Solicitors (Amendment) Bill, 1998 [Seanad]: Committee Stage (Resumed).

Acting Chairman

I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Mary Hanafin, and her officials. We are resuming consideration of Committee Stage of the Solicitors (Amendment) Bill, 1998. I apologise to everyone for the late start. We are resuming debate on amendment No. 47 in the name of Deputy Shatter.


Debate resumed on amendment No. 47:
In page 9, before section 8, to insert the following new section:
"8.-For the removal of doubt a solicitor or solicitors may together with a barrister or barristers appear and act together as advocates in any proceedings.".
-(Deputy Shatter).

The Minister had indicated to me that he would give consideration to this amendment and that he might be amenable to incorporating it in the Bill. I do not intend to make a lengthy speech on this matter. Will the Minister of State indicate what the position is at this stage?

I do not think the issue arises but, given that my husband is a practising senior counsel, I would like to declare a possible interest in this.

Deputy Shatter may be slightly exaggerating what the Minister may have indicated on the last occasion. He indicated, however, that the need for this amendment was not apparent to him as he was not aware of any legal doubt about barristers and solicitors practising together. At the time, he also said he could not accept the amendment without seeking the views of the Bar Council on it. This has since been done and the Minister received the views of the Bar Council yesterday. This reply is critical of the Deputy's amendment and opposes its inclusion in the Bill. Obviously, the Minister, Deputy O'Donoghue, will have to consider the views expressed by the Bar Council, the position of the Law Society, and the arguments put forward by Deputy Shatter here the last day. It will be for the Minister to decide if it is appropriate to table an amendment on Report Stage.

The Minister is fully in favour of solicitors exercising their right of audience before all courts. This is evident from the provisions he has included in the Courts and Court Officers Bill, which will be discussed in the House tomorrow, for solicitors to be members of the High Court and the Supreme Court.

It comes as news to me that the Bar Council exercises a veto over Government policy and on what this committee does in relation to legislation. I would ask the Minister of State to put on the record of this committee the communication she has received from the Bar Council.

I have not received any communication. I said the Minister indicated that, in coming to his own conclusions prior to Report Stage, he would seek the observations of the Bar Council, which he has now received. He will take those into consideration along with the views of the Law Society and the views Deputy Shatter has expressed here.

I want to be absolutely clear. The Minister of State is representing her senior Minister. I am asking her now to inform the committee what representations her senior Minister has received on this issue, which is before this committee, from the Bar Council.

Yes, but they need representation.

What use is it? The Minister received a document, or something, yesterday from the Bar Council.

I am asking the Minister of State to put on the record of this committee what the Minister has received and what is contained in it.

The Minister did not receive any representations, he received views. I understand that those views contain——

But what views?

If the Deputy would like to give me an opportunity I would be happy to tell him. For example, there is the view that the Judiciary should be consulted about such a provision because it affects the administration of justice. There is the view that the amendment does not address the issue of precedence, that it does not address the position in relation to foreign lawyers. The views submitted outline that since the Courts Act, 1971, solicitors in this jurisdiction already have full rights of audience in all courts within the courts system and that, therefore, the amendment is unnecessary.

I thought this would be a short meeting because I assumed these issues had been decided. The Minister's amendment No. 45 sought to remove doubt about the achievement of a purpose he considered was already covered in the Bill. Similarly, the purpose of amendment No. 47, in the name of Deputy Shatter, is to remove doubt and explicitly state that barristers and solicitors could appear and act together as advocates, as the Minister indicated would be the case. I fail to understand why, if this is so, it cannot be explicitly stated in the Bill.

I considered this to be a straightforward issue but I am now alarmed at the information the Minister of State has put on the record and the manner of its presentation, which suggests that an external veto has been imposed on how we determine the legal profession should lawfully act in this State. Under the Constitution it is exclusively the prerogative for this House to make laws. To have it otherwise would be similar to deciding not to proceed with taxi deregulation because the Irish Taxi Drivers Federation said it was not possible. I am at a loss to understand why the Minister of State will not accept the amendment. If it is the practice there is no difficulty in overtly stating it. If it is not and if the views expressed by her and by members of the Opposition is to be undermined in some way we should know about it.

There is no question of a veto but it is a matter of ensuring there is full consultation. The Minister indicated he would be seeking the views of the Bar Council and they were received only yesterday. He is aware of Deputy Shatter's views and he will be obtaining those of the Law Society. The Minister considers that there is no legal doubt about this matter. The issue is not one of precedent per se, but of precedence of representation by advocates in the courts.

Will the Minister of State explain what she means? If there is no difficulty about it happening what has the issue of precedent got to do with it?

It is concerned with who takes precedence in appearing in the courts.

Is it the case that the Bar Council presumes that two lawyers working together on the one case could not work that out themselves? Is it a question of who sits on which seat or behind whom? This is a serious issue. Since 1971, this Parliament has allowed solicitors a right of audience in the courts and a restrictive practice is unofficially operating which means that, as a matter of practice, members of the Bar will not jointly appear as advocates with solicitors. That is to the detriment of the public and it makes litigation more expensive than need be the case. The occasional senior counsel has sufficient courage to ignore this practice but junior counsel will not do so because they fear it will affect their future practice and work they may get through their contacts with senior counsel.

It is time this came to an end. I ask the Minister of State to make available to members of the committee the full communication to which she has referred. It is extraordinary. I received a letter of 5 March - it must have been hand delivered to the House because it arrived yesterday - from the Director of the Bar Council making representations about the Courts and Court Officers Bill, Second Stage of which is due to be taken in the House tomorrow but the director did not have the courtesy to furnish to me or Deputy Howlin whatever communication the Minister of State has received on this proposal.

The Minister of State is coming late to the Bill and I do not wish to be discourteous to her. We had a very detailed exchange with the Minister at our previous meeting. The Opposition, especially Fine Gael, is facilitating him with regard to taking the Courts and Court Officers Bill tomorrow.

I am less facilitating on that than Deputy Shatter.

Both Opposition parties facilitated the Minister by agreeing to a meeting this morning. I apologise for my delay but it took me an hour to get here because of the total gridlock the Government has created from Ballinteer to the city centre.

If the Deputy had left earlier he would have got here like the rest of us.

This is a serious issue. What the Minister of State has said in the context of the representation she has received from the Bar Council discloses the reality of the situation. This is not about the consumer or the presentation of cases in court. I have appeared jointly with senior counsel in some cases. We have not had a difficulty about who makes submissions on what or who cross-examines which witness. I say that as a solicitor but this is something that needs to be addressed.

The Minister of State was not present at our last meeting when I spoke of the oddity of the correspondence I, as a solicitor, have conducted with two chairmen of the Bar Council. If it were to be published it would be of substantial public interest. This is a public interest issue, it is not about the vested interests of the solicitors' profession or the Bar.

Since 1971, this Parliament has given solicitors the right of advocacy in the superior courts. If clients decide to instruct a barrister with expertise in an area and a solicitor with expertise in another area to jointly present a case as advocates in courts they should be able to do so, not just in legal theory but in practice. The Bar should accept it as a reasonable occurrence in the context of lawyers who have such expertise.

The Minister, and now the Minister of State, have said this is not a problem because since 1971, solicitors have rights of advocacy in the courts. However, in view of the representations the Minster of State has received it appears to be a problem from the perspective of the Bar Council. Deputy Howlin pointed out that we accepted amendment No. 45, which is concerned with the removal of doubt about an issue of much less importance. In view of that, I urge that this amendment be accepted. I am not prepared to defer it to a curtailed Report Stage, which, given that we are coming to the end of the life of the Government, may be guillotined. I am prepared to debate this issue all morning if necessary.

The Minister gave me assurances that he would deal with this in a constructive way. I understood he would be present for this meeting and I regret he is not. I do not mean that as an insult to the Minister of State. I mention it because the Minister was present during the exchanges on the previous occasion. We arranged this meeting to facilitate him so as to allow us to complete this business before the Order of Business. Both Deputy Howlin and I have commitments on the Order of Business and if we cannot complete this issue we will have to return to it on another occasion.

I am not satisfied with what the Minister of State has said and I am alarmed by the nature of it. I did not discuss my amendment with the Law Society. I tabled it not as a solicitor with a vested interested but as one who has had experience of the manner in which the courts operate and has taken a public interest view of it. However, since the amendment was tabled I have been advised by the Law Society that it supports it.

In view of the legal position since 1971, this amendment should not be a problem because the practical legal reality is that there is nothing to stop one or two solicitors with one or two counsel, or one counsel and one solicitor where appropriate, jointly appearing and acting as advocates. There is no legal rule to prevent that but there is a practice and a difficulty.

In this context I represent members of the Bar when I say that some junior counsel will not say in public but will say in private that they fear being black-balled if they act jointly with a solicitor as advocate. If they act with a senior solicitor of 20 years' practise, who perhaps might in the context of presenting a case, play the lead role with the junior counsel playing the same junior role which he or she would play to a senior counsel, the junior counsel will not so deal with cases for fear of the way their elders will perceive them and deal with them. This is an issue which must be addressed in the public interest and it is a serious issue. I am not prepared to simply nod it away today on the basis the Minister will think about it.

This amendment was tabled perhaps two and a half months ago. Most of the amendments tabled by me and Deputy Howlin were tabled well before Christmas, I think some time in November. The Minister has had a long time to look at this and if we are not to get a satisfactory response today, I am not prepared to deal with the issue simply on the basis that we will come back on a guillotined Report Stage, which will be devised in a manner which will ensure this amendment will not be reached.

Acting Chairman

There are time constraints. I do not know if the Minister of State wants to respond to that, but we must conclude before 10.30 a.m.

There is another issue. I am probably out of order, but this is linked inexorably to the Courts and Court Officers Bill, 2001, Committee Stage of which is scheduled for tomorrow. The Minister of State will be aware that, because there will be no Order of Business tomorrow, the scheduling of that will be determined by the Order of Business today in ten minutes' time. I am opposed to ramming through the Courts and Court Officers Bill. There are a number of very important issues and pages of amendments with which I want to deal. There is one urgent issue, that is, the appointment of three additional judges to the Flood tribunal, which has been grafted into the Bill. This provision makes it urgent but it is not necessary to graft it into the Bill.

I am now asking that the simple one section Bill which I have published be taken by the Government so that the Minister of State might have a quick word with her senior colleague and the Government Whip before the Order of Business, and I propose that we adjourn and come back to this matter later in the day. The purpose of my Bill is simply to increase the number of Circuit Court judges from 27 to 30. I suggest that we take all Stages of that Bill tomorrow by agreement and then the three Flood tribunal judges can be appointed tomorrow.

The three people concerned are very angry because a couple of weeks ago they were told, and it was publicly announced, that they were to be made judges. They have cleared their desks in the Law Library and have had no work since then. It is grossly unfair. I do not want to be bulldozed through a Courts and Court Officers Bill to achieve what is right for them. I am asking that the Government agree to take all Stages of that simple one section Bill tomorrow and let the Flood tribunal judges be appointed, and then we can have a little more time to go into the necessary detail in the Courts and Court Officers Bill.

I am making that proposal. We need some time before the Order of Business for the Minister of State to confer with her senior colleagues. I hope the convenors are here to do that. Perhaps in the interim we could also have some rational agreement on the very fair amendment put forward by Deputy Shatter. I am proposing that, and that we adjourn now and come back to this later today.

The Minister, DeputyO'Donoghue, is aiming to be constructive by seeking the views of all those involved - the Bar Council, the Law Society. Whereas Deputy Shatter is correct in saying that his amendments have been tabled for some time, his views outlining the purpose of this amendment were heard here only on 26 February. As Deputy Shatter stated in his comments, there is no legal doubt and pursuing this amendment will not change the practice. One cannot get people to change the way they behave, which is, I think, what Deputy Shatter was saying, but he has acknowledged that there is no legal doubt. The Minister, Deputy O'Donoghue, aims to take on board all of the different views and to deal with it on Report Stage and, therefore, I will not be in a position to accept the amendment here today.

Acting Chairman

We have heard the Minister of State's response, but we have a proposal which raises serious issues of time and opportunity. Would the committee agree that we adjourn now to enable the Minister of State, Deputy Hanafin, to confer with her senior colleague, the Minister, Deputy O'Donoghue?

I am afraid I will not be available later in the day because I will be in the Seanad with the Ombudsman for Children Bill and the Public Health (Tobacco) Bill.

I would have a similar difficulty. I have tried in as much as it is humanly possible, as I know you have in the absence of the Chairman, to facilitate all members of the other side of the House. The debate on this amendment started when I was substituting in the Chair last week. It was dealt with for quite a long period of time. I requested Government members of the committee to be here at 9.45 a.m. this morning in the absolute sure knowledge that there would be a vote called on this because Deputy Shatter flagged that last week. I propose that we simply deal with the amendment at this stage. No more than the rest of the members of the committee, I cannot tear myself in three, four or five pieces. The Courts and Court Officers Bill is another issue on which I have tried to facilitate the other members of the committee. There does not seem to be agreement on it but it is not an issue for this amendment, and I propose that the amendment be now dealt with.

I disagree with that.

If there is a vote now, I will not be able to get to the Order of Business to do important business for this committee. If I am to be railroaded like that, I will not facilitate any other work of this committee to the end of this Parliament.

That is unfair. I was here at 9.45 a.m.

I was here too. I came from Wexford.

I propose that the amendment be put.

Acting Chairman

To facilitate the committee, may I ask the Minister of State, Deputy Hanafin, will the Minister, Deputy O'Donoghue, be available later today? There is a room available and it is a serious issue. Deputy McGennis, I can understand the point you are making in calling for a vote but there is the problem of running into the Order of Business when people need to be in the Chamber.

Yes, but we have now spent 40 minutes on an amendment which we dealt with last week. I asked members to be here at 9.45 a.m. this morning for this. Almost all of the Government's members are from the country and have travelled up for this. It is grossly unfair. It is just delaying the Bill, which needs to be dealt with. For somebody to say that barristers are afraid to do what they are legally entitled to do shows there is a great lack of spine by those who should have the courage of their convictions if they feel strongly enough to represent people.

The Minister of State's revelation of the communication she has received from the Bar Library——

It is not a revelation. Deputy Shatter requested it.

——makes absolutely clear the reality of the practice and the problems in this area. This Parliament has a role to play in setting out quite clearly what the law is in the context of this issue. This issue is not referred to in legislation. Even though we can say solicitors have a right of audience, the 1971 Act never dealt with the issue of how one squares the circle of solicitors and barristers acting jointly as advocates. This sets out quite clearly what——

Chairman, I propose that this amendment be dealt with.

Chairman, I did not interrupt Deputy McGennis and I would appreciate if she would not interrupt me.

He is making the same case he made last week.

We agreed to this meeting last week——

At 9.45 a.m. The Minister has come back and stated that she should look at it before Report Stage. He just cannot be satisfied.

Acting Chairman

Deputy McGennis, please.

——on the understanding that the senior Minister would be here. We were not told——

That is insulting to the Minister of State.

Chairman, I will not be barracked.

As a woman and as a senior Member of the Houses of the Oireachtas, it is insulting to the Minister of State present to state that he understood the senior Minister would be here.

Acting Chairman

Deputy McGennis, please.

I said that the senior Minister would be here on the basis that he was dealing with this Bill. There are Bills that DeputyHanafin has dealt with and there are Bills that the senior Minister has dealt with. It is not insulting, it is the reality.

Is that to suggest that the Minister of State is not capable of taking it?

No. We all know it is the senior Minister, who, as a member of Cabinet, will make decisions one way or another about this. With all due respect, it will not be Deputy Hanafin who will make decisions about this.

I want to make one thing clear. I indicated to the Minister, Deputy O'Donoghue, that we would co-operate with taking and completing the Courts and Court Officers Bill, but it was on the basis that he would deal with this issue in the way that I believed was in the public interest.

This is now bully-boy tactics. He is saying, "If I do not get my way, you will not get yours."

The bully-boy tactics applying here are that the Deputy has a majority.

This is the second meeting at which Deputy Shatter has attempted to talk this amendment through.

Chairman, I would ask you to ask Deputy McGennis to restrain herself.

The Deputy should restrain himself.

Acting Chairman

Deputy McGennis, I would ask you to allow Deputy Shatter finish.

I would ask——

The bells are calling us to the Dáil. It is quite obvious that the Opposition members have frustrated any attempt to deal with this Bill, which I thought Deputy Shatter thinks is important.

Acting Chairman

Deputy McGennis, in fairness, I must ask you to allow Deputy Shatter to conclude. It is his amendment.

It would seem to me, Chairman, we have no choice but to adjourn now because of the Order of Business. I do not think we have yet been advised whether the Minister, Deputy O'Donoghue, is available later in the day. If he is, I would be quite happy to facilitate him in taking this Bill later in the day.

In so far as Deputy McGennis or the Minister may make any comments about our starting ten minutes late today——

The meeting was 20 minutes late in commencing.

——I wish to point out that this legislation was published in 1998. We have, therefore, been waiting three and a half years to take Committee Stage. It is a bit thick for anyone to object to the fact that we may have to return to continue our proceedings for a further 30 minutes.

It is equally thick for someone to say that unless they get their way they will not play.

I propose that we adjourn. It was agreed that we would complete our deliberations before the Order of Business commenced.

I do not believe it will be possible to return later today because the purpose of waiting is so the Minister can consider the views of the various bodies to which he referred.

We will come back next Tuesday, Chairman. The Minister will have time to think it over further in the meantime.

I will not be available later because I will be in the Seanad. I do not know if the Minister will be available but I do not believe it will be possible to meet later, given that further consideration of this matter will be required. The one thing about which we are agreed is that there is no legal doubt in the situation. It is important that this matter be considered in terms of everything that has been said here. I do not propose to accept the amendment. I would like to bring the matter to a conclusion today and allow the Minister to return to this matter, if he so wishes, on Report Stage.

On the basis that it was agreed that our meeting would conclude for the Order of Business, I will continue comment on this amendment. I wish to make three points.

I have put forward a proposal.

That is a matter for the discretion of the Chair, Deputy.

I am simply reiterating my proposal. Is that not allowed?

Acting Chairman

Let us try to be constructive. This is a matter worthy of serious consideration. Perhaps the Minister, Deputy O'Donoghue, might prefer to come before the committee to reply in respect of the amendment. I believe he undertook to give consideration to this matter. In order that we do not end up at a complete impasse, it might be better if we adjourned, gave further consideration to this matter and, perhaps, returned to it next Tuesday.

Perhaps I misheard the Minister of State. I thought she made it clear that, if need be, the Minister would see if it would be possible to bring forward an amendment on Report Stage. I do not know how much further it is possible for him to go on Committee Stage, other than to accept Deputy Shatter's amendment. The Minister and the Minister of State have indicated that they sought views on this matter and, if need be, they will bring forward an amendment on Report Stage. How much further can this matter be teased out.

As it is now 10.30 a.m., I ask the Chairman to adjourn the meeting, as agreed, in order that we can attend in the House for the Order of Business.

Acting Chairman

Is that agreed?

I made a proposal that this amendment be dealt with.

It is not the practice to call either votes at a time——

I have just done so. Let us break practice.

I will keep on talking if the Deputy wishes me to do so.

I have made a proposal that this amendment be dealt with.

It was agreed that this meeting would conclude before the Order of Business. That is the basis on which it was called.

The Order of Business has not commenced. I made by proposal seven minutes ago.

It is now 10.30 a.m. and it is not open to any Deputy to continue with the debate beyond that point.

I made a proposal.

Acting Chairman

I am conscious that Deputy Howlin, who is spokesperson for the other main Opposition party, is no longer here. Precedent dictates that the business of committees is always adjourned to allow Members to attend in the House for the Order of Business.

I made a proposal seven minutes ago.

Fianna Fáil has got so used to getting its own way and pushing legislation through the House——

The Deputy is a total bully.

The Deputy's party has been bullying everyone for the past five years.

The Deputy is a total bully. I guarantee him that any support he thought he might have——

Chairman, I am leaving in order to attend the Order of Business in the House.

Acting Chairman

I am adjourning the meeting sine die. We will contact Members regarding a date for our next meeting.

The Select Committee adjourned at 10.29 a.m. sine die.