Amendments Nos. 6, 7, 10, 11 and 137 are related and may be discussed together.
SECTION 2.
Is it possible for us to be provided with a list of the amendments which are being taken together?
I will arrange for a list to be circulated as quickly as possible.
I move amendment No. 6:
In page 6, line 27, to delete ", unless the context otherwise excludes".
This is a technical amendment. The heading to section 2 provides that the definitions in the section shall apply "unless the context otherwise requires". The words which this amendment deletes are, therefore, superfluous. We are simply repeating in the subsection what was said at the head of the section.
Amendment agreed to.
I move amendment No. 7:
In page 7, lines 5 and 6, to delete", unless the context otherwise excludes,".
Amendment agreed to.
I move amendment No. 8:
In page 7, line 20, after "agent," to insert "bailee,".
This is purely a drafting amendment to clarify the provision. I can give some details if anybody wishes me to. It is a very minor point.
Amendment agreed to.
Amendment No. 9 is out of order as it is outside the scope of the Bill.
Amendment No. 137 was not called.
I will not call it until we reach it.
We will take it later?
If Members wanted to speak to it they should have done so when it was being discussed.
I know that we are not going to vote on it but I was not asked to move it. I beg your pardon, amendment No. 137 is in the Minister's name. I was looking at the one beneath it.
I seem to be having a lot of difficulty today in relation to some of the Chairman's decisions. Amendments Nos. 9 and 33 are intended to provide for the establishment of a legal affairs ombudsman. I do not understand how that can possibly be outside the scope of the Bill. The Bill, as presented by the Minister, provides for the establishment of an adjudicator who will be appointed by and funded by the Law Society and who is intended to investigate the complaints of consumers.
The main issue argued for in submissions received from members of the public, various groups representing members of the public and aggrieved clients of solicitors is the establishment of an independent legal affairs ombudsman, outside of the Law Society, to whom clients of solicitors could refer their complaints. Amendments Nos. 9 and 33 are designed to establish such an office. It will completely emasculate what we are doing here in the committee if those two amendments are ruled out of order.
I have received submissions from aggrieved clients of solicitors and groups representing them and this is the principle provision they want to have introduced into this legislation. They believe strongly, and I agree with them, that an adjudication system, which is essentially an in-house adjudication system by the Law Society, will amount to no more than solicitors investigating complaints against themselves. The experience of the Law Society investigating complaints against solicitors has been that, by and large, they get nowhere.
The principle of an ombudsman has been well established, for example, in the public service. There was a great deal of resistance to the establishment of that office and attempts at various stages were made to put it out of business as well. However, they did not succeed. It is now in place in the insurance industry. The principle demand which the public has been making is that there should be an independent legal affairs ombudsman to whom the public can go if they have a complaint against a solicitor. A system, as proposed by the Minister, which is an in-house system in the Law Society with an adjudicator appointed and paid for by the Law Society, will not get the kind of confidence which it should have from the public.
To rule these two amendments out of order is, quite frankly, to make a total mockery of what we are trying to do in this committee to improve this legislation. The question of the appointment of a legal affairs ombudsman was referred to by many speakers on Second Stage and looked for by the public. How are we to address this question if the Chairman rules the amendments out of order? I am astonished that this is being done. I do not want to unnecessarily cross swords with you, Sir, but if we are going to proceed on the basis that controversial issues and issues which get to the root of what is wrong in the legal professions are going to be ruled out of order here, then it is making the job of this committee absolutely impossible and making our job in trying to reform the legal profession very difficult.
I support Deputy Gilmore in his protest about the restrictive precedent which is being set. It is an important precedent for the future of all of the select committees if there is going to be a very restrictive interpretation put on what is directly relevant to the Bill before us.
The fundamental point of these amendments is about the independence of the ombudsman, the proposed independent adjudicator. There is a danger that the ombudsman will have limited remit under the Bill, but also, because a non-governmental organisation such as the Law Society is defraying the costs of a public watchdog function, there is always a danger of a conflict and that this person will not have the public's confidence.
The fact that the proposed ombudsman as laid out in the Bill will only have a remit to look into the solicitor's profession and will not be able to deal with complaints about the courts' services, the listing of cases, delays, courthouse accommodation and the whole gamut of possible complaints which citizens could have about the processing of litigation, is a big factor in the proposals which are in this Bill.
There are two points on which I support Deputy Gilmore. The first is the procedural measure of ruling out of order in this committee amendments which, I feel, would be worthy of debate in the context of the Bill. They are perhaps not directly relevant but are certainly peripherally relevant to the whole area of reform which we are addressing. There is a tradition, I understand, in the House that such matters are allowed to be at least developed on Committee Stage. Whether one gets anywhere with one's amendments, it is certainly part of the role of the Opposition to tease out such matters which it may be disappointed that the legislation does not contain.
The area which the substance of the amendments deals with in relation to the proposed independence of a legal ombudsman is a very important area and one which we should be discussing. This is a non Money Bill because nowhere in this does the Government incur any expenses. It is basically putting all of the responsibility to provide a public watchdog service on solicitors' activities on their own organisation. Therefore, they are self policing, and I would dispute the independence of this proposed ombudsman if all of the expenses and the appointment of that person is going to be decided by the Law Society. I know that the Minister has the power to appoint lay assessors but it calls into question the independence of the entire operation if it is going to be totally funded by the Law Society.
Amendments Nos. 9 and 33 propose the establishment of an office of legal affairs ombudsman who may investigate complaints regarding members of the legal profession or the administration of the courts. The scope of this Bill is confined to solicitors only and while the matter of complaints against solicitors is certainly relevant to its provisions, the matter of complaints against the legal profession as a whole and the court administration is not. The amendments, in so far as they relate to such matters are, therefore, outside the scope of the Bill. Under Standing Order 99 the committee is empowered to make amendments which are relevant to the provisions of the Bill. Instruction from the Dáil to the committee would be required to extend this power so as to include amendments such as these.
I want to make it very clear to the Deputy that I appreciate and sympathise with a great deal of what he is saying. However, I am very clear about my role here and I am quite within the terms of reference and in order in ruling these amendments out. There is another forum in relation to these matters, but my ruling here is in order and consistent and I am not changing that.
Members of the Opposition, who are trying to perform constructively, labour under a regime where we do not have the panoply of assistance and advice both from the Civil Service and the ministerial office that is available to Government Ministers. I accept that perhaps in the very fine print of an Opposition amendment it is possible that there may be some technical faults but it is not acceptable that this kind of offside trap is being used against Members of the Opposition who are simply trying to improve the legislation. I am very disappointed that you are taking this particular road, Chairman. I am not making any specific accusation in relation to yourself because I respect the office that you hold and respect the office holder as well. There is, however, a widespread belief among the public that Dáil Éireann is packed with members of the legal profession and that any attempt to introduce reform of that profession is going to be clamped down on.
The legislation we are dealing with is something that is designed to provide the public with some degree of protection. If something goes wrong in the relationship between a solicitor and a client and the client is aggrieved, they have little or no recourse open to them. Many cases have been brought to my attention in my time as a Member of the House where clients have been aggrieved and badly treated by solicitors.
Sitting suspended at 12.15 p.m. and resumed at 12.30 p.m.
I was dealing with the amendments the Chairman ruled out of order in relation to the establishment of the legal affairs ombudsman. I was working on the assumption that the amendment tabled in 1991 was still in order as it had been then. Consequently, amendments Nos. 9 and 33 were phrased consistently with amendment No. 1.
The Chairman's reason for ruling them out of order is that he considers they are outside the scope of the Bill. He explained that amendment No. 33 to section 15 referred to the establishment of an office of a legal affairs ombudsman and that it was to investigate the conduct of any member of the legal profession or the administration of the courts. To help matters, and I ask the Chair to facilitate me, I would like to change the way that amendment is expressed to meet your requirements about scope and confine it to the solicitors' profession.
What I propose — and I expect that you will agree to it, Chairman, given your reason for ruling it out of order — is that an ombudsman for the solicitors' profession would be established. We will not reach the substantive amendment No. 33 until we reach section 15, so I would like your assistance, Chairman, in allowing me to amend my amendment on section 15 to provide for an ombudsman, independent of the Law Society, to examine complaints against solicitors. That provision is being sought by the public, who will have no confidence in an arrangement whereby the Law Society can have its own in-house adjudicator, paid for and appointed by the Law Society, investigating complaints against members of the Law Society.
There must be an independent ombudsman to investigate complaints by clients against solicitors. I regret that because of your earlier decision it is not possible to extend that to other members of the legal profession and the other branch of the profession; but that was your ruling on the earlier amendment, so I must now confine myself to solicitors. I would like to do it in that way because it is an important dimension to this legislation. The principal amendment I want to move is the establishment of an independent office of ombudsman to examine complaints against solicitors. The legislation before us is seriously defective as it contains no such provision.
To enable things to move ahead, I would be happy to withdraw amendment No. 9 if you would allow me to rephrase amendment No. 33 to address the problems with it which you expressed before the break.
I agree with Deputy Gilmore. This is a fundamental issue in relation to what the Minister and the Department are trying to do. I would have expected that you might have ruled this out, Chairman, on the basis that it might incur a cost on the State. Normally, when amendments like that one come forward which imply a cost on the State, the rules of the House dictate that it is out of order. However, you did not rule it out on that basis but because it was beyond the scope of this Bill, in other words, that the legal affairs ombudsman would cover not only solicitors but barristers, etc.
I favour the kind of ombudsman to which Deputy Gilmore referred in the initial amendment. Technically, he has a problem in that it is being ruled out of order because it is wide-ranging. However, if we are to promote the idea and establish the post of ombudsman, we should establish one for the whole range of the legal profession and not confine it to solicitors.
I support, in principle, the case put forward by Deputy Gilmore because in the interests of public confidence we as legislators must be seen to provide a totally independent adjudicator — perceived by the public to be independent and with no vested interest in keeping the Incorporated Law Society happy, because it will be his employer. It should be an adjudicator above suspicion. In saying that I am not implying that a solicitor appointed by the Law Society might in any way be tainted; nor am I implying that such a solicitor would not perform his duties in the most independent, objective, thorough and efficient way. I am merely saying that there may be problems from time to time where clients have difficulties with their solicitors. I say "from time to time" because I agree with Members who say that it does not happen every day and is not something of which every solicitor is accused. There is a minority within every profession whose modus operandi is questionable. The public must have confidence that we are going out of our way to address the problem in the most independent, objective and fair way so that there can be no doubt as to the effectiveness of the measures we are bringing forward.
Having made the point, as you did, Chairman, that this is a Solicitors (Amendment) Bill, I would prefer Deputy Gilmore's amendment to stay as it is but, since it is out of order, I support the amendment he is proposing to his amendment. If the Minister can agree to accept the amendment when Deputy Gilmore changes it, I believe that down the road we will have to look again at extending the powers and functions of such an ombudsman to encompass all aspects of the legal profession.
Could you formally state the wording of your amendment?
Basically, it would involve the substitution of the word "solicitors" for "legal affairs" in the definition, although I am not sure it it is very elegant English. In the substantive amendment No. 33 it would involve the substitution in subsection (1) of "solicitors" for "legal affairs", and the substitution of "solicitors', profession" for "legal profession" as well as the deletion of the reference to the administration of the courts, because you mentioned earlier that that would be out of order. I will write it formally because it was a fairly long amendment, but I am just identifying where the changes would be.
We only need to amend No. 9 at present.
Yes. I move the following amendment No. 9:
In page 7, between lines 38 and 39, to insert the following definition:
"Solicitors Ombudsman" means the Solicitors Ombudsman, established by section 15 of this Act;.
In the text of the amended amendment you are taking out "legal affairs" and inserting "solicitors' ombudsman" established under section 15 of this Act? Is that the proposal?
May I just make the point that if we accept this amendment——
We are discussing the amendment.
I will give the Chairman the full text of the revised amendment No. 33 after lunch.
Is the committee agreed that we accept this amendment for discussion?
We have already discussed this. If the Deputy moves the amendment we should get on with the business of the meeting.
I agree. Is it agreed that we discuss this amendment? Agreed.
I am seeking the establishment of an office which would be independent of solicitors. If a client has a grievance against his solicitor he could approach that office. We have the office of the ombudsman which deals with complaints against officers in the public service and an insurance ombudsman who deals with complaints against the insurance industry——
Chairman, on a point of order, my amendment, No. 34 and amendment No. 33 provide for this and presumably the amendments will be taken together. We are dealing with a definition. My amendments should be discussed as well.
We will discuss amendments Nos. 33 and 34.
The purpose of the amendment is to have an independent means of examining complaints against solicitors. Section 15 provides that an adjudicator would be appointed and paid by the Law Society to investigate complaints against members of the Law Society. The public would not have confidence in such an arrangement. It would be, essentially, an in-house investigation of clients' complaints against solicitors.
I have received many complaints from aggrieved clients of solicitors. They have said that when they made complaints to the Law Society their complaints did not appear to have been pursued with a great deal of enthusiasm. An independent method of examining such complaints is necessary. It is an important provision which should be included in this Bill. If it is not part of the Bill public confidence in the changes being made will be undermined. I ask the committee to amend the Bill to provide for that.
Like Deputy Fitzgerald, I would prefer to have an ombudsman appointed to examine all areas of the legal profession. However, if for procedural reasons we are confined to addressing the solicitors' profession only, the provision must be phrased in the appropriate way. If an office of ombudsman is established under this Bill in the future its remit should include complaints against members of any branch of the legal profession.
I do not favour the establishment of an ombudsman's office to deal with legal affairs or solicitors. The legal profession is involved in the administration of the law which is, essentially, an arm of Government. My amendment No. 34 states:
In page 15, lines 28 to 33, to delete subsection (1) and substitute the following:
"15—(1) Investigation of any written commplaint concerning the handling by the Society of a complaint about a solicitor made to the Society by any person, shall be the duty of the Ombudsman as established by the Ombudsman Act, 1980. The Minister shall, in consultation with the Society, set an annual contribution to be made by the Society towards the cost of the Ombudsman's Office.".
The amendment achieves two objectives. First, the investigation of complaints is made the respoinsibility of the office of an established honest broker. The ombudsman is, beyond question, removed from Government and vested interests and has an established record in dealing with and investigating complaints against the arms of Government. This amendment would be acceptable to both the Law Society and the action group for the aggrieved clients of the legal and banking professions or those who use the services of lawyers. The lawyers believe the ombudsman should do this job.
The amendment also provides — and the Law Society might not agree with this — that the Minister shall, in consultation with the Law Society, set an annual contribution towards the cost of the ombudsman's office. That maintains the Exchequer neutrality of the Bill because it does not impose further charges on the Exchequer. It also ensures that the ombusdman remains above and beyond the control of and at arm's length from the Law Society despite the fact that the society would be asked to contribute towards the ombudsman's costs.
At present, if an adjudicator is appointed — as proposed in the section — the adjudicator will be funded by the Law Society and will not be beyond the control of the Law Society. In the past there has been an outrageous arrangement to deal with complaints from clients of solicitors. I had to appear before a committee of the Incorporated Law Society with a person who could not obtain a breakdown of his costs. He sought the breakdown from the Law Society but was unsuccessful. Eventually I wrote to the Law Society and got their agreement to my attendance before a solicitor's committee meeting with the complainant. While some of the members present were of the opinion that the complainant should not have a right to a breakdown of his costs, one of two other solicitors — notably one from County Louth — believed the man should have the information as a basic requirement. That demonstrated the reality of the grip solicitors have had on the affairs of their clients. In too many cases in the past solicitors, instead of acting an agents for their clients, have dictated the pace including the level of fees and what information they give their clients.
It is not right to blacken everybody with the same tar brush. However, the Law Society, which represents all solicitors, has been very slow to address this problem. If the reputation of the solicitors' profession is tarnished the society must share responsibility for that. I have seen its work at first had in the past. The Law Society has progressed and wishes to see certain changes. However, if we do not accept this amendment we will be delivering clients of the legal profession to an adjudicator who is influenced and remunerated by the legal profession. It is the equivalent of plaintiffs seeking a court's adjudication against somebody who is responsible for paying the judge's salary. That is not on.
The ombudsman hearing complaints against solicitors must be absolutely independent and at one remove from the parties involved. It is also proper that solicitors make a contribution. The amendment I propose provides that the ombudsman as appointed under the Ombudsman Act, 1980, would act in such cases, with a contribution from the Law Society. This would meet both objectives. I hope the Minister finds this amendment acceptable.
I support this amendment. As it stands, section 15 states the Minister may by regulation require the Law Society to establish, maintain and fund the scheme. From what has been said so far, one would imagine the Law Society was planning the scheme in order to protect itself. If it had its way, the Law Society would not want to fund a proper ombudsman service. In the long run, he who pays the piper calls the tune; if the society is compelled to fund the scheme, it is hard to blame it for having an interest in the deliberations. It is unfair to blame the Law Society for trying to monopolise the scheme and protect itself. Why should it pay for an ombudsman who would investigate its members?
Deputy Mitchell's amendment would involve the society paying a contribution to the ombudsman service which currently exists. The current office holder serves himself and the country extremely well. The amendment should be accepted. If we are to introduce new regulations and appoint an ombudsman it would be a pity if there were problems he would be unable to tackle. If anyone has a complaint about legal matters there should not be issues which the adjudicator cannot cover because they involve barristers, courts or any aspect of the law. If we appoint an ombudsman that person should be able to deal with all matters relating to law.
Despite this amendment, we cannot provide for that, so it does not arise. The amendment has been amended to allow us——
We are talking about our amendment.
Our amendment is fine in that regard.
The independence of the proposed legal ombudsman, or adjudicator, as described in the Bill, is vital to the success of the office. The Minister does not want to put any expense on the Exchequer and is requiring the Law Society to totally fund the office. However, no matter how one interprets that, there will be a perception that the Law Society will act as judge in its own cause and it is a fundamental principle of jurisprudence that that should not happen in any investigative procedure. I am not saying that would be the case but the public perception would be that an ombudsman funded and established by the Law Society to look into the activities, lack of activity, shoddy work or excessive charging of its members might have a conflict of interest.
For that reason, Deputy Mitchell's amendment to some extent removes the post of legal adjudicator from the influence of the Law Society. There would be an obligation on the society to fund the office but the public would see that the post would be established under the Ombudsman Act, 1980, and would not be a cosy inside arrangement by the Law Society to examine nonfeasance of various obligations by its members.
It is unfortunate that the office of the ombudsman has a restricted remit and that its functions cannot be extended to other branches of the legal profession, such as the Bar or the court service. This is a missed opportunity. We have proposals before us to appoint an ombudsman for solicitors and it is unfortunate that that person shall have such a selective remit. Even if we are to deal only with this category of persons providing legal services, it is important to do it properly.
My amendment No. 35 involves the issue of funding and how it is to be controlled. It provides that funding will be provided in accordance with terms to be agreed between the Law Society and the Minister. The society has acknowledged it will have to set up investigative and regulatory procedures. Nonetheless, it has legitimate fears that the proposal is open-ended and that the funding could get completely out of hand because it is not certain how many people will be employed. It is also unsure what the status of the person appointed as adjudicator will be. Will he or she be a public official or simply carrying out the requirements of the Law Society as one of its employees? This issue is also related to funding.
My amendment seeks to place limits in the interests of the Law Society. If the Minister expects the society to fund the entire scheme from the beginning, it would be reasonable that there should be an element of consultation between the Minister and the society about the possible growth of the office of legal adjudicator.
I will not press the amendment but it relates to the central issue, the independence of the proposed ombudsman. Deputy Mitchell's amendment covers the most important problems because it provides for a large measure of Exchequer neutrality, which is the Minister's objective. It may not eliminate Exchequer input but that may be desirable to foster the perception that the official is a public adjudicator. It might be inappropriate for a non-governmental body such as the Law Society to establish itself in such a role. There is a definite danger of a conflict of interest and of the Law Society being seen as a judge in its own cause.
I see the logic in what has been said. My difficulty with Deputy Mitchell's amendment is that, as drafted, it is not necessarily Exchequer neutral. I realise it can be changed to make it so. Deputy Gilmore's amendment is certainly not Exchequer neutral. It refers to funding "in whole or in part" and to raising stamp duty, etc. Those are matters for the Minister for Finance and I cannot accept an amendment with a financial implication. I accept the logic of Deputy O'Donnell's contribution. I will respond to Deputy Mitchell's amendment and then to Deputy Gilmore's amendment. Perhaps we can have a general discussion after that.
The objective of Deputy Mitchell's amendment it to provide that the ombudsman for the public service would assume the role of independent adjudicator as provided in section 15. The primary function of the ombudsman as currently established is to investigate any action taken by or on behalf of a Department of State where a complaint is made by a person against such a Department. It is not the role of the public service ombudsman to investigate complaints relating to services provided commercially in the private sector.
The proposals in section 15 are a response to public concern about the absence of an effective and accountable system for dealing with complaints about solicitors. It is vital that a specialised mechanism should be put in place to improve public confidence about the manner of dealing with complaints about solicitors. Similar schemes have worked well in the credit institutions and insurance bodies. In Europe and the United States demands are being made of various institutions, whether professional or financial, for increased accountability and an independent mechanism for people who make complaints. The credit institutions and insurance companies are doing this by self-regulation. They have an ombudsman who publishes an annual report and such people are paid by the institution or profession they are investigating.
Recently I read the report of the ombudsman for the insurance industry, who is a lady barrister. It is an excellent report and she does not pull any punches about the industry and the difficulties and weakness in its complaints system. That system has improved substantially as a result of her involvement and the excellent job she is doing. The same applies in relation to the credit institutions. I have not read the report of the ombudsman for the credit institutions, but I am aware that the appointment of an ombudsman there has improved the situation considerably.
Deputy G. Mitchell is concerned about the role and function of the independent adjudicator, vis-�-vis the Law Society, in the light of the requirement of the society to fund the scheme. Deputy Gilmore is also concerned about this point. I assure Deputies that the adjudicator will be able to operate in an independent way, as required under the section. The Minister’s consent will be required for the appointment of any independent adjudicator by the Law Society. This provision is a vital safeguard to ensure independence. In addition, the adjudicator will be required to report annually to the Minister on the discharge of his or her duties.
The word "annually" is not mentioned in the section, but I assure the committee that we will insert it in the Bill. As the adjudicator will be under a statutory obligation to act independently in the exercise of his or her functions, it will be open to the adjudicator to raise any issue of interference with his or her independence in the course of these annual reports. I want to draw the committee's attention to the provision whereby the Minister shall require publication of the annual reports and shall lay them before both Houses of the Oireachtas. Any difficulty encountered by the adjudicator in discharging his or her statutory functions will be a matter of public record.
I do not believe Deputy Gilmore's amendment will achieve a more independent ombudsman than what is proposed in section 15, although I want to give it further consideration. The policy objective of section 15 is to require the society to establish an adjudicator scheme and to pay for it. In substance, there is no great difference between what Deputy Gilmore is proposing and what section 15 provides. In both cases, the society must fund the adjudicator's office and the Minister will decide who the adjudicator will be. that is the substance of section 15, although it may not be stated as explicitly as it is in Deputy Gilmore's amendment.
As I listened to Deputy Gay Mitchell, Deputy Gilmore and Deputy O'Donnell, I realised that people will understand the policy objective behind this issue. It is an extension of the self-regulation system, which is logical. We are extending self-regulation because the legal profession is making complaints, therefore it is logical that the profession should pay for that extension. There is no difference in substance between what section 15 states and Deputy Gilmore's proposal to establish a system whereby the society must pay so much per year to the Exchequer, which will then pay the adjudicator. This might work in practice and the adjudicator might be more independent because the Exchequer would be making an annual demand on the Law Society.
Does the Minister mean a public official?
Yes. I would be sympathetic to a change along those lines because I want to maintain the system of self-regulation and I want to make the Law Society pay for the adjudicator. However, I want to have as much independence as possible. This means I must get permission from the Department of Finance because it will involve paying out public money. I will discuss this matter with the Minister for Finance because I would prefer to have such a system, rather than allowing the Law Society to pay the salary directly.
My amendment No. 35 raises the issue of funding and how, in accordance with terms to be agreed by the society and the Minister for Finance, an arrangement could be made whereby the Law Society could pay the Exchequer, which would then establish the office.
The cost of this could be substantial. Discussions will take place between the Minister and the Incorporated Law Society of Ireland in the course of setting this up. If the Incorporated Law Society proposes to set up something which will not solve the problem, we must interfere because under section 15, we have residual power to make the appropriate regulations if the Law Society does not do so. I accept the logic behind the Deputy's argument, but I am certain it will happen anyhow.
I accept what the Minister is saying because it would improve the situation. However, when people consult the Department of Finance in such matters the result does not become part of legislation at a later stage because the Department will find various reasons for not exposing itself to trivial costs. We are dealing with an arm of Government unlike any other. Whether we like it or not, the courts are part of the public service, although they do not come under the administration of Government. They are in a different category from accountants or auctioneers because people are depending on these intermediaries, particularly in relation to laws passed by the State. In relation to the Legislature and the courts, the Law Society and its members have a pivotal role to play and this puts them in a different section. They are part of the public service when they are acting in this manner, although they are not public servants.
My amendment would meet the two objectives which would have the support of the Law Society and the action group for the clients of the legal and banking professions. They would feel the established ombudsman had the clout, independence, expertise and professionalism adequately and fairly to investigate complaints from all points of view, not only from the point of view of the client. The ombudsman is a wing of Government, albeit on the periphery, but this is an unusual extension of the role of ombudsman. It would maintain the annual contribution made by the society towards the cost of the ombudsman's office, albeit in consultation with the Minister for Justice, so that the society would have an annual opportunity to argue its case with the Minister, rather than paying for the costly administrative office of adjudicator. As the structures are already in place, this would be the most cost efficient, effective and fair way of dealing with complaints. There is no reason we should not be innovative simply because matters of this kind are not referred to the ombudsman in Britain or elsewhere. We are legislating for this country, this is something which we can do and which would be broadly accepted for the reasons I stated. I ask the Minister to consider my amendment, even on Report Stage. The provision which I am endeavouring to make would do exactly what we want to do more effectively than the existing provision.
I welcome the Minister's response to these amendments. The direction which he proposes to take is along the lines which I would suggest. There is a difference between the approach suggested and Deputy Gay Mitchell's amendment. I am not enthusiastic about the approach advocated by Deputy Mitchell. His amendment would confine the investigation of complaints "to the handling by the Society of a complaint" already made about a solicitor. In other words, if a client makes a complaint to the Law Society about a solicitor and they are not happy with the way the society handles that complaint, they may then make a complaint to the ombudsman.
Given the case histories I received, I envisage a situation whereby if a complaint is made to the Law Society and nothing happens, the aggrieved person would then complain to the ombudsman who would then contact the society which would say it is still investigating the complaint and the case would go on and on. It is undesirable that the independent ombudsman, the existing public service ombudsman or otherwise, should be confined to examining the way the Law Society handles complaints. The amendment is defective in that sense.
I have no problem with the office of the public service being extended to perform this function because there is a difference between the investigation of a complaint against a health board which does not process an application for a medical card or a local authority which does not process an application for a student grant and a complaint about the relationship between a solicitor and a client. There is a qualitative difference between these complaints because one deals with the administration of straightforward public service regulations and entitlements, while the other may be a more complex matter. While I have no problem in principle with the office of the ombudsman dealing with such complaints, the scope and resources of that office must be extended.
There is also a difference between the way in which a complaint against a solicitor and another professional is handled. If one has difficulty with a member of the medical profession or an architect, one may sue that individual and one has recourse to a member of the legal profession to do so. However, it is a different matter when a member of the legal profession who knows the rules does not observe them. People feel more vulnerable in their relationship with members of the legal profession than with anyone else. When dealing with another professional, one has recourse to the law, but one may doubt this when dealing with the legal profession. If you have a problem with a solicitor, can you talk to another solicitor about it? There is a perception that the Law Society is the trade union for solicitors and, therefore, one may ask whether it would deal fairly with a complaint, We should put an independent mechanism in place. I favour the extension of the existing ombudsman's office or the establishment of a separate office to deal independently with complaints against the legal profession.
I know the Law Society is not happy about funding this office, for understandable reasons. I am concerned about its exclusive funding by the Law Society because it will inevitably involve discussion between it and either the Department of Finance or the Department of Justice about the amount of money which will be made available for this function or the amount which can be made available. I am concerned that the extent to which such an office could be established would be restricted by the availability of funding from the Law Society. For example, if there were a large number of complaints, it could end up like the free legal aid system, where there are long queues.
I agree with the principle of the profession contributing to the cost of consumer protection, but I wonder — and this may have to be looked at — whether the State can get away without having to pay some of the cost because it concerns the protection of the public's rights. I am not sure whether this can be done without a contribution from State resources.
I want to strike a blow for a much maligned profession and in doing so, I declare an interest because I am a member of the solicitors' profession, although I do not practise. Some comments give the impression that one is dealing with a profession with a bad record. That is balderdash. The majority of solicitors perform their functions, duties and responsibilities in a most professional manner. There are bad apples but only a small number and the position should be put in perspective.
The Minister said the legal profession was causing difficulties but only a small number do so. From where do the other difficulties come? In many instances they are caused by trivial and vexatious complaints. That must be stated clearly. People aggrieved in court because they believe the judge did not make the right decision, turn on the solicitor. A man who came to my clinic a couple of days ago wanted to go to the European Court because of a minor matter in the District Court; he also complained about the solicitor involved. That situation must be put into perspective because the majority of solicitors do a good and professional job.
As regards cost, we are talking about the Law Society funding the ombudsman. Solicitors practising in Ballyhaunis, Ballydehob or Baggot Street will fund this. The Law Society does not have money — except what it collects from its members — to fund anything. I was alarmed when the Minister said the cost could be substantial. I would like to know the figures he has in mind and what additional levy will be imposed on solicitors to fund this new office.
I am not against its establishment, but let me declare an interest as somebody who would be one of those making an additional contribution. I wish to know roughly what the Minister has in mind. By paying for a practising certificate solicitors would be paying the kind of levies imposed by the Law Society to fund an activity. Solicitors were the first profession in this country to establish a compensation fund for rogue solicitors who made off with clients' funds. Each solicitor makes an annual contribution to that fund. Let us not forget that. The members themselves are paying for these rogue solicitors who do the public.
I am trying to put this proposal in perspective. The question of cost is of relevance, not least to the clients, who ultimately will be asked by solicitors, who will raise their fees, to cover the additonal cost. Where else is the money to come from? Any obligation imposed on a business or profession will be passed on in due course. It is as well that we should say that. Ultimately, 99 per cent of solicitors pay for the rogue solicitors and 99 per cent of clients will be paying for the activities of the people who are making vexatious and trivial complaints which have no foundation whatever. The idea of an ombudsman is a good one. It is no harm that there should be transparency and accountability.
As far as the Law Society is concerned, they have improved their procedures in recent years and complaints are dealt with and investigated fully and properly. Let us bear in mind that if a complaint against a professional person is being investigated, that person has rights too. That person is entitled not to be maligned improperly, is entitled to give a full explanation and to have his or her name cleared in the event of the complaint turning out to be vexatious or frivolous. In relation to the legal entitlement of those who want to take a case against a solicitor, my understanding is that the Law Society has established a panel of solicitors who are prepared to take cases against other solicitors. The Law Society has insisted that this panel be available to people who have a legitimate case to bring against another solicitor. Those are a few comments to put things in perspective before we finalise our decisions on this issue.
As the Minister is due in the Dáil for Question Time at 2.30 p.m. I was hoping to dispose of this amendment before lunch. There are two more speakers, but the Minister is anxious to go.
I am due in the Dáil for Question Time at 2.30 p.m. also, Chairman, so maybe we will dispose of this when we return.
Sitting suspended at 1.35 p.m. and resumed at 4 p.m.
We will be able to pick up on this matter again when we come to section 15 and hear what the Minister has in mind. In those circumstances I am happy to withdraw amendment No. 9. Will the Minister clarify if he intends to come back to us on this point on Committee Stage or if he will wait for Report Stage?
It depends how long it takes us to get to section 15. I will have to talk to the Minister for Finance and we will have to make a submission to him to change the system as I suggested. Judging by the progress we are making to date, it could well be before we reach section 15.
Amendment, by leave withdrawn.
Section 2, as amended, agreed to.
SECTION 3.
Amendments Nos. 10 and 11 have already been discussed with amendment No. 6.
I move amendment No. 10:
In page 8, subsection (1) (a), line 11, to delete "or excludes".
Amendment agreed to.
I move amendment No. 11:
In page 8, subsection (1) (a), line 13, to delete "or excludes".
Amendment agreed to.
Section 3, as amended, agreed to.