, subsection (4), lines 15 and 16, to delete “the Minister with the consent of”.

Amendment agreed to.

I move amendment No. 69:

In page 27, subsection (7)(b), line 31, to delete “the Minister and the consent of”.

Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22

Amendments Nos. 70 to 72, inclusive, and 75 are related and may be discussed together.

I move amendment No. 70:

In page 28, subsection (1), lines 1 and 2, to delete “Authority” and substitute “Authority,”.

Amendments Nos. 70 to 72, inclusive, are minor technical amendments to correct typographical errors in the published Bill. I am advised that amendment No. 75 is, as recommended by the Parliamentary Counsel, a technical necessity for drafting clarity.

Amendment agreed to.

I move amendment No. 71:

In page 28, subsection (2), line 13, to delete “Authority” and substitute “Authority,”.

Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23

Amendment No. 71a is in the names of Deputy Niall Collins and Pádraig Mac Lochlainn. Amendments Nos. 71a and 71b are related and may be discussed together.

I move amendment No. 71a:

In page 29, lines 11 to 14, to delete subsection (2).

The reason this amendment has been tabled is that section 24(3) requires that, "The chief executive shall not be required to give account before the Committee for any matter which is...". We have concerns about its implications.

This section is very much along the lines of the architecture of similar bodies and that is the reason it is included, but, of course, this body is being dealt with differently in the context of its independence. On a personal level, I do not see why the chief executive of this body, if he or she has some critical opinion to express about the merits of some Government policy, should not be free to express it. It does not make a heap of sense and, in the context of reasserting the independence of the body, I cannot see a merit in necessarily retaining the section. Given that it was a last minute amendment and that there is a procedure I normally go through in advising colleagues of amendments I am accepting, I ask both Deputies to hold this amendment for Report Stage. On a personal level, I think it is an appropriate amendment to make, but I would like to do it in a manner where I would inform colleagues intending to travel this route. The technical answer is that the Attorney General would like a little more time to consider it, I suspect, but I do not see the purpose of this provision in the Bill at this stage. I think it replicates provisions put in place where State bodies are reporting to Ministers, as opposed to State bodies that are clearly independent of Ministers.

I thank the Minister. Obviously I read from the wrong subsection. It is an important matter and I appreciate the Minister's response. Section 23(2) reads:

In giving evidence to the Committee under this section, the chief executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

Section 24(2) reads, "In giving evidence to the Committee the chief executive shall not question...". That deals with the same point. Obviously, when a Secretary General of a Department appears before a committee, he or she will not question Government policy. However, this section undermines the independence of the authority. It is an important amendment and I appreciate that the Minister acknowledges this. Is he saying he will support such an amendment on Report Stage?

If the Deputies would temporarily withhold the amendment for Report Stage, unless I am otherwise persuaded, it is highly unlikely that I would do anything other than accept it.

Amendment, by leave, withdrawn.
Section 23 agreed to.
SECTION 24
Amendment No. 71b not moved.

I move amendment No. 72:

In page 29, subsection (4), line 32, to delete "and unless" and substitute "and, unless".

Amendment agreed to.
Section 24, as amended, agreed to.
SECTION 25
Amendment No. 73a not moved.

I move amendment No. 73:

In page 30, subsection (1), lines 10 to 12, to delete all words from and including "the" where it firstly occurs in line 10 down to and including "prescribe" in line 12 and substitute "the Authority may prescribe".

Amendment agreed to.
Section 25, as amended, agreed to.
Section 26 agreed to.
SECTION 27

I move amendment No. 74:

In page 31, subsection (1)(b ), lines 4 and 5, to delete "the Minister and the consent of".

Amendment agreed to.
Section 27, as amended, agreed to.
Section 28 agreed to.
SECTION 29
Question proposed: "That section 29 stand part of the Bill."

This section is opposed by Deputies Pádraig Mac Lochlainn, Niall Collins and Finian McGrath.

It concerns the issue of the independence of the authority and references to the Minister. We have not tabled amendments, but in anything that suggests the authority is accountable to the Minister, we want to demonstrate clearly in all sections throughout the Bill that it is independent. In the spirit of what the Minister has done to date, I ask him to consider these issues before Report Stage.

It would make sense to withdraw the amendments. Will the Minister give an assurance that he will bring forward an amendment on Report Stage to address the issue?

This is not an issue about independence. Section 29(4) reads: "As soon as practicable after receiving a report under this section, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas". Section 29(5) reads: "Following compliance with subsection (4), the Authority shall arrange for the publication of the report in such form and manner as it considers appropriate and for it to be sent to the Law Society,...". This, therefore, is not about the Minister interfering in anything. What the section is doing is ensuring important information which may impact on public policies is made available. Effectively, it provides for an annual report on the admission policies of legal professions to be prepared by the authority and submitted to the Minister who has no role in interfering with the report. The Minister's only role is to, in a formal way, place it before both Houses. It is the mechanism for placing a report before both Houses to enable Members of the Dáil and the Seanad to access it. I cannot agree, therefore, to the deletion of the section as proposed.

It is important in the regulation of legal services in the State that the authority know exactly the numbers of solicitors and barristers admitted to practice each year. It is also important for it to assess the demand for the services of practising barristers and solicitors and the need to ensure an adequate standard of education for persons admitted to practice and to ensure the numbers of persons admitted to practise as solicitors and barristers in that year are consistent with the public interest in ensuring the availability of such services at a reasonable cost. It is reasonable that a report of this nature be furnished to the Minister. I see no reason it should not be furnished and it is reasonable that it be placed before both Houses in order that all Members, not just members of the Joint Committee on Justice, Defence and Equality, can access it. I do not see anything offensive in the section. It is a practical provision which will ensure certain information is collated annually and made available such that the Minister who is ultimately responsible for legislation relating to the legal profession may, at some stage, in the future wish to amend the legislation - my successor may wish to amend it or if I am around long enough, I may want to do so - if some provisions are not working. The section is purely to ensure important information is made available to the Minister and Members of the Oireachtas. Frankly, I do not see a problem with it.

I accept that the deletion of the section would not be the way to deal with our concerns. Section 29(1) provides that the authority shall prepare and submit to the Minister a report. The way to deal with our concerns would to be to delete the words "to the Minister" and substitute "directly to the Houses of the Oireachtas". There must be no perception that the authority is under the control or within the remit of the Minister. Previous amendments sought to ensure this. Again, it would remove any perception that the authority was not independent.

I accept that the deletion of the section would not be desirable, but a change to include the relevant committee or the Houses of the Oireachtas is the objective.

We have had a very interesting discussion on staffing issues. It would require extraordinary intellectual gymnastics to suggest this section, as it is, could remotely be perceived by anybody as undermining the independence of this body. I simply will not accept the proposal that it be deleted, which is the only matter before the committee.

Question put and agreed to.
SECTION 30

I move amendment No. 75:

In page 35, subsection (5)(b), line 23, to delete "such recommendations" and substitute "recommendations as to such matters".

Amendment agreed to.
Question proposed: "That section 30 stand part of the Bill."

This concerns the issue previously outlined and I believe the Minister can accept the point that is being made. It is not about deleting the section but about making sure there is consistency with regard to the independence of the authority throughout the Bill. It is as simple as that.

I have given various assurances in dealing with this Bill. I am giving no assurance about this. I want to be very clear about it. There is a general obligation on the part of the Minister for Justice and Equality to ensure certain information is available and can be considered in the public interest with regard to any policy the Government may wish to follow or any legislative changes it may wish to implement. This section provides that certain reports and information will be made available to the Minister. They all deal with matters of public policy. They are public policy issues to be properly considered by the Government. I am opposed to any change to section 30.

I suggest, as a compromise, that the Minister consider the phrase "to the Minister and to the Houses of the Oireachtas". The Minister may say it is pedantic, but it may be a compromise.

Any report that is made should, of course, be published. Subsection (7) of section 30 provides that the Minister shall cause copies of any report referred to in this section to be laid before each House of the Oireachtas within 30 days of his having received it. Quite clearly, any report that is published and furnished to the Minister as prescribed in section 30 will be laid before both Houses.

There is no harm in saying in the first instance that it should be made available to both the Minister and the Houses of the Oireachtas.

That is not before us at the moment.

I am just trying to engage with the Minister on this.

I am satisfied that this section will fulfil its objectives.

Question put and declared carried.
Sections 31 and 32 agreed to.
NEW SECTION

Acceptance of amendment No. 76 involves the deletion of section 33. If the amendment is agreed to, amendments Nos. 78 to 80, inclusive, cannot be moved. Amendment No. 76 is an alternative to amendments Nos. 77 to 80, inclusive. Amendments Nos. 77 to 82, inclusive, are related. Amendment No. 78 is an alternative to Amendment No. 77 and amendment No. 80 is an alternative to amendment No. 79. Amendment No. 82 is an alternative to amendment No. 81. Amendments Nos. 76 to 82, inclusive, are to be discussed together. They concern the insertion of a new section.

I move amendment No. 76:

In page 36, before section 33, to insert the following new section:

"PART 3

HOLDING OF CLIENTS’ MONEYS BY LEGAL PRACTITIONERS

33.—(1) Subject to subsection (2), a legal practitioner shall not hold moneys of clients unless that legal practitioner is a solicitor.

(2) Notwithstanding subsection (1) the Minister may by regulations prescribe a class or classes of solicitors who may not hold the moneys of clients, or who may hold such moneys subject to such conditions as may be provided for in such regulations.

(3) Subsection (1) shall not be construed as permitting a solicitor to hold the moneys of clients where a condition or restriction is placed on a solicitor’s practising certificate pursuant to the Solicitors Acts 1954 to 2013 or this Act.".

Government amendments Nos. 76 and 82, which propose changes to Part 3 of the Bill, advocate the deletion of all nine sections of the Part as published and the insertion of one new section dealing with the authorisation of certain legal practitioners to hold clients’ moneys. The new Part, entitled "HOLDING OF CLIENTS’ MONEYS BY LEGAL PRACTITIONERS", would therefore contain only one section. That section, section 33, provides that only solicitor legal practitioners may hold the moneys of clients. This obviously reflects and does not alter the current situation whereby solicitors, and not barristers, may hold clients' funds. It is important to note that the Part is linked to Part 7, which will also fall to be considered on Committee Stage and which will provide for public consultation on whether the restrictions on barristers holding the moneys of clients should be retained, and whether the restriction on a barrister receiving instructions in a contentious matter, as defined by the Bill, directly from a person who is not a solicitor should be retained.

The new Part 3, with its sole section, has been designed to facilitate amending legislation if it is decided through the future consultation process that barristers ought to be permitted to hold clients' moneys and to deal directly with clients on a broader range of matters than they are currently allowed to. The deletion of Part 3 as it stands in the published Bill is a reflection of the policy decision that the Law Society will retain its regulatory remit with regard to the oversight of solicitors' accounts as they pertain to the solicitors' compensation fund. The basis of the decision was my belief that the society is best placed to incentivise compliance by solicitors because it is the solicitors' profession itself which is liable for claims on the fund.

Before an annually renewable practice certificate can be issued to a solicitor, the solicitor in question must have paid an annual contribution to the compensation fund, currently set at around €760 per solicitor per annum. I am told that the net assets of the solicitors' compensation fund were valued at approximately €18 million in 2013. Approximately 400 accounts inspections were carried out by the Law Society last year, providing an important protection against acts of fraud and dishonesty by solicitors in the handling of clients' moneys. The fund has been relied upon in a number of high-profile cases in recent times. Since 2008, the fund has paid out nearly €20 million in claims. However, I wish to make it clear that disciplinary procedures in relation to acts of fraud and dishonesty, or the misappropriation of funds, will be conducted under the new and independent professional conduct regime established in the Bill. The provisions which I propose to be deleted are ones that mirror certain provisions already found in the Solicitors Acts 1954 to 2013. They should remain untouched in the Solicitors Acts in respect of the Law Society. Under Part 4 of the Solicitors (Amendment) Act 1994, the society is responsible for the protection of clients, which includes an obligation on the society to maintain and administer the solicitors' compensation fund. Where it is proved to the satisfaction of the Law Society that any client of a solicitor has sustained loss in direct consequence of fraud or dishonesty on the part of that solicitor, or his or her clerk or servant, then, subject to the relevant provisions, the society is required to make a grant to that client out of the fund. So the position will remain.

It is not desirable in any circumstances that the State should assume responsibility or potential future liability for a breach of financial regulations by practising solicitors. This would involve the State's assuming a very substantial burden that would, in the process, lessen the very serious incentive for compliance that currently exists. Under the compensation fund structures provided for under the Solicitors' Acts, and to be maintained under the Bill, the Law Society is able to respond immediately to serious financial complaints and has the right to carry out investigations without notification where justified by the circumstances. The Law Society is, under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, required to investigate compliance with anti-laundering regulations. As I have said, any matters of professional conduct or discipline that may arise from cases of fraud or dishonesty by solicitors will be dealt with independently by the authority or the legal practitioners' disciplinary tribunal, as the case may be.

Opposition amendments Nos. 77 to 82, inclusive, tabled by Deputies Mac Lochlainn and Collins to sections 33 and 34, seek to restrict the application of Part 3 to solicitors only, presumably because the Deputies have been persuaded by the arguments of the Bar Council that barristers should in no circumstances be permitted to hold the moneys of clients. As I have already stated in regard to amendment No. 76, I intend to continue with the restriction on barristers holding clients' funds, at least until the outcome of the relevant consultation process in which the new legal services regulatory authority is to engage is known. Therefore, I propose instead to delete sections 33 and 34 and insert the revised section 33 that I have tabled.

The Minister has addressed our amendments and that is fair enough.

I will raise, under Part 3, the substantive issue of the compensation fund. This is an area of understandable concern for the Law Society. It has made a detailed submission to the Minister and the committee members on this. It is a reasonable point they make. The Minister has stated that the State and the taxpayer would not want to take on the financial burden of compensating clients for the dishonesty of all, if, as has occurred, it materialised where there is a requirement for a compensation fund. What is happening here is the legal fraternity have, through a levy, put together and insured a fund that would protect the small number of clients who have been victims of corrupt behaviour. That is a good development and we need that to continue.

The issue that the Law Society raises is that the society needs to have teeth. There is a compensation fund which is backed up by insurers but the insurers need to see that the Law Society can move quickly and enforce the disciplinary issues that arise. Also, sometimes one may have to seek a High Court injunction or try to freeze money, try to have control, in other words, one has set up a compensation fund, one has levied solicitors, one has an insurance interest in that and to keep that at an affordable level for solicitors, one needs to be able to demonstrate clearly that one has the enforcement capacity.

In fairness, from my reading of the Law Society's submission in this regard, the society is not arguing that it retains full enforcement. They are arguing for some type of a co-operation with the new regulatory authority. I am sure the Minister can appreciate the dilemma here is that it has fragmented what is being proposed. On the one hand, the financial fiscal responsibility for the dishonesty of some individual solicitors still rests with the Law Society but the society does not have any role in the enforcement and, indeed, what is being outlined is quite a cumbersome process.

I reserve the right to bring forward amendments on Report Stage but I ask the Minister to engage with the Law Society - I am not sure whether this applies to the Bar Council also - to address the concerns. The concerns they raised are legitimate. It is in the public interest that a compensation fund be retained and it is also in the public interest that the independent regulatory authority co-operates and oversees the process. I hope some halfway house can be found to address the understandable concerns that have been outlined to us.

I ask the Minister whether he could engage with the Law Society on this matter because it is something which is particularly critical to the proper functioning of the new authority in conjunction with the Law Society. Can the Minister articulate his rationale for seeking to permit members of the Bar Council to handle, retain and hold client moneys?

Let us deal with a number of issues first. This Bill, as the Deputies will recall, made provision, as was necessary and appropriate in the public interest, that the Law Society would continue to administer the compensation fund. The legislation in place in that regard was largely unaffected. The Bill envisaged that the financial inspectorate, currently attached to the Law Society that conducts the type of inspections that I detailed earlier, would transfer to the legal services regulatory authority as well as the function of investigating allegations of misconduct. There was a substantial case made that the compensation fund and the inspectorate should not be separated in the sense that the inspectorate has substantial experience in inspecting the accounts of solicitors, that as solicitors fund the compensation fund and, annually, the amount they have to pay into it may be determined by the liquidity of that fund, it creates a pressure on the Law Society. I am not suggesting it would not otherwise do the job but the council of the Law Society must be concerned about the position of its members to ensure that the inspectorate fully fulfils its functions. It was argued that the inspectorate should remain with the Law Society and we gave further consideration to legal issues in that context. I had a concern that, in fact, if the inspectorate came within the legal services regulatory authority, it could create a situation whereby, even when the inspectorate performed to the Nth degree and engaged in its job with absolute professionalism, any time there was a loss of moneys by a client because the solicitor had defrauded him or her, there would be an incentive on the part of somebody within the legal profession to recommend to his or her client that he or she now sue the State and as well as looking for compensation from the compensation fund, the State could become a mark. It was important that did not happen.

The amendments we have tabled today are designed to enable the Law Society, as, indeed, the society sought, to retain the inspectorate. I made that decision, not because I was lobbied on the issue but because, on reflection with regard to the legal difficulties that could arise in the context of the inspectorate being part of a State body, I considered it was advisable that the Law Society retain that function, that where there are allegations of fraud the inspectorate be asked to investigate accounts and that the Law Society continues to perform the important function it performs, which is, to do spot-check audits on a specific number of solicitors' firms on an annualised basis in circumstances where there are no allegations of fraud or misconduct but to ensure that the appropriate accounting rules are being complied with, client accounts and office accounts are being appropriately maintained, clients' moneys are not being improperly used, and there is not, in so far as it can be ever policed, a repetition of the type of instances that we have seen which have resulted in prosecutions being successfully taken against some solicitors.

As a consequence of the changes, the Law Society will retain the inspectorate. I expect that such function will be fully fulfilled by the Law Society in accordance with its statutory obligations and that the inspectorate will do its work in a manner that is appropriate to protect in the public interest clients of the legal profession, to ensure that solicitors' accounts regulations are fully complied with and to ensure that compensation is not unnecessarily having to be paid because the inspectorate functions in a negligent manner - I am not suggesting that the inspectorate is doing so. I do not want to be misinterpreted. I am merely saying I could see there is a synergy between the Law Society maintaining the compensation fund and retaining the inspectorate function but that is where it stops.

What is interesting now, in the context of some of the material that has been made available to me, is what I would describe as "mission creep". We are going from a position where there is a good case for the inspectorate being retained to special pleading that some of the disciplinary functions should now be retained also by the Law Society, and I fundamentally disagree with that. I want to be clear on that. Under this legislation, we will have in the public interest an independent disciplinary and regulatory regime.

That effectively means that where there is misconduct alleged or discovered with regard to the manner in which a member of the legal profession, be he or she a solicitor or a barrister, conducts him or herself, this misconduct issue will be addressed through the appropriate structures of the legal services regulatory authority. To come back to Deputy Mac Lochlainn's case, there is no public perception of any description that the body dealing with this is anything other than independent.

The case that has been made pertains to what happens if something comes to the notice of the Law Society's inspectorate that requires immediate intervention, that is, that requires an emergency court case, for example, to freeze a solicitor's accounts, in some shape or form. As I understand it, what would happen now is that the information that comes to the Law Society would result in an application being made to the courts, presumably, except in highly exceptional circumstances, on foot of an affidavit that is sworn detailing the circumstances as to why a court order should be made. Where one has an independent regulatory regime or structure under the new legal services regulatory authority, with statutory provisions that the Law Society retains the inspectorate function, there is absolutely no reason a mechanism could not be in place that ensures that where there is a need for an emergency court application to be made, it is made by the legal services regulatory authority on foot of information the Law Society furnishes. That does not mean it is furnished and it then takes people weeks to deliberate on what has been furnished where there is an emergency. The same judgments can be made as are currently made and it ensures that the disciplinary function and the regulatory function are separated from the inspectorate function.

If, in the context of that issue, any further amendments are required to be made to the Bill on Report Stage, they can be made. There is no particular reason there could not be, for example, a memorandum of understanding put in place between the legal services regulatory authority and the Law Society with regard to ensuring the speed with which these matters are addressed. Consequently, there are various ways of dealing with this. I very much welcomed the support the Law Society has given for having an independent disciplinary structure dealing with allegations of misconduct. It would not be appropriate to have some issues of this nature now retained by the Law Society and then other pieces of it being dealt with by the legal services regulatory authority. It is not beyond human initiative to ensure that these matters can be dealt with seamlessly and efficiently by absolute co-operation, where it is necessary, between the inspectorate that identifies something about which to be concerned communicating this immediately, followed by an immediate response and appropriate, if need be, court application made.

I appreciate that what the Deputy has raised is on foot of submissions he has received on this issue. It is an issue that has only arisen because of the changes that are being made to the legislation. I of course am open to ensuring that anything additional that needs to be inserted in the Bill as it passes through both Houses is inserted, to ensure that such matters can be dealt with seamlessly and in a manner that is in the public interest. However, I do not wish to create now a separate piece of regulatory or disciplinary process that is similarly retained by the Law Society, not for any reason other than there should be a readily identifiable and simple structure. The inspectorate undertakes a particular function, the regulatory authority undertakes the other functions and I consider this to be entirely workable.

From listening to the Minister's thoughts in this regard, a possible solution is to be found. The Minister intends to engage with the Law Society on the issue of staffing and when he does so, I ask him also to consider this issue with its representatives. I hear his fundamental objections to the suggestion that the Law Society will continue to have the powers of discipline and enforcement. However, from reading the Law Society's presentation, over which I am glancing again, and from the Minister's comments, there may be some way of addressing the core issue, which is that the insurers can be assured that this fund is protected. As for the concerns about duplication or that bureaucracy might slow down a swift response to a crisis that would have an impact on the fund, it would be helpful were a way to be found to demonstrate clearly to the insurers that this will be a highly fluid, fast-moving and co-operative process. Obviously, there are no amendments pertaining to this debate but I ask the Minister to deal with this matter when he meets the Law Society. From reading its presentation, this is a genuine concern. The fund is in the public interest and everyone wants to protect it and to make sure it works effectively. Consequently, I believe there is room for manoeuvre and negotiation to make this stronger and better.

I appreciate the Deputy's comments. I have absolutely no difficulty and already have communicated to the Law Society that we are quite happy to engage with it on this and a number of issues from the public interest perspective. It of course is in the public interest that nothing be done to undermine a capacity for a swift response, should something untoward be identified that requires a swift response to protect the public, to protect a client or clients of the legal profession and of course, to ensure that moneys are not misappropriated. I am very happy that we would work through that. It is an issue that arises out of the changes we are now implementing and I have no doubt that should there be need for further amendments to the Bill in this context, members will come to them on Report Stage.

Could the Minister address my query in respect of the intention in the Bill to allow members of the Bar Council to hold client moneys?

As the Deputy will recall, the Bill provides for the legal services regulatory authority to engage in a process and to report on whether the public should have direct access to members of the Bar for contentious matters. In those circumstances, if one has direct access to members of the Bar for contentious matters, it means one will not be filtering one's legal problems through solicitors. That is a matter of interesting discussion. I do not wish to prejudge the consultative process that will take place in which the legal services regulatory authority will engage and the report it will publish. I acknowledge that in the legal profession, that is a matter of some controversy. The legal profession in Ireland exists as it does because we inherited the historical developments of the legal profession in Britain from the 17th to the 19th centuries and it has remained unchanged since then. The legal profession, as practised in other jurisdictions, including some common law jurisdictions, is structured differently from the manner in which it is structured in this country. This issue only will arise should, as a result of the consultative process and when a report is published, it then be considered by the Government and should the Government make further changes for further reform. Consequently, it is premature at the moment to deal with this issue. I have no doubt that like many other reforms that are under discussion when it comes to both professions, they are a matter of difficulty and controversy and people have concerns about change. I think it is an issue to be addressed substantially by looking at what is in the public interest, what gives people access to appropriate legal assistance when they require it in a manner that does not generate unnecessarily excessive legal costs. They are highly important principles as to what gives access to lawyers with the necessary expertise to address particular issues. There are areas of highly complex law in which I have no doubt but that in certain circumstances in which people find themselves in litigation, they need the assistance of more than one lawyer, be they solicitors, barristers or both. There are other circumstances in which people have legal problems of a relatively straightforward nature where, if a lawyer has particular expertise, one does not necessarily need more than one lawyer.

These are all interesting issues to be teased out in the public interest and I will not prejudge them.

The issue of whether barristers should hold funds is directly related to direct access for members of the public to barristers for contentious matters, without barristers being instructed through solicitors. Normally, it is the solicitor who holds funds, which is the reason there are detailed and substantial rules, regulations and provisions in place concerning what are known as client and office accounts in the context of funds received by solicitors and the holding of moneys on deposit by solicitors. Currently, moneys that barristers receive are substantially paid by them through solicitors as opposed to directly, except in some very narrow circumstances. This may be an issue for another day, long after the legislation has been enacted and many of the reforms prescribed by it have been brought into operation.

Amendment put and declared carried.
Section 33 deleted.
Amendments Nos. 77 to 80, inclusive, not moved.
SECTION 34

I move amendment No. 81:

In page 36, line 24, to delete “legal practitioner” and substitute “solicitor”.

Amendment put and declared lost.

I move amendment No. 82:

In page 36, line 24, to delete “legal practitioner” and substitute “solicitor (the relevant legal practitioners)”.

SECTION 35

Amendment put and declared lost.
Question, "That section 34 be deleted", put and agreed to.

I move amendment No. 83:

In page 36, lines 27 to 33, to delete all words from and including “A Legal” on line 27 down to and including “the” on line 33 and substitute the following:

“The”.

Deputy Collins and I have tabled a series of similar amendments which seek to maintain the current position whereby moneys are paid to solicitors rather than barristers.

That is the way the world stands at present. For reasons discussed in the debate on section 33, I must oppose the amendments tabled by the Deputies and press, on behalf of the Government, for the deletion of the sections in the reconfigured Part 3.

Amendment put and declared lost.
Question, "That section 35 be deleted", put and agreed to.
Question, "That section 36 be deleted", put and agreed to.
Question, "That section 37 be deleted", put and agreed to.
SECTION 38

Amendments Nos. 84 and 85 are related and will be discussed together by agreement.

I move amendment No. 84:

In page 40, lines 24 to 34, to delete subsections (6) and (7).

My concern in this regard is linked to the proposal for multidisciplinary practices, an issue we will debate at a subsequent meeting. It is believed that these sections facilitate the measures that will come down the line in respect of accountants. That is the interpretation that is being made and the reason for my concern.

For reasons discussed in the debate on section 33, I must oppose the amendments tabled by the Deputies and press for the deletion of the sections in the reconfigured Part 3.

Amendment put and declared lost.

I move amendment No. 85:

In page 40, lines 49 to 51 and in page 41, lines 1 to 4, to delete subsection (10).

Amendment put and declared lost.
Question, "That section 38 be deleted", put and agreed to.
Question, "That section 39 be deleted", put and agreed to.
Question, "That section 40 be deleted", put and agreed to.
Question, "That section 41 be deleted", put and agreed to.
SECTION 42

Amendments Nos. 86 to 88, inclusive, are related and will be discussed together by agreement.

I move amendment No. 86:

In page 42, subsection (1), lines 44 and 45, to delete all words from and including “shall” in line 44 down to and including “Minister,” in line 45 and substitute may make regulations”.

Part 4, as it stands in the published Bill, consists of only three sections. The Government amendments Nos. 86 and 87 are minor amendments to remove ministerial consent for the making of regulations by the authority. I have made clear that I wish to remove as many references to "the Minister" as possible to ensure the new bodies created by the Bill are as independent as possible from government interference or any perception of such interference.

As regards Deputy Collins' amendment No. 88, I am grateful to him for tabling it as it was always my intention and the intention of my officials to substitute the reference to "Minister" in this subsection with a reference to the "Authority", as can clearly be seen with my deletion of the many other references to the "Minister" in the Bill thus far, including in today's amendment No. 87 to the same section. The reference here appears to have slipped through the net and for this reason, I am pleased to support the Deputy's amendment. It is my intention that the authority will continue to set the minimum levels of insurance required by legal practitioners so as to ensure that any liability incurred is fully covered in the public interest, while the Law Society will continue to administer the relevant insurance schemes.

Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43

I move amendment No. 87:

In page 43, subsection (1), line 45, to delete “, with the consent of the Minister,”.

Amendment agreed to.

I move amendment No. 88:

In page 44, subsection (3), line 6, to delete “Minister” and substitute “Authority”.

Amendment agreed to.
Question proposed: "That section 43, as amended, stand part of the Bill."

An issue arises with regard to professional indemnity insurance. Apparently, the Minister recommended that the Law Society and others retain control over this issue. This could impact on the level and affordability of insurance. Not every solicitor is making a fortune and many of them are struggling in the current economic climate.

There is a real issue here. The Minister has undertaken to engage with the Law Society ahead of Report Stage in respect of previous matters. Is this something he could factor into his deliberations? I note he has received a submission on this issue and I think the Law Society has raised valid concerns. I reserve the right to bring amendments on Report Stage if he does not engage on these issues.

There is no issue with regard to the Law Society retaining certain functions. We have no difficulty discussing the matter with the Law Society. There are public interest issues of which we are very aware but this particular section does not give rise to any difficulty in the context of the objectives.

The Minister will discuss the matter.

We have no difficulty at all.

Question put and agreed to.
SECTION 44

Amendments Nos. 89 and 90 are related and will be discussed together by agreement.

I move amendment No. 89:

In page 45, subsection (1)(b), line 21, to delete "partner, employee or former partner or employee" and substitute the following:

"partner, employee, former partner or former employee".

These are minor technical amendments to address a text alignment issue. We will all be suitably realigned.

Amendment agreed to.

I move amendment No. 90:

In page 45, subsection (1)(ii), lines 29 and 30, to delete all words from and including "the" in line 29 down to an including "servant" in line 30 and substitute the following:

"the partner, employee, former partner and or former employee".

Amendment agreed to.
Section 44, as amended, agreed to.
NEW SECTIONS

Amendments Nos. 91 to 97, inclusive, are related and will be discussed together by agreement.

I move amendment No. 91:

In page 45, after line 48, but in Part 4, to insert the following new section:

PART 5

INFORMAL RESOLUTION OF COMPLAINTS RELATING TO INADEQUATE LEGAL SERVICES AND CHARGING OF EXCESSIVE FEES

45. - (1) For the purposes of this Part a legal practitioner shall be considered as having provided inadequate legal services where by act or omission the legal services actually provided by the legal practitioner were not of a standard that it is reasonable to expect of a legal practitioner, having regard to whether the legal practitioner concerned is a solicitor or a barrister.

(2) For the purposes of this Part a reference to an amount of costs sought by a legal practitioner in respect of legal services means an amount of costs specified in a bill of costs issued by the legal practitioner concerned.”.

We are now discussing an important series of amendments. Amendment No. 91 creates a new Part 5 to deal with the informal resolution of complaints relating to inadequate legal services and charging of excessive fees, but not grossly excessive ones. The Law Society, the lay members of the complaints committee of the Law Society and other commentators have pointed out the need to provide a framework for dealing with this type of complaint, which in essence would not amount to misconduct. The published Bill was silent on how the authority would deal with the substantial number of complaints which tend not to amount to misconduct. The amended Bill will provide a detailed and formal resolution process for complaints relating to inadequate legal services and the charging of excessive fees. The charging of grossly excessive fees will now come within the definition of misconduct under a separate provision.

Under this Part, section 47, a client of a legal practitioner may make a complaint where the client considers that (a) the legal services provided to him or her are or were of inadequate standard; or (b) the bill of costs issued by the legal practitioner was excessive. The new section 45 will provide that a legal practitioner will be considered to have provided inadequate legal services where, by act or omission, the legal services provided were not of a standard that is reasonable to expect from a legal practitioner as a solicitor or a barrister.

Government amendment No. 92, which introduces new section 46, deals with admissibility of complaints and mirrors provisions which were previously contained in the Bill as published. A complaint under this Part would not be considered by the authority if in the opinion of the authority it is deemed to be (a) frivolous or vexatious; or (b) is without substance or foundation, or does not satisfy the other criteria set out in the section. Where the authority determines that it will not consider a complaint, the authority, where appropriate, will have to notify the complainant in writing to set out the reasons. It will also have to notify the legal practitioner, if appropriate.

Amendment No. 93, new section 47, provides that a client of a legal practitioner may now make a complaint where the client considers that (a) the legal services provided to him or her are or were of inadequate standard; or (b) the bill of costs issued by the legal practitioner is excessive.

Amendment No. 94, new section 48, provides that the authority will carry out a preliminary review with regard to a complaint of inadequate legal services or excessive fees. The preliminary review allows the authority to determine whether the complaint should be dealt with under these structures for less serious complaints or should be dealt with under the formal misconduct provisions. In making that assessment, the authority shall have regard to the extent that the standard of the legal services provided to the client fell short of the standard reasonably expected from a legal practitioner in the provision of those services. Section 48(2) provides that where having completed the preliminary review process, the authority considers the complaints to be admissible and appropriate, it will notify the legal practitioner concerned to set out the alleged complaint and request him or her to respond within the time period specified in the notification. Section 48(3) provides that the authority, following receipt of the reply, may admit the complaint and enter into further consideration of the complaint under this part; determine that the complaint is unfounded; or request further information regarding the matter of the complaint. If the authority, having concluded the preliminary review and having considered any further response it has received, is of the opinion that the complaint, if it were substantiated, could constitute misconduct, it is open to it to decide the complaint should be dealt with under the more formal misconduct provisions and it will so inform the complainant. That is under section 48(4).

Under amendment No. 95, the authority can facilitate the resolution of complaints relating to inadequate services in new section 49. If the authority is of the opinion that the complaint is capable of resolution, it may invite the client and the legal practitioner concerned to make efforts to resolve it. Under section 49(2), the authority may itself facilitate the resolution of the matters which are the subject of the complaint in an informal manner by (a) offering its assistance to resolve the matter; or (b) by identifying other persons to the legal practitioner and the client who are willing to assist in resolving the matter. This facilitation of resolution may include the referral of the dispute to mediation or another appropriate form of legal resolution. Having allowed the client and the legal practitioner a reasonable period of time to resolve the matter, if the authority considers that an agreement or resolution between the parties is unlikely it may give notice in writing to the client and legal practitioner that it proposes to conclude the dispute resolution process. The authority cannot conclude the dispute resolution process earlier than 30 days after the giving of notice under section 49(4) and on concluding the dispute resolution process, it is obliged to invite the client and the legal practitioner to furnish it with a statement under section 49(5). Under section 49(6), the authority would then consider the statements and, where it considers that the legal services provided by the practitioner have fallen short of the standard reasonably expected from a legal practitioner, it may direct the legal practitioner to do one or more of the following: secure rectification at the legal practitioner's own expense or at the expense of his or her firm of any error, omission or other deficiency arising in connection with the legal services concerned; take, at his or her own expense or at the expense of his or her firm, such other action as the authority may specify; transfer any documents relating to the subject matter of the complaint to another legal practitioner or firm nominated by the client, subject to such terms and conditions as the authority may consider appropriate, having regard to the existence of any right to possession or retention of any of the documents concerned vested in the legal practitioner; or pay to the client a sum not exceeding €3,000 as compensation for any financial or other loss suffered by the client in consequence of the legal services provided by the legal practitioner having fallen short of the standard reasonably expected of a legal practitioner in the provision of those services.

Under amendment No. 96, new section 50, it will be possible for the client or the practitioner concerned to seek a review of the authority's directions or its failure to make a direction. This will be done by a review committee of three persons, two of whom will be lay persons and the third will be a legal practitioner. An application for the review of the authority's direction must be made in writing not more than 30 days after the authority has notified the parties to the complaint of its decision and furnish a statement as to why the decision was either incorrect or unjust. The review committee will be able to confirm the decision of the authority, make a finding that the complaint is not well founded or issue one or more of the directions to the practitioner which the authority is authorised to issue under section 49(6).

They are the different directives I listed a moment ago.

Government amendment No. 97 creates a distinct new section 51, under which the authority will be enabled to facilitate resolution of those complaints relating to excessive costs where the main substance of the complaint is that the amount or any part of the amount of costs claimed by a practitioner in a bill of costs is excessive in a material respect and the authority is of the opinion that the subject matter of the complaint is capable of being resolved. The authority may invite the complainant and the practitioner concerned to make efforts to resolve the matter that has been complained about. The authority may offer assistance in resolving the matter or identify other persons willing to assist in its resolution. It is a similar approach to the one previously mentioned.

The amended section 51(3) provides that the period beginning on the making of a complaint to the authority and ending two months after the complaint is determined can be disregarded in relation to the making of an application for adjudication of a bill of costs under Part 9. It will still be open to the client of a legal practitioner to submit a bill of costs to the legal costs adjudicator if he or she cannot resolve the matter under this informal resolution process. However, where a dispute regarding a bill of costs is resolved between the client and a legal practitioner under this section, pursuant to this process, the client would not be entitled to seek the adjudication of the bill of costs under Part 9 unless such adjudication forms part of the resolution. In other words, we are providing for a procedure to facilitate an amicable agreement being reached or an agreement being reached with the assistance, for example, of a mediator in a cost-disputed case without the parties having to go through the full costs adjudication process with the legal costs adjudicator, while at the same time not creating any barrier to someone deciding to go through the legal costs adjudicator should he or she so wish. Of course, it is possible, where there is an attempt at an informal resolution, that people would simply agree to disagree and would agree to put the matter to the legal costs adjudicator any way. This is just an extra provision to try to facilitate the speedy resolution of issues where there is a complaint about costs but not costs that are grossly excessive.

Under section 51(5) the authority will also be able to conclude, on notice to the parties, the disputes resolution process if it considers that an agreement or resolution of the complaint is unlikely to be reached. This is in the context of a costs complaint. It is worth adding that our objective here is to ensure that consumer complaints - as opposed to complaints of misconduct - that is, complaints about over-charging which is not of a major nature, can be resolved in a speedier way. There is a very successful complaints process of this nature being used in New South Wales in Australia. In the course of our preparatory work on the Bill, we engaged with the individual who is in charge of the legal services regulatory functions in New South Wales, who introduced this informal complaints system or what could be more correctly described as the consumer complaints system. It has had two effects in New South Wales. It has produced a far speedier and less bureaucratic structure for dealing with consumer complaints than previously existed. I am also told that because of the existence of this facility for some years in New South Wales, solicitors are now more efficient in their dealings with clients. It was expected that the number of cost complaints would increase over time and that was the case in the early years. Now, however, the number of complaints is decreasing because of the approach that has been taken to dealing with complaints. Many cases of disagreement between solicitors and their clients are now resolved without even the need to use the complaints process in place there.

We aim to ensure that complaints of a serious nature will be dealt with in the formal regulatory structure but consumer complaints will have the possibility of being dealt with otherwise but in dealing with cost issues, the availability of the costs adjudicator in relation to any issue in dispute on costs is not in any way impeded. No access barricade is created. There will continue to be full access but this will readily provide a mechanism to facilitate a resolution where it is possible without the need for an individual to resort to the legal costs adjudicator, unless he or she chooses to do so.

Any informal process which will help the consumer to arrive at a speedy and acceptable resolution is welcome.

One of the submissions that this committee received was a proposal or suggestion that there should be a five year time limit on the ability to make complaints, which I believe is reasonable. If somebody has a difficulty with costs, he or she should be making a complaint ---

The limit could be three years.

Sorry, did the Minister say three years?

I believe that there is a need for a time limit. The Bill already prescribes a three year time limit for making application to the legal costs adjudicator. Having paid a bill, there is a three year time limit within which one can make a complaint thereafter. It is important to have consistency in the legislation. Three years after someone has discovered there is a reason to complain is sufficient time, rather than five years, to allow for the making of complaints. However, we must also be careful. There are circumstances that can arise where an individual may not know that their legal issues have not been dealt with appropriately. Let us say, for example, that I go to a solicitor and buy a house. I pay my mortgage on that house and 15 years later I decide I want to sell it. I then discover, unknown to me, that the solicitor has the house registered in his or her own name. That is not very far away from certain difficulties we have recently seen. We cannot have a situation where someone could not, 15 years later upon discovering that, make a complaint. We are looking at how best to frame this. The cost complaints issue is very straightforward but for other complaints, there is a need to take care. I do not believe it is right to have an open-ended situation whereby 30 years or 50 years after someone has completed legal work for a client, that client can make a complaint. That is not reasonable either. I am aware of members of the legal profession who 20 or 30 years after they completed work for individuals have had complaints made against them that have proved to be spurious but the Law Society was in a position where it had to deal with those complaints in good faith. We must provide the appropriate balance to ensure that if someone who has no way of knowing that their affairs have not been dealt with appropriately makes such a discovery, he or she can make a complaint but that there is a prescribed time frame. We will come back to that issue on report stage.

A mediation Bill is expected later this year and in that context, is the Minister is trying to incorporate what is coming down the line into this legislation? Is there flexibility in these sections to anticipate the new processes that will be provided for in the forthcoming mediation Bill? The mediation Bill, in the context of cost issues and resolving matters, could be as important for the citizens as this Bill. So much of what happens in family law and civil law could be resolved at an early stage with a robust mediation process. We have had some dialogue in the Chamber about this and I ask the Minister to give us his thoughts on the matter.

On the issue of admissible complaints, three years is prescribed in section 2(1) for admissible complaints and that addresses some of the issues we were discussing earlier. We are going to have another look at one or two aspects of this in order to ensure that they are in sync. The Bill on mediation is complementary to what we are doing here.

In certain circumstances it creates the possibility that the legal services regulatory authority may propose, where there is a consumer complaint which the parties themselves are not able to resolve through the offices of the legal services regulatory authority itself, that the parties go to mediation rather than making the issue more long, drawn-out and expensive than may be necessary. We will not put in the Bill provisions which will be included in the mediation Bill to deal with access to mediation issues and the principles of mediation on which we are working. I see the mediation Bill as being complementary not only to this Bill but also to every circumstance in which an individual may contemplate court proceedings. There is a connectivity between them.

In determining the admissibility of complaints after the three-year period, who will set down the criteria, or will they be examined on a case-by-case basis? Will somebody develop criteria for the admission of complaints outside of three years? The Minister instanced an example and I am sure we could come up with endless scenarios.

They would primarily be considered by the complaints committee in the context of the individual issues which arise. Section 2(1) on admissible complaints is important, but it does not prescribe a limit where the complaint relates to fraud or dishonesty by a legal practitioner, which was the example I gave. We may need to do some tweaking. Primarily it would be an issue for the committee to make this decision. We are giving further consideration to it as we head into Report Stage.

Amendment agreed to.

I move amendment No. 92:

In page 45, after line 48, but in Part 4, to insert the following new section:

46.—(1) A complaint shall not be considered by the Authority under this Part if in the opinion of the Authority—

(a) it is frivolous or vexatious, or

(b) it is without substance or foundation.

(2) The Authority shall not consider a complaint in respect of a legal practitioner under this Part where it is satisfied that the act or omission to which the complaint relates is the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that legal practitioner which was previously determined under this Act.

(3) The Authority shall not consider a complaint in respect of a solicitor where it is satisfied that the act or omission to which the complaint relates is—

(a) the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that solicitor which was previously determined under the Solicitors Acts 1954 to 2013—

(i) by the High Court,

(ii) by the Solicitors Disciplinary Tribunal,

(iii) by the Solicitors Disciplinary Committee, or

(iv) by the Law Society,

or

(b) the same or substantially the same act or omission as that which was the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has been made by the court in those proceedings in favour of the solicitor concerned.

(4) The Authority shall not consider a complaint in respect of a barrister where it is satisfied that the act or omission to which the complaint relates is—

(a) the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that barrister which was previously determined by the Barristers’ Professional Conduct Tribunal, or

(b) the same or substantially the same act or omission as that which was the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has been made by the court in those proceedings in favour of the barrister concerned.

(5) (a) Where the Authority is satisfied that the act or omission to which a complaint relates is the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has not been made by the court in those proceedings, the Authority may defer consideration of the complaint until the proceedings have been finally determined.

(b) Where the Authority is satisfied that the act or omission to which a complaint relates has been investigated by a court in civil proceedings or criminal proceedings and that a final determination of the issues which are, in substance, the issues involved in the complaint has been made by the court in those proceedings in favour of the legal practitioner concerned, the Authority may decide to take no action or no further action in relation to the complaint.

(c) Proceedings shall not be regarded as finally determined for the purposes of paragraph (a) or (b) until any appeal, rehearing or retrial in relation to those proceedings has been determined.

(6) Where the Authority determines under this section that it will not consider a complaint, the Authority shall, where appropriate—

(a) notify the complainant in writing of its determination,

(b) state the reason(s) for the determination,

(c) notify the legal practitioner, if appropriate,

(d) take no further action in relation to the complaint,

(e) refer the person to a more appropriate body.".

Amendment agreed to.

I move amendment No. 93:

In page 45, after line 48, but in Part 4, to insert the following new section:

47.—A client of a legal practitioner may make a complaint to the Authority where the client considers that—

(a) the legal services provided to him or her are or were of an inadequate standard, or

(b) the bill of costs issued by the legal practitioner was excessive.".

Amendment agreed to.

I move amendment No. 94:

In page 45, after line 48, but in Part 4, to insert the following new section:

48.—(1) Where the Authority receives a complaint under this Part it shall conduct a preliminary review of the complaint to determine—

(a) whether or not the complaint is admissible, and

(b) whether or not the complaint is an appropriate complaint to be dealt with under this Part or whether the act or omission concerned should be considered under Part 5, having regard to the extent that the standard of the legal services provided to the client fell short of the standard reasonably expected of a legal practitioner in the provision of those services.

(2) Where the Authority, having carried out the preliminary review referred to in subsection (1), considers that the complaint appears to be admissible and that it is appropriate to be dealt with under this Part it shall notify the legal practitioner concerned setting out an outline of the complaint and requesting the legal practitioner to respond to the Authority within such reasonable period as is specified in the notification.

(3) Where the Authority receives a response to the notification given under subsection (2) it shall consider the response and having considered the response shall—

(a) admit the complaint and enter into further consideration of the complaint in accordance with this Part,

(b) determine that the complaint appears to be unfounded, or

(c) request further information regarding the matter from the complainant or the legal practitioner,

and where the Authority admits the complaint under paragraph (a) or determines pursuant to paragraph (b) that the complaint is unfounded, it shall notify the complainant and the legal practitioner.

(4) Where, having carried out the preliminary review referred to in subsection (1) and having considered any responses received under subsection (3) the Authority is of the opinion that the complaint if it were substantiated could constitute misconduct and should be dealt with under Part 5 it shall proceed to deal with the matter as if the complaint had been made under Part 5 and notify the complainant to that effect.".

Amendment agreed to.

I move amendment No. 95:

In page 45, after line 48, but in Part 4, to insert the following new section:

49.—(1) Where the Authority admits the complaint pursuant to section 48 and the main substance of the complaint is that the standard of the legal services provided by the legal practitioner concerned to the client has fallen short of the standard reasonably expected of a legal practitioner in the provision of those services, but the Authority is of the opinion that the matter the subject of the complaint is capable of being resolved, the Authority may invite the client and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint.

(2) Where the client and the legal practitioner agree to make efforts to resolve the matter the subject of the complaint the Authority shall facilitate the resolution of the matters the subject of the complaint—

(a) by offering its assistance in resolving the matter, or

(b) by identifying other persons to the legal practitioner and the client who are willing to assist in resolving the matter,

in an informal manner, (which may include the referral of the dispute to mediation or other appropriate form of dispute resolution).

(3) Having facilitated the resolution of the complaint pursuant to subsection (2) and having allowed the client and the legal practitioner a reasonable period to resolve the matter the subject of the complaint, the Authority, where it considers that an agreement or resolution between the parties in relation to the complaint is unlikely to be reached, may give notice in writing to the client and the legal practitioner (and where appropriate any other person involved in attempting to resolve the dispute) that it proposes to conclude the dispute resolution process in accordance with this section.

(4) The Authority shall not conclude the dispute resolution process under this section earlier than 30 days after the giving of notice under subsection (3).

(5) Where the Authority exercises its power to conclude the dispute resolution process under this section it shall thereafter invite the client and the legal practitioner to furnish to it, within such reasonable period as is specified by the Authority, a statement setting out their respective positions in relation to the matter the subject of the complaint.

(6) The Authority shall consider any statement furnished to it pursuant to subsection (5) and, where it considers that the legal services provided by the legal practitioner have fallen short of the standard reasonably expected of a legal practitioner in the provision of those services, and that it is, having regard to all the circumstances concerned, appropriate to do so, the Authority may direct the legal practitioner to do one or more of the following:

(a) secure the rectification, at his or her own expense or at the expense of his or her firm, of any error, omission or other deficiency arising in connection with the legal services concerned;

(b) take, at his or her own expense or at the expense of his or her firm, such other action as the Authority may specify;

(c) transfer any documents relating to the subject matter of the complaint to another legal practitioner nominated by the client, subject to such terms and conditions as the Authority may consider appropriate having regard to the existence of any right to possession or retention of any of the documents concerned vested in the legal practitioner to whom the direction is issued;

(d) pay to the client a sum not exceeding €3,000 as compensation for any financial or other loss suffered by the client in consequence of the legal services provided by the legal practitioner having fallen short of the standard reasonably expected of a legal practitioner in the provision of those services.

(7) Where the client or the legal practitioner is aggrieved by a direction made by the Authority under subsection (6) or its failure to make such a direction the person aggrieved may seek a review by a committee established for the purpose of considering reviews of decisions of the Authority under this section 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).

(8) Any payment made by a legal practitioner pursuant to a direction referred to in subsection (6)(d) shall be without prejudice to any legal right of the client.".

Amendment agreed to.

I move amendment No. 96:

In page 45, after line 48, but in Part 4, to insert the following new section:

50.—(1) The Authority shall establish a committee to consider reviews requested by complainants or legal practitioners in relation to determinations of the Authority under section 49.

(2) The committee shall be composed of 3 persons, 2 of whom shall be lay persons and one of whom shall be a legal practitioner.

(3) The member of the review committee who is a legal practitioner shall—

(a) in a case where the complaint relates to a solicitor, be a solicitor, and

(b) in a case where the complaint relates to a barrister, be a barrister.

(4) A person shall be eligible to serve as a member of a review committee established under this section if he or she is eligible to serve as a member of the Complaints Committee established under Part 5.

(5) The review committee shall consider reviews requested and, having given both the client and the legal practitioner an opportunity to make a statement in writing to it as to why the decision of the Authority was incorrect or unjust, determine the review by—

(a) confirming the decision of the Authority,

(b) finding that the complaint is not well founded, or

(c) issuing one or more than one of the directions to the legal practitioner which the Authority is authorised to issue under section 49(6).

(6) Any payment made by a legal practitioner pursuant to a direction referred to in subsection (5) shall be without prejudice to any legal right of the client.".

Amendment agreed to.

I move amendment No. 97:

In page 45, after line 48, but in Part 4, to insert the following new section:

51.—(1) Where the Authority admits a complaint pursuant to section 48 and the main substance of the complaint is that the amount (or any part of the amount) of costs claimed by a legal practitioner in a bill of costs is excessive in a material respect and the Authority is of the opinion that the matter the subject of the complaint is capable of being resolved, the Authority may invite the complainant and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint.

(2) Where the complainant and the legal practitioner agree to make efforts to resolve the matter the subject of the complaint the Authority shall facilitate the resolution of the matters the subject of the complaint—

(a) by offering its assistance in resolving the matter; or

(b) by identifying other persons to the legal practitioner and the client who are willing to assist in resolving the matter, in an informal manner (which may include the referral of the dispute to mediation or other appropriate form of dispute resolution).

(3) In reckoning any period of time for the purposes of any limitation period in relation to the making of an application for adjudication of a bill of costs under Part 9 which bill of costs is or has been the subject of a complaint under this Part, the period beginning on the making of a complaint to the Authority and ending 2 months after the complaint is determined under this Part shall be disregarded.

(4) Where pursuant to this section a dispute regarding a bill of costs between the client and the legal practitioner is resolved the client shall not thereafter be entitled to seek adjudication of the bill of costs under Part 9 unless such adjudication forms part of the resolution.

(5) Having facilitated the resolution of the complaint pursuant to subsection (2) and having allowed the client and the legal practitioner a reasonable period to resolve the matter the subject of the complaint, the Authority, where it considers that an agreement or resolution between the parties in relation to the complaint is unlikely to be reached, may give notice in writing to the client and the legal practitioner (and where appropriate any other person involved in attempting to resolve the dispute) that it proposes to conclude the dispute resolution process.

(6) The Authority shall not conclude the dispute resolution process under this section earlier than 30 days after the giving of notice under subsection (5).

(7) Where the Authority concludes the dispute resolution process under subsection (5) the complaint shall be deemed to be determined.

(8) Where a complaint under this section is deemed pursuant to subsection (7) to be determined such determination shall be without prejudice to any legal right of the client.".

Amendment agreed to.

With the consent of colleagues and the Minister I propose that we suspend until 2.30 p.m. Is that agreed? Agreed.

Sitting suspended at 12.55 p.m. and resumed at 2.30 p.m.

We will resume in public session, moving on to amendment No. 98. I remind everyone to turn off mobile telephones or to put them away so that they do not interfere with the sound system.

Acceptance of amendment No. 98 involves the deletion of section 45. If it is agreed, amendments Nos. 99 and 100 cannot be moved. They are alternatives to amendment No. 98. Amendments Nos. 99, 102, 108, 110 and 112 are related. Amendment No. 102 is an alternative to amendment No. 101. Amendments Nos. 101, 103 to 105, inclusive, 107 and 109 are related. Amendment No. 106 is an alternative to amendment No. 105. Amendments Nos. 98 to 110, inclusive, and 112 will be discussed together.

I move amendment No. 98:

In page 46, before section 45, but in Chapter 1, to insert the following new section:

"CHAPTER 1

Preliminary

45.--(1) An act or omission of a legal practitioner may be considered as constituting misconduct where--

(a) the act or omission involves fraud or dishonesty,

(b) the act or omission is connected with the provision of legal services, where the legal practitioner has fallen short, to a substantial degree, of the standards reasonably expected of a legal practitioner,

(c) the act or omission, where occurring otherwise than in connection with the practice of law, would justify a finding that the legal practitioner concerned is not a fit and proper person to engage in legal practice,

(d) the act or omission consists of an offence under this Act,

(e) the act or omission, in the case of a solicitor, consists of an offence under the Solicitors Acts 1954 to 2013,

(f) the act or omission, in the case of a legal practitioner who is a barrister, is likely to bring the barristers’ profession into disrepute,

(g) the act or omission, in the case of a solicitor, constitutes a material breach of the Solicitors' Accounts Regulations,

(h) the act or omission, in the case of a legal practitioner who is a solicitor, is likely to bring the solicitors’ profession into disrepute,

(i) the act or omission in the case of a legal practitioner who is a managing legal practitioner of a multi-disciplinary practice (within the meaning of those terms under Part 7) consists of a failure by him or her to comply with his or her obligations under this Act as a managing legal practitioner,

(j) the act or omission consists of the commission of an arrestable offence,

(k) the act or omission consists of the commission of a crime or offence outside the State which, if committed within the State, would be an arrestable offence,

(l) the act consists of issuing a bill of costs which is grossly excessive,

(m) the act consists of a contravention of section 118(1).

(2) In determining whether the act or omission referred to in paragraph (l) of subsection (1) should be considered as constituting misconduct, the Authority, the Divisional Committee, the Disciplinary Tribunal or, as the case may be, the High Court, may have regard to:

(a) the amount by which or the extent to which the amount claimed in the bill of costs was found to be excessive;

(b) whether in the particular circumstances of the legal services performed the amount of the bill of costs appears to be unconscionable; and

(c) whether or not a Legal Costs Adjudicator has found the costs charged to be grossly excessive.

(3) In this section "arrestable offence" has the same meaning as it has in the Criminal Law Act 1997.".

We come to the provisions dealing with professional misconduct by legal practitioners. Amendment No. 98 makes several amendments to section 45, which sets out the types of acts or omissions of a legal practitioner that may be considered as misconduct. Most notably, misconduct now comprehends a bill of cost which is grossly excessive. In determining whether the bill of cost is grossly excessive, the authority, the divisional committee, the disciplinary tribunal or the High Court may have regard to the following:

(a) the amount by which or the extent to which the amount claimed in the bill of costs was found to be excessive;

(b) whether in the particular circumstances of the legal services performed the amount of the bill of costs appears to be unconscionable; and

(c) whether or not a Legal Costs Adjudicator has found the costs charged to be grossly excessive.

Other amendments to this section provide that the failure of a managing legal practitioner of a multidisciplinary practice to comply with his or her obligations under the Act may constitute misconduct.

We have also included a subsection under which, in the case of solicitors, an act or omission that constitutes a material breach of the solicitors' accounts regulations may now amount to misconduct. In addition, if an act or omission consists of an offence under the Bill, it may constitute misconduct.

Finally, we have also inserted a new subsection (m): "the act consists of a contravention of section 118(1)." Where a legal practitioner who has accepted instructions to appear in court on behalf of a client who is in custody withdraws from the client's case without obtaining permission from the court before which the client is next scheduled to appear, this may now constitute misconduct.

I would like to turn to Opposition amendments Nos. 99, 102, 108, 110 and 112, if the Chair would permit me to group these together with the solicitors' group. All of these amendments, from my reading of them, are taken from the Bar Council's submission of March 2012. I am opposing these amendments, which have previously been considered, as they were included in the Bar Council's submissions and were so considered. In essence, the amendments seek to provide for supervised self-regulation and run counter to current Government policy as expressed in the Bill and its provisions for independent regulation of the legal profession, including a regime to deal with professional conduct and discipline. Essentially, these amendments hark back to the era when it was proposed that a legal services ombudsman was all that was required and that there would be oversight, but that the professional bodies would continue to self-regulate rather than be subject to independent regulation. It is the independence that is important.

Turning to Opposition amendment No. 100, which relates to legal executives, the Bill does not make any provision regarding the role or status of legal executives, nor is any such provision envisaged. While I recognise that there may be additional benefits and efficiencies to be found for consumers and for the legal services sector in a more developed role for legal executives, such matters will need to be considered separately on their own merits while others may come to be considered in due course by the new legal services regulatory authority. The Bill deals with solicitors and barristers as legal practitioners and will not be extended beyond that in its scope.

Regarding Government amendment No. 101, section 46 provides that misconduct complaints on or after the coming into operation of this part will be made to the authority. Subsection (3) provides that the period beginning on the making of a complaint to the authority and ending two months after the complaint is determined shall be disregarded in reckoning any period of time for the purpose of any limitation period in respect of the making of an application for adjudication on a bill of costs under Part 9.

Concerning Government amendment No. 103, section 47 provides that the authority may make regulations regarding the making of complaints to the authority under this Act and the procedures to be followed by the authority and the complaints committee in investigating complaints.

I now want to refer to Opposition amendment No. 104, which was also contained in the Bar Council's March 2012 submission. I am opposing this amendment. In essence, the Government's amendments set out detailed provisions regarding how complaints regarding inadequate services, excessive fees and misconduct will be processed and investigated by the new legal services regulatory authority, the complaints committee and the legal practitioners' disciplinary tribunal.

On amendment No. 105, section 48 provides that the authority may make regulations prescribing the fee, if any, payable in respect of making a complaint. I assure Deputies that it is not intended that any such fee be a disincentive to the public in their making of complaints.

I am unable to accept amendment No. 106, in the name of Deputy Finian McGrath, on the grounds that it represents a watering down of the authority's power to expect and enforce co-operation and compliance by legal practitioners with the authority and essentially shifts that regulatory oversight power to the High Court in a way that I cannot accept.

Amendments Nos. 107 and 108 relate to section 47, which sets out the criteria for the admissibility of complaints of misconduct. It has been slightly amended from the admissibility of complaints section which was in the published Bill by the admissibility of complaints regarding inadequate services. A complaint under this Part will not be considered by the authority if, in the opinion of the authority, it is deemed to be frivolous or vexatious or if it is without substance or foundation or does not satisfy the other criteria prescribed in the section. Where the authority determines that it will not consider a complaint, it will have to notify the complainant in writing setting out the reasons and also notify the legal practitioner. On determining under this section that it will consider a complaint, the authority shall proceed to investigate the complaint subject to the resolution and complaints provisions that we discussed earlier.

Amendment No. 109 provides for the creation, along with the admissibility procedures, of a new preliminary review of complaints section, namely, section 50, which will enable the authority to conduct a preliminary review of the complaint to determine whether or not the complaint is admissible and whether it is an appropriate complaint to be dealt with by the authority offering assistance in resolving the matter - section 51 - or whether the complaint should be sent to the complaints committee.

I hope I have explained all the amendments that I have proposed and responded to the amendments tabled in the names of Opposition members.

On amendments Nos. 104 and 106, I take the Minister's point that it is important that we be careful on the issue of supervised self-regulation. I am supportive of the independence of regulation. However, it is important also that the views of members of the Bar Council, who are the people working in this area, are, by way of amendment, put on the record for consideration by the Minister and his officials, who may take on board some of the ideas proposed therein. While I do not necessarily agree with every amendment proposed, it is important that they be put forward during Committee Stage consideration of the Bill.

Amendment agreed to.
Amendments Nos. 99 and 100 not moved.
Section 45 deleted.
NEW SECTION

I move amendment No. 101:

In page 46, before section 46, to insert the following new section:

46.—(1) Subject to the provisions of this Part, on or after the coming into operation of this Part, where a person wishes to make a complaint that a legal practitioner has, by act or omission, been guilty of misconduct, the complaint shall be made to the Authority.

(2) Subsection (1) shall not act to prevent the Authority or a person who is aggrieved by the act or omission of a legal practitioner seeking assistance from a person with a view to resolving the matter to which a complaint relates.

(3) In reckoning any period of time for the purposes of any limitation period in relation to the making of an application for adjudication of a bill of costs under Part 9 which bill of costs is or has been the subject of a complaint under this Part, the period beginning on the making of a complaint to the Authority and ending 2 months after the complaint is determined under this Part shall be disregarded.”.

NEW SECTION

Amendment agreed to.
Amendment No. 102 not moved.
Section 46 deleted.

I move amendment No. 103:

In page 46, before section 47, to insert the following new section:

47.—(1) The Authority may make regulations regarding—

(a) the making of complaints to the Authority under this Act, and

(b) the procedures to be followed by the Authority and the Complaints Committee in investigating complaints under this Act.

(2) Without prejudice to the generality of subsection (1) regulations made under this section may provide in particular for the extension or abridgement by the Authority or the Complaints Committee of any period specified in the regulations for the doing of any thing, where the Authority or the Complaints Committee are satisfied that it is appropriate to do so and granting the extension or abridgement would not cause an injustice to the other parties to the complaint.

(3) The Authority shall, in making regulations under this section, have as an objective that the manner in which complaints may be made, and the procedures to be followed by the complainant, the legal practitioner concerned and the Authority are as informal as is consistent with the principles of fair procedures and that undue expense is not incurred by the complainant or the legal practitioner concerned in relation to the complaint.”.

Amendment agreed to.
Amendment No. 104 not moved.
Section 47 deleted.
NEW SECTION

I move amendment No. 105:

In page 47, before section 48, to insert the following new section:

48.—The Authority may, with the consent of the Minister for Public Expenditure and Reform, make regulations prescribing the fee (if any) payable in respect of making a complaint made under this Act and the regulations may specify the circumstances in which the fee shall be refunded.".

NEW SECTION

Amendment agreed to.
Amendment No. 106 not moved.
Section 48 deleted.

I move amendment No. 107:

In page 48, before section 49, to insert the following new section:

49.—(1) A complaint shall not be considered by the Authority if in the opinion of the Authority—

(a) it is frivolous or vexatious, or

(b) it is without substance or foundation.

(2) The Authority shall not consider a complaint in respect of a legal practitioner under this Part where it is satisfied that the act or omission to which the complaint relates is the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that legal practitioner which was previously determined under this Act.

(3) The Authority shall not consider a complaint in respect of a solicitor where it is satisfied that the act or omission to which the complaint relates is—

(a) the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that solicitor which was previously determined under the Solicitors Acts 1954 to 2013—

(i) by the High Court,

(ii) by the Solicitors Disciplinary Tribunal,

(iii) by the Solicitors Disciplinary Committee, or

(iv) by the Law Society,

or

(b) the same or substantially the same act or omission as that which was the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has been made by the court in those proceedings in favour of the solicitor concerned.

(4) The Authority shall not consider a complaint in respect of a barrister where it is satisfied that the act or omission to which the complaint relates is—

(a) the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that barrister which was previously determined by the Barristers’ Professional Conduct Tribunal, or

(b) the same or substantially the same act or omission as that which was the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has been made by the court in those proceedings in favour of the barrister concerned.

(5) (a) Where the Authority is satisfied that the act or omission to which a complaint relates is the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has not been made by the court in those proceedings, the Authority may defer consideration of the complaint until the proceedings have been finally determined.

(b) Where the Authority is satisfied that the act or omission to which a complaint relates has been investigated by a court in civil proceedings or criminal proceedings and that a final determination of the issues which are, in substance, the issues involved in the complaint has been made by the court in those proceedings in favour of the legal practitioner concerned, the Authority may decide to take no action or no further action in relation to the complaint.

(c) Proceedings shall not be regarded as finally determined for the purposes of paragraph (a) or (b) until any appeal, rehearing or retrial in relation to those proceedings has been determined.

(6) Where the Authority determines under this section that it will not consider a complaint, the Authority shall, where appropriate—

(a) notify the complainant in writing of its determination,

(b) state the reason(s) for the determination,

(c) notify the legal practitioner, if appropriate,

(d) take no further action in relation to the complaint,

(e) refer the person to a more appropriate body.

(7) On determining under this section that it will consider a complaint, the Authority shall, subject to the resolution and complaints provisions, proceed to investigate the complaint.".

Amendment agreed to.
Amendment No. 108 not moved.
Section 49 deleted.
NEW SECTION

I move amendment No. 109:

In page 48, before section 50, to insert the following new section:

50.—(1) Where the Authority receives a complaint it shall conduct a preliminary review of the complaint to determine—

(a) whether or not the complaint is admissible, and

(b) whether the complaint is an appropriate complaint to be dealt with under section 51*, or Chapter 2**.

(2) The review referred to in subsection (1) shall be conducted by a member of the staff of the Authority authorised in writing to conduct such reviews (the reviewer).

(3) In conducting the review under this section, the Authority may notify the legal practitioner concerned of the making of the complaint and invite the legal

practitioner to respond to the Authority in relation to the complaint.".

Amendment agreed to.
Amendment No. 110 not moved.
Section 50 deleted.
NEW SECTION

Amendments Nos. 111 to 114, inclusive, and 116 are related and will be discussed together by agreement.

I move amendment No. 111:

In page 49, before section 51, to insert the following new section:

51.—(1) Where the member of the staff of the Authority who conducted a review of a complaint under section 50* is of the opinion that—

(a) the main substance of the complaint is that the standard of the legal services provided by the legal practitioner concerned to the complainant, has fallen short, to a substantial degree, of the standard reasonably expected of a legal practitioner in the provision of those services and that the act or omission of the legal practitioner, if the complaint were substantiated, is such that the act or omission concerned could constitute misconduct within the meaning of section 45(1)(b)**,

(b) the act or omission on the part of the legal practitioner which is the subject of the complaint does not relate to fraud or dishonesty,

(c) the matter the subject of the complaint is capable of being substantially resolved by the legal practitioner concerned in a prompt manner in accordance with guidelines published by the Authority pursuant to section 55***,

the Authority may invite the complainant and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint.

(2) The agreement by the complainant and the legal practitioner to make efforts to resolve the matter the subject of the complaint shall not prevent the Authority continuing with its consideration or investigation of the complaint.

(3) Notwithstanding subsection (2), where the Complaints Committee, the Disciplinary Tribunal or the High Court is satisfied that an act or omission of a legal practitioner the subject of a complaint has been resolved or that proper effort was made by the legal practitioner concerned to resolve the matter in accordance with this section, the Complaints Committee, Disciplinary Committee or the High Court, as the case may be, shall, in determining the appropriate sanction (if any) that should be imposed upon the legal practitioner, give due regard to the efforts to resolve the matter made by the legal practitioner concerned.”.

Under the new section 51, the authority may offer assistance in resolving the matter in dispute where it appears that the conduct would constitute misconduct but it is felt by the staff member carrying out the preliminary review that the subject matter of the complaint is capable of being substantially resolved by the legal practitioner concerned in a prompt manner in accordance with the authority's guidelines. It is important to note that the act or omission which is the subject of the complaint cannot relate to fraud or dishonesty, which is to be dealt with separately under the conduct regime. The agreement by the complainant and the legal practitioner to make efforts to resolve the matter does not prevent the authority continuing its consideration or investigation of the complaint. I refer members to section 51(2) in that context. However, if the complaints committee of the disciplinary tribunal of the High Court is satisfied that an act or omission of a complaint has been resolved by the legal practitioner or that proper effort was made by him or her to resolve the matter, then, in determining the appropriate sanction, due regard must be had to the efforts made to resolve the matter.

On amendment No. 113, section 52 provides that no answer or statement by the complainant or legal practitioner in the course of attempting to resolve a complaint under section 51 may be used in any disciplinary, civil or criminal proceedings or communicated to any other person.

On amendment No. 114, which relates to section 53, which provides that the agreement by the legal practitioner to participate in the resolution of the matter under section 51 shall not be treated as an admission of liability. This is to encourage a resolution of a matter, if possible. It is then left to the authority to determine how matters should be dealt with thereafter if a resolution is effected.

On amendment No. 116, section 55 provides that the authority shall prepare and publish guidelines in relation to the resolution of complaints by mediation or informal means. The guidelines may set out the process whereby a determination can be made in respect of whether a complaint can be resolved by mediation or informal means. This allows the authority to give some indication of the approach to be taken by way of guidelines in respect of mediating complaints or their being informally resolved.

Amendment agreed to.
Amendment No. 112 not moved.
Section 51 deleted.
NEW SECTIONS

I move amendment No. 113:

In page 51, before section 52, but in Chapter 1, to insert the following new section:

52.—(1) No answer or statement made, in the course of attempting to resolve a complaint in the manner specified in section 51*, by—

(a) the complainant, or

(b) the legal practitioner who is the subject of the complaint,

may be used in any disciplinary, civil or criminal proceedings or communicated to any person other than the persons participating in the attempt to resolve the complaint.

(2) Any costs arising from an attempt to resolve a complaint in the manner specified in section 51* shall be borne equally by the parties to the complaint unless the parties agree otherwise.".

Amendment agreed to.

I move amendment No. 114:

In page 51, before section 52, but in Chapter 1, to insert the following new section:

53.—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* shall not be taken as an admission of any allegation of misconduct insofar as such misconduct consists of an act or omission on the part of the legal practitioner that in the provision of legal services the legal practitioner has fallen short to a substantial degree of the standards reasonably expected of a legal practitioner.".

Amendment agreed to.

Amendments Nos. 115 and 117 to 119, inclusive, are related and will be discussed together.

I move amendment No. 115:

In page 51, before section 52, but in Chapter 1, to insert the following new section:

54.—Where the complaint relates to a solicitor and the Authority considers that the complaint or a part of the complaint would constitute fraud or dishonesty on the part of the solicitor, if substantiated, the Authority may—

(a) proceed to carry out an investigation under Part 5*,

(b) refer the matter to the Complaints Committee, or

(c) request the Law Society to carry out an investigation under the Solicitors Acts 1954 to 2013.".

This is a series of further amendments. Section 54 deals with complaints relating to fraud and dishonesty and is thus very important. It enables such fraud and dishonesty complaints to be dealt with expeditiously in their own right and in the public interest.

Government amendment No. 117 deals with the complaints committee. The cluster of amendments relating to a new Chapter 2 deals with the consideration of complaints for the complaints committee. As such, it develops many of the sections dealing with the complaints procedures currently in the Bill as published. Section 56 provides that the authority will establish a committee, to be known as the complaints committee, for the purpose of considering and investigating complaints referred to by the authority. A key change from the published Bill is that the requirement for the approval of the Minister for the appointment of members of the committee has been removed.

Another key change is an increase in membership of the committee from 16 to 27 members so as to prevent any backlog of complaints developing, and so there is not an undue pressure or amount of work imposed on a small number of members. The Law Society would nominate eight members where it would previously have nominated three members, and the Bar Council would nominate four members where it would previously have nominated three members. The greater increase in the Law Society nominations reflects the reality that there are significantly more solicitors than barristers in the State, at a ratio of five to one.

It is also envisaged that the complaints committee may act in divisions of five members as well as divisions of three members. Each divisional committee will have a majority of lay members, one of whom will be the chairperson. Where a complaint relates to a solicitor, the divisional committee comprises three members, with one member being a solicitor. Where a complaint relates to a solicitor and a divisional committee comprises five members, two of the members will be a solicitor. Where the complaint relates to a barrister the same ratio will apply regarding barrister composition of the divisional committees.

We have made a slight amendment to section 56(4), dealing with the appointment of the lay members of the complaints committee. The lay members will be persons independent of the legal practitioners' professional bodies and will have an expertise in or knowledge of the provision of legal services; the maintenance of standards in a profession, including those regulated by a statutory body; the investigation and consideration of complaints relating to services; and the interests of consumers of legal services.

Government amendment No. 118 develops section 57, dealing with the investigation of complaints. When referring a complaint to a divisional committee, the authority will now prepare a summary of the complaint which will be furnished to the divisional committee. The divisional committee will also furnish the legal practitioner with a copy of the complaint and request his or her response unless the legal practitioner has already been furnished with a copy of the complaint. Where the divisional committee receives an explanation from the legal practitioner concerned indicating that the act or omission did not constitute misconduct, it must furnish a copy of the explanation to the complainant, inviting the complainant to furnish his or her observations on the explanation of the legal practitioner. Where the response of the legal practitioner does not satisfy the divisional committee that the act or omission did not constitute misconduct and where the legal practitioner does not furnish a response within the period specified in the notice, the divisional committee will take such steps as it considers appropriate to investigate the complaint.

Section 57(6) deals with investigating a complaint. The divisional committee will have regard to information furnished to it by the authority and may by notice in writing to the complainant do one or more of the following: require the complainant to verify, by affidavit or otherwise, anything contained in the complaint; request the complainant to supply to the committee such information or documents relating to the complaint as it may require; and require the legal practitioner, the subject of the complaint, to supply the committee with such information or documents as it may require.

The divisional committee may now require the complainant and the legal practitioner to appear before the committee for the purpose of investigating the complaint. The complainant and the legal practitioner may be represented by a person of their choice before the divisional committee. The costs of such representation will be borne by the person who requested it. Another new feature contained in section 57(11) is that if a complaint is withdrawn when it is being investigated by the divisional committee, the committee may decide that no further action be taken or may proceed as if the complaint had not been withdrawn. Like section 51(4) of the published Bill, the amendments of section 57(12) provide that where the divisional committee determines that the act or omission does not constitute misconduct it shall advise the complainant and the legal practitioner in writing, setting out the reasons for its determination.

Government amendment No. 119 is next. As in the published Bill, if the divisional committee determines that the act or omission which is the subject of the complaint constitutes misconduct but that such conduct is not of a kind that needs to be referred to the legal practitioners' disciplinary tribunal, the divisional committee can issue a direction to the legal practitioner under section 58. We have extended the number of sanctions that the committee may specify, taking account of the existing regime and submissions received. For example, there may be a direction that the legal practitioner take such other action in the interest of the client as the committee may specify; or a direction to the legal practitioner to pay a sum not exceeding €5,000 as compensation for any financial or other loss suffered by the client in consequence of any such inadequacy in the legal services provided or purported to be provided by the legal practitioner, provided that any such payment made in compliance with the direction shall be without prejudice to any legal right of the client.

It is now open to the complaints committee to issue one or more of the measures contained in section 58(5)(a) to (i). Where the legal practitioner complies with each such direction the complaint shall be considered determined. It is also open to the complaints committee under section 58(6)(a) and (b) to caution, admonish or reprimand the legal practitioner in respect of the act or omission the subject of the complaint, or direct the Law Society, in the case of a solicitor, to impose a specified restriction or condition on the practising certificate of the legal practitioner concerned. In the case of a barrister, the divisional committee may direct the chief executive of the authority to impose a specified restriction or condition on the legal practitioner concerned in respect of his or practice as a barrister.

It is now provided that the legal practitioner must consent to the sanction in writing on the advices of the Office of the Attorney General. A recent case involving the disciplining of a medical practitioner by the Medical Council held that the High Court would be the only body empowered to issue such a sanction. The divisional committee will therefore notify the legal practitioner of the precise measure it proposes to take. The notification will indicate that unless the legal practitioner concerned furnishes to the divisional committee his or her consent in writing to the imposition of the specified measures within 21 days of the notice, the divisional committee will apply to the legal practitioners' disciplinary tribunal for the holding of an inquiry into the complaint by the tribunal under this part. Where the divisional committee does not receive the written consent within 21 days, it shall apply to the legal practitioners' disciplinary tribunal for the holding of an inquiry by it into the complaint in so far as the committee has not found that the complaints are unfounded or that the act or omission concerned does not constitute misconduct.

Where the divisional committee considers that the act or omission, the subject of the complaint, constitutes misconduct of a kind that is more appropriate for consideration by the legal practitioners' disciplinary tribunal, it has the discretion to make an application to it in respect of the matter for the holding of an inquiry under section 60. In determining whether it would be more appropriate for the complaint to be considered by the tribunal, the complaints committee shall have regard to the extent of the misconduct which was disclosed and the cost of the investigation of the complaint by the complaints committee.

I appreciate that there is a substantial amount of information in that, but I considered it appropriate to go through the detail of what is proposed and the modalities or mechanics of how the new architecture will operate in practice. The time has been used well to flesh out in greater detail matters that were originally dealt with in more brevity in the original Bill and to address any issues of concern that arose from the submissions we received.

May I speak on amendment No. 115?

You may speak on any of the amendments we are discussing.

I welcome amendment No. 115. Fraud and dishonesty are huge issues in society. We have seen in recent years how greed and dishonesty among a group of members of the legal profession, particularly during the Celtic tiger years, led to major damage. It is not just in the legal profession; we have also seen it in politics, business and the church. We need amendments such as this to ensure there is public confidence in the professions, and in this case in the legal profession. Recently, many senior citizens in particular have expressed concern to me about the issue and whether they can have trust and confidence in the legal profession after some of the cases that have arisen. It is important when discussing amendment No. 115 that we also send a broader message to the legal profession with regard to the people who have let it down in the past. There had been very few negative or bad cases for 40 or 50 years but recently there has been a string of cases. My point is that the legal profession - the amendment adds to this - must earn the trust and respect of the population. One does not just get respect; one must earn it. Subsections (a), (b) and (c) deal with these issues.

Action must be taken to deal with this, because we all suffer the consequences. All citizens want a legal profession that is up-front, professional and impartial. Happily, the majority of people in the profession are doing an excellent job, but we must ensure that cases to which amendment No. 115 relates are dealt with in a professional, independent and impartial way.

I wish to make a point that Deputy McGrath reminded me of when he mentioned senior citizens. It has been said to me on numerous occasions that if a member of the public has a complaint against a member of the legal profession, be it a solicitor or barrister, when he or she approaches other members of the legal profession to assist in making the complaint, he or she might be told that the legal practitioner does not wish to get involved by taking the case or assisting the person. Often the person can be left in a situation in which it is not possible to get legal assistance, but he or she has no legal background. The question of how somebody can get assistance if he or she finds all the doors are shut might be worth considering. We cannot compel solicitors to take cases but perhaps there might be some avenue or approach whereby somebody can get assistance if he or she is totally frustrated and intimidated by the legal process. It is a point the Minister and the various societies might consider taking on board and addressing in some way.

Perhaps I could respond to two issues. Deputy Finian McGrath referred to a professional, independent and impartial system to adjudicate on allegations of misconduct and emphasised the importance of such a system being in place in which there can be public confidence to deal with fraud or dishonesty. That matter has been at the heart of this Bill since it was published - that is, to have a system in which there is public confidence and in which there can be no doubt of any description about the independence of the body dealing with adjudication matters. The body must not be perceived to be an arm of the legal profession, whether it is fair or unfair to so describe it, but must be seen to be independent, and it must have a series of principles prescribed which it must apply in dealing with allegations of fraud, misconduct or other types of misbehaviour. The philosophy behind the Bill sets out that objective from the start and in these provisions the time we have had has allowed us to tease out to a greater extent aspects of the architecture which I consider to be important.

That feeds in also to answering your question, Chairman. When this body is established, an individual who believes or alleges that he or she has been a victim of misconduct by a solicitor or barrister can, without requiring legal advice, make the complaint to the legal services regulatory authority and the authority will have an obligation to assess the matter in the manner detailed in the very extensive provisions we have been discussing this afternoon. He or she should not be intimidated. It is not a question of having to make a phone call to the Law Society or the Bar Council to make a complaint about somebody who is a member of either of those bodies. It is about contacting a body that is independent of each of the representative bodies of the two arms of the legal profession. I hope that at a very early stage in its life this body will be seen to be independent and will establish both its credibility and fairness by the manner in which it deals with complaints received. Its fairness in dealing with complaints, both to the complainant and the person who is the subject of the complaint, mean the proper procedures will apply. It will receive everything from spurious complaints to very serious and valid ones. We are trying to provide as detailed an architecture as possible to enable that to happen.

I endorse what the Chairman said regarding senior citizens and fear and intimidation. In one of the complaint cases I am aware of, the woman concerned has been dealing with her complaint case for six years.

We cannot go into that now.

I do not wish to go into detail, but just to make the point that as well as being independent and impartial, the new authority must be efficient.

Obviously it must also be user-friendly for the citizen.

Amendment agreed to.

I move amendment No. 116:

In page 51, before section 52, but in Chapter 1, to insert the following new section:

55.—The Authority shall prepare and publish guidelines in relation to the resolution of complaints by mediation or informal means and those guidelines may —

(a) set out the process whereby a determination can be made in respect of whether a complaint can be resolved by mediation or informal means,

(b) provide for the recording of the manner in which a complaint was resolved and of the terms of any agreement between the complainant and the legal practitioner the subject of the complaint,

(c) outline the steps to be taken (including notice to the complainant, the legal practitioner concerned and the Complaints Committee) if the complaint cannot, in the opinion of the person attempting to do so, be resolved by mediation or informal means, and

(d) contain any other matters that the Authority considers necessary or appropriate for facilitating the resolution of the complaint by mediation or informal means.”.

Amendment agreed to.

I move amendment No. 117:

In page 51, before section 52, to insert the following new section:

“CHAPTER 2

Consideration of complaints by Complaints Committee

56.—(1) The Authority shall establish a committee, to be known as the Complaints Committee, for the purpose of considering and investigating complaints referred to it by the Authority under this Act.

(2) The term of office of the Complaints Committee shall be determined by the Authority.

(3) The Complaints Committee shall be appointed by the Authority and shall consist of not more than 27 members of whom—

(a) the majority shall be lay persons,

(b) not less than 8 shall be persons nominated by the Law Society, each of whom has practised as a solicitor for more than 10 years, and

(c) not less than 4 shall be persons nominated by the Bar Council, each of whom has practised in the State as a barrister for more than 10 years.

(4) In appointing lay persons to be members of the Complaints Committee the Authority shall ensure that those members are persons who—

(a) are independent of professional bodies as respects legal practitioners, and

(b) have expertise in or knowledge of—

(i) the provision of legal services,

(ii) the maintenance of standards in a profession (including those regulated by a statutory body),

(iii) the investigation and consideration of complaints relating to services, or

(iv) the interests of consumers of legal services.

(5) The Complaints Committee shall act in divisions of not less than 3 members and not more than 5 members (in this Act referred to as a “Divisional Committee”).

(6) A Divisional Committee shall consist of an uneven number of members.

(7) Each Divisional Committee shall have a majority of lay members.

(8) The chairperson of each Divisional Committee shall be one of the lay members of that Divisional Committee.

(9) The chief executive shall make arrangements for the provision of such administrative and secretarial support to each Divisional Committee as he or she considers necessary.

(10) Subject to subsections (6) and (7), where a complaint relates to a solicitor—

(a) in a case where the Divisional Committee is comprised of 3 members, one of the members of the Divisional Committee shall be a solicitor,

(b) in a case where the Divisional Committee is comprised of 5 members, 2 of the members of the Divisional Committee shall be a solicitor.

(11) Subject to subsections (6) and (7), where a complaint relates to a barrister—

(a) in a case where the Divisional Committee is comprised of 3 members, one of the members of the Divisional Committee shall be a barrister,

(b) in a case where the Divisional Committee is comprised of 5 members, 2 of the members of the Divisional Committee shall be a barrister.”.

Amendment agreed to.

I move amendment No. 118:

In page 51, before section 52, to insert the following new section:

57.—(1) A Divisional Committee shall consider and investigate complaints made under this Part referred to it by the Authority.

(2) When referring a complaint to a Divisional Committee the Authority shall prepare a summary of the complaint which document shall be furnished to the Divisional Committee with the complaint.

(3) Unless the legal practitioner to whom the complaint relates has already been furnished with a copy of the complaint, the Divisional Committee shall furnish a copy of the complaint to the legal practitioner concerned, requesting the legal practitioner to furnish his or her response to the complaint within such reasonable period as is specified by the Divisional Committee.

(4) Where the Divisional Committee receives an explanation from the legal practitioner concerned which indicates that the act or omission did not constitute misconduct it shall furnish a copy of the explanation to the complainant inviting him or her to furnish observations to the Divisional Committee in relation to the explanation of the legal practitioner within such a period as may be specified by the Divisional Committee.

(5) Where—

(a) the response of the legal practitioner does not satisfy the Divisional Committee that the act or omission did not constitute misconduct, or

(b) the legal practitioner does not furnish a response within the period specified in the notice,

the Divisional Committee shall, subject to the provisions of this Chapter, take such steps as it considers appropriate to investigate the complaint.

(6) For the purposes of investigating a complaint in accordance with subsection (1) the Divisional Committee—

(a) shall have due regard to information furnished to it by the Authority,

(b) may, by notice in writing to the complainant, do one or more of the following:

(i) require the complainant to verify, by affidavit or otherwise, anything contained in the complaint;

(ii) request the complainant to supply to the Committee, within a reasonable period specified in the notice—

(I) such information relating to the complaint as is specified in the notice, or

(II) such documents relating to the complaint as it may require,

(iii) require that information requested under subparagraph (ii) be verified by affidavit or otherwise,

and

(c) may by notice in writing to the legal practitioner the subject of the complaint require him or her to supply the Committee, within a reasonable period specified in the notice, with—

(i) such information relating to the complaint as is specified in the notice, or

(ii) such documents relating to the complaint as it may require.

(7) The complainant concerned shall comply with a notice issued to him or her by the Divisional Committee under subsection (6)(b).

(8) The legal practitioner concerned shall comply with a notice issued to him or her by the Divisional Committee under subsection (6)(c).

(9) The Divisional Committee may, having had due regard to—

(a) information furnished to it by the Authority,

(b) any information or documents provided to it by the complainant or the legal practitioner concerned under this section,

(c) any explanation furnished to the Divisional Committee by the legal practitioner concerned pursuant to this section, and

(d) any observations furnished by the complainant under subsection (3), require the complainant and the legal practitioner to appear before the committee for the purposes of the investigation of the complaint.

(10) The complainant and the legal practitioner may be represented by a person of their choice for the purposes of their appearance before the Divisional Committee and the costs of such representation, if any, shall be borne by the person who requested such representation.

(11) Where a complaint is withdrawn when it is being investigated by the Divisional Committee, the committee may—

(a) decide that no further action be taken in relation to the matter the subject of the complaint, or

(b) proceed as if the complaint had not been withdrawn.

(12) Where the Divisional Committee determines that the act or omission does not constitute misconduct it shall so advise the complainant and the legal practitioner in writing, giving reasons for the determination.

(13) The Divisional Committee shall make reasonable efforts to ensure that—

(a) the complainant is kept informed of all decisions made by the committee in relation to the complaint concerned,

(b) the committee acts expeditiously, and

(c) complaints are processed in a timely manner.”.

Amendment agreed to.

I move amendment No. 119:

In page 51, before section 52, to insert the following new section:

58.—(1) Where the Divisional Committee determines that the act or omission the subject of the complaint constitutes misconduct and that such conduct is of a kind that it does not warrant the making of an application in respect of the matter to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 60, it may—

(a) issue a direction to the legal practitioner concerned to take such measures as are specified in the determination of the Divisional Committee being measures specified in paragraphs (a) to (i) of subsection (5), or

(b) where the legal practitioner concerned so consents in writing take one of the measures specified in the determination of the Divisional Committee being a measure specified in paragraph (a) or (b) of subsection (6).

(2) Where the Divisional Committee issues one or more than one direction in accordance with subsection (1)(a) and the legal practitioner complies with each such direction the complaint shall be considered as determined.

(3) Where the Divisional Committee (with the consent of the legal practitioner concerned) takes one of the measures specified in subsection (1)(b) the complaint shall be considered as determined.

(4) The Divisional Committee shall not make a determination under subsection (1) unless the committee considers it to be a reasonable and appropriate manner of determining the complaint.

(5) The measures referred to in subsection (1)(a) are the following:

(a) a direction to the legal practitioner to perform or complete the legal service the subject of the complaint or a direction to the legal practitioner to arrange for the performance or completion of the legal service the subject of the complaint by a legal practitioner nominated by the complainant at the expense of the legal practitioner the subject of the complaint;

(b) a direction to the legal practitioner that he or she participate in one or more modules of a professional competence scheme and that he or she furnish evidence to the Authority of such participation within a specified period;

(c) a direction to the legal practitioner—

(i) that he or she waive all or a part of any fees otherwise payable by the complainant to the legal practitioner concerned, or

(ii) that he or she refund to the client some or all of any fees paid to the legal practitioner concerned in respect of the legal services the subject of the complaint;

(d) a direction that the legal practitioner take such other action in the interest of the client as the Committee may specify;

(e) a direction to the legal practitioner to comply with (in whole or in part) an undertaking given by the legal practitioner to another legal practitioner or to another person or body;

(f) a direction to the legal practitioner to withdraw or amend an advertisement;

(g) a direction to the legal practitioner to pay a sum not exceeding €5,000 as compensation for any financial or other loss suffered by the client in consequence of any such inadequacy in the legal services provided or purported to have been provided by the legal practitioner, provided that any such payment made in compliance with the direction shall be without prejudice to any legal right of the client;

(h) a direction to the legal practitioner to pay to the Authority a sum not exceeding €5,000 by way of contribution towards the costs incurred by the Authority in investigating the complaint;

(i) where the Divisional Committee has determined that the legal practitioner has in the course of the investigation refused, neglected or otherwise failed, without reasonable cause, to respond appropriately in a timely manner, or at all, to a written request from the Divisional Committee and that the Authority has incurred additional costs in relation to the investigation of the complaint in consequence of that refusal, neglect or failure, a direction to the legal practitioner to pay to the Authority a sum not exceeding €2,500 by way of contribution towards those additional costs incurred by the Authority in investigating the complaint.

(6) The measures referred to in subsection (1)(b) are the following:

(a) the issue of a caution, admonishment or reprimand to the legal practitioner in respect of the act or omission the subject of the complaint;

(b) the issue of a notice—

(i) in the case of a legal practitioner who is a solicitor, to the Law Society informing the Law Society of the determination of misconduct by the Divisional Committee and directing the Law Society to impose a specified restriction or condition on the practising certificate of the legal practitioner concerned, or

(ii) in the case of a legal practitioner who is a barrister, to the chief executive of the Authority of the determination of misconduct by the Divisional Committee and directing the chief executive to impose a specified restriction or condition on the legal practitioner concerned in respect of his or her practice as a barrister.

(7) (a) Subject to subsection (8) where the Divisional Committee considers that the act or omission the subject of the complaint constitutes misconduct of a kind that is more appropriate for consideration by the Legal Practitioners Disciplinary Tribunal than under this section, it may make an application in respect of the matter to it for the holding of an inquiry under section 60.

(b) In determining whether it would be more appropriate for the complaint to be considered by the Legal Practitioners Disciplinary Tribunal the Complaints Committee shall have regard to the extent of the misconduct which was disclosed in the course of the investigation of the complaint by the Complaints Committee.

(8) (a) Where the Divisional Committee considers that one of the measures specified in subsection (6) is the appropriate measure to be taken as respects the complaint it shall notify the legal practitioner concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be placed on the practising certificates of the legal practitioner, the precise restriction or condition) it proposes to take.

(b) The notification referred to in paragraph (a) shall indicate that unless the legal practitioner concerned furnishes to the Divisional Committee his or her consent in writing to the imposition of the specified measures within 21 days of the issue of the notification, the Divisional Committee will apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry into the complaint by the Tribunal under this Part.

(c) Where the Divisional Committee issues a notification pursuant to paragraph (b) and does not receive the written consent of the legal practitioner concerned within 21 days to the imposition of the specified measures, it shall apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry by it into the complaint in so far as the Committee has not found that the complaints are unfounded or that the act or omission concerned does not constitute misconduct.”.

Amendment agreed to.

I move amendment No. 120:

In page 51, before section 52, to insert the following new section:

59.—(1) The Authority shall publish, in such manner as the Authority considers appropriate, a report on the performance of its functions under this Part.

(2) A report referred to in subsection (1) shall include information in respect of the relevant reporting period of—

(a) the number and type of complaints received by the Authority under this Part during the relevant reporting period,

(b) the general nature and outcome of those complaints,

(c) the number of complaints referred to the Complaints Committee in the relevant reporting period,

(d) the outcome of those complaints which were considered by the Complaints Committee during the relevant reporting period including—

(i) the determination made by the Complaints Committee,

(ii) the nature of any misconduct found,

(iii) the measures taken by the Complaints Committee, and

(iv) where the Authority considers it appropriate, the name of the legal practitioner concerned.

(3) A report published under subsection (1) shall be published by the Authority at intervals no greater than 6 months.”.

This amendment is in respect of section 59, which provides that the authority report on the performance of its functions under this Part. The report shall include information such as the number and type of complaints received by the authority during the reporting period, the general nature and outcome of the complaints, the number of complaints referred to the complaints committee and the outcome of those complaints. It is envisaged that the report be published at intervals of no greater than six months.

Amendment agreed to.

Amendment No. 121 is in the names of Deputies Finian McGrath and Pádraig Mac Lochlainn. Acceptance of the amendment will involve the deletion of section 51.

I move amendment No. 121:

In page 51, before section 52, but in Chapter 2, to insert the following new section:

“52.—(1) When investigating a complaint, the Authority may, of its own initiative or at the request of the complainant or the professional body concerned, refer for the determination of the High Court any question of law arising in relation to the investigation of the complainant.

(2) The High Court may hear and determine any question of law referred to it under this section.

(3) If a question of law has been referred to the High Court under this section, the Authority shall not—

(a) make a finding to which the question of law is relevant while the reference is pending, or

(b) proceed in a manner, or make a decision, that is inconsistent with the determination of the High Court on that question of law.

(4) There shall stand established a body to be known as the Legal Practitioners Disciplinary Tribunal to consider applications brought before it by the Authority under section 54 as to whether a specified act or omission by a legal practitioner constitutes misconduct and to perform the other functions assigned to it by this Act.”.

At issue is the right to refer a matter to the High Court using a point of law. The amendment seeks to protect the rights which may become an issue anyway. That is what it is and it is straightforward.

I will be opposing the amendment, which was previously considered by me in the context of the Bar Council's March 2012 report. I consider the provisions of the Bill as amended in relation to the disciplinary tribunal and its relationship with the High Court to be more than adequate for the purposes of the Bill and its objectives. I will, in any event, be returning to this Part for further amendment on Report Stage. There are some further amendments, I think, that will add additional flesh to the provisions that we are dealing with today.

Is the Minister saying he believes he has addressed the concerns that my amendment sought to address?

I am saying I do not believe there is a need for the amendment.

Apologies. It is sometimes hard to translate what the Minister says.

In the context of the current law, and having regard to the content of the Bill as amended, I do not believe the Deputy's amendment is necessary. In the context of some of the issues that we are dealing with here, there are a small number of additional amendments we are considering that had not been dealt with or finalised with the Office of the Attorney General prior to the commencement of Committee Stage. Therefore, we may revisit some aspects of this Part, but at far less length than today, on Report Stage.

Is the Minister saying that the amendments he will introduce will be connected with amendment No. 121?

They are of relevance to the overall issue, but we do not believe there is a need for-----

Amendment No. 121.

-----and I am advised that there is not a need for the particular amendment that is proposed here. If the Deputies want to simply withdraw their amendment and bring it back in on Report Stage, in the context of the additional amendments we will introduce, then obviously I have no difficulty of any description with that. I hope we will be able to assure the Deputies that it is not needed in this context.

Deputy Mac Lochlainn can call it.

As the Minister well knows, these are matters for negotiation. Therefore, I will withdraw the amendment and see what happens at a later stage, if Deputy Finian McGrath agrees.

Amendment, by leave, withdrawn.
Section 52 agreed to.
SECTION 53

Amendment No. 122 is in the name of the Minister. Amendments Nos. 122 to 126, inclusive, are related and may be discussed together.

I move amendment No. 122:

In page 51, subsection (1), line 19, to delete “Government” and substitute “President of the High Court”.

The amendment provides that the disciplinary tribunal will now be appointed by the President of High Court rather than by the Government as a mark of the tribunal’s independence.

Amendment No. 123 provides that one of the persons nominated shall be appointed as chairperson of the disciplinary tribunal. Another key change has been the removal of the role of the Government in nominating the lay persons to the tribunal. The Minister must now ensure that the lay persons nominated to be members of the disciplinary tribunal are persons who are independent of the Government and the professional bodies and have knowledge and expertise as set out in the subsection - for example, in the provision of legal services, the interests of consumers, etc. The amendment also provides that the disciplinary tribunal can act in divisions of three and five members. At present each division is to have a majority of lay members, one of whom will be the chairperson, but I may be returning to this on Report Stage to ensure the effective chairing of the disciplinary tribunal.

I want to say that we are anxious to ensure that there is lay involvement. In the context of technical legal matters that could arise we are reconsidering whether the chairperson, in this instance, should in fact be one of the lawyer members, if I could put it that way, as opposed to a lay member. We will come back to that issue.

Government amendments Nos. 124 and 125 are minor technical amendments which I am told by the Parliamentary Counsel are necessary.

Government amendment No. 126 provides for the appointment of the chairperson of the disciplinary tribunal. The person appointed as chairperson may either be a legal practitioner who has practised for not less than ten years or, where the person is not a legal practitioner, have knowledge and expertise in one of the areas set out in the subsection. The chairperson shall be appointed by the President of the High Court from the persons nominated by the Minister for membership of the tribunal.

Does Deputy Mac Lochlainn wish to comment?

Does anybody else with to comment? No.

Amendment agreed to.

I move amendment No. 123:

In page 51, lines 28 to 43, to delete subsections (2) to (4) and substitute the following:

“(2) One of the persons appointed under subsection (1) shall be appointed as chairperson of the Disciplinary Tribunal.

(3) The Minister shall ensure that those lay persons nominated to be members of the Disciplinary Tribunal are persons who are independent of the Government and the professional bodies and have knowledge and expertise of—

(a) the provision of legal services,

(b) the maintenance of standards in a profession (including those regulated by a statutory body),

(c) the investigation and consideration of complaints relating to services,

(d) commercial matters, or

(e) the interests of consumers of legal services.

(4) The Disciplinary Tribunal shall act in divisions consisting of—

(a) an uneven number of members,

(b) a majority of lay members, and

(c) not less than 3 members and not more than 5 members.

(5) The chairperson of each division of the Disciplinary Tribunal shall be one of the lay members.”.

Amendment agreed to.

I move amendment No. 124:

In page 52, subsection (5), line 1, to delete “Subject to subsections (3) and (4) where” and substitute “Where”.

Amendment agreed to.

I move amendment No. 125:

In page 52, subsection (6), line 4, to delete “Subject to subsections (3) and (4) where” and substitute “Where”.

Amendment agreed to.
Section 53, as amended, agreed to.
NEW SECTIONS

I move amendment No. 126:

In page 52, before section 54, to insert the following new section:

54.—(1) The person appointed as chairperson of the Disciplinary Tribunal shall—

(a) where the person is a legal practitioner, have practised as a barrister or solicitor for not less than 10 years,

(b) where the person is not a legal practitioner, have knowledge and expertise of—

(i) the provision of legal services,

(ii) the maintenance of standards in a profession (including those regulated by a statutory body),

(iii) the investigation and consideration of complaints relating to services, or

(iv) the interests of consumers of legal services.

(2) The term of office of the chairperson shall be 5 years, and the chairperson may be appointed for a second term not exceeding 5 years.

(3) The chairperson shall be required to retire on attaining the age of 70 years.

(4) The chairperson shall be appointed by the President of the High Court from the persons nominated by the Minister for membership of the Tribunal.”.

Amendment agreed to.

Acceptance of amendment No. 127 would involve the deletion of section 54. Amendments Nos. 127 to 135, inclusive, are related and may be discussed together.

I move amendment No. 127:

In page 52, before section 54, to insert the following new section:

55.—An application for the holding of an inquiry by the Disciplinary Tribunal under this Part shall be made by the Authority.”.

This provides that an application for the holding of an inquiry by the disciplinary tribunal will be made by the authority.

Amendments Nos. 128 and 129 are two technical amendments. The word “legally” in “legally required” and “may legally require” has been deleted. Amendment No 130 provides that the inquiry by the disciplinary tribunal will be conducted by way of oral hearing and will be in public. It also provides that the disciplinary tribunal may direct that the hearing of the inquiry or any part thereof be held otherwise than in public where it is satisfied that it is necessary to do so in the interests of justice. Amendment No. 131 substitutes “Authority” for “complainant”. Amendment No. 132 provides that the tribunal may appoint an expert if it requires the advice or assistance of an expert in respect of any matter. Amendment No. 133 provides for a requirement to notify the parties of a determination and the reasons for that determination. Amendment No. 134 deletes the word “client” and substitutes “complainant”, as "complainant" is a more appropriate description in this instance. With regard to Government amendment No. 135, we have inserted a provision that the legal practitioners' disciplinary tribunal may direct that the legal practitioner pay a sum, not exceeding €15,000 as restitution, or part restitution, to any aggrieved party. The section is based on section 7(9) of the Solicitors (Amendment) Act 1960 and will strengthen the sanctions available to the disciplinary tribunal.

By way of clarification, I wish to confirm that I will be returning to the remaining provisions dealing with the legal disciplinary tribunal on Report Stage, when the remainder of the amendments have been finalised by the Office of the Parliamentary Counsel. I referred to that a short time ago and said that there are some additional amendments that the Parliamentary Counsel is still working on which are of relevance to this particular part of the Bill.

There cannot be more than 16 members of the disciplinary tribunal, but there is a concern that this may not be enough. Has the Minister reflected on the matter?

We are still reflecting on that matter. I do not have a closed mind on it. Just as we have increased the numbers in relation to the committee, we are giving further thought to that end of things as well.

Can the matter be examined?

If there is to be an increase in the numbers then we will be dealing with the matter on Report Stage.

Amendment agreed to.
Section 54 deleted.
Sections 55 and 56 agreed to.
SECTION 57

I move amendment No. 128:

In page 54, subsection (7)(b), line 9, to delete “legally”.

Amendment agreed to.

I move amendment No. 129:

In page 54, subsection (7)(b), line 12, to delete “legally”.

Section 57, as amended, agreed to.

Amendment agreed to.
SECTION 58

I move amendment No. 130:

In page 54, lines 41 to 47 and in page 55, lines 1 to 6, to delete subsections (2) to (5) and substitute the following:

“(2) An inquiry under this section shall be conducted by way of oral hearing and subject to subsection (3) shall be heard in public.

(3) Where the Disciplinary Tribunal are satisfied that it is necessary to do so in the interests of justice, it may direct that the hearing of the inquiry or any part thereof be held otherwise than in public.”.

Amendment agreed to.

I move amendment No. 131:

In page 55, subsection (8), line 12, to delete “complainant” and substitute “Authority”.

Amendment agreed to.

I move amendment No. 132:

In page 55, between lines 14 and 15, to insert the following subsection:

“(9) If the Tribunal considers that, for the purposes of the inquiry, it requires the advice or assistance of an expert in respect of any matter, it may, subject to such terms and conditions as it may determine, appoint such number of persons having expertise in relation to the matter concerned as it considers necessary to provide it with such advice or assistance.”.

Amendment agreed to.

I move amendment No. 133:

In page 55, between lines 20 and 21, to insert the following subsection:

“(10) A determination referred to in subsection (9) shall—

(a) be in writing,

(b) specify the reasons for the determination,

(c) specify the sanction to be imposed (if any) pursuant to section 59 or 60,

and

(d) be notified to the legal practitioner, the complainant, and the Authority.”.

Amendment agreed to.
Section 58, as amended, agreed to.
SECTION 59

I move amendment No. 134:

In page 56, paragraph (g), line 3, to delete “client” and substitute “complainant”.

Amendment agreed to.

I move amendment No. 135:

In page 56, paragraph (h), line 12, to delete “and” and substitute the following:

“(i) a direction that the legal practitioner pay a sum, not exceeding €15,000, as restitution or part restitution to any aggrieved party, without prejudice to any legal right of such party; and”.

Amendment agreed to.
Section 59, as amended, agreed to.
Sections 60 to 62, inclusive, agreed to.
SECTION 63

Amendments Nos. 136, 137, 141 to 143, inclusive, and 146 to 148, inclusive, are related and will be discussed together by agreement.

I move amendment No. 136:

In page 59, subsection (3)(b), between lines 8 and 9, to insert the following:

“(viii) in the case of a legal executive that the name of the legal executive be struck off the roll of legal executives.”.

These relate to the Irish Institute of Legal Executives, which seeks a degree of formal recognition as significant players in the provision of legal services. It has up to 600 members and has been in existence for almost 30 years. On Report Stage, I will seek recognition for membership of the authority. What are the views of the Minister in affording the institute formal recognition so that it can play a meaningful part in the overall regulation of the industry?

That is an issue for another day and not for this Bill. The Bill deals with solicitors and barristers and a range of regulatory issues relating to the issue of the legal professions. It is not my intention to extend the Bill to apply to other groups, including legal executives. It may be an issue for other legislation on another day but this is a substantial Bill and it is in the public interest that we get on with enacting it. If not for other pressures, I would have hoped for it to be enacted earlier. I do not intend to extend the ambit of the Bill to legal executives.

Can the Minister tell us why, given that legal executives are such major players in the industry?

The answer is that this is a Bill dealing with solicitors and barristers.

What about notaries public? We are getting representations asking why notaries public and legal executives are not dealt with in this legislation.

I could have given the same answer to Deputy Niall Collins. There is a broad range of other individuals engaged in matters of some relevance, directly or indirectly, to legal services such as notaries public, legal cost accountants, legal executives and others. I could go on in the context of the manner in which people describe themselves and their engagements. I am not in any way being critical of their engagements. There is an increasing number of legal executives doing a particular type of work but there is an important discussion that needs to take place in a public context. Legal executives are looking for rights of audience in the District Court and Circuit Court. Other issues involve training, legal expertise and the limits to which different individuals should engage in the legal profession without being fully trained as lawyers.

These are public interest issues and it is not about preserving anyone's patch. I am an enthusiast of the provision of legal services through alternative business mechanisms to make the legal profession more competitive and to give lawyers other business options through which to provide legal advice as well as giving the general public an opportunity to access legal advice. In the context of the Bill, we have a substantial agenda. I appreciate the role played by legal executives and others but that is for another day and requires a different discussion than incorporating it at this stage within the Bill or providing for their regulation through the legal services regulatory authority. In the public interest, we must enact this Bill, establish the legal services regulatory authority and have the new measures in place.

At a later date, we can deal with other bodies engaged in aspects of law and for whom there may be a need, in the public interest, for some form of regulation. One of the issues is to ensure that people do not claim to have expertise they do not have. As a consequence, members of the public may not always be well served. Issues must be considered and addressed and they transcend this Bill. The Bill is a comprehensive and complex introduction of substantial public interest reforms. It is not practical or appropriate to extend it at this time.

Can the Minister clarify his intention to bring forward legislation concerning legal executives?

No, I said it requires a far broader debate. I did not say I intended to bring forward legislation. If there were to be legislation, before any Government or Minister makes a decision, there is a need for a wider debate on the roles of legal executives, the outer limits of the roles and what education system should be put in place to ensure consistency of knowledge and education. We should also consider the extent to which legal executives have grown around the legal profession. There may be a number of individuals who are very competent in the work they do, styled as legal executives, and they may exclusively work on, for example, conveyancing and may have no expertise outside that, which they do very well and efficiently. Another individual may know something about law and the personal injuries area but, outside that, has no knowledge of expertise but acts as a legal executive in that area and works under the supervision of a solicitor. It is not simply a question of deciding to have legislation and then trying to search out what the legislation should prescribe. Public policy issues must be addressed including the diversity of roles legal executives currently play, whether it is in the public interest or not that they be regulated in a particular way, if they were to be regulated what should be the nature of the regulation and in what way could regulation ensure it worked appropriately and, to use that awful word I used earlier, seamlessly in its interaction with the legal professions as they operate.

How does one ensure a member of the public, if he or she approaches someone who is a legal executive rather than a barrister or a solicitor, has knowledge of the level of expertise of the individual with whom he or she is dealing? These are issues. I can tell the Deputy that, as a practising lawyer for many years, these are issues around which I have some concerns. There are some very good people working in confined areas as legal executives while there are some others who are legal executives but who may or may not have the qualifications to work in the areas in which they are working. A whole range of public interest issues need to be considered. I am not making a commitment to legislate but am saying that before we even get to that point, there is a whole range of policy issues which need to be considered in the context of the public interest. When some reasonable decisions are made on those, there is then the question as to whether there is or is not a need for legislation. The legislative provisions will not be contained in this particular Bill because of the need for us to bring to completion the legislative process in an area which is already as complex as it need be and which is providing for very substantial reform.

It is worth mentioning the legal profession as it is in this State and as it developed to 1922. Members might like to read the history of how the legal profession developed in England and Ireland, or how it evolved through the 17th, 18th and 19th centuries. It is in the form it is in more by accident than design for a whole range of reasons into which I will not go. The legal profession has not evolved or changed since 1922, as it has in other countries. This legislation provides the architecture for the possibility of evolution and change in the public interest and in the interests of those who are qualified lawyers and who have skills which can be utilised to generate income for them and skills which they can use in the interests of the public. The Bill provides for how that can be done in ways which reflect the way it is currently done in other ways while we completely update our provisions in regard to regulatory and disciplinary matters and deal with a broad range of legal cost issues in a manner which gives statutory expression to very important principles, some of which have been there for some time but which have not formed the part of our statute law. We have enough to deal with in this Bill without trying to extend its scope to an entirely different group of individuals.

Amendment put and declared lost.
Section 63 agreed to.
Sections 64 and 65 agreed to.
SECTION 66

I move amendment No. 137:

In page 59, subsection (2), between lines 30 and 31, to insert the following:

"(d) striking the name of a legal practitioner who is a legal executive off the roll of practising legal executives,".

Amendment put and declared lost.
Section 66 agreed to.
Sections 67 and 68 agreed to.
NEW SECTION

Amendment No. 138 is in the name of the Minister. Acceptance of this amendment involves the deletion of section 69 of the Bill. If amendment No. 138 is agreed, amendments No. 141 to 149, inclusive, cannot be moved. Amendments Nos. 138, 150, 151 and 154 are related while amendments Nos. 144, 145 and 149 are alternatives to amendment No. 138. Amendments Nos. 138, 144, 145, 149 and 150 to 152, inclusive, may be discussed together.

I move amendment No. 138:

In page 60, before section 69, but in Part 6, to insert the following new section:

"PART 6

Imposition of Levy on Professional Bodies and Certain Barristers to Cover Expenses of Authority and Disciplinary Tribunal

69.—(1) Subject to section 71, the following shall, in accordance with this Part, pay to the Authority in each financial year a levy in the amount determined in accordance with this section:

(a) the Law Society;

(b) the Bar Council;

(c) each barrister who is not a member of the Law Library.

(2) At the end of each financial year, the Authority shall, with the consent of the Minister for Public Expenditure and Reform, determine for the purposes of this section—

(a) the operating costs and administrative expenses that are properly incurred in that financial year by the Authority in the performance of its functions under this Act (in this section referred to as "approved expenses of the Authority"), and

(b) the operating costs and administrative expenses incurred in that financial year by the Disciplinary Tribunal in the performance of its functions under this Act (in this section referred to as "expenses of the Disciplinary Tribunal").

(3) The approved expenses of the Authority include—

(a) the remuneration (including allowances for expenses) of the members of the Authority,

(b) the remuneration (including allowances for expenses and superannuation benefits) of inspectors and members of the staff of the Authority,

(c) any superannuation contributions paid in respect of the members of the staff of the Authority out of moneys provided by the Oireachtas,

(d) fees due to consultants and advisers appointed under section 13,

(e) the cost of office premises, and

(f) any costs or expenses, not referred to in paragraphs (a) to (e), incurred by the Authority in the performance of its functions under Part 5.

(4) The Authority shall determine—

(a) the proportion of the approved expenses of the Authority that was incurred by the Authority in the performance of its functions—

(i) under Part 5, and

(ii) under this Act, other than Part 5,

and

(b) in relation to the approved expenses of the Authority referred to in paragraph (a)(i), the proportion of those expenses that was incurred by the Authority in the consideration and investigation of—

(i) complaints in respect of solicitors,

(ii) complaints in respect of barristers who are members of the Law Library, and

(iii) complaints in respect of barristers who are not members of the Law Library.

(5) The Authority, in consultation with the Disciplinary Tribunal, shall determine, in relation to the expenses of the Disciplinary Tribunal, the proportion of those expenses that was incurred by the Tribunal in the consideration of applications brought before it that concerned—

(a) complaints in respect of solicitors,

(b) complaints in respect of barristers who are members of the Law Library, and

(c) complaints in respect of barristers who are not members of the Law Library.

(6) The amount of the levy payable in each financial year shall be the sum of—

(a) the approved expenses of the Authority, and

(b) the expenses of the Disciplinary Tribunal,

in respect of the preceding financial year.

(7) The liability for payment of the amount referred to in subsection (6) shall be apportioned as follows:

(a) in the case of the proportion of the approved expenses of the Authority referred to in subsection (4)(a)(i)

(i) 10 per cent of that amount shall be apportioned pro rata between the Bar Council and the barristers who are not members of the Law Library, according to the number of barristers whose names are on the roll of practising barristers who are members of the Law Library and the number of barristers whose names are on that roll who are not such members, respectively,

(ii) 10 per cent of that amount shall be apportioned to the Law Society, and

(iii) the remaining 80 per cent of that amount shall be apportioned pro rata among the Law Society, the Bar Council and the barristers who are not members of the Law Library, respectively, according to the proportion, calculated under subsection (4)(b), of those expenses that was incurred by the Authority in the consideration and investigation of—

(I) complaints in respect of solicitors,

(II) complaints in respect of barristers who are members of the Law Library, and

(III) complaints in respect of barristers who are not members of the Law Library;

(b) the proportion of approved expenses referred to in subsection (4)(a)(ii) shall be apportioned pro rata among the Law Society, the Bar Council and the barristers who are not members of the Law Library, respectively, according to the number of solicitors on the roll of solicitors, the number of barristers on the roll of practising barristers who are members of the Law Library and the number of barristers on that roll who are not such members;

(c) in the case of the expenses of the Disciplinary Tribunal—

(i) 10 per cent of that amount shall be apportioned pro rata between the Bar Council and the barristers who are not members of the Law Library, according to the number of barristers whose names are on the roll of practising barristers who are members of the Law Library and the number of barristers whose names are on that roll who are not such members, respectively,

(ii) 10 per cent of that amount shall be apportioned to the Law Society, and

(iii) the remaining 80 per cent of that amount shall be apportioned pro rata among the Law Society, the Bar Council and the barristers who are not members of the Law Library, respectively, according to the proportion, calculated under subsection (5), of those expenses that was incurred in the consideration of applications brought before the Tribunal that concerned—

(I) complaints in respect of solicitors,

(II) complaints in respect of barristers who are members of the Law Library, and

(III) complaints in respect of barristers who are not members of the Law Library.

(8) The Authority shall—

(a) calculate, in accordance with subsection (7), the proportion of the amount referred to in subsection (6) that is payable by—

(i) the Law Society,

(ii) the Bar Council, and

(iii) the barristers who are not members of the Law Library,

and

(b) apportion the amount calculated under paragraph (a)(iii) equally among all barristers who are not members of the Law Library.

(9) As soon as practicable after the beginning of each financial year, the Authority shall provide a notice (in this Act referred to as a "levy assessment notice") to each of the bodies or persons referred to in subsection (1).

(10) A levy assessment notice shall specify—

(a) the approved expenses of the Authority in respect of the preceding financial year,

(b) the proportion of the approved expenses referred to in subparagraphs (i) and (ii) of subsection (4)(a),

(c) the proportion, calculated under subsection (4)(b), of the expenses referred to in subsection (4)(a)(i) that was incurred in the consideration and investigation of—

(i) complaints in respect of solicitors,

(ii) complaints in respect of barristers who are members of the Law Library, and

(iii) complaints in respect of barristers who are not members of the Law Library,

(d) the expenses of the Disciplinary Tribunal in respect of the preceding financial year,

(e) the proportion, calculated under subsection (5), of the expenses of the Disciplinary Tribunal that was incurred in the consideration of applications brought before it concerning—

(i) complaints in respect of solicitors,

(ii) complaints in respect of barristers who are members of the Law Library, and

(iii) complaints in respect of barristers who are not members of the Law Library,

(f) the amount of levy payable by the professional body or person concerned, calculated in accordance with subsection (7) and, where applicable, subsection (8)(b),

(g) the date by which the levy becomes payable, and

(h) the rate of interest payable if all or part of the amount specified under paragraph (f) is not paid by the date referred to in paragraph (g).

(11) The levy received under subsection (1) shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Public Expenditure and Reform directs.

(12) For the purposes of this section—

(a) a reference to the number of barristers whose names are on the roll of practising barristers shall be construed as a reference to the number of barristers whose names are on that roll during the financial year to which the expenses concerned relate, less the number of such barristers to whom section 71 applies, and

(b) a reference to the number of solicitors on the roll of solicitors is a reference to the number of solicitors on that roll in the financial year to which the expenses concerned relate, less the number of such solicitors to whom section 71 applies.

(13) In this Part—

"barrister who is not a member of the Law Library" means a barrister whose name, in the financial year to which the expenses concerned relate, is on the roll of practising barristers, where the entry concerned specifies that he or she is not a member of the Law Library, and "barrister who is a member of the Law Library" shall be construed accordingly;

"superannuation benefits" means pensions, gratuities and other allowances payable on resignation, retirement or death.".

I should say at the outset of these amendments dealing with Part 6 of the Bill why I must oppose, just for the time being, Opposition amendments Nos. 144 and 145 which relate to a matter the Law Society very recently put to me in written correspondence. I assure the Deputy that I will consider a reference to a register rather than a roll of practising solicitors and I will table such an amendment on Report Stage if, or when, I am satisfied it would represent a fairer calculation of the levy in regard to solicitors. However, I am afraid I cannot support the Deputy's attempt to protect the Bar Council from suit in the event that it refuses to pay a due levy and so I must oppose Opposition amendment No. 149.

Turning to the remaining Government amendments Nos. 138 and 150 to 152, inclusive, Part 6 of the Bill, as published, consists of two sections, namely, sections 69 and 70. I propose the deletion of both sections and their substitution with four new sections to provide in detail for a fair and equitable calculation and payment of a levy on legal practitioners in order to fund the operational expenses of both the legal services regulatory authority and the legal practitioners disciplinary tribunal. The original provision sought to achieve the same goal. However, the need for certain amendments came to light in the intervening period of time since publication in 2011. The new configuration of this Part reflects certain representations made by the Law Society and the Bar Council, in particular, and I believe their concerns that the levy terms should be balanced and fair will be allayed.

I will take the committee through the proposed new sections in sequence. The first is new section 69. This reflects a broadening of the traditional model of the provision of legal services by barristers and comprehends those barristers who choose to practise outside the Law Library. While barristers may continue to operate from the Law Library as sole traders, other persons who have been called to the Bar should, therefore, be permitted to offer their services outside that structure, including as employees. That is why section 69 now makes a distinction that there will be, for the propose of calculating the levy, three categories of practising legal practitioners, namely, solicitors, barristers who are members of the Law Library and barristers who are not members of the Law Library.

Subsection (1) provides that the Law Society will be responsible for paying to the authority the levy amount on behalf of solicitors. The Bar Council will be responsible for paying the levy on behalf of its members. Those barristers who are not members of the Law Library will be individually responsible for paying the levy directly to the authority. I will refine the practising status of these categories of legal practitioners for Report Stage.

Subsections (2) and (3) are essentially carried over from the published Bill and provide that the authority shall determine its and the tribunal's operating costs and administrative expenses at the end of the financial year. These costs are standard remuneration and accommodation costs found in many instances throughout the Statute Book.

Subsection (4) provides that these expenses shall be divided equitably between the three categories of legal practitioners. It is important to note here that the levy calculations are based on the proportions of the expenses incurred by the authority in the consideration and investigation of complaints in regard to three categories of legal practitioner and not an accrued calculation based on the proportion of complaints received in regard to each. This is an important distinction which reflects the fact that some investigations would be more complex and lengthy than others and it would be unfair to burden one category of legal practitioner with costs associated with a different category of practitioner.

Subsection (5) sets out that the authority, in consultation with the tribunal, will every year calculate how the expenses of the tribunal will be apportioned between the Law Society, the Bar Council and non-Law Library member barristers. Subsection (6) simply provides that the sum total of the levy payable will constitute the expenses of both disciplinary bodies, that is, the authority and the tribunal.

Subsection (7) is a detailed and somewhat technically complex provision to provide for the method of calculation in regard to the levy to be imposed on legal practitioners. This has been worked out in conjunction with Parliamentary Counsel and it takes cognisance of written representations made to me by various interested parties that the levy calculation in the Bill, as published, was in need of some finessing. The subsection is subdivided into three paragraphs. Paragraph (a) deals with the authority's expenses incurred in fulfilling its remit as a complaints handling disciplinary body. Paragraph (b) deals with the authority's expenses incurred in fulfilling its other non-complaints related functions as set out in section 9, which deals with the authority's functions. Paragraph (c) deals with the tribunal's expenses.

The calculation ratio is that 10% of the expenses incurred by the authority and the tribunal in their disciplinary related functions will be apportioned to the Law Society, 10% to all practising barristers, where they are not members of the Law Library, while the remaining 80% will be apportioned in proportion to the expenses incurred in the consideration and investigation of complaints in respect of three categories of legal practitioner. The expenses incurred by the authority in fulfilling its functions other than those relating to complaints will be apportioned pro rata between the three groups.

Subsections (9) and (10) provide that a levy assessment notice shall be sent at the end of each financial year to the relevant professional bodies or individuals, as the case may be, specifying the total due to be paid and the detailed breakdown of the final tally. The initial set-up costs for the new bodies will be paid for by the Exchequer on a recoupable basis via the levy. Subsection (11) sets out that the levy is to be paid to the Exchequer. The remaining subsections (12) and (13) are standard provisions to clarify terminology and references in this part of the Bill.

Section 70 is a commonsense provision to ensure the authority has sufficient power to compel payment of the levy by the relevant persons within a reasonable three month timeframe. Failure to pay the levy may result in an individual legal practitioner being prevented from providing legal services or may result in the authority suing the Law Society or Bar Council until payment is made. Section 71 provides for an exemption from payment of the levy for legal practitioners who are in the full-time service of the State. I will return to this particular provision again on Report Stage as it is intrinsically linked to the definitions of practising solicitor and practising barrister to which, as I flagged during the July 2013 Committee Stage hearing, I will be returning. This is due to the fact that those definitions had not been settled to the satisfaction of Parliamentary Counsel. Section 72 is a standard regulation-making provision that is to be found in the original Bill as published.

The Minister appreciates the issues involved here and has received representations from the various bodies on them, particularly the Law Society and the Bar Council. Both representative organisations want to ensure the levy is as fair as possible, based on the level of complaints against the legal practitioners they represent. I am disappointed at the register of solicitors. It is valid to point out that a register of solicitors would be much larger than any register of "practising" solicitors. The register should reflect those who are practising. I note that the Minister has indicated that he may address that issue on Report Stage. In my view, it is extremely important to address that issue. In fairness to the Law Society and the Bar Council, they are paying and have no problem with that. They have never indicated in their representations that they had a problem with paying and accept that they should pay for this new authority. However, they want the burden to be distributed fairly.

I ask that the Minister adds this to the agenda for his meeting with the Law Society to deal with their concerns around "practising" solicitors. The Bar Council has similar concerns. It is frustrating because we tried to table amendments that were ruled out of order because of a potential charge to the Exchequer. This issue does not involve any potential charge to the Exchequer. We are trying to engage with amendments to stimulate a discussion on these issues but our amendments are not being permitted. That is fair enough and we must accept Standing Orders as they are. It is reasonable that the bodies who are paying for this authority and are making it happen would be consulted on the question of making it as fair as possible. That is the purpose of the amendments that were ruled out of order and those that are still on the list.

I will respond by saying that there has been extensive engagement with both of the professional bodies. We have also had regard to any submissions we received. I would agree that any levy should apply to practising solicitors. We cannot levy the Law Society for retired, struck-off or deceased solicitors. No one is suggesting that we should do so. Indeed, there are one or two solicitors who are in prison and are no longer practising. We will engage appropriately on this issue and I can assure the Deputies that there has been extensive engagement, of a practical nature, to ensure the workings of this Bill are fair, both to those engaged in the professions and to the public, and that the public interest is protected. These are very important matters of concern. We must also ensure the Bill is fair to taxpayers in order that the public who are paying their taxes do not have to fund the system. There are nuances within the professions between practising solicitors, barristers who are members of the Law Library and barristers who are not members of the Law Library but who are practising. There are issues as to how these should be levied and there will have to be fairness in that context too in order that individuals, for example, are not required to pay for something from which they do not benefit or with which they do not engage. There are issues here that require further consideration. Submissions were made to us very recently on these matters to which I have given very detailed consideration. I will come back to any outstanding matters that need to be addressed on Report Stage.

At the outset I should state that I am a barrister, although I am on leave from the Law Library for the duration of this Dáil. While I welcome the Minister's amendment, I wish to express a reservation in respect of one part of it. I welcome the distinction and differentiation between barristers who are members of the Law Library and those who are not. The Minister discussed the fact that there are practising barristers who are not members of the Law Library. It is not as revolutionary as some will no doubt claim it is. The constitution of the General Council of the Bar of Ireland states that

The Council shall maintain a register of all practicing barristers and that register shall be maintained under the control of the Council by the Director of the Council and shall be in two parts consisting of respectively;

(a) All members of the Law Library; and

(b) All other persons who submit to the jurisdiction of the Council in accordance with the regulations in force from time to time.

Notwithstanding that and to use a legal term, the Bar Council has failed, refused or neglected to maintain a register of practising barristers who are not members of the Law Library. There has been a lot of discussion about the rule of law in the context of this Bill and potential damage to the rule of law, but one of the most basic tenets of the rule of law is that every organisation, even a ping-pong club, adheres to its own rules. Notwithstanding the fact that the Bar Council does not maintain a register of practising barristers who are not members of the Law Library, I am aware of a number of barristers who practise, particularly in the southern and south-western circuits, who are not registered. There is no mechanism by which they can be registered. While they are not doing anything unlawful in any way because there is no legal requirement for a barrister to have a practising certificate issued by anybody and the practice of issuing practising certificates is relatively new, they are not susceptible to any disciplinary mechanism or regulation by anybody. They could, of course, be subscribing members of the Law Library and it must be said there are two categories of subscribing members of the Law Library at present: those who are based in or near Dublin and those who are considered to be country members who are based further away from Dublin and would have less use for the Law Library. There are a number of barristers who, for whatever reason, do not see the Law Library as being of any benefit to them so they do not subscribe to it. The Law Library is undoubtedly of benefit to many barristers but that is a choice they make because there is a cost involved in subscribing to the Law Library. That cost, like all costs involved in the provision of any service, is eventually passed on to the consumer. One of the purposes of this Bill is to drive down legal costs and to bring at least a certain degree of transparency to them.

Notwithstanding all that, my concern is that there are three categories listed as being liable to pay a share, namely the Bar Council, the Law Society and barristers who are not members of the Law Library. However, barristers who are not members of the Law Library will still have to be on a roll of barristers somewhere.

That is not dealt with in the amendments.

Section 76 in Part 8 provides that the Bar Council shall maintain a roll. There is nothing wrong with that and it is not in conflict with what the Minister is introducing. My concern is that the Bar Council might seek to introduce a provision, whereby barristers who are not members of the Law Library may have to pay a contribution towards the regulatory costs as part of their practising fee or as a condition of the practising fee have to pay some of the cost of maintaining the Law Library, which would defeat the purpose of the Bill. I flag this as an issue which must be teased out in subsequent amendments. However, one of the great benefits of the Law Library is that it gives a fair degree of access to the profession of barrister and in theory at least, while the practice may be different, everybody gets an equal crack of the whip. There must be a system, similar to the solicitor's apprentice, whereby newly qualified barristers do a pupillage or devilling as it was referred to until quite recently. Clearly barristers will not be able to develop in their profession as in-house barristers with the banks or even as in-house counsel in the Houses of the Oireachtas.

In the Bar in Britain, there are sole practitioners who are on the roll of barristers held by the Bar Council of Britain but all barristers must undertake a pupillage and that is always done in chambers. I would like to see amendments to the Bill address the conditions that the Bar Council will be able to lay down to issue a practising certificate. For the first time in Irish law it will become unlawful for a barrister to practise without a practising certificate. We must consider the charges the Bar Council will be allowed to levy the practising barristers in Cork and the south west who are not members of the Law Library. Will they suddenly have to pay for the Law Library through the back door? Such a charge would defeat the purpose of the Bill.

This is an important issue. This is dealt with in section 51 of the UK Legal Services Act 2007 which provides that the payment of a fee which is a prerequisite to obtaining a practising certificate shall have to be approved by the regulatory body. That section sets out the permitted purposes for which the practising fee may be diverted towards and purposes for which the fee cannot be diverted towards. The fee can be diverted towards the promotion of the rule of law, human rights, interaction on behalf of the body and education. I have no doubt that some barristers will work in-house for banks, others will be sole practitioners and some will set up chambers. Some will frown on it. Some will say the Law Library is a bastion that must not change and that the profession must remain fossilised as it was in 1922, but there are others who will set up chambers. What is important is that all barristers contribute to the development of the profession and ensuring that there is equality of access to the profession and that one does not have a situation where 120 to 150 barristers come out of the King's Inns and only 30 of them get a pupillage. If one keeps the numbers very low, there are anti-competitive issues but there must be a degree of control over the practising fee and the purposes to which the practising fee can be diverted. We must ensure one of the purposes is to maintain access to the Bar and a training mechanism for the graduates of the King's Inns.

I have been very particular about the references to the levy to be paid by solicitors and barristers and by barristers who are members of the Law Library and those who are not to ensure the manner in which it has been dealt with is fair and appropriate based on a number of matters. The Deputy has raised an issue that is a little bit previous as this is dealt with in Part 8 and we will deal with it when we come to that Part. I do not want to go into the issue at this point in any great detail but consideration has been given to some of the issues he has raised. I will be tabling an amendment to deal with the levy that will arise in respect of practising barristers who are not members of the Law Library on the basis of that levy being paid to the legal services regulatory authority. The legal services regulatory authority will maintain the roll of barristers who are not members of the Law Library. There will be effectively a roll of barristers who are not members of the Law Library, which I understand does not exist at present.

The Deputy has raised an interesting issue with regard to members of the Bar who do not utilise the facilities of the Law Library and if they are practising barristers, presumably they have other expenditure on office outgoings and accessing legal journals or court judgments. We may need to give additional thought to that aspect but some of the issues the Deputy has raised will be dealt with when we come to Part 8 and circulate the next list of amendments. We will have an opportunity to further tease out those aspects of the matter. As I said earlier we will then have the opportunity on Report Stage to address issues that do not prove possible to address between now and the next Committee Stage debate.

Concern has been expressed about the proposed section 69 (11), which is being interpreted as a potential dividend being returned to Government. Is that interpretation correct? I would like the Minister to tease that out with us.

I am sure I would get a round of applause from my colleague, the Minister for Public Expenditure and Reform, Deputy Howlin if we were to return a dividend. That is not the way it works. Clearly there will be a start-up year and the State will have to deal with the cost of the start-up year. It is envisaged that the sums payable by the professions will be retrospective to a degree. I want to have another look at the modalities of the start up year and how the funding will work. I think there is a need for a transitional arrangement. Expenditure will be incurred and will be allocated in the manner prescribed in the Bill. The moneys that go back to the State will be to reimburse the State for expenditure the State has had to incur in relation to the functioning of the legal services regulatory authority and the Disciplinary Tribunal. There are issues of a transitional nature that we will be coming back to.

With the permission of the Chair, may I clarify that the Minister is stating that the Department will engage with the Law Society and the Bar Council to hear their concerns about the Minister's most recent amendment and that he will ensure there is a fair distribution of the levy and that he will deal with the number registered and the number practising?

We engage with great regularity with the Bar Council and the Law Society but I am anticipating further engagement in the coming days.

Amendment agreed to.

Amendments Nos. 139 and 140 have been ruled out of order.

Amendments Nos. 139 and 140 not moved.

Amendments Nos. 141 to 149, inclusive, cannot be moved.

NEW SECTION

Amendments Nos. 141 to 149, inclusive, not moved.
Section 69 deleted.

Acceptance of amendment No. 150 involves the deletion of section 70.

I move amendment No. 150:

In page 64, before section 70, to insert the following new section:

"70.—(1) If all or part of the amount specified in a levy assessment notice is not paid on or before the date specified in the notice, interest, at a rate calculated in accordance with regulations under section 72*, on the unpaid amount accrues from that date to the date of payment.

(2) Where a barrister who is not a member of the Law Library has not, within one month of the date on which the amount becomes payable, paid all of the amount specified in a levy assessment notice as payable by him or her in respect of the levy imposed by this Part, the Authority shall provide that barrister with a further notice, which shall—

(a) be accompanied by a copy of the levy assessment notice concerned,

(b) specify the rate of interest payable on the unpaid amount, and

(c) contain a statement of the effect of subsection (3).

(3) Where, after the expiry of 3 months from the date on which the amount, specified in a levy assessment notice as payable by him or her in respect of the levy imposed under this Part, becomes payable, a barrister who is not a member of the Law Library has not paid all of that amount together with any interest on the unpaid amount that has accrued in accordance with subsection (1) on that amount, the Authority shall remove the name of the barrister from the roll of practising barristers.

(4) Subject to subsection (5), the Authority may recover, as a simple contract debt in any court of competent jurisdiction, from the professional body or person concerned, any amount payable by that body or person in respect of the levy imposed by this Part and any interest that has accrued, in accordance with subsection (1), on that amount.

(5) For the purposes of subsection (4), where the professional body concerned is the Bar Council, proceedings may be brought against the Chairman of the Bar Council, in a representative capacity, on behalf of the Bar Council and, if in those proceedings the Authority obtains a judgment, order or decree for any amount payable by the Bar Council, any assets held by or on behalf of or for the benefit of the Bar Council may be used or otherwise applied towards satisfying all or any of the claims under the judgment, order or decree, as the case may be.".

NEW SECTIONS

Amendment agreed to.
Section 70 deleted.

I move amendment No. 151:

In page 64, before section 71, but in Part 6, to insert the following new section:

"71.—(1) Section 69(1) shall not apply in respect of a legal practitioner who is in the full time service of the State.

(2) No fee shall be payable by a legal practitioner to whom subsection (1) applies to the Law Society or Bar Council in respect of an amount of levy payable by that professional body under this Part.".

Amendment agreed to.

I move amendment No. 152:

In page 64, before section 71, but in Part 6, to insert the following new section:

"72.—(1) The Authority may by regulations provide for all or any of the following matters relating to the levy under section 69:

(a) the date on which payment of the levy becomes payable;

(b) the keeping by the Authority and the Disciplinary Tribunal of specified records in respect of matters connected with the liability to pay the levy;

(c) the collection and recovery of the levy;

(d) subject to subsection (2), the rate of interest on amounts not paid when due;

(e) such other matters as are necessary for, or incidental to, the imposition, payment and collection of the levy.

(2) Regulations under subsection (1) may prescribe a formula for determining the interest rate referred to in subsection (1)(d) by reference to—

(a) the prevailing Euro Interbank Offered Rate,

(b) an additional rate certified by the Central Bank of Ireland, and

(c) such other additional rate as the Minister considers appropriate, taking into account the cost of recovering unpaid levy, including any bank charges the Authority may incur in maintaining a bank overdraft to cover a shortfall in funds arising out of unpaid levy.".

Amendment agreed to.
Progress reported; Committee to sit again.