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SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Thursday, 4 Dec 2008

Legal Services Ombudsman Bill 2008: Committee Stage.

The purpose of the meeting is our consideration of the Legal Services Ombudsman Bill 2008. I propose we continue until we have completed our consideration of the Bill. Is that agreed? Agreed.

I welcome Deputy Conor Lenihan, Minister of State at the Department of Justice, Equality and Law Reform with special responsibility for integration policy, and his officials.

Section 1 agreed to.
SECTION 2.

Amendments Nos. 1 and 6 are related and will be discussed together.

I move amendment No. 1:

In page 6, line 6, after "means" to insert "subject to section 20(1)(a)”.

This is still the definition section. My amendment specifically relates to the definition of "complaint", and I am seeking to qualify the definition by relating it to section 20(1)(a). If one looks at that section, one sees it gives the Minister the power to determine what counts as a complaint. I believe this should be referred to in the definition of complaint. Otherwise the definition of complaint for the purpose of assessing levies could include frivolous complaints. Section 21 stipulates what the Minister may do, by regulation, in terms of his or her power in respect of a levy. It would be better if the definition of complaint made that reference in the definition section.

Amendment No. 6, which is being discussed with amendment No. 1, is not exactly the same but the intent is similar. It deals with a levy to be paid by the Bar Council or the Law Society. Again, my definition seeks to be clear and to ensure that for the purposes of this section, "complaint" does not include an invalid complaint or one that is dismissed as frivolous or vexatious. Again, it seeks to weed out the trivial or vexatious complaint. It is an attempt to tighten up the definition of "complaint".

We are adopting the spirit and substance of what Deputy Rabbitte is saying but we believe it can be done in a better way, perhaps by amendment on Report Stage. The effect of amendments Nos. 1 and 6 is expressly to exclude invalid, frivolous or vexatious complaints for the purpose of calculating the respective proportions of the levy payable by the Law Society and the Bar Council. The manner in which the number of complaints is to be determined for the purpose of setting the respective shares of the levy in accordance with section 19(4) will be set out in regulations made by the Minister under subsection (21). It was intended that invalid, frivolous or vexatious complaints would be excluded under the regulations so that a series of unfounded or repeated complaints on the same issue would not all count, with the effect of skewing the calculation of the levy.

On foot of Deputy Rabbitte's amendments, the matter has been reconsidered in consultation with the Parliamentary Counsel. We agree with the Deputy that the Bill should be amended to clarify that complaints of this nature can be excluded. The simplest and clearest way to achieve this is to amend section 20(1)(a). To this end, it is intended to move a Government amendment on Report Stage. I thank Deputy Rabbitte for drawing attention to this matter and I urge him not to press these amendments at this stage because, in effect, the substance of what he is looking for has been achieved.

I do not intend to waste time. If the Minister of State is coming back with an amendment and believes it is more appropriate that the spirit of this is taken on board under section 20(1)(a), that is acceptable to me.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 and 4 agreed to.
SECTION 5.

Amendments Nos. 2 and 3 are related and will be discussed together.

I move amendment No. 2:

In page 7, subsection (1), line 28, after "Government" to insert "on the nomination of the Minister".

I propose to discuss amendments Nos. 2 and 3 together. Amendment No. 2 provides that the legal services ombudsman be appointed by Government on the nomination of the Minister for Justice, Equality and Law Reform. As the Minister with policy responsibility in this area, it is proper that he or she bring the nomination to Government and it is considered that the Bill should provide for this clearly. Amendment No. 3 is a drafting amendment for grammatical correctness.

Amendment agreed to.
Deputy Conor Lenihan: I move amendment No 3:
In page 7, subsection (2), line 30, to delete "itself" and substitute "themselves".
Amendment agreed to.
Section 5, as amended, agreed to.
Sections 6 to 14, inclusive, agreed to.
SECTION 15.

I move amendment No. 4:

In page 11, subsection (1), lines 27 to 34, to delete paragraph (b) and substitute the following:

"(b) contain an assessment of the implications of the admission of such number of persons, bearing in mind the demand for the services of barristers and solicitors, the public interest in ensuring an adequate standard of education and training for such persons, and the public interest in ensuring the availability of such services at a reasonable cost.”.

This section concerns an obligation that will be imposed on the ombudsman to make an annual report to the Minister not later than four months after the end of each financial year. It sets out the parameters of what the legal services ombudsman will be required to do in that report. The difference between my amendment and the existing section 15(1)(b) may defy the casual observer, but I believe my amendment would reword the section in a less directive manner.

The underlying assumption of the existing section seems to be that the more lawyers admitted, the lower legal costs will be. If only that were true in the experience of the consumer. I do not think that assumption is correct, and if we look at the US, which has the highest ratio of lawyers to population in the world, we find that it also has some of the most astronomical legal costs. My amendment attempts to capture the same idea as the existing section, but in a less directive manner.

I am reminded of Tom Paxton's song, "One Million Lawyers". I tend to agree somewhat with the Deputy on these matters.

Will the Minister of State give us a bar on this bleak December morning?

I do not think I will venture that. I will not get up on the back of a lorry.

The purpose of section 15 is to provide that the ombudsman submits an annual report on the number of persons admitted to practise as barristers and solicitors, and to make an assessment as to whether such a number is consistent with the public interest in ensuring the availability of legal services at a reasonable cost. The intention is that an objective assessment is made by the ombudsman as to whether this public interest is served.

I oppose the amendment which proposes an assessment of the implications of the admission of a new cohort of practitioners each year. This presumably means an assessment of the implications to the public interest in having a sufficient number of well trained practitioners available to meet the demand for legal services at reasonable cost. This is the same assessment that is provided for in the existing provision, but I do not accept that it improves the text. For this reason, I am not prepared to accept the amendment.

I suppose two consecutive successes would have been too much to hope for.

We agree in spirit, but not in text.

I do not think the Minister of State is for turning if he thinks that the parliamentary draftsman's workis more elegant than mine. I do not concede that at all, but I will withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 15 stand part of the Bill."

I will be bringing forward amendments to this section on Report Stage. They will make recommendations to the annual report to allow for quotas and to provide a breakdown of the number of persons admitted to practise as barristers in terms of gender and socioeconomic background. The recommendations for quotas will be try to ensure that the number of persons admitted to practise as barristers or solicitors will be reflective of those trends. They will also try to ensure that other aspects in this field will be covered.

Question put and agreed to.
SECTION 16.

I move amendment No. 5:

In page 12, lines 26 to 29, to delete subsection (2).

This is a straightforward amendment that excises this particular subsection from the Bill. Section 16 deals with appearances before Dáil committees, and this subparagraph would require the legal services ombudsman not to criticise any policy of the Government, or comment on the merits or objectives of such a policy. I am absolutely amazed as to why this gag is proposed for the ombudsman. We are getting very precious, but maybe that is due to the permanence of one party in the Government. It is entirely unreasonable to appoint an ombudsman with the limited review outlined in the Bill, and then stipulate that he may not express his honest opinion before a committee of the Dáil on various matters that would encroach on policy. I am seeking to remove the gag.

The proposition that a person appointed as legal ombudsman will come in here, behave recklessly and claim that the Government is making a terrible hames of running the country, is highly unlikely. A person appointed to this position——

We do not want to take from the primacy of the Opposition in that role.

I am delighted to hear it, but I am worried that will be the next gag if things go on the way they are going.

We could never gag the Deputy.

I presume the Minister of State will tell me that he agrees with me and that he will remove the gag. It is ridiculous.

I support Deputy Rabbitte's amendment. It is illogical, given the role of the ombudsman. He or she is not allowed to comment, because any comment is an expression of opinion. If we are to have any movement in legal services, then the ombudsman for that area should be entitled to comment or express an opinion. If the Government is not happy with that, it can respond to the ombudsman as it responds to criticisms from any of us. It is superfluous and it takes away from the intention of the Bill.

Section 16 provides for the attendance of the ombudsman before the Dáil Committee of Public Accounts to give evidence on the audited annual accounts of the office, its economy and efficiency in the use of its resources, the effectiveness of its operations, and on any matter raised in a report of the Comptroller and Auditor General. Section 16(2) is a common provision which prohibits the ombudsman from commenting on the merits of Government policy. The policy in this area is that statutory officers accounting to the Committee of Public Accounts are not permitted to express an opinion on Government policy when giving their evidence. Responsibility for reporting to the Oireachtas on the merits of Government policy rests with the responsible Minister. I am not prepared to deviate from this policy and I oppose the amendment.

Perhaps the Minister of State can tell me where this is a standard provision in other Acts. The tradition before the Committee of Public Accounts is as old as the Dáil itself. The rules, precedents and understandings are very well-established. Unlike many of the other committees that have been set up in recent years for the purpose of dishing out chocolate sweets to disappointed backbenchers, the Committee of Public Accounts has a very specific role. There is no necessity to enshrine the normal procedure in law, so I do not know why it should be done in this instance.

It is important when the Accounting Officer appears before the Committee of Public Accounts that he or she is able to express opinions about certain matters that do not necessarily encroach on or challenge Government policy. However, to enshrine it in the legislation is completely unnecessary. We have broadened the remit in recent years of persons who appear before the Committee of Public Accounts. For example, in recent years the Garda Commissioner has appeared before the committee for the first time, which was not traditionally the position in that the Secretary General of the Department of Justice, Equality and Law Reform tended to take the Garda Vote. The Garda Commissioner somehow manages to tread the line between imparting useful information, commenting and offering opinions on matters without being seen to encroach on or challenge Government policy. The same should apply here. I do not see why it has to be included explicitly in the Bill.

I am sure the Minister of State can point to precedent as far as such a subsection is concerned. While it may have been the tradition in the past by way of convention, can the Minister of State point to other similar agencies, of the many that have been set up in recent years, that include such a restriction on what that person might say at a committee meeting?

I note that under section 16 we are dealing exclusively and specifically with the Committee of Public Accounts. I would be equally concerned that the legal services ombudsman would visit annually the Committee on Justice, Equality, Defence and Women's Rights. Deputy Rabbitte stated that the Garda Commissioner in recent years has visited the Committee of Public Accounts. There is a vital role for the Garda Commissioner and the legal services ombudsman to attend our committee because it deals with the policy issues.

Notwithstanding the restriction on the ombudsman of not engaging in any discourse on individual complaints or cases, which we all accept, there is the matter of a consumer mandate. If there are trends or certain difficulties, which no doubt there will be, it is important that we on the justice committee of the House would have an opportunity of engaging with the ombudsman in a way that would not be restrictive of discourse. We have a very important role to play. Any attempt to restrict comment or to confine attendance only to the Committee of Public Accounts would be to do a disservice.

By virtue of the title alone — "ombudsman", or in Irish, "fear an phobail" or "bean an phobail" — one is conferring on the ombudsman the right to comment and express an opinion. While I understand the fear of the Government of critical opinion, and I remember the previous Minister for Justice, Equality and Law Reform in particular was not too happy with the Inspector of Prisons and Places of Detention because he was publicly critical of the Government, it is within the gift of the Government if it finds that an ombudsperson or someone it has appointed is overly critical of it, not to reappoint that person when his or her term ends.

The basis of this is that one has to allow the person appointed to be independent and to express a view or an opinion. Obviously, the Government would be well capable of responding to any criticism by a person in this position if it were sure of its position and its policy in the first instance. While it might end up being a bit of a row between a Minister and an ombudsperson, that would be healthy because we would then have debated the issue. This was what was healthy about the issue concerning the Inspector of Prisons and Places of Detention, some of whose pronouncements were bizarre and some very valid, in that it allowed us to have a debate on those issues. That is the purpose of any ombudsman appearing before committees of the House, in particular in this case where public finances are being addressed.

Deputy Flanagan is correct in this regard. The ombudsman has a consumer mandate and this restriction applies to civil servants generally when they appear before committees, especially Accounting Officers and particularly in regard to the Committee of Public Accounts. It is important to remember that the restriction is one which has a provenance in other legislation already on the Statute Book, namely, the Ombudsman for Children Act 2002, the Ombudsman (Defence Forces) Act 2004 and the Garda Síochána Act 2005 which, with regard to the Garda Síochána Ombudsman Commission, also contains a similar restriction regarding appearances by the ombudsman before the Committee of Public Accounts.

I draw the attention of Deputy Rabbitte to the fact the similar restriction does not apply, for example, to the ombudsman's appearances before this committee or other committees of the House. It is merely in regard to the Committee of Public Accounts, on which I served with Deputy Rabbitte for seven years, the point being that there is a general understanding that it is not the job of Secretaries General and Accounting Officers to take up the cudgels with regard to criticism of public policy. They can highlight the outcomes and effects of Government policy, as the legal services ombudsman would also be more than able to do at this committee or by inference at the Committee of Public Accounts. It would be open to members such as Deputy Rabbitte to spot the argument being made by the ombudsman in these cases. It is well established existing practice among Secretaries General and Accounting Officers that they do not get into public spats with their own Government or with the Government under which they enjoy their particular mandate.

I had the privilege of doing the first interview with Michael Mills when he was appointed Ombudsman. Much of this has to do with the character of the person in the office and how that person uses his or her power, mandate and remit. This restriction would not prove to be very onerous and, if an ombudsman wishes to appear before a committee to make a very telling point, he or she has ways of doing so. As we all know as practising politicians, ombudsmen have ways of making the parliamentary and governmental class understand exactly what it is that concerns them. The essential mandate of an ombudsman is to report to Government and to committees such as this on his or her concerns or disquiet over administrative or legal procedures. This can be done. It would not be hugely or overtly discriminatory or gagging the ombudsman in this case.

It is important to consider section 17, as Deputy Flanagan pointed out. To reconfirm the point for the Deputy's benefit, the ombudsman can attend this committee. There is obviously more policy interplay in a committee such as this than in the Committee of Public Accounts where the issue is very forensically drawn to the issue of taxpayers' money, whether value for money is being achieved and so on.

I am intrigued by the notion of the legal services ombudsmanbeing a creature of his or her “own Government”.

I referred to the Oireachtas rather than the Government. I meant that there is a reporting line to the public through the Oireachtas.

It is clear if one reads back through the text. Deputy Ó Snodaigh gave us the meaning as Gaeilge.

No, I qualified it by reference to the Oireachtas. The ombudsman will report to the Oireachtas.

No, the Minister of State referred to the notion of the ombudsman getting into a spat with his or her "own Government".

Deputy Rabbitte is misrepresenting what I said. I did not say that.

I thought the whole purpose of the legal services ombudsman is that he or she would represent the people as consumers. Deputy Ó Snodaigh's explanation as Gaeilge of the job of ombudsman was probably more precise in terms of what that role should be. I do not see him or her as a creature of the Government.

I qualified what I said by stating that he or she will have reporting obligations to the public through the Oireachtas.

Quod scripsi scripsi. We will examine what the Minister of State said. That mindset is worrying. I am reminded of comments by the distinguished former Ombudsman, the late Mr. Michael Mills. If this is enshrined in recent legislation, as the Minister of State says it is, I will accept that entirely. I suspect, however, that it was born out of the Government's and permanent government's response to public remarks made by the former Ombudsman, Mr. Mills, and the present occupant in more recent years. I assume some very bright member of the permanent government or some dynamic Minister of State itching for promotion had the bright idea that he or she had better put a stop to that. We therefore now have a gag which will be included in this type of legislation in future. I am not persuaded by the Minister of State's argument.

I apologise for interrupting Deputy Rabbitte but a division has been called in the Dáil. I propose we adjourn for 20 minutes so that Members may participate in it.

Sitting suspended at 10.45 a.m. and resumed at 11.10 a.m.

The committee will resume its deliberations on amendment No. 5, on which Deputy Rabbitte was making some concluding remarks. Does he wish to comment further?

Essentially, I was making the point that the practice at the Committee of Public Accounts is both well known and well observed every week of the year and, consequently, there is no necessity to give expression to it in primary legislation. I do not know the reason it is considered necessary to put a gag on the ombudsman in the fashion proposed here. I will not dwell on the Minister of State's observation that the ombudsman is a creature of his or her Government. However, it is a mindset that betrays the reason such a gag is being put on the ombudsman. This is unnecessary and I propose its excision.

I was talking about the ombudsman as a product of government in the sense that he or she will belong to the bureaucracy and administration of government with a small "G", rather than the Government in a political sense. Perhaps the Deputy will allow me some latitude in the use of the word "government" in the broader sense——

In a broader sense that would include the Opposition? The Minister of State has never previously used such a definition.

Amendment put and declared lost.
Section 16 agreed to.
Sections 17 and 18 agreed to.
SECTION 19.

I move amendment No. 6:

In page 14, subsection (4)(c), line 38, after “year” to insert the following:

", and for the purposes of this section "complaint" does not include an invalid complaint or one that is dismissed as frivolous or vexatious".

This has been discussed with amendment No. 1. The Minister will revert to this issue on Report Stage in the context of a later section in the Bill, which should meet the requirement.

Amendment, by leave, withdrawn.
Section 19 agreed to.
Section 20 agreed to.
NEW SECTION.

I move amendment No. 7:

In page 16, before section 21, but in Part 4, to insert the following new section:

21.--A person who has made a complaint of misconduct to the Bar Council or the Law Society may complain to the Ombudsman under this section if either——

(i) the complaint is not determined at first instance within a reasonable time of being made or in any event within 6 months from the date of being made, or

(ii) any appeal in relation to a decision at first instance is not determined within a reasonable time of being made or in any event within 6 months from the date of the appeal being made.".

This amendment would insert a new section, before section 21, into Part 4 of the Bill, which pertains to complaints and reviews. There should be a right to complain if a complaint has not been processed speedily. While this is dealt with to an extent in section 22, my amendment would insert a definite six-month deadline. This is important because whatever about justice delayed being justice denied, when a system has been put in place for the processing of complaints, the possibility of allowing a complaint to simply hang there could be so injurious to the complainant as to make any subsequent assessment of the complaint meaningless. I merely seek to insert a definite deadline of six months, which is both reasonable and necessary and the Minister of State should take on board this proposal.

I am not prepared to support this amendment. Section 22 already provides for the making of a complaint to the ombudsman when the professional body has failed to complete an investigation into alleged misconduct within a reasonable timeframe. If the Bar Council's professional conduct tribunal or professional conduct appeals board or the Law Society fail to complete, within a reasonable time, their investigation of an allegation of misconduct made by a client of a barrister or solicitor, the client may make a complaint about this failure to the ombudsman under sections 22(2)(b), 22(2)(d)(ii) and 22(2)(h). The power of the ombudsman to receive complaints of unreasonable delay already is provided for and this element of the Deputy’s amendment is not required.

The imposition of a six-month time limit in every case is not considered appropriate. The ombudsman should have discretion to determine in each case what constitutes a reasonable time. In particular complex cases, the Law Society or Bar Council may require many months to fully investigate and determine a complaint of misconduct. For example, Law Society investigations may involve directing the production of documents, on-site inspection of documents, High Court enforcement of directions to produce documents and appeals against such directions. In a complex and contentious case, all these matters may take a lengthy period to resolve before the complaint is determined. In the event that there is undue delay, the ombudsman already has been given sufficient powers to receive and investigate a complaint of unreasonable delay. For these reasons, I oppose the amendment.

I do not wish to be unfair to the Minister of State, who has been thrown into this meeting because of his senior Minister's aversion to legislation. However, his senior Minister will be aware that the Competition Authority made some rigorous assessments of what is necessary in respect of the issue of invigilation of the conduct of lawyers. In the event, the softest possible route has been opted for in response to matters that came into the public domain and were of considerable interest to the public and clients of lawyers. We have opted for the softest route in this legislation.

The misconduct issue that entered the public domain only affects a small number of lawyers. I draw no inferences from it about the profession's conduct. On Second Stage, I acknowledged the occasional pro bono work and so on of lawyers. However, every Deputy has received complaints, some ill-founded and others well-founded, about the conduct of particular solicitors. It is frustrating for the client, who cannot even wrest his or her file from the negligent solicitor. The process that must be gone through is like pulling teeth.

The point of the amendment is to ensure that the person going through the procedure has a reasonable deadline imposed for a decision. Six months is not unreasonable in the circumstances. I acknowledge the provisions in section 22, but the amendment would not seek to do anything other than what I have stated.

There are complex issues behind the investigations. A six-month time limit might not reflect the full force of an investigation. Sometimes, taking time to conduct a thorough investigation of a matter is preferable, particularly in respect of professional bodies or individuals. A time limit might constrain the depth of the investigation, which would do a disservice in some sense. Theoretically, a six-month limit could lead to every investigation lasting for six months. There may be cases in which a short duration investigation could be achieved, but the tendency would be to play it out. I am not of a mind to change the provision.

The Minister is abroad in respect of the small munitions matter.

I was just talking to him.

I am sorry, as I believed that he had not yet returned to the Houses.

The Minister of State should watch out the next time the Minister telephones him like that. Since it is clear that the Minister of State does not have much latitude, I must reserve my position for Report Stage.

Amendment, by leave, withdrawn.
SECTION 21.

Amendment Nos. 8, 10 to 12, inclusive, 17 to 19, inclusive, 21 and 25 are related and may be discussed together.

I move amendment No. 8:

In page 16, subsection (2)(a), line 26, after “section 8” to insert the following:

"(as amended by section 39 of the Civil Law (Miscellaneous Provisions) Act 2008)".

I propose to discuss amendments Nos. 8, 10 to 12, inclusive, 17 to 19, inclusive, 21 and 25 together. They are technical amendments to correct citations arising from the Civil Law (Miscellaneous Provisions) Act 2008, which was enacted subsequent to the publication of this Bill.

Amendment agreed to.

Amendment Nos. 9, 15, 16 and 20 are related and may be discussed together.

I move amendment No. 9:

In page 16, between lines 32 and 33, to insert the following subsection:

"(3) A complaint to the Legal Services Ombudsman under this section may relate to the process adopted by the professional body, or to a manifestly erroneous decision as to the merits of the related complaint, or both."

This relates to the section that deals with the making of complaints and would enshrine a new subsection (3). It specifies that a complaint to the legal services ombudsman under this section may relate to the process adopted by the professional body, to a manifestly erroneous decision as to the merits of the related complaint or to both. The legislation must make it clear that the ombudsman can consider the merits of a complaint and not just the process.

I presume that the Minister of State has received representations from, for example, the Consumers Association of Ireland, which stated that the Bill does not provide for any appeals procedure regarding the outcome of complaints made to either the Law Society or the Bar Council. Instead, according to the association, the ombudsman may only receive complaints relating to process. This is the way in which the barristers' professional conduct appeals board and the Law Society have dealt with complaints made to them. Consistent with the emphasis on process complaints rather than on complaint outcomes, the ombudsman will have no power to examine the original complaints. Will the Minister of State comment in this regard?

I propose to discuss amendments Nos. 9, 15, 16 and 20 together. There are two elements to the amendments. The first, which relates to the process adopted by the professional body in dealing with a client's complaint, is already addressed in the Bill. Under sections 21(1) to 21(3), the ombudsman may receive a complaint against the Bar Council or the Law Society about its handling of a complaint. Section 22 gives the ombudsman the requisite set of powers to investigate such complaints. Section 28 empowers him or her to make recommendations or issue directions on foot of his investigations. These provisions deal comprehensively with the complaints processes of the professional bodies.

The second element proposes to allow the ombudsman to receive complaints and make findings that decisions reached by the Bar Council or the Law Society on clients' complaints to it were manifestly erroneous as to their merits. This would alter the ombudsman's role fundamentally. That role is to investigate the way in which the professional bodies deal with complaints. It is the responsibility of the bodies to investigate complaints about lawyers. The role of the ombudsman is not to reinvestigate the original complaint, but to ensure that the professional bodies properly comply with the law and best practice in the administration of their complaint systems. If dissatisfied with the professional body's handling of a complaint, the ombudsman will direct that it reinvestigate the matter. For these reasons, I am not inclined or prepared to accept the amendments.

If something sufficiently erroneous has occurred, it would presumably become evident in the process entered into by the professional bodies. Does the Deputy know what I mean? If there is such a catastrophic failure in an investigation, it would presumably be obvious from the quality and character of the investigation. In that instance, the ombudsman could open up to the kinds of issue mentioned by Deputy Rabbitte.

My response to that is to wonder why the committee is meeting. The Bill is a piece of window dressing. If this is all that it is to do it would have been better if it had not been initiated. I do not think it is of any significance. One considers whether the professional body followed its rules and procedures properly. As regards the complainant and the complaint, there is no outcome. It could add to the frustration of clients in dealing with the legal profession. I have said that my remarks do not apply to the profession per se but to individuals who are dilatory, negligent or just plain incompetent. It happens in the definite knowledge of every Member of this House who has encountered this. The Minister has confirmed that the legislation puts another bureaucracy in place. We will appoint a suitably qualified person and set up appropriate offices with bureaucratic backup. We will put the new quango in place and at the end of it the unfortunate complainant will get a decision that the Bar Council or the Law Society transgressed its procedures or handled the process inadequately. The complaint will be left hanging or sent back to the people who expressed a view on it. I am not minded to spend too much time on this Bill because it is not about very much.

I understand where Deputy Rabbitte is coming from to a certain degree. There are many complaints about the legal profession. I was a practising barrister in the not too distant past and as a matter of public record these complaints are less against the Bar than against solicitors. This is primarily because solicitors handle clients' money and title documents whereas barristers do not. There can be much frustration from the clients' perspective if they fall out with the solicitor and the latter is demanding more and more money or will not hand back title documents or move the file along. There is an element of time and frustration.

The vista opened up by Deputy Rabbitte involves a two-stage procedure almost akin to the two-stage procedure in the planning process where there are two bites at the cherry. There would be a full hearing before the Bar Council disciplinary committee or the Law Society disciplinary committee. As a default, there would be a full hearing before the legal services ombudsman.

A week or two ago, we examined the Office of the Ombudsman for the Defence Forces. In effect, there are two bites at the cherry. Many soldiers bring complaints internally and the vast majority are resolved at that level. Then, if they are dissatisfied, they go on to a full investigation by the ombudsperson for the Defence Forces. In the last year of records for the ombudsperson for the Defence Forces, there was a total of 76 complaints, with only four for bullying. That would not be near the number of complaints in the legal profession.

If one was to open the door to the legal services ombudsperson hearing these cases in a full hearing, one would create much more bureaucracy than anyone here would anticipate or desire. I grant Deputy Rabbitte that it seems attractive that the ombudsperson would have a substantive role in important cases. The rationale of the Minister of State is quite compelling. If proper procedures are followed, either at Bar Council or Law Society level, justice should be done. It is down to procedures. If proper procedures are followed, no one suggests that an unfair result will follow in the majority of cases.

Both professions have served Ireland very well, despite the recent spate of scandals attaching more particularly to one branch of the profession. My profession is not immune and I do not say that in a smug sense. We must expedite the business without setting up a layer of bureaucracy. In the past six months, the battle cry of every party, including Deputy Rabbitte's, has been that we have enough quangos and that we need to rationalise. The functions given to the ombudsman in this Bill are wide enough. Having sympathy with what Deputy Rabbitte says, at first sight it seems attractive, but I am inclined to the view that the Minister of State is, on balance, correct in this case. The Minister of State knows I would not say that unless I genuinely felt it.

We are going to the heart of the Bill now. It is important that we reflect on the function of the ombudsman. That function is not only to receive the complaint but to investigate the handling of the complaint. The investigation power should not be underestimated. The ombudsman has a role in ensuring the complaint has been dealt with in a fair, effective and efficient manner as far as the two bodies are concerned. There is a role to refer a matter in respect of the Law Society and the solicitors profession. That referral would be to the solicitors disciplinary tribunal, a body that has changed considerably by way of its strengthened powers in recent years. I am not sure if we can be as dismissive of the legislation as one might be inclined to charge. There is an element of independence and the investigative power of the ombudsman should not be underestimated. The ombudsman has a role of investigation, re-referral and oversight, which is what the legislation is about.

While I welcome the comments of Deputies Mulcahy and Flanagan, I am mindful of Deputy Rabbitte's comments on quangos. There is a clear difference between the alleged quango the Government is setting up in that it is not the taxpayer who pays for it. There is no cost to the taxpayer for this office. This takes it away from the general commentary on quangos where there is a significant cost to taxpayers as the Bar Council and the Law Society are paying for it. I will rest my comments there.

The criterion of the establishment of a quango is whether it serves a useful and necessary purpose in the public interest rather than whether we add another one. To me, this one seems to be extremely restricted, narrow and constrained in terms of what it can do to address a real issue. People feel powerless in dealing with the legal profession and this is held out to them as the cure-all for their ills. I do not believe it will provide that type of relief.

I draw the attention of the Minister of State to the very focused nature of the group of amendments which we are discussing. Recurring throughout is the phrase "or to a manifestly erroneous decision". I do not know whether it is possible in law to give expression to that in even stronger terms but it seems "manifestly erroneous decision" is precisely that. We are excluded from regarding the outcome of complaints. The complaints received relate only to process and we are refusing to put a deadline on the examination on whether due process according to their own procedures applied. That will cause a great deal of frustration for people who feel that if they write to the Law Society or the Bar Council as Sean or Mary Citizen, it is difficult to get a meaningful response and make progress in a reasonable time. Here, we require them to go this route in the first instance and only then may the ombudsman be seized of it, and the ombudsman may then draw conclusions only as to process. That contains the possibility that the Bill would otherwise have to restore some consumer confidence and give people reasonably speedy redress where their case has been mishandled.

This is about a consumer mandate and about redress, as Deputy Rabbitte stated. In practical terms, if the ombudsman believes the Bar Council or the Law Society has made a wrong decision concerning a complaint, the ombudsman will not have the power to overturn that decision but will have the power to direct that another investigation takes place. Am I correct to assume the ombudsman will cite reasons for the reinvestigation and will cite what his or her office believes has been the unfairness, inaccuracy or injustice? If it does not allow for such reasons to be cited or for the ombudsman to take a view, I would be inclined to agree with Deputy Rabbitte. Will the Minister of State clarify that when the ombudsman makes a report it will be on the substantive issue of the handling, what went wrong and what is believed to be necessary to allow for the complainant to be satisfied?

I agree with Deputy Flanagan. The phraseology in section 9 is skeletal. It states:

The functions of the Legal Services Ombudsman are—

(a) to receive and investigate complaints

It is left hanging there. The Bill does not state much about what the ombudsman will do with the complaints. It mentions an annual report but it does not state much about the relationship or interaction the ombudsman will have with the Bar Council or the Law Society. Perhaps this area could have been fleshed out more in the Bill. This is a general comment.

On Deputy Flanagan's point, the issue is about redirecting an investigation which is believed to have been flawed from a process point of view. The Deputy is moving ahead to section 28(3) of the Bill under which the ombudsman has clear powers where he or she feels a complaint has not been investigated adequately. That provision is there.

I will make two statements by way of reassurance to Deputy Rabbitte. Section 28(3) deals with the issue of redirecting, or reinvestigating in effect, a complaint because of failure to adequately do so on the part of the professional body concerned. I know the good motivation which Deputy Rabbitte has on this matter because, like him, I received many constituents in the past ten years who complained about feeling rather hopeless in the sense of getting a result from the Law Society with regard to complaints they made. If a decision is clearly manifestly erroneous, the ombudsman implicitly has the power to investigate the matter within the existing scope of the Bill. If a major systemic failure occurs with regard to the investigation of a complaint, it will become manifestly obvious in the processes used and employed by the investigating authority, in this case the Bar Council or the Law Society.

In fairness, in most complaints of this type the process itself shows failures in the case of a systemic breach by an investigating authority, whether it is the Garda Síochána or otherwise. The Morris tribunal into some gardaí in Donegal showed the breaches that occurred were replicated in the processes used to investigate or catch up with the malefactors involved. Section 29 provides that the ombudsman sends a written statement on the results of any investigation. It is not as hazy in that regard as some Deputies might have felt.

Is it plain that the legal ombudsman may investigate in the circumstances to which the Minister of State alludes? I thought section 28(3) dealt with a particular and limited area and, therefore, would not be relevant to the great preponderance of everyday issues that one hears about from clients of the profession.

This section provides powers to issue directions or make recommendations following investigations. It pertains to the ombudsman's general powers rather than making specific provisions.

What would happen if I did not have the opportunity of receiving a formal education and, as the client of a solicitor, I am persuaded by the rules of ordinary common sense that my case is being neglected or delayed? A lost file is a favourite excuse in my experience. Perhaps the solicitor has an alcohol problem. When I write to the Law Society, it passes off my concerns with a letter that is not meaningful in character so I go to the ombudsman. Do I have a real prospect of success in such circumstances? The ombudsman is likely to find that the process is wrong but does that mean he or she will start it afresh?

The role of an ombudsman is to invoke the public interest in circumstances such as those which the Deputy described. In the example of dilatory letters being issued by the Law Society to pacify a complainant, a compelling case can be made that ombudsmen enjoy a public interest mandate in terms of how they believe an organisation has investigated a particular complaint. Apart from this public interest role in robustly challenging an organisation's decision, an ombudsman also has a role to play in directing the organisation towards a desired best practice. If dilatory responses or pacifying letters are issued that do not address a complainant's complaint with, for example, a dysfunctional solicitor, I believe the ombudsman will have the power to investigate and direct the professional body to act more vigorously on the complaint.

I am not questioning the Minister of State's conviction but we are dealing with legislation. Will he indicate where this power is set out in the Bill?

As I stated, the ombudsman has the power in section 28(3) to redirect if he or she believes that a complaint has not been properly investigated. As an ombudsman, he or she also has a clear obligation to investigate an issue where the investigatory process has failed.

Does section 28(3) merely relate to refusals to make grants out of the compensation fund or am I misreading it?

The Deputy is correct on that point.

That would not necessarily have relevance for most cases.

It relates to the compensation but it could be relied upon as part of the general powers available to the office. Section 28(2)(b) provides that the ombudsman may direct the Law Society to make an application to the independent solicitor’s disciplinary tribunal for an inquiry into the alleged misconduct of a solicitor.

The Minister of State is less than convincing and Deputy Rabbitte has made several important points. We should not consider the ombudsman in a vacuum, however, because it makes an improvement on a previously unsatisfactory situation. It would be preposterous if we were to engage in setting up a system that worked against the public interest. Deputy Rabbitte's motivation in ensuring that the public interest remains paramount leads him to ask these important questions.

We cannot lose sight of the fact that there is already an element of external supervision and control by independent parties. This includes the involvement of the President of the High Court, the Minister for Justice, Equality and Law Reform, the independent adjudicator, the non-lawyer nominees from IBEC and ICTU and the Director of Consumer Affairs. We should not lose sight of that in the context of legislation which is intended to further strengthen independent oversight and give citizens the confidence which they often lack at present in regard to regulating the professions. I hope that a properly resourced and fully functioning office of legal services ombudsman will add to the independent mandate that should be in place at present. We will be doing the public a disservice if we do not create this mandate.

Ombudsman offices do not operate in a vacuum. The method of their foundation and resourcing is important, as is the character of the people who fill the positions. The Insurance Ombudsman was the subject of much cynicism when the post was originally created but the woman who took the job was very effective in terms of reassuring customers and companies. There was cynicism about the position because it was funded by the industry but it became in effect a model institution.

The material matter is that the Minister is not in a position to make any concession to my point. I ask him to examine it before Report Stage, when I intend to come back to it.

Amendment, by leave, withdrawn
Section 21, as amended, agreed to.
SECTION 22.

I move amendment No. 10:

In page 19, subsection (2)(e), line 16, after “section 8” to insert the following:

"(as amended by section 39 of the Civil Law (Miscellaneous Provisions) Act 2008)".

Amendment agreed to.

I move amendment No. 11:

In page 19, subsection (2)(g), line 22, after “section 8” to insert the following:

"(as amended by section 39 of the Civil Law (Miscellaneous Provisions) Act 2008)".

Amendment agreed to.

I move amendment No. 12:

In page 19, subsection (2)(i), line 27, after “section 8” to insert the following:

"(as amended by section 39 of the Civil Law (Miscellaneous Provisions) Act 2008)".

Amendment agreed to.

I move amendment No. 13:

In page 19, subsection (4)(a), line 38, to delete “trivial” and substitute “frivolous”.

The Minister will know that the expression "frivolous" has a defined legal meaning. I do not know how the word "trivial" came into it, but it is a new and broader category. We should stick to known concepts.

I accept the Deputy's amendment, which will ensure consistency with sections 8 and 9 of the Solicitors (Amendment) Act 1994.

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

I move amendment No. 14:

In page 20, subsection (1), line 13, after "reasonable" to insert the following:

"and may in particular, with the consent of the person making the complaint, facilitate the resolution of a complaint by mediation".

This amendment deals with the procedures for dealing with complaints. The point I am trying to make is that in terms of some of the types of complaint one encounters regularly, we need not be overly concerned with legalistic procedures. The thrust of the Bill is more on legalistic procedures. There should be provision, giving emphasis where appropriate, for informal resolution of disputes, not simply legalistic crossings of swords. Where that kind of informal arrangement can be facilitated, it should be. It would mean a lot to ordinary people, rather than engaging in legalistic procedures, if that kind of facilitation were there to deal with some kinds of disputes. The amendment proposes the insertion of the facility of mediation. It is sensible to have it there. Somebody with the appropriate skills could cause very many disputes to be resolved short of the usual process.

I am not prepared to accept the amendment. In the event that mediation is considered by the ombudsman to be a viable option for the resolution of complaints, he or she is already enabled to proceed in this manner or direction under section 23(1). It is highly unlikely that mediation would be a suitable resolution mechanism in the vast majority of cases. The bulk of complaints made to the ombudsman will relate to the Law Society, which is required by sections 8 and 9 of the Solicitors (Amendment) Act 1994 to take all appropriate steps to resolve complaints by agreement between client and solicitor, and the Law Society attempts, in appropriate cases, to do this.

The amendment goes too far in that it may create an expectation that to facilitate resolution of complaints, the ombudsman would establish an in-house mediation service or refer complaints to outside mediators. The cost of establishing an in-house mediation service would not be justified for the very small number of cases suitable for mediation. This cost would, ultimately, be passed on to the professional bodies.

In the case of outside mediation it is not clear who would pay the mediator's costs. Faced with the option of paying for mediation or allowing the ombudsman to investigate without a charge on either party, it is difficult to envisage both parties consenting to mediation. For this reason I oppose the amendment, with the caveat that I believe section 23(1) already allows, in a voluntary rather than mandatory way, the ombudsman to do precisely what the Deputy proposes, namely, to employ mediation services or mediators to mediate a dispute before it becomes a full-scale complaint.

When the situation arises I wonder if the Minister's view will be borne out by anybody adjudicating on the legislation. He seems to say the phrase "in such manner" carries the implication that what I seek to introduce could be encompassed. The Minister seems to say "in such manner" could mean mediation in this type of dispute. I do not know if it does. I do not know what the phrase means. The Bill does not say. There is no reference to mediation in it. The Minister is worried about setting up an in-house mediation facility and who would pay for outside mediation, so I am not sure how he draws the conclusion that "in such manner" includes mediation.

I want the Minister of State to confirm that his reading of section 23(1) facilitates, allows for and incorporates mediation.

If it does I will not press my amendment.

It does, and most ombudsmen have this power, including the late Michael Mills, with whom I discussed this. This power of mediation, whether formal, explicit or informal, is the great strength of the positions of ombudsmen. They can get bureaucracies to change decisions they might not have otherwise done. The threat of its becoming a full complaint and the embarrassment career-wise and otherwise for administrators of having a decision knocked down by the Ombudsman is quite a significant sanction for many people working in the administration. The power is there and it is up to the ombudsman to do whatever he or she feels is fit for purpose in resolving these complaints, mediation or otherwise.

I hope the Minister is correct.

Amendment, by leave, withdrawn.
Section 23 agreed to.
Sections 24 to 27, inclusive, agreed to.
SECTION 28.
Amendments Nos. 15 and 16 not moved.

I move amendment No. 17:

In page 22, subsection (2)(a)(i), line 28 and 29, after “section 8” to insert the following:

"(as amended by section 39 of the Civil Law (Miscellaneous Provisions) Act 2008)".

Amendment agreed to.

I move amendment No. 18:

In page 22, subsection (2)(a)(iii), line 33 and 34, after “section 8” to insert the following:

"(as amended by section 39 of the Civil Law (Miscellaneous Provisions) Act 2008)".

Amendment agreed to.

I move amendment No. 19:

In page 22, subsection (2)(a)(v), line 38, after “section 8” to insert the following:

"(as amended by section 39 of the Civil Law (Miscellaneous Provisions) Act 2008)".

Amendment agreed to.
Amendment No. 20 not moved.

I move amendment No. 21:

In page 23, subsection (2)(c), line 15, to delete “2006” and substitute “2008”.

Amendment agreed to.
Section 28, as amended, agreed to.
Sections 29 and 30 agreed to.
SECTION 31.

I move amendment No. 22:

In page 24, subsection (1), line 18, after "concerned," to insert the following:

"on notice to the complainant, the professional body concerned and in the case of a complaint under subsection (1) or (2) of section 21, the barrister or solicitor in relation to whom the related complaint was made,”.

This relates to where the legal services ombudsman may refer a question to the High Court. The only purpose of the amendment is to make clear that in any application so made to the High Court, the interested parties must be put on notice.

The rules of court already provide for notice. These are found in order 62 of the rules of the superior courts. In cases stated for the High Court, notice must be given to every other party to the proceedings in which the case is stated. In these circumstances, it would not be appropriate to amend the Bill in this regard and I am not prepared to accept the amendment.

Is the Minister saying that in that circumstance, the complainant, for example, could not be omitted from being put on notice where the ombudsman would decide to exercise this section and refer a matter to the High Court?

He is already obliged to give notice.

That is under the rules of court.

Amendment, by leave, withdrawn.
Section 31 agreed to.
SECTION 32.

I move amendment No. 23:

In page 25, subsection (2), between lines 6 and 7, to insert the following:

"(g) random samples of complaints made to the relevant professional body.”.

An identical provision to that proposed in the amendment was originally included in subsection (2)(c) in Part 2 of the Civil Law (Miscellaneous Provisions) Bill 2006. In drafting the 2008 Bill to replace Part 2 of the 2006 Bill, subsection (2)(c) was redrafted to widen the range of complaints that the ombudsman may examine during the conduct of a review of the complaints procedures of the Bar Council and the Law Society.

The new section 32(2)(c) permits the ombudsman to examine such complaints made to the professional body concerned as he or she considers appropriate. This may include such random samples of complaints as the ombudsman chooses. The purpose of redrafting this section was to clarify that the discretion available to the ombudsman under section 32(2)(c) extended to allow him or her to examine any complaints seen as fit. As the ombudsman already has the power to examine random complaints, I am not prepared to accept the amendment.

I will take time to look at this and the Minister's reply for Report Stage, if necessary.

Amendment, by leave, withdrawn.

I move amendment No. 24:

In page 25, subsection (8), line 46, after "subsection” to insert “(6) or”.

As the section stands, it is clear it was thought necessary by the Minister that the High Court would determine any dispute between the ombudsman and the professional body concerned where a direction is given to introduce any particular procedures. I question the logic as there is no logic in allowing such adjudication where the direction is ad hoc, as is provided for in subsection (7) included in the Bill as it stands but not allowing it where the direction is more systematic and general, as is the case in subsection (6), which is covered by my amendment. This amendment is designed to ensure both situations are treated the same.

I do not propose to accept this amendment, which proposes to give the Law Society or the Bar Council an avenue of appeal to the High Court where the ombudsman has given a section 32(6) direction. A subsection (6) direction may be made by the ombudsman following a review of a professional body's procedures under general review powers. Having conducted such a review, the ombudsman may make a recommendation to the Law Society or the Bar Council to improve their complaints procedures.

The two bodies have the opportunity under section 32(5) to object to the ombudsman's recommendation and make their observations known to him or her before a direction is made to implement it. With good faith on all sides, the ombudsman will not have recourse to issuing directions under section 32(6).

I thank Deputy Rabbitte for raising the matter, which has been carefully considered. There is a balance in section 32 in that the professional bodies have the opportunity to co-operate with the ombudsman in revising the procedures on foot of the review and any recommendations. I would not be happy to allow the professional bodies an opportunity to delay or frustrate the implementation of improvements to their complaints procedures deemed necessary by the ombudsman following a process of review and consultation. I do not support the amendment for those reasons.

There is a vote in the Dáil. I am not trying to stifle debate but if we get through this very quickly, we can finish it.

In deference to the fact that we are being called to vote, I would like time to study the Minister's reply and come back to it if necessary.

Amendment, by leave, withdrawn.
Section 32 agreed to.
SECTION 33.

I move amendment No. 25:

In page 26, subsection (1)(b)(i), line 11, after “section 8” to insert the following:

"(as amended by section 39 of the Civil Law (Miscellaneous Provisions) Act 2008)".

Amendment agreed to.
Section 33, as amended, agreed to.
Sections 34 to 38, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.

I thank the Minister and his officials for attending and I thank the members for their co-operation.

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