Amendment No. 59 is out of order as it involves a potential charge on the Revenue.
SECTION 15.
Amendments Nos. 57b, 57c and 58 not moved.
Chairman
Amendment No. 59 not moved.
Chairman
Amendments Nos. 60 and 67 may be discussed together.
I move amendment No. 60:
In page 10, subsection (1), line 52, and in page 11, line 1, to delete "allegation or".
Amendment agreed to.
I move amendment No. 61:
In page 11, subsection (1), line 1, after "made" to insert "to the adjudicator".
Amendment agreed to.
Chairman
Amendments Nos. 62 and 65 may be discussed together by agreement.
I move amendment No. 62:
In page 11, subsection (1), line 2, after "complaint" to insert "about a solicitor".
The word should be "concerning" rather than "about". It is a drafting measure which deals with the Minister making regulations to require the Law Society to establish, maintain and fund a scheme for the examination and investigation by an independent adjudicator of any written allegation or complaint made by or on behalf of a member of the public against the society concerning the handling by the society of a complaint made to it by any person about a solicitor. It is basically a drafting amendment — taking Deputy Browne's view — to try to make the section more intelligible.
I have no difficulty with it. I am prepared to accept that.
It would be more accurate to say "concerning". If we can agree to change the word to "concerning" rather than "about" that would be fine.
My question is partially dealt with in section 21.
Amendment, as amended by leave, agreed to.
I move amendment No. 63:
In page 11, subsection (1), to delete line 3, and substitute "made to the Society by a client of the solicitor or any person duly authorised by that client".
This amendment comes back to the issue of a complaint being made by the client or by a person authorised by a client as opposed to the phraseology we discussed on an earlier section.
What happens if the complainant dies without authorising anybody?
Deputy Shatter's amendment raises the same issue as amendments Nos. 20, 28 and 31. Therefore I request him to withdraw the amendment on the understanding that I will review the matter before Report Stage. In relation to Deputy Allen's query, at page 5 of the Bill, in the interpretation section, section 2, a client is defined as including "any person who is a successor in title to a client and any person on whose behalf . . ..".
Amendment, by leave withdrawn.
I move amendment No. 64:
In page 11, subsection (1), line 3, to delete "it" and substitute "the Society".
Amendment agreed to.
I move amendment No. 65:
In page 11, subsection (1), line 3, to delete "a" and substitute "the".
Amendment agreed to.
I move amendment No. 66:
In page 11, subsection (2) (a), line 8, after "complaints" to insert "to the adjudicator".
Amendment agreed to.
I move amendment No. 67:
In page 11, subsection (2) (e), line 15, to delete "allegations or complaints" and substitute "complaints to the adjudicator".
Amendment agreed to.
Chairman
Amendments Nos. 68 and 70 may be discussed together.
I move amendment No. 68:
In page 11, subsection (2) (f), lines 17 and 18, after "complaints" to insert "to the Society".
Amendment agreed to.
I move amendment No. 69:
In page 11, subsection (2) (h), line 26, after "section 7" to insert "(as substituted by this Act)".
Amendment agreed to.
I move amendment No. 70:
In page 11, subsection (2) (j), line 31, after "complaints" to insert "to the Society".
Amendment agreed to.
Amendment No. 71 not moved.
I move amendment No. 72:
In page 11, subsection (3), lines 40 to 42, to delete paragraph (ii), and substitute the following:
"(ii) A person appointed as an adjudicator shall be independent in the exercise of his functions.".
This section is designed to deal with the appointment of an adjudicator and the adjudicator's role is to investigate the manner in which the Law Society investigate complaints.
There are various regulations or provisions made in relation to the adjudicator and the one thing that is not stated and that I propose should be inserted in a new subsection (3) is that a person appointed as an adjudicator shall be independent in the exercise of his functions. I am proposing that that provision replace the existing section 15 (3) (ii) provision, which says a person appointed as an adjudicator shall not be or have been a practising solicitor or practising barrister and shall be independent in the exercise of his functions. It seems that the job of an adjudicator as the Minister and the Bill envisage is to investigate whether complaints have been properly investigated. I regard this approach as a little bizarre. It is making a pretence at appointing a so-called legal ombudsman when we will not have one at all. It means the Law Society investigate a complaint and if the person whose complaint was investigated is not happy with the Law Society, he then complains about the Law Society to the independent adjudicator who presumably starts investigating both the Law Society and the solicitor all over again.
In the context of valid complaints, I have no problem with that but in the context of people who might make complaints out of malice or who have become unhinged by being involved with the legal process, this approach seems very wrong. If I had my way the Law Society would not be investigating complaints of this nature; I would not have this independent adjudicator. What I would have is a legal ombudsman with an office and trained people dealing with all complaints. Then, not only would matters be dealt with by an independent person but he would be perceived to be independent.
We are putting this elaborate structure in place and even though it is envisaged that the Law Society will act independently and properly, as I feel they will, because it is the solicitor's profession judging solicitors, the outsider, the client the consumer, is left with a suspicion that things are not being judged properly. The idea is that we put in an adjudicator who can adjudicate on the Law Society. I think this is a cumbersome and over-elaborate procedure but we are stuck with it. Having been stuck with it, we have this nonsensical provision in section 15 (3) (ii) which says that the independent adjudicator can be anybody provided he is not a practising solicitor or practising barrister. Most of these claims I assume will be allegations that solicitors have not adequately represented their clients or have not provided work which was of a quality which could be reasonably expected. I believe the people uniquely qualified to decide whether the solicitor has adquately represented his client or done work that is proper and reasonable is someone who has experience of that type of work.
I would not, for example, expect a lawyer to be called in to judge whether a gynaecologist has properly conducted an examination of his patient and reached the proper conclusions about any medical treatment that may be required. Yet we are suggesting that the adjudicator would be someone who is not a practising barrister or solicitor. Will the local building contractor be appointed as adjudicator to determine whether the legal work was done properly or will a general practitioner do it? Will a gardener friend of the President of the Law Society be appointed? Our specific concern is that if we must have this high bred individual who is not an ombudsman, a disciplinary committee or a determinator but who judges everyone else, we need to ensure that he is independent and carries out his functions independently of the Law Society, the solicitors against whom a complaint has been made, the complainant and of anyone else. It defies reason that someone who is a practising solicitor or barrister should not be given that post. I can understand there may be a worry a practising solicitor might make a decision that is favourable towards their friends. Every day of the week solicitors are appointed to act as arbitrators, sometimes in major international arbitrations, and it is assumed they will do their job properly and will not make a decision in favour of the solicitor they know. We also have barristers appointed as arbitrators, we have barristers appointed by Government on a regular basis to fulfil all kinds of functions; we have a barrister who decides what the public service pay scheme should be; we even have a barrister who pronounces on what Members of the Dáil should or should not get and some of the decisions made in that area are bizarre when one looks at them.
If people complain they have not been properly legally represented that proper preparation has not been made, that they did not get the level of service they were entitled to, or that the Law Society has not properly adjudicated on that matter, if defies reason to appoint someone who has no experience as a practising barrister or solicitor to make an adjudication. This is Alice in Wonderland stuff; it makes no sense. I have tabled this amendment because I believe the person to exercise this function should be independent. It defies reason that a practising solicitor or barrister should not do it.
Would the Minister clarify this section? For example, if somebody is qualified as a solicitor or barrister but has never practised, could they adjudicate and, if so, how could they determine whether a lawyer who has been practising for ten or 20 years had properly prepared for a court case?
Could an academic lawyer be appointed to this position? If so, how would they know what needs to be done in preparation for court hearings? Having been a legal academic and a practitioner I can tell you they operate in two different worlds. The academic's approach to presenting a case in court and the way it is done in practice are two entirely different things.
I urge the Minister to take on board my amendment. I do not think much of this provision in the Bill or the way we are dealing with this area in the Bill, but if we are stuck with it, let us at least provide some degree of common sense in the manner in which we approach it. In the context of another Bill before the House today — the Interception of Postal Packets and Telecommunications Regulations Bill — someone can be appointed as an adjudicator to determine whether the Act is being properly complied with — a complaints referee — where it is suggested that someone's postal communications or telecommunications have been wrongly interfered with. This complaints referee can be a judge of the Circuit Court or District Court or a person who, for the time being, is a practising barrister or a practising solicitor of not less than ten years' standing. A practising barrister or a practising solicitor of not less than ten years standing is an appropriate person to determine whether the Government are abusing legislation by telephone tapping, but he is not an appropriate person to determine whether the Law Society has properly investigated a complaint. It is bizarre.
When I originally read this section I thought it was a typographical error that the drafters had inserted "not". I would have thought they should have excluded "not" and that the adjudicator should be independent but should be a practising barrister or solicitor. The fact that the Minister has not tabled the amendment to delete "not" brings to mind the underlying trend in this legislation. I say this with due respect to the people who brought it forward. There is a suspicion that the solicitors are in this together and that they will all look after each other when complaints are made. That perception probably has been built up in recent times by some very hairy cases which have been highlighted.
As most of us know the reality is very different. There is a very small proportion of rogue solicitors. I would go further than the amendment tabled by Deputy Shatter and ask the Minister to look at these provisions. This position should be held by somebody who is qualified. He would have to be independent, and that would be one of the conditions upon which he would take this post. He would have to know the ins and outs of legal situations. As Deputy Shatter rightly puts it, if they appointed someone off the street he would not have a clue what was going on when it came to the complaints. I would ask the Minister to look at this and insist that the person appointed should have legal experience.
The effect of the amendment in the name of Deputy Shatter is to delete the provision in the Bill which provides that the adjudicator shall not be, or have been, a practising solicitor or barrister, thereby allowing a practising or former practising lawyer to qualify for appointment as adjudicator.
The view in the Department is that it would be wholly inappropriate that the adjudicator would come from the ranks of practising solicitors or barristers or from former practising solicitors or barristers. It is essential that the adjudicator should be seen by the public as independent and separate from the practising profession. The public could hardly expect to have confidence in the decisions of an adjudicator who was himself a practising solicitor and thereby required to be a member of the Law Society whose actions he would be required to investigate.
By providing that the adjudicator will not be a practising solicitor or barrister, subsection (3) respects the legal principle that no one should be a judge in his own cause. It should be remembered that complaints against solicitors must first be referred to the Law Society which is governed by solicitors. Committees of the Council of the Society which may be established to conduct the business of the council also consist of solicitors. Therefore, in accordance with the policy of self-regulation of the profession, complaints against solicitors will continue to be examined by their peers in the first instance. It is only in cases where a complainant is dissatisifed with the decision of the Society that he or she may complain to the adjudicator. It is, therefore, all the more appropriate that the adjudicator should not be another practising or former practising lawyer.
Deputies Ahern and Shatter spoke about people of experience and the necessity to know how the legal system works in practice. I do not see anything in the section to stop the adjudicator taking legal advice or making any legal inquiries that he or she wishes. The adjudicator will not get involved until the Law Society has initially determined the matter and then the complainant can go to the adjudicator. In so far as experience and ability to do the job are concerned, the Law Society are the people who will be appointing the adjudicator, after consultation, with the consent of the Minister so it will be between the Minister and the Law Society.
Who will appoint them?
Only with the consent of the Minister. He will have to give his consent to the person the Law Society is appointing. I would also point out to the members of the Committee that this independent complaints system operates effectively in the United Kingdom where there is an independent adjudicator who is not or has not been a practising solicitor or barrister.
Or lay observer.
I understand Deputy Allen may be interested in this. The person who fulfils the role in the United Kingdom is a former Member of Parliament.
I am not greatly impressed with the idea that we do something because they are doing it in the United Kingdom nor am I greatly impressed about that it may be a former Member of Parliament. The Minister started by telling us the reason for his position — that no one should be a judge in their own cause. That is my objection to this procedure under this legislation. That is what is wrong with this legislation and that is why we are putting in place elaborate structures that, no matter how well the Law Society operate them, will be a cause of suspicion. That is why it has always been my view that there should be a legal ombudsman operating out of a separate office that has nothing to do with the Law Society, but who has people working in his or her office who are trained solicitors, who understand legal practice and are paid for independently and can adjudicate properly on disputes on the basis that no one will be a judge in their own cause. If there was such an appointee, you would not need the Law Society investigating disputes, because there would be someone else investigating the Law Society.
The Minister says if you appoint a lay person the Law Society has to suggest someone and then they are appointed; if they do not have legal training they can get advice from their solicitor or a barrister or they can have solicitors or barristers on their staff. Is that not equally bizarre? If people are into conspiracy theories — if someone has no legal training and is relying on lawyers on the staff to explain how you deal properly with cases, whether the Law Society has investigated them or not, it means that the person who is normally the adjudicator doing a front office job and the real job is being done by the people who have the knowledge. That is not going to instil more confidence than anything else would.
If we can appoint solicitors to the District Court bench to adjudicate in court cases, if we can appoint barristers to the Circuit, High and Supreme Courts, if we can appoint barristers to determine pay issues in relation to the public service and if we can appoint solicitors and barristers to be referees in phone tapping cases, this is taking things to a ridiculous extreme. I agree with Deputy Ahern, it is pandering to the view that there is some sort of conspiracy within the legal profession and that no one can be trusted. That sort is the same view we hear about Members of this House — we are supposed to be lazy and useless with brains you might find in a cowpat and incapable of thinking for ourselves; not only should we not be paid for the job we are doing but we should pay people for the privilege of working 18 hours a day.
It disappoints me when Members of this House start trying to apply that level of thinking to another group outside this House. Sometimes it suits us to do it and perhaps it takes the pressure off the public prejudice against legislators.
I agree with what Deputy Ahern said. When I tabled my amendment it struck me that this was so bizarre that we should remove the ban on practising solicitors and barrister. The more I think about it the more I am convinced Deputy Ahern is right — that the adjudicator have a minimum of ten years' practising experience as a solicitor or barrister. Of course someone with ten years' practising experience as a barrister would not even be perceived to be part of the cosy Law Society club.
My only worry about that, from what I know in practice, is that the level of preparations solicitors need to engage in to deal with cases properly is not always what is envisaged by members of the Bar Library. Indeed, often members of the Bar Library only tell you two days before a case is heard what you should be doing to ensure it is properly presented, but you have been working four or five weeks beforehand so that there is not a last-minute rush.
If we are to have a system where someone with knowledge can adjudicate on whether the Law Society have properly investigated complaints, it requires someone who has the experience of legal practice. It does not make any sense to me that we deal with it in this way. If the Minister wants to rely on the principle that no one should be a judge in their own cause, we should not have this panoply of provisions in this legislation. If we are stuck with this system we should not put in an absurd provision which imposes a constraint on the best qualified people who are available to conduct this work.
The Minister might clarify whether he envisages this position would be part time or full time. All the Bill does is impose a duty on the Law Society to fund the appointment of an adjudicator. If it is a full-time post and the adjudicator is paid a full salary, and he has a staff, then the reality is the status of the adjudicator is no different than a District Court judge because he is taken out of legal practice and he is a full-time permanent adjudicator. If one is to suggest that a practising lawyer could not operate independently, then we might as well say that there is not a single independent member of the Judiciary operating at any level within our courts.
We are not suggesting that we should appoint as judges people who have no practical experience of the law. All of our legislation requires practical experience of our law. Here you are appointing someone to act as a judge in a specialist area and we are saying we will only appoint people who have no practical experience in the operation of the law. To me that is illogical. What the Minister read out to us was a Civil Service brief that, with all due respects to the well qualified, well meaning people in the Department of Justice, could only be distilled by civil servants who themselves have not been in legal practice and who are looking at this area with some of the prejudices one finds outside the House from people who are ill-informed.
Anybody outside the legal profession who seems to have reservations is accused of having prejudices. I cannot go along with that. The section falls far short of what I expected. It was a grave disappointment to me because I felt the only way we could protect the public against the poor performance of the Law Society to date was a legal ombudsman. Despite my expectations, this section is something we have to live with. However, I believe the public expect a certain level of independent thinking when it comes to their complaints. Whether it is right or wrong, there is a certain lack of confidence in the performance of the Law Society and the evidence I and others have about its performance to date leads me to believe that it has not been vigilant or sincere in its attempts to come to grips with abuses by a small section of legal practitioners.
Having fallen short of the expectations that we would have a legal ombudsman, I think it would be a mockery if we imposed as an independent adjudicator a person who is a practising solicitor and a member of the society. Having listened to both sides of the argument and as the only non-legal person here at the moment, I do not think the public would see its interests being protected by putting somebody who would be a practising lawyer.
I do not know the qualifications of Mr. Flynn, the new Taxing Master, but we have been discussing a Taxing Master here this morning.
He would have to be a barrister or solicitor.
Of course.
To be a Taxing Master you would have to be a barrister or a solicitor because solicitors are regarded as having experience in the area of costs.
The Taxing Masters decide the cost issue and in effect are judges in their own court. Some people have criticised the fact that Taxing Masters have been adjudicating on solicitors' and barristers' costs down the years. If we were to transfer the logic of this section to that scenario, then the Taxing Masters should be gardeners and people off the street. To be honest, I do not think it makes sense.
Chairman
That is very simplistic. I do not believe for one moment that there are not situations where solicitors take actions against other solicitors, barristers cross-examine solicitors, and solicitors strike off other solicitors. In my opinion, it is offensive to say that because a person is a practising solicitor or barrister, he would be a judge in sua causa. In fact, the individual would not be examining a situation where he or she had any role but would be examining a separate person. The assumption now is that one could not find a solicitor out of 3,600 in the country who would be fair to the general public and would not nod and wink in the direction of other solicitors. I do not accept that.
The public expect not only that justice be done but that it be seen to be done. The perception of the public of the appointment of a practising solicitor to adjudicate on the performance of the Law Society would be that justice is not seen to be done. The public expect fair play in all cases.
Chairman
What you are saying, Deputy Allen, is that it does not really matter whether the person was fair or unfair, what is really important is that people believe he or she is fair even if he or she is not.
No, what I am saying is that the person involved would have the capacity to pass judgment; that would be seen by the public, who would have confidence in that person giving a fair interpretation of a case before him or her.
Chairman
I have said what I have to say on the matter.
To answer Deputy Shatter's question, it is envisaged that the post will be full time. I take the points made particularly by my party colleagues, not that there is less logic in the arguments being put forward by Deputy Shatter. Deputy Allen is presenting the opposite point of view to Deputy Shatter. I was interested in Deputy Shatter's reference to the fact that a practising barrister or solicitor is eligible to be the complaints' referee under the interception legislation. I dealt with the legislation on Committee Stage in the Seanad and I point out to Deputy Shatter that his own party voted in favour of a Labour Party amendment to the effect that practising solicitors and barristers should not be complaints' referees because they could not be trusted, they were party hacks, etc.
The Minister knows I have no control over what Senators do and I would not claim any such control or responsibility.
In so far as I have discussed what is proposed in this legislation with people outside the House who are interested in this area, I take Deputy O'Donoghue's point on board. One of the questions most often put to me is about this independent adjudicator. Will he be another solicitor? Will he be one of the club? Will we have solicitors investigating solicitors? If we are not happy with their investigation, will we have another solicitor investigating the solicitors' investigation of solicitors? There certainly is a perception problem here. The person dealing with these intricate matters would need to have experience and know how the system works in practice. There are interesting arguments on both sides and I will consider the matter further, between now and Report Stage.
In view of the fact that the appointment is to be made by the Law Society in consultation with and with the consent of the Minister, rather than including it in the legislation, if the person suggested by the Law Society is or has been a practising solicitor he may be acceptable to the Minister who will have confidence in him. Perhaps the Minister could look at it in that light and instead of inserting the exclusion in the section, he could say he would prefer somebody else and then the society might suggest a non-legal person. It is the underlying trend that has been aided and abetted by the perception abroad that this profession is full of rogues. That perception is not true.
That is another issue. On the basis of what Deputy Ahern is saying, in a sense my amendment should be inserted in the Bill and it would leave this open. I have come to this with an open mind. I have been persuaded by Deputy Ahern's view that the more one looks at how we appoint judges, the more logical it seems that this appointee should be a practising solicitor or barrister.
The example of the Taxing Master that Deputy Ahern raised should not be dismissed. You have to be a practising solicitor — the Minister can correct me if I am wrong on this — for 15 years before you can be appointed a Taxing Master; I may be wrong, because it has been a long time since I looked at the legislation. Deputy Ahern rightly said there was no suggestion that people who are appointed to those areas have not behaved properly.
I could give the Minister a number of other scenarios. For example, let us say the Law Society suggested a former director or a general secretary of the Law Society, someone who was not a practising barrister or solicitor as the independent adjudicator who would be eligible under this legislation. That would cause even more concern because they would have been involved in an administrative capacity in the society for years. One former director general of the Law Society is currently on one of the prison visiting committees, appointed through the Department of Justice, drawing very large travelling expenses and no doubt doing very astutely the work he is being asked to do.
Why would it be right and permissible under the legislation for, say, a former director general of the Law Society to be appointed to this difficult position, when it is not permissible for a practising solicitor or barrister, or, any other former employee of the Law Society, provided they were not a practising solicitor or barrister to be appointed? A law clerk could be appointed to this position. There are many people whose appointment would be equally appropriate. My view is that someone with expertise is needed.
Not for the first time I disagree with Deputy Allen and in the context of what the Minister is saying we do not have to fuel outside prejudices. We have a job to do here, that is, to put in place the best qualified people to do this work. Rather than ensuring that happens, we seem to be excluding the best qualified people. If the Minister is willing to have another look at this, I will be happy not to press the amendment and to come back to this on Report Stage.
This is a serious issue. The Minister said when he spoke to people outside the House that they asked if he was going to appoint another solicitor to that position and he has said no. That is half the answer. I suspect he has not told them the person does not need legal training and does not have to understand what it is he is investigating because he will have a staff of lawyers to give him advice. I suspect if he had said that the applause would have rapidly wilted.
We cannot go too far in the other direction either. Deputy Allen is right in saying that some of the prejudices from the outside are founded on fact —"prejudices" may not be the correct word — that some of the unhappiness on the ouside is founded on fact. People are unhappy with the way the Law Society are dealing with their affairs. Now we are giving further powers to this body with which people are unhappy in the hope that that will improve the situation. What we are talking about is a fall-back position. When somebody who complains to the Law Society and asks it to exercise some of its new powers and functions is unhappy with that, there should be somebody to look at how the Law Society exercised its powers. We have to bear in mind that there is a problem. We cannot get ourselves into a cosy debate under the illusion that there is no problem outside. However, I am bearing in mind that the situation is operating perfectly fairly in Britain. I have not heard any complaints about that, although I am going to talk to the English Law Society about the matter, to see how it is operating in practice. I will look at the arguments put forward.
Amendment, by leave, withdrawn.
I move amendment No. 73:
In page 11, between lines 42 and 43, to insert the following subsections:
"(4) An adjudicator appointed under this section—
(a) shall not investigate any issue which is being or has been determined by—
(i) a court, or
(ii) the Disciplinary Committee under Part II of the Act of 1960,
(b) may investigate a complaint made to him under this section relating to a matter which arose before the section comes into operation,
(c) may investigate a complaint made to him under this section even though the person making the complaint may be entitled to bring proceedings in any court with respect to the matter complained of,
(d) may make more than one recommendation in a report to the Society,
(e) shall give reasons for his conclusions or recommendations in every report to the Society.
(5) An adjudicator appointed under this section shall have power to require the production of documents in the possession of the Society in connection with his investigation of a complaint.
(6) An adjudicator appointed under this section may reinvestigate a complaint made to the Society in relation to a solicitor, if he is not satisfied that the Society has investigated the complaint adequately, and no provision in this section or in any regulation made pursuant to subsection (2) of this section shall prevent, or shall be construed as preventing, an adjudicator from reinvestigating any complaint under this subsection.
(7) Where an adjudicator reinvestigates a complaint made to the Society under subsection (6) of this section, he shall have power, following that reinvestigation, to direct the Society to make an application to the Disciplinary Committee under section 7 (as substituted by this Act) of the Act of 1960, or to recommend that the Society should take any other action, which he may specify, in relation to the solicitor pursuant to the Society's powers under the Solicitors Acts, 1954 to 1992.
(8) Where an adjudicator reinvestigates a complaint made to the Society under subsection (6) of this section, he may require any person who, in his opinion, is in possession of information, or has a document or thing in his power or control, that is relevant to the examination or investigation to furnish that information, document or thing to him and, where appropriate, may require the person to attend before him for that purpose and the person shall comply with the requirements.
(9) An adjudicator may not require a person to furnish any information, document or thing that is held in the possession or control of a solicitor on behalf of a client of that solicitor, without receiving the prior written authority of that client to such a requirement.
(10) A person to whom a requirement is addressed under subsection (8) of this section shall be entitled to the same immunities and privileges as if he were a witness before the High Court.
(11) A person shall not by act or omission obstruct or hinder an adjudicator in the performance of his functions or do any other thing which would, if the adjudicator were a court having power to commit for contempt of court, be contempt of such court.
(12) Any information, document or thing obtained by an adjudicator in the course of or for the purpose of the examination or investigation of a complaint shall not be disclosed except for the purposes of that examination or investigation and the adjudicator shall not be called upon to give evidence in any proceedings of matters coming to his knowledge in the course of an examination or investigation.
(13) A person who contravenes subsection (11) of this subsection shall be liable on summary conviction to a fine not exceeding £1,000.".
Amendments Nos. 1 and 2 to amendment No. 73 not moved.
I move amendment No. 3 to amendment No. 73:
After subsection (13) to insert the following:
"(14) An adjudicator appointed under this section may decide not to examine or investigate a complaint made to the adjudicator under this section, or may discontinue an examination or investigation of such a complaint, if he becomes of opinion that—
(i) the complaint is trivial or vexatious,
(ii) the person making the complaint has an insufficient interest in the matter, or
(iii) the person making the complaint has not taken reasonable steps to seek redress in respect of the subject matter of the complaint, or if he has, has not been refused redress.".
The amendments are self explanatory.
Amendment No. 3 to amendment No. 73 agreed to.
Amendment No. 73, as amended, agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."
As we go through this section we can see how the tentacles of the scheme spread out and create problems. I want to come back to two particular points. Let us take it as an assumption that where someone is genuinely aggrieved and unhappy with a decision by the Law Society he or she will appeal to the independent adjudicator. We will assume that the genuinely aggrieved person is alleging some aspect of malpractice or failure to provide proper legal services. I have no problem with any of that. I have a general problem with the whole scheme.
Let us come back to the position of the client who, out of malice, complains about the solicitor and who the society might decide at the end of its investigation has made a vexatious complaint. All of us are willing to acknowledge that there are people who have made complaints but have had no basis for making them. Some are consistent complainers. I made a suggestion about a client who has had four or five solicitors over ten years representing him and who has made complaints about all of them. When the Law Society investigates one or two such complaints brought by such a client and makes a proper decision under the scheme of this Bill, that the complaints have no standing, what is there to stop that individual complaining to the adjudicator and having the whole thing reinvestigated? That would be an ongoing running sore for the legal practitioner who has been picked out in this way and a difficulty that might go on for a year or two between a Law Society investigation and an adjudicator investigation. We want to get at rogue solicitors; we want to deal with genuine complaints and we want to put in place a system that works.
The merit with the current system, if it has merit, is that at least where complaints are vexatious, the Law Society may fairly rapidly reach a conclusion that they are and that is the end of the matter unless the client wants to sue the solicitor. The lack of merit in the current system is certainly that on occasions the Law Society have been less than efficient in the way they have dealt with complaints. Indeed, the manner in which they have dealt with them has given rise to worries and concerns outside the House. I accept that. The problem with this system is that we are putting into place something that is so elaborate that it could be a running sore or a fester for years if one or two people are persistent complainers in relation to a solicitor, a group of solicitors or a number of solicitors in different practices. It seems that if a complaint is made to the independent adjudicator the whole process will start all over again. Would the Minister consider putting in place some provisions to prevent that happening?
If one did not see some of the things I have seen over the years happening in the courts, one would think that what I am saying is far fetched, but it is not. I would refer the Minister to the written judgment of the case I have in mind which is currently bobbing in and out of the courts. It runs to about 70 pages and is a classical example of the sort of problem that can arise. If that arose with this procedure with a persistent complainant it might destroy entirely a legal practice of one, two or three solicitors. They could find themselves under pressure in a position to defend themselves against an ongoing series of what would appear to them to be never-ending investigations. The problem is to strike the balance. There is a need to provide for that balance.
I have another question to put to the Minister. We have dealt with the complexity of costs and established at this stage that if a client complains about costs and is dissatisfied with what the Law Society says, he can go to the Taxing Master. If the solicitor is dissatisfied he can go to the High Court or bring proceedings against the client and end up before the Taxing Master. If the client is unhappy with what the society says, can the client not only go to the Taxing Master but also complain about the society to the independent adjudicator? Could the complaint about costs be dealt with at three different levels, the Law Society, the Taxing Master and the independent adjudicator and, if the solicitor is unhappy, could he find himself also bringing the case to the High Court? If that is what we are doing, it is insane.
Any dilution of subsection (3) (ii) would make a mockery of the whole concept of a third party independent observer. Allied to that is a fact I was not aware of until now, that the Law Society will be nominating the adjudicator. This will make the situation even worse. I accept that it will have to be with the consent of the Minister, but the person will be a nominee of the Law Society. That will erode totally the public's confidence in the whole concept of an independent adjudicator. I urge the Minister not to concede on this.
I know that when the establishment of a legal ombudsman was mooted there was some concern in the profession that the profession would have to fund that position. Had the Minister any discussions with the Law Society on that topic? I agree with Deputy Shatter's reluctance to take a lead from the authorities across the water. What has their experience been in regard to positions like this? Has the profession had to cough up? It is 16 years since I qualified and I have never had a complaint made against me to the Law Society. I have paid through the nose for compensation cover, insurance and everything else. The cost of a practising certificate for a solicitor is going through the roof. My indemnity insurance — to insure against any negligence I might commit — about ten years ago for a three-solicitor practice was £9,000. Until the Law Society set up their own fund of insurance, the solicitors' mutual defence fund, we were paying that amount to insure ourselves. That is over and above the compensation fund payment we have to make every year for rogue solicitors.
Despite all the bad views about the profession, it should be acknowledged that the profession makes a tremendous effort to compensate and protect people arising out of the actions of rogue solicitors or negligent solicitors. Yet again we have to fund the establishment of a legal ombudsman just to pander to the much curried perception that we are all rogues.
I take Deputy Ahern's point about the compensation fund, particularly in light of recent difficulties. The short answer to his question is, yes, there were discussions between the previous Minister for Justice, Deputy Burke, and the Law Society about this. The President of the Law Society spoke to Deputy Burke. I will read into the record the Minister's reply to the then President of the Incorporated Law Society, Mr. Donal Binchy. It states:
I have given careful consideration to the arguments you have made against the funding of the adjudicator's office by the society. However, I am not able to alter the proposal that the society should be required to fund the cost of the scheme.
As regards the question of the overall costs of the office I would like to make it clear that my primary concern, and that of the Government, is to ensure that the Bill should include provisions for the appointment of an adjudicator who is free to act independently in the performance of his duties. It follows that adequate support facilities and arrangements should be put in place to allow the adjudicator to operate independently and effectively.
I would hope that details relating to staffing, expenses, et cetera of the adjudicator's office could be agreed between the society and the adjudicator. It is not the intention that I, or my Department, would be involved unnecessarily in the detailed administrative arrangements.
I note your serious concern about the proposal that the adjudicator would have power to recommend payment of compensation by the society and its implications for existing legal rights. I can assure you that all the proposals in the Bill will be fully considered by the Attorney General before the legislation is introduced.
I take the point the Deputy made about funding. I would refer him to the recent appointment of an ombudsman for the financial institutions. The people he is investigating meet the cost of that office. Recently an ombudsman was appointed for the Irish insurance industry and, again, the same arrangements apply. It is felt that the ombudsman is being brought into existence because of unhappiness with the performance of certain solicitors and the perception, which to a certain extent is based on reality, that the Law Society has not dealt adequately with complaints about solicitors. That is the reason the office of the adjudicator is being created.
It is felt that if that is necessary it is only fair and logical that the Law Society should fund the ombudsman. As far as I can recall some costing was done on what the system would cost in the first year and the average cost worked out at about £30 per solicitor per annum at current rates. It has also been brought to my attention that the Independent Radio and Television Commission is funded by a levy on the independent radio stations. I am indebted to my colleague, Deputy Roche, for that information. There are many precedents. I do not know how scientifically based or detailed the costing was.
Will the Minister reply to the question I raised on the costs issue? I do not want to repeat it.
I think the Deputy's conclusion is correct and that all those things can happen. I have told the Deputy I will look at that.
The scenario we have reached shows that in the context of the issue of costs which we are all concerned about we will now have a labyrinthine series of procedures with appeals, cross appeals, the Law Society involved, the Taxing Master involved, the High Court involved and the independent adjudicator involved. It would be impossible for a bureaurcacy in any of the former Eastern European regimes to have invented a more prolix or complex system. I appreciate what the Minister is saying; it was necessary to go through this Committee Stage. There is a serious need to look at that and at what I raised with the Minister in the context of cases heading into the independent adjudicator where there is a malice involved, where they are vexatious and been deemed to be. I hope the Minister will come back to us in more detail on that on Report Stage.
I omitted to mention a matter to Deputy Shatter in my earlier reply. Under section 15 (2) regulations may be made to cover the operation of this scheme. Obviously, that will be dealt with in the regulations if they are made. Nevertheless I take the point made and the totality will have to be looked at.
I would not accept that if there is a series of explicit provisions which allow a whole trail of applications to be made that would be left out of the Bill and be dealt with by regulations. Regulations cannot delimit the application of the legislation.
Can the adjudicator make an award of compensation or demand?
That will be for the regulations. My understanding is that the adjudicator will be able to do the various things which the Law Society are empowered to do under sections 8 and 9.
I seriously suggest to the Minister that if the adjudicator is to be given those powers they should be expressly contained in the statute. I agree with this section with very serious reservations.
Question put and agreed to.
The Special Committee adjourned at 5.05 p.m.sine die.