I move: "That the Bill be now read a Second Time."
The rule of law is the cornerstone of a properly functioning democratic society and in an increasingly complex and prosperous society the law is becoming ever more complex. It is that rule that defines relationships between private individuals or entities in society and between the State and those individuals or entities.
The law has never been simple because society, made up of myriad interconnecting relationships, has never been simple. In today's increasingly prosperous and complex society, the law too reflects that complexity. That being the case, there has always been and will continue to be a need for experts in the law to advise and assist those who seek to invoke the law to resolve disputes, to assert or protect a right or to defend against claims which they consider are not well founded or are detrimental to their interests.
The proper working of our society depends on there being a cohort of lawyers who make their services available to those involved, or potentially involved, in litigation. This accords to solicitors and barristers a central role in our democratic society through advising, representing and facilitating persons in their quest for justice. Persons seeking legal services take solicitors and barristers completely into their confidence regarding complex private and personal matters. All lawyers have a heavy responsibility to ensure their clients' best interests in family, personal, business and other matters.
The legal profession has traditionally been organised in Ireland in two branches, solicitors and barristers, each largely self-regulating. With self-regulation, the professions generally are vulnerable to accusations that complaints against practitioners are not properly investigated. The legal professions are not unique in this regard.
A fundamental part of self-regulation is concerned with the maintenance of high professional standards and the investigation of allegations that those high standards have not been met in particular cases. The procedures put in place by both branches of the legal profession to address complaints of poor professional performance or misconduct have evolved over many years.
While, on the whole, the self-regulating processes operate satisfactorily, there naturally remains the possibility that a person who makes a complaint against a lawyer may get a result from those processes that does not accord with his or her view of the matter. Their sense of dissatisfaction may sometimes be coloured by the perception that the self-regulating process has favoured the professional over the complainant. This perception can arise simply because the process is self-regulatory regardless of whether there has been actual bias in a particular case.
The Legal Services Ombudsman Bill 2008 strengthens the mechanisms for dealing with complaints against both solicitors and barristers. The Bill will establish a legal services ombudsman who will oversee the handling by the Law Society and Bar Council of three classes of complaint against solicitors and barristers, namely inadequate services, excessive fees and misconduct. The key function will be to provide a form of appeal for clients of solicitors and barristers who are dissatisfied with the outcome of a complaint made to the Law Society or Bar Council.
The objective of any complaints system is that both the public and the practitioner have confidence that complaints are processed in a fair and effective manner without undue delay. To ensure that this objective is met, the legal services ombudsman will act to oversee the operation of the complaints systems of the two professional bodies. These complaints systems, which I will describe for the information of Deputies, are elaborate and designed to give an aggrieved client access to redress when a practitioner fails to provide an acceptable legal service, while also protecting the practitioner from unwarranted or malicious claims.
Complaints against barristers by members of the public may be made to the Bar Council's professional conduct tribunal comprising barristers and lay persons. Complaints are handled in private and may be dealt with by way of an oral hearing. If a complaint goes to an oral hearing, both parties are invited to attend and both may be legally represented. The tribunal's decision may be appealed by either party to a three member appeal board chaired by a High Court judge with two other members nominated by the Bar Council and Attorney General. Where there is a finding of misconduct the disciplinary code of the Bar Council sets out a range of penalties which can be imposed on barristers ranging from an admonishment to a fine to disbarment.
The Solicitors Acts 1954 to 2002 regulate the solicitors' profession. In particular, Part III of the Solicitors (Amendment) Act 1994 makes detailed provision for the investigation of complaints against solicitors. Complaints to the Law Society generally fall into two broad categories, namely, complaints of misconduct and complaints of inadequate service or excessive fees. There may be a degree of overlap between these categories. The Law Society's complaints and client relations committee, which includes lay members, determines complaints lodged directly to it by members of the public.
Complaints of misconduct against solicitors may be made by clients to either the Law Society or Solicitors Disciplinary Tribunal. Where a complaint of misconduct has been made to the society in the first instance, it may be referred by the society to the tribunal and such complaints would then be liable to attract the heavier end of the scale of sanctions.
The Solicitors Disciplinary Tribunal is an independent statutory tribunal appointed by the President of the High Court to investigate complaints of misconduct against solicitors under section 16 of Solicitors (Amendment) Act 1994. The members of the tribunal are appointed by the President of the High Court and include lay members.
As I stated, the Law Society may refer complaints to the tribunal and every client of a solicitor has a right to make a direct application to the tribunal. The tribunal has limited judicial powers and its primary function is to establish, by evidence and documents, the facts of a complaint and decide whether misconduct is proved. Where there is a finding of misconduct the tribunal can itself impose a sanction on the solicitor ranging from admonishment to a direction to pay restitution of a sum not exceeding €15,000 to any aggrieved party. In more serious cases the tribunal may refer its finding and recommendation to the President of the High Court who ultimately will decide on the nature of the sanction to be imposed on the solicitor. The powers of sanction available to the High Court can range up to striking the solicitor off the roll. If either party is unhappy with a decision of the tribunal, it may be appealed to the High Court.
The disciplinary regime for solicitors was strengthened in a number of respects by the Solicitors (Amendment) Act 2002. The Act doubled the size of the tribunal to cater for an increased workload and the speedier processing of cases. The tribunal is required to make a separate finding on each ground of alleged misconduct and have regard to previous findings of misconduct by a solicitor when imposing a sanction in a current case. The maximum amount which a solicitor, in respect of whom there has been a finding of misconduct, may be ordered to pay to an aggrieved party or to the Law Society's compensation fund was increased from £5,000 to €15,000. A right of appeal to the High Court on all aspects of the tribunal's work was inserted and remedies against solicitors who fail to co-operate with investigations were provided. In addition, the circumstances in which the Law Society may refuse to issue a practising certificate or impose conditions on a certificate were spelled out in more detail and the circumstances in which it can send an investigator to inspect documents at a solicitor's office were extended.
The tribunal performs a pivotal role in the solicitors' disciplinary process and dealt with recent high profile cases. In addition to the provisions of the 2002 Act, a number of the recommendations made in a 2004 review of the Law Society's regulatory functions — the Brosnan report — are being implemented in the Civil Law (Miscellaneous Provisions) Bill 2006 which recently completed all Stages in this House. For example, the 2006 Bill provides for a majority of lay membership of regulatory committees and provision is made to ensure better enforcement of orders of the Solicitors Disciplinary Tribunal.
The Government recognises that further measures are necessary to enhance confidence in the complaints systems of the two professions. For this reason, legislative proposals for the establishment of a legal services ombudsman received Government approval.
I propose to address the specific provisions of the Bill. Part 1 deals with preliminary and general matters. Section 1 sets out the Short Title and contains standards commencement provisions. Section 2 sets out the interpretation of principal terms referred to throughout the Bill. Section 3 is another standard provision that any expenses incurred in the administration of the Act shall be paid out of moneys provided by the Oireachtas to the extent sanctioned by the Minister for Finance.
Part 2 is concerned with the establishment, role and accountability of the office of the legal services ombudsman. Section 4 provides for the establishment of the ombudsman's office and section 5 deals with the appointment of the person of legal services ombudsman. Subsection (1) stipulates that the legal services ombudsman shall be appointed by the Government. Subsection (2) provides that the Government must be satisfied the person appointed is suitably qualified, while subsection (3) specifies those persons not eligible for appointment as ombudsman, including a practising barrister or solicitor, member of the Law Society, member of the Bar Council or a bencher of the Honourable Society of King's Inns.
Provision is made in section 6 for the ombudsman's period of office, which shall not exceed six years, as well as the reappointment of the ombudsman for a second or subsequent term. Subsection (3) provides for the manner in which the ombudsman may resign from office, while subsection (4) provides for the circumstances in which the Government may remove the ombudsman from office, including ill health, stated misbehaviour, bankruptcy, failure to perform the functions of office or court conviction and imprisonment. Subsection (6) provides for the circumstances in which a person ceases to hold the office of legal services ombudsman, namely, nomination to Seanad Éireann, election to either House of the Oireachtas or European Parliament or on becoming a member of a local authority.
Section 7 makes provision for Government to determine the terms and conditions relating to remuneration of the ombudsman and section 8 restricts the ombudsman from engaging in other paid employment unless approved by the Minister. Section 9 outlines the general functions and powers of the legal services ombudsman. These are to receive and investigate complaints; review the procedures of the Bar Council and Law Society for dealing with complaints made to them by clients of barristers and solicitors; assess the adequacy of the admissions policies of the two professional bodies; and improve public awareness of their complaints procedures.
In section 11 standard provisions are made for the appointment of staff to the office of the ombudsman and the engagement of professional and other advisers. Subsection (5) provides for the delegation to a member of staff certain functions assigned to the ombudsman in the Bill.
The office of the legal services ombudsman is to be funded entirely by means of a levy on the two professional bodies. Nevertheless, it is necessary to provide for advance funding from my Department, subject to the consent of the Minister for Finance, and section 12 provides for such advances.
Section 13 provides for financial accounting and audit matters by the ombudsman, including audit by the Comptroller and Auditor General, the presentation of the audited accounts to the Minister and their laying before both Houses of the Oireachtas.
Section 14 provides for various periodic reports to be made by the ombudsman to the Minister. The ombudsman is also required to produce an annual report on the adequacy of the admission policies of the legal professions. The report must specify the numbers admitted annually to legal practice for the year in question, as well as an assessment that the numbers admitted are consistent with the public interest in ensuring the availability of legal services at a reasonable cost. Again, this report will be laid before the Oireachtas and published.
Sections 16 and 17 provide for the appearance of the ombudsman before the Committee of Public Accounts and other committees of the Houses of the Oireachtas. Provision is made in section 18 for various publications to be privileged for the purposes of the law of defamation, namely, any matter in a report of the ombudsman laid before either House of the Oireachtas and publications by the ombudsman directed to particular persons or bodies.
As I indicated, the office of the legal services ombudsman will be funded by means of a levy on the Law Society and Bar Council. Section 19 provides that the office of the ombudsman be financed by way of an annual charge on the Law Society and Bar Council, calculated by reference to the number of complaints made to the ombudsman relating to solicitors and barristers, respectively, subject to a minimum charge on each body of at least 10% of the total annual cost. This ensures proportionality in the levy provisions which will have a direct relationship to the degree to which each profession attracts complaints. The minimum charge also takes account of the costs of carrying out the ombudsman's functions additional to investigating individual complaints, including reviewing the complaints mechanisms and admissions policies of the two bodies.
Section 20 empowers the Minister to make regulations relating to the levy on such matters as the manner in which the number of complaints made is to be determined, the date payment of the levy falls due, the keeping of records by the ombudsman and the rate of interest on amounts not paid when due.
Part 4 contains the substantive provisions relating to the ombudsman's functions in respect of complaints and reviews. The ombudsman has a variety of powers under Part 4 in the investigation of complaints, including under section 22 — to conduct investigations; section 26 — to require persons to provide information and to attend before the ombudsman; section 27 — to issue directions or make recommendations; and section 30 — enforcement of directions.
Sections 21 and 22 provide for the making and investigation of complaints. A complaint may be made by a client of a barrister or solicitor to the ombudsman concerning the handling by the Bar Council or Law Society of a related complaint against a barrister or solicitor. A complaint may also be made by a client of a solicitor to the ombudsman about a decision of the Law Society to make or to refuse a grant from the Law Society's compensation fund.
Section 22 provides for the types of complaints which may be made to the ombudsman. These include complaints arising where the Law Society or Bar Council has failed to commence or complete an investigation of a related complaint within a reasonable time and cases of inadequate investigation. Under section 23, the ombudsman may seek the resolution of complaints in such a manner as he or she considers appropriate and reasonable, and the ombudsman may establish procedures to be followed for the receipt, resolution and investigation of complaints. These procedures will be published.
The ombudsman shall conduct investigations in private in accordance with section 25. To ensure full co-operation with the investigation of a complaint, section 26 provides that the ombudsman has the power to require the provision of information or attendance of any person before him where appropriate. In the event that a person fails to comply with a request for information or attendance, subsection (6) provides that the ombudsman may apply to the High Court for an order requiring compliance. Section 27 creates the offence of obstruction of the ombudsman in the performance of his or her functions, punishable by a fine not exceeding €2,000 on summary conviction.
If the ombudsman is not satisfied that the related complaint was adequately investigated, he may direct the Bar Council to reinvestigate it under the Bar Council's disciplinary code, or in the case of the Law Society, direct the society to either re-investigate itself or refer the complaint to the solicitors' disciplinary tribunal for an inquiry on the grounds of alleged misconduct. The ombudsman may make other directions and recommendations to both bodies, including a recommendation that the Law Society make or increase a grant out of its compensation fund. The ombudsman may request the professional body to respond within a period specified to a direction given or recommendation made. In the event of an unsatisfactory response, subsection (6) provides that the ombudsman may make a special report to the Minister under section 14.
Section 29 provides that the ombudsman send a written statement on the results of the investigation, any direction given or recommendation made to the complainant, the relevant professional body and the barrister or solicitor concerned. Section 30 provides that the ombudsman may apply to the High Court for an order to enforce compliance with a direction made. Section 31 provides for the referral of any question of law by the ombudsman to the High Court for determination.
A key function of the ombudsman is to keep under review the procedures of the Bar Council and the Law Society for receiving and investigating complaints about barristers and solicitors. Section 32 makes extensive provision in this regard and provides that the ombudsman shall examine the complaints procedures of the two bodies, the co-operation of barristers and solicitors with these procedures, the effectiveness of the procedures and the time taken to complete investigations.
Arising from his review, the ombudsman may make written recommendations to the Bar Council and Law Society to improve their complaints investigation procedures and to recommend the co-operation of barristers and solicitors with these. If not satisfied with their response to a recommendation made, the ombudsman may direct that the recommendation or an amended recommendation be implemented. Where the ombudsman considers it appropriate for a particular class or classes of complaint, he or she may direct the relevant professional body to put in place specific procedures to address such complaints. The Bar Council or the Law Society may apply to the High Court to set aside or vary a direction made by the ombudsman.
Section 33 provides that full and complete records be kept by both professional bodies of all investigations and proceedings relating to complaints. Section 34 is a standard provision that legal proceedings may only be commenced against the ombudsman with the leave of the High Court on notice to the ombudsman. Confidentiality of information in the possession of the office of the legal services ombudsman is ensured by section 35, which provides that the ombudsman or a member of staff may not, except in accordance with law, disclose any information obtained other than in specified circumstances. Section 36 makes provision for the application of the Freedom of Information Act to the non-investigative records of the office of the ombudsman.
The new measures the Government is taking in creating a legal services ombudsman and in acting on legal costs will transform the provision of legal services. Taken with important initiatives put in place in recent years to tackle the so-called compensation culture in the Civil Liability and Courts Act 2004, as well as the establishment of the Personal Injuries Assessment Board, the legal system is changing rapidly. This change is essential to ensure that the legal system and the legal professions continue to meet the requirements of our modern, dynamic society. The package of legislative measures taken already and those on the way will equip the legal system and the legal professions to react to the changing needs of a mature and progressive modern economy.
The Government is anxious that regulation of the legal professions is improved and strengthened. The enactment of this Bill, in addition to existing forms of oversight, will ensure that the highest of standards are maintained in the legal professions. The provisions in this Bill for an independent review of the operation of the legal professions' complaints system by way of the legal services ombudsman is the way to proceed, consistent with the need for better regulation. Therefore, I commend the Bill to the House.
