Select Committee on Legislation and Security debate -
Wednesday, 27 Apr 1994

SECTION 7.

Mr. O'Dea

I move amendment No. 14:

In page 10, between lines 4 and 5, to insert the following subsection:

"(2) Section 73 (as amended by the Act of 1960) of the Principal Act is hereby amended by the substitution of the following subsection for subsection (9):

‘(9) A member of a committee under the section, who was a member of the Council at the date of his appointment, may act on the committee notwithstanding the fact that he has ceased to be a member of the Council and, for the purposes of subsection (3) of this section, he shall be regarded as a member of the Council.'.".

This is a drafting amendment which is necessary because of the substitution of it in section 73 (3) of the Principal Act.

Amendment agreed to.

Ms O'Donnell

I move amendment No. 15:

In page 10, between lines 4 and 5, to insert the following subsection:

"(2) Section 73 (as amended by the Act of 1960) of the Principal Act is hereby amended by the insertion of the following subsection:

‘(10) A Committee to whom the Council has delegated the exercise of the functions of the Council under subsection (1) of this section may, with the prior approval of the Council, delegate any of such functions to a designated senior officer or senior officers for the time being of the Society, subject to such restriction or restrictions (if any) and for such period or periods as that Committee or the Council may specify, and that Committee or the Council, may revoke such delegation with or without notice.'.".

We have been alerted to this provision by some members of the profession and, in particular, of the Law Society. It is a reasonable amendment. The provision is to allow a committee of the council, with the council's approval, to delegate specified functions to a designated officer of the society. It is felt that it is administratively necessary for the Law Society to assist the proper inter vires functioning of the society. The Law Society has committees which deal with the various functions. It felt that it should be allowed to delegate a designated officer of the society to deal with this function. I would welcome a response from the Minister. Does he feel that such a provision is necessary?

Mr. G. Mitchell

I understand the amendment was tabled at the request of the Law Society to allow it to delegate specified functions to a designated officer of the society. It says it is administratively necessary to assist the proper intra viresfunctioning of the society, as to the jurisdiction of the society to deal with complaints by solicitors from members of the public under sections 8 and 9 of the Bill, and to monitor the effective discharge by the society of these functions. The suggested amendment was to include “designated senior officer or officer” and I want that to be amended to “senior officer or senior officers”. I only wish to ensure the proper functioning of this section. I certainly do not want to advocate anything that would not be in the interests of the consumer. I am taking the Law Society at its word, when it says this is simply a procedural matter to allow it to effectively discharge its functions. It says this amendment is important to the public interest. I have accepted that from the society as bona fide advice but I will not press this amendment if the Minister feels it is not in the public interest.

Mr. Gilmore

Anybody who has any experience of the functioning of committees recognises there are circumstances where routine functions vested in committees could be delegated to individual officers and I have no difficulty with that. However, I am surprised that it should be necessary to make legislative provision for this. A committee, in the course of its normal functioning, should be able to delegate routine matters to officers of the society. I have a niggling worry about putting this amendment into the legislation. The change in the Principal Act being provided for in this section, if to allow lay persons and solicitors who are not members of the Council of the Law Society to be members of committees of the council. Is it a good idea to allow for the opening up of committees and also to provide an escape hatch whereby certain functions can be delegated to individual officers? I know of cases where the executive or the committee of bodies which has functions to exercise, in some cases at its first meeting is asked to delegate some of its more important functions to identified officers and the bodies effectively neutralised themselves on the first day. In general I have no problem with delegating functions to individual officers but those two considerations should be taken on board.

Mr. J. O'Keeffe

I would be interested in the Minister's response to this amendment. On the face of it, the proposal would seem to lead to a more effective functioning of the committee in question, but perhaps the Minister has another point of view on that. Many people complained that the Law Society was a closed shop. I am a little surprised to hear the last comment on including solicitors who are not members of the council on the committee and even more so, to hear a complaint that the Council of the Law Society could include persons who are not solicitors. I understood that the idea was to open matters up a little more.

Mr. Gilmore

I am in favour of it.

Mr. J. O'Keeffe

I am sorry. I misinterpreted the Deputy. I will reserve further comment until I hear the Minister's response.

Mr. O'Dea

Deputy Gilmore asked if such a move under this amendment is possible. The answer is no. Certain functions are given to the Council of the Law Society under section 73 of the Principal Act and they are statutorily entitled, under that section, to delegate some of those functions to committees. To delegate further we would need specific legislation.

I am somewhat concerned with this amendment — Deputy Gilmore adverted to this in his contribution — because it removes responsibility for the control of the profession from the council of the society. The Council of the Law Society is the governing and controlling body for the profession. I am already proposing substantial changes to section 73 of the Principal Act with the amendments in section 7 of this Bill. At present, two thirds of members of all committees established by the council must be comprised of members of the council and where the council delegates its functions to a committee, all the members of that committee must be members of the council.

Section 7 changes these requirements to provide that committees may include solicitors who are not members of the council and also lay persons. Where the council delegates functions of the society to a committee, only two thirds of the membership of that committee must be members of the council. Section 7 also provides that committees may sit in divisions of three persons. These changes will give greater flexibility to the council. However, the proposed amendment seeks to go far indeed by allowing the council to delegate its functions to an officer, albeit a senior officer, of the society. The amendment is phrased in general terms and I am not clear what function of the council would be delegated to an officer of the society. The Oireachtas is delegating important functions for the control of the profession to the council of the society. The Bill allows the council to delegate these functions further to committees appointed by the council. Now, the proposal is to delegate even further.

The Bill confers important functions on the society, for example, in sections 8 and 9. I would be concerned that this amendment would leave the council remote from the problems we are seeking to address in those sections; for example, if responsibility for sections 8 and 9 complaints were handed over to an officer of the society.

Mr. G. Mitchell

Is the Minister opposed to the amendment?

Mr. O'Dea

Yes. It is moving power too far from those to whom these powers were originally given. They are already empowered to delegate to committees. This amendment proposes to delegate further, to an individual perhaps, to consider complaints under section 8 and 9.

Ms O'Donnell

I accept the Minister's point that it would be unwise to diminish the responsibility of the council any further. I query why the Law Society would encourage us to put down this amendment if it did not feel it was administratively necessary for it to be effective in carrying out its functions by way of committee. I will bow to the knowledge of the Minister in this regard and be assured that he feels that the council already has sufficient powers to carry out functions. Our function, as Deputy Gay Mitchell said, is to protect the public interest. I accept the Minister's statement.

Mr. G. Mitchell

In the circumstances, I do not intend to press this amendment but it was worth giving it an airing. I accept the Minister's reply.

Mr. J. O'Keeffe

Although the Minister has dealt satisfactorily with this point, there may be a sensible rejoinder to it of which none of us is aware. All of us are anxious that the committees should operate efficiently and effectively. The Law Society is looking for this change to ensure that. Perhaps there could be further discussion on the proposal between the Minister and the society before Report Stage. If a convincing case is made the amendment could perhaps be reintroduced on Report Stage.

Mr. O'Dea

Yes, we can do that.

Amendment, by leave, withdrawn.

Mr. G. Mitchell

Chairman, because of other engagements in the Oireachtas I missed the Committee's deliberation on amendments Nos. 12 and 13 to section 4 of the Bill. In the interests of the good functioning of the Committee I wish to put on the record my views on these amendments.

Chairman

That is acceptable.

Mr. G. Mitchell

Thank you, Chairman. On amendment No. 12 to section 4 my objective is to remove the distinction between solicitors and barristers in the courtroom as it goes against the interests of the solicitor and the public and to that end I seek the abolition of wigs in court. I am not too concerned about the wearing of gowns as I understand that solicitors can wear gowns in certain circumstances while only one branch of the profession wears wigs. The wearing of wigs and gowns is not allowed in family law cases and I wish to see this prohibition extended to all court proceedings.

There is a valid reason for this. I appreciate that barristers like the sense of theatre, antiquity and tradition that goes with wearing the wig and gown. However, there is a selfish interest in retaining the wig and gown which acts against the public interest. There is an association between judges on their higher benches and barristers which acts permanently to exclude solicitors from appointment to the higher benches, thus ensuring that judges in the higher courts are drawn exclusively from barristers.

Page 309, paragraph 17.47 of the Fair Trade Commission Report on Restrictive Practices in the Legal Profession states:

While the wearing of wigs and gowns in court by barristers is a peripheral issue to our study, it is of importance to some people. The Commission does not believe that the wearing of wigs, in particular, adds to the formality and solemnity of the court, rather the reverse, and it considers. . . .

Ms O'Donnell

On a point of order, if the Deputy is going to debate the amendment we will all have to contribute to it.

Mr. G. Mitchell

I have facilitated other Members of the Committee. Deputy O'Donnell, being a member of the Bar Council, should have more grace and let me——

Ms O'Donnell

I am not a member of the Bar.

Mr. G. Mitchell

The Deputy is a barrister.

Ms O'Donnell

I am not a barrister. The Deputy should get his facts right. He is out of order.

Mr. G. Mitchell

The Deputy is speaking for these people.

Ms O'Donnell

I am not speaking for these people.

Mr. G. Mitchell

These amendments were ruled out of order before I had the opportunity to attend the Committee.

Chairman

The Committee convened at 4 o'clock. I waited until 4.5 p.m. to give Members an opportunity to attend the Committee. You asked if you could put an item on the record which I allowed you to do and I must ask you to complete your contribution in this matter because if you had been here earlier you would not have been allowed speak at all.

Mr. G. Mitchell

As I was saying before Deputy O'Donnell so rudely interrupted me, the Fair Trade Commission does not believe——

Ms O'Donnell

On a point of order——

Chairman

Please proceed, Deputy Mitchell.

Mr. G. Mitchell

I will continue with the quotation I had begun from the Fair Trade Commission Report of Study into Restrictive Practices in the Legal Profession, page 309, paragraph 17.47:

The Commission does not believe that the wearing of wigs in particular adds to the formality and solemnity of the court, rather the reverse, and it considers wigs to be anachronistic, unnecessary, and, possibly, intimidatory. In so far as they convey a degree on anonymity to barristers, we consider this to be contrary to our recommendation concerning a closer relationship between barrister and client. Wigs differentiate between solicitors in court, and may, to a small degree, inhibit solicitors from representing their clients more frequently. Since both judges and barristers wear wigs this may convey the impression of an association and a community of interest between the two. We consider that it would be a sensible move towards a more modern profession if barristers no longer wore wigs.

Since I cannot move an amendment dealing with this issue I wish to ensure that there is some way in which it is addressed. I ask the Minister to consider this under the Miscellaneous Provisions legislation which has been promised because it is time this issue was addressed.

It is not merely a question of tradition and ceremony. There are good, fundamental grounds for considering the abolition of wigs in court.

Chairman

Deputy, you are not being fair to the Chair. I am not allowing the Minister to reply as the matter was out of order. However, as a matter of courtesy to you Deputy I have allowed you make your point. I am not allowing any discussion on it and I am proceeding to the next item.

Mr. G. Mitchell

It is time that the Committee addressed the question of whether a separate solicitors' and barristers' profession is required. This acts against the interest of the public and I suspect that any attempt by the Legislature to modernise the Bar Council and barristers is being inhibited by some people within the office of the Attorney General who vet legislation before it comes to the Dáil.

Ms O'Donnell

I intervened to suggest that if the amendment was to be debated we would all have to contribute. I refute any allegation made by Deputy Mitchell that I am attending the Committee speaking for the Bar. I am not a member of the Bar and I ask Deputy Mitchell to withdraw his remark which suggests that I would be compromised by attendance at this Committee.

Mr. G. Mitchell

I accept Deputy O'Donnell's comments and that she is not a member of the Bar, but it appears to me that there are vested interests in the Dáil who wish to support barristers in continuing this nonsense whereby huge fees are paid for services which are not required.

If solicitors are capable of appearing in the Supreme Court, why are they not capable of sitting in the Supreme Court?

(Interruptions.)

Mr. J. O'Keeffe

Both amendments by Deputy Mitchell were ruled out of order. While there is a case for ruling out of order on a solicitors' Bill a point on barristers parading in fancy dress, wearing wigs and so on, I fail to understand why Deputy Mitchell should not be in order in promoting a case on a solicitors' Bill for the amalgamation of both professions. Should such an amendment not be in order on this Bill?

Chairman

I am not allowing any further discussion on this matter and I propose to put section 7——

Mr. J. O'Keeffe

That is not a problem, but why is the amendment not in order Chairman?

Chairman

I gave my ruling earlier that the amendments were out of order. There should not be any discussion on the matter. I now ask for the co-operation of the Members of the Committee.

Mr. G. Mitchell

On a point of order——

Chairman

Members are being unfair and I refuse to tolerate any more of this. I allowed Deputy Mitchell to make a comment although both he and I were out of order in doing so. The matter is now at an end and I propose that the Committee decide on section 7 of the Bill.

Mr. G. Mitchell

On a point of order, would you inform the Committee as to your legal background in view of the rulings you are making? I presume that like me you do not have a legal background. Therefore who is giving this legal advice? Is this legal advice being influenced by the office of the Attorney General?

Chairman

I refute that statement. The advice to the Committee and to me is from the Bills Office and I am interpreting Standing Orders of the Dáil in the same manner as the Ceann Comhairle. In this respect I am clear about my position.

The Committee has spent enough time on this issue and I ask for the co-operation of Members in proceeding to deal with the issues before us. I have already outlined clearly my views on some of these amendments.

Mr. G. Mitchell

It is usual procedure for the Bills Office to consult with the Department of State handling a Bill. The Department of State, in giving its advice, presumable consults the Attorney General. The Attorney General advises the Government, not Parliament. It is time this Committee obtained independent advice, because we are being nobbled by people who have a vested interest in promoting the interests of the Bar above all other interests. It is something to which I object.

Chairman

The amendments were ruled out of order on the basis of Standing Orders of the Dáil, and for no other reason.

Section 7, as amended, agreed to.