Legal Services Regulation Bill 2011: Report Stage (Resumed)

Debate resumed on amendment No. 30a:
In page 19, between lines 22 and 23, to insert the following:
"(10) Notwithstanding any other provision of this Act, the Authority shall not distinguish between barristers who are members of the Law Library and barristers who are not members of the Law Library and barristers who are members of a professional body other than the Bar Council.".
- (Deputy Catherine Murphy).

As we are taking a number of amendments together I assume I can speak to amendments Nos. 30a and 49e. I wish to expand on some of the points I made last night. The new Bill will give the authority the power to distinguish between barristers who purchase services from the Law Library and those who do not, and that is not very fair. It will force non-Law Library barristers to be individually liable for levies under section 79 and provides that they will be disbarred if they default.

It is important to be clear that the membership of the Law Library and the Bar Council, as professional bodies, should be distinguished. We are giving both voluntary and private organisations significant additional functions under the Bill. It may well be that my amendment does not quite capture what I am trying to achieve and if it does not I am perfectly willing for the Minister to take it away and amend it in the Seanad.

In the history of the State we have been very poor at developing new institutions. We have inherited those that we have and these are opportunities that need to be seized. We know how long legislation takes to come through so it is really important that we get it right. Since the Bill deals with reform of the regulatory system it should apply irrespective of the services a legal practitioner chooses to purchase from the market or which professional body he or she chooses to join. Since the Law Library is dominant in this market this could be seen as an abuse of a dominant position. This amendment is critical if we are going to stop protectionist tendencies within the legal profession.

Amendment No. 49e is within the same family. In the Bill as currently drafted, only the Bar Council will be consulted relating to insurance. However, it is important to remember that it is not the exclusive professional body for barristers and it does not represent the full market. It also has a conflict of interest since the Law Library operates a group insurance scheme. The authority should consult all barristers on professional indemnity insurance. When one considers what it takes to become a barrister one realises it is not an easy profession. It takes a considerable amount of unpaid time while training so it is critical that we are fair to everyone who practises that profession.

Amendment No. 63 proposes the insertion of the words "Nothing in this Act shall affect the right of a professional body to regulate the conduct of the members of that body and to make rules of membership for that purpose." Everybody recognises that the Minister has set up the independent authority and what it is about, including its functions and the obligations with which it is charged. It is similar to any other organisation or club, such as a sporting organisation like the GAA or the IRFU where there are overarching authorities but also constituent organisations down the line. Providers of legal services are seeking to remove any ambiguity over whether they would be allowed to have an input into how they regulate aspects of the conduct of their own members, be they barristers or solicitors.

We are discussing amendments Nos. 30a, 49e, 63, 64, 80b, 81, 81a and 82.

Amendment No. 30a, tabled by Deputy Catherine Murphy, proposes that notwithstanding any other provisions of the Bill the legal services regulatory authority shall not distinguish between practising Law Library and non-Law Library barristers and barristers who are a member of a professional body other than the Bar Council. The Bill, through the new legal services regulatory authority, gives legal recognition for the first time in legislation to barristers who wish to provide legal services, including as non-Law Library barristers, under the new legal business models. The distinction as it exists is intended to be a positive one, reflecting as it does our desire to support new ways of meeting the needs of consumers in a modern free market economy.

Under the legal services regulation Bill we are introducing new options under which lawyers may choose to practise alongside the traditional Bar Council-Law library model, which has its own long-established structures under its own rights of association. Now the Bill is going to allow barristers, for the first time and under statute, the opportunity to provide their services in alternative ways to that of the independent referral Bar. If the legal services regulatory authority were not to be empowered to recognise the new categories of barrister who may practise alongside the traditional Law Library model then the Bill would be self-defeating. Therefore, I respectfully ask the Deputy to reconsider amendment No. 30a in this light. While I am not in favour of accepting this amendment I can appreciate the sentiment that appears to be behind it in that we do not want a two-tiered barrister profession.

The Deputy's other amendment in this group, amendment No. 49e, seeks to ensure that non-Law Library barristers be consulted in the making of regulations relating to professional indemnity insurance by the new regulatory authority. The Minister, Deputy Frances Fitzgerald, does see merit in this amendment as the Law Society and Bar Council are already cited in the relevant subsection (11) of section 37 of the Bill. I have therefore noted Deputy Murphy's raising of this omission and, on the basis that we will be returning to the provisions of professional indemnity insurance when we come to the Seanad by way of harmonising the Bill in this regard, I respectfully ask that she withdraw the amendment for the time being.

We cannot accept amendment No. 63 in the name of Deputy Niall Collins, which was previously raised on Committee Stage. The amendment leans towards a situation where the professional bodies self-regulate the conduct of their members and it runs counter to the current Government policy preference for more independent regulation of the legal profession. The acceptance of this amendment would, in fact, diminish or reverse the priority of the proposed new legal services regulatory authority over those bodies for which it is intended to be the independent statutory regulator. I therefore request that amendment No. 63 be withdrawn. While the legal professional bodies may continue to make rules in their own right this will be subject to the objectives, principles and provisions of the regulatory regime found in the legal services regulation Bill.

Amendment No. 64 was tabled by Deputy Michael McNamara. I thank him for his amendment but it goes in a similar direction to the one the Government is seeking to follow in ensuring that a variety of legal business models can be allowed to happen notwithstanding the traditional model for the conduct of business as a barrister which has been in place.

Amendment No. 80b, tabled by Deputy Catherine Murphy, seeks to remove details of whether or not somebody is a member of the Law Library from the roll of practising barristers which will be maintained by the new legal services regulatory authority under section 100 of the Bill. I wish to go some way towards Deputy Murphy's concern while at the same time meeting the Government's policy objective of creating a modernised legal services sector. I would have preferred a wording which merely specified which legal professional body, if any, a barrister may choose to be a member of.

Therefore, it is intended to revisit these matters in preparation for the Seanad. Given the fact that it will be addressed in Seanad Éireann, I would be grateful if the Deputy would afford the Minister for Justice and Equality the opportunity of doing so at that time and withdraw the amendment this morning.

What was the number of the amendment?

Amendment No. 80b.

I have noted amendment No. 81, which was tabled by Deputy McNamara and proposes the deletion of the word "and" from the list of items to be included in the roll of practising barristers. Having considered amendment No. 81a, which was tabled by the Deputy, I see certain merits in the inclusion of details regarding whether a barrister is an employed barrister for the purpose of maintenance of the relevant roll as set out under proposed subparagraph (e) and I will keep this in mind in the finalisation of the listed items concerned. Items (g) and (h) of this amendment will be addressed from various perspectives in the course of the public consultation that will consider future direct access to barristers by members of the public on contentious matters of the Bill. This will be the appropriate setting in which to resolve them. We are not clear regarding the intent of the proposed subparagraph (f), which relates to the specification of any legal or natural persons against whom a barrister has undertaken not to provide legal services but will be happy to consider it in light of the Deputy's explanations as may be appropriate.

Amendment No. 82 seeks to expedite the implementation of the new roll of practising barristers from the date of the establishment of the new regulatory authority. While we can recognise the merits of this objective at a policy level, time will be needed to establish the roll and to gather and enter the relevant details of the different categories of practising barrister concerned and whether they are operating within the Law Library or outside it. Hence, we would prefer to retain the discretion to nominate a date of operation for the roll which would facilitate the logistics of its establishment in a way that can meet the more practical challenges that will similarly arise and provide an adequate lead-in period.

On the basis of the respective responses to amendments Nos. 64, 81, 81a and 82, I will be happy to continue my consideration of the matters concerned and would be grateful if Deputy McNamara could agree to withdraw them.

I accept the Minister's bona fides and am happy to withdraw amendments Nos. 49e and 80b. I am sure that if she will consider it further and bring it to the Seanad, she will do that.

The Minister and I may well be trying to do the same thing but what I am trying to achieve with amendment No. 30a is to make sure there is no distinction between barristers. We are giving professional bodies significant new functions. It is critical that people have the right to choose to join whichever body they wish. Can the Minister of State explain how the Government sees the legal services regulatory authority making sure this occurs if we embed in the legislation an enhanced role for these professional bodies?

Does Deputy Niall Collins wish to come in?

No, I will just press mine.

As I said in my response, it is clear from discussions with the Minister that both the Deputy and she have the same ambition in not arriving at a point where we would have a two-tier barrister profession. The Minister and Department are satisfied that the Bill will ensure that the outcome sought by the Deputy and the Minister will be achieved. It is in that context that unlike the Deputy's other two amendments, which can be deliberated upon further in the Seanad, we are not in a position to accept amendment No. 30a.

Is the amendment being pressed?

Amendment put and declared lost.

Amendments Nos. 31 to 35, inclusive, and Nos. 45 to 48, inclusive, are related and will be discussed together. Amendments Nos. 34 and 35 are physical alternatives to amendment No. 33 and amendments Nos. 47 and 48 are physical alternatives to amendment No. 46.

I move amendment No. 31:

In page 22, to delete lines 23 to 35.

The first group of amendments relate to the reporting of the authority. What has been presented to us and what has been debated so far is that all the reportage shall go to the Minister. This group of amendments seeks to ensure that the reporting is to the Oireachtas and to make the authority accountable to the Oireachtas rather than just the Minister. In other words, they aim to broaden it. They aim to clear a number of things up as well relating to the committee. We have the name of the committee. The aim of the amendments is to broaden the legislation for future committees because, as we know, committees change from time to time. The amendments seek to delete "Minister" and replace it with "the Oireachtas".

Amendments Nos. 45 to 48 involve minor deletions flowing from that.

In respect of amendment No. 31, the ongoing concerns of Deputies and the professional bodies about the way in which provision is being made under the Bill relating to the disclosure of information are very much to the fore of ongoing consideration of the Bill. The challenge for us as legislators is to get an appropriate balance between the provisions of the Bill in section 17(1), which seek to prevent an unauthorised disclosure of information arising from the exercise of functions within the new regulatory authority and allowing for appropriate disclosure of information relating to "the commission of an indictable offence". These are issues about which we are in ongoing discussion with advisory and Parliamentary Counsel and which, as reflected in today's amendment, have given rise to concerns about infringements to client confidentiality and-or legal privilege. The concerns arise acutely in the context of section 17 of the Bill and under section 19, which it is intended to limit to periodic reporting only. I very much appreciate the need to secure an appropriate balance relating to all of these issues while also seeking to best serve the public interest relating to the possible disclosure of criminal acts with adequate protections for legal privilege or client confidentiality. The Minister will, therefore, be returning to these key issues in bringing forward possible amendments at a later Stage. I would very much appreciate, therefore, if Deputy Niall Collins, who has proposed the total deletion of section 17(3) of the Bill under amendment No. 31, could withdraw that amendment and allow time for the sensitive legal issues concerned to be resolved when we come to reconsider them in the Seanad.

Turning to amendments Nos. 32 to 35, inclusive, and 45 to 46, inclusive, we have given renewed consideration to the group of amendments which relate to the reporting channels of the new regulatory authority, for example, in respect of its annual, strategic or other reporting routines. I also understand that this aspect of the Bill has been raised and discussed previously.

Amendment No. 32 proposes that not only will a strategic plan of the regulatory authority be channelled to the Houses through the Minister but will also be channelled to the Houses only. However, I point out that section 18 as it currently stands also provides that the Minister shall cause a copy of such a plan to be laid before each House of the Oireachtas.

The Minister considers the public to be served well by this two-step process, whereby the Minister and both Houses of the Oireachtas can be vigilant in a way that is mutually reinforcing of the public interest. I do not, therefore, see the additional benefit that would be conferred by acceptance of the amendment. I see continued merit, however, in the new regulatory authority being able to report to the Minister by way of bringing key matters to his or her attention and, therefore, wish to retain this provision and to not accept amendment No. 34 as it would no longer facilitate this.

While the Opposition amendments highlight that there is a remaining role for the Minister in terms of some discrete reporting matters, this is solely to represent the public interest in the effective discharge by the regulatory authority and its functions. This includes any recommendations it may wish to make from time to time in regard to the effective regulation of the legal services sector and of legal costs. It also provides a means to monitor regulatory effectiveness and costs in that regard. It is intended that the Minister will solely act as the conduit of the reports concerned, without undue delay or any type of interference, including in their being laid before both Houses of the Oireachtas. I am unable to accept amendment No. 33 which seeks the deletion of existing section 19 from the Bill as this would dismantle and disrupt the annual and other reporting architecture of the proposed Bill.

Amendment No. 35 would be similarly disruptive and would not, in our view, add any obvious value to the reporting framework of the Bill beyond what has already been catered for. These proposed amendments also emanate from an overall self-regulatory approach to the legal professions under the Bill, which remains unacceptable for the reasons outlined earlier. For precisely the same reasons, we cannot accept the wholesale deletion of section 31 of the Bill which deals with annual reports on admission policies for the legal professions and of section 32 which deals with reports on specified matters, as proposed in amendments Nos. 45 and 46, respectively, for which I thank Deputy Niall Collins. The proposed deletion of the two sections in their entirety are an unacceptable carry-over from earlier reactions to the Bill, which been already considered.

Key areas of reform upon which public consultations and reports are provided for would be cast aside - for example, the creation of a profession of conveyancer, the unification of the professions of barrister and solicitor and the education and training for legal practitioners in the State and how this is provided for. We consider, therefore, that the current approach to the furnishing of the relevant reports via the Minister goes no further than to represent the public interest in regard to any of the issues that may be concerned, while also providing the dual safeguard of the reports being laid before both Houses of the Oireachtas. I see no additional benefit in accepting the amendments proposed and respectfully ask that the Deputy withdraw them.

Government amendments Nos. 47 and 48 pertain to two of the public consultation processes and subsequent reports that the authority will be obliged under section 33 to conduct and furnish to the Minister. In bringing forward these two amendments, I am responding to a number of concerns expressed, including by Deputies and the professional bodies, about the heavy workload that the Bill appears to impose on the new legal services regulatory authority from its date of establishment. Under the Bill as it stands, the new regulatory authority will have numerous reports to prepare immediately upon it becoming operational. These relate to legal professional education, the possible unification of the two legal professions, legal partners and multidisciplinary practices and the establishment of a profession of conveyancer. In addition, the new regulatory authority will have to set up a new role of practising barristers, while also preparing regulations in regard to the key new areas of legal practice being introduced under this Bill.

Amendment No. 47 relates to the report on the education and training arrangements in the State for legal practitioners, including the manner in which such education and training is provided. The Bill currently provides that this report should be produced within one year of the establishment of the authority. The purpose of amendment No. 47 is to extend this timeframe to two years. This reflects the fact that the new authority can use a little more time to conduct its initial and baseline study.

Amendment No. 48 relates to the report of the consultation on the possible unification of the barrister and solicitor professions. The purpose of this amendment is to extend the timeframe in this regard from two years to four years. This will allow the new authority to report on more pressing matters earlier, while also recognising the fact that such unification is not immediately in prospect and that the new regulator will need to be firmly established if such a unification were to be recommended for implementation. These amendments are in response to concerns previously expressed in regard to the heavy workload that will be placed on the new authority. The re-sequencing of the timeframe in respect of the two reports concerned, as provided for in amendments Nos. 47 and 48, is a practical response to the concerns expressed.

Amendment, by leave, withdrawn.
Amendments Nos. 32 to 35, inclusive, not moved.

I move amendment No. 36:

In page 24, to delete lines 2 to 39, and in page 25, to delete lines 1 to 10 and substitute the following:

“Powers of Authority in relation to codes of practice

20. (1) The Authority may, having regard to the objectives specified in section 12(1) and (4) and in accordance with this section, issue a code of practice where it considers it necessary to do so for the purpose of setting and improving standards for the provision of a legal service in the State.

(2) A code of practice issued under subsection (1) may relate to the provision of legal services by—

(a) legal practitioners generally, or

(b) legal practitioners of such class or classes as may be specified in the code.

(3) Before exercising its power under subsection (1), the Authority shall consult, in such manner as it considers appropriate, with—

(a) a professional body, the members of which will be subject to the proposed code of practice, and

(b) such other interested parties, including legal practitioners who are not members of a body referred to in paragraph (a) who will be subject to the proposed code of practice, as the Authority considers appropriate.

(4) Where the Authority consults under subsection (3), it shall, before issuing the code of practice concerned, consider representations (if any) made by the bodies or parties so consulted.

(5) Where a professional code conflicts with a code of practice, the code of practice shall, for the purposes of this Act, prevail.

(6) The High Court, on application to it by a legal practitioner who is affected by a code of practice, made within 28 days of the issuing by the Authority of that code, may, where it considers that the code of conduct is oppressive, unreasonable or unnecessary, revoke or vary the code.

(7) Where the Authority, under this section, issues, amends or revokes a code of practice, it shall without delay cause a notice to that effect to be published in Iris Oifigiúil, which notice shall—

(a) specify the code concerned,

(b) specify the legal service to which the code relates or the class of legal practitioner to which the code relates, and

(c) specify the date from which the code, or the amendment to or the revocation of the code, as the case may be, shall have effect.

(8) (a) The Authority shall make available for inspection free of charge to members of the public in an appropriate format a copy of every code of practice issued by it under subsection (1).

(b) A copy of a code of practice made available under paragraph (a) shall state the date on which the code has effect and, where applicable, the date on which the revocation of the code has effect.

(c) Where a code of practice referred to in paragraph (a) has been amended in accordance with this section, a reference in that paragraph to a code of practice is to that code as amended.".

Amendment put and agreed to.
Amendment No. 37 not moved.

I move amendment No. 38:

In page 25, between lines 10 and 11, to insert the following:

“Powers of Authority in relation to professional codes

21. (1) The Authority, having reviewed a professional code, may issue a notice under subsection (2) to the relevant professional body where it is of the opinion that—

(a) the professional code operates or is likely to operate to hinder a legal practitioner in complying with his or her obligations under this Act,

(b) the professional code is frustrating or is likely to frustrate an objective specified in subsection (1) or (4) of section 12, or

(c) the amendment of the professional code is otherwise necessary in order to maintain or improve standards in the provision of a legal service.

(2) A notice under this subsection may direct the relevant professional body concerned to amend, in the manner specified in the notice, the professional code concerned.

(3) Where the Authority proposes to issue a notice under subsection (2) it shall—

(a) notify the relevant professional body, and such other professional body it considers appropriate, of its proposal and the reasons for it,

(b) invite the professional bodies referred to in paragraph (a) to make representations in writing to the Authority in relation to the proposal, and

(c) before deciding whether to issue the notice, consider any representations received under paragraph (b).

(4) Where a relevant professional body has not, within 28 days of the sending to it of a notice under subsection (2), complied with that notice, the Authority may apply to the High Court for an order directing the professional body concerned to comply with the notice.

(5) The High Court, on application to it by the professional body concerned made within 28 days of the sending to that body of a notice under subsection (2), may, where it considers that the notice is oppressive, unreasonable or unnecessary, revoke or vary the notice.

(6) A professional body shall—

(a) within one month of the establishment day, furnish to the Authority a copy of all professional codes in relation to which it is a relevant professional body,

(b) within 28 days of it becoming a relevant professional body in relation to a professional code, furnish to the Authority a copy of that professional code, and

(c) within 28 days of the amendment or revocation concerned—

(i) notify the Authority of the amendment of a relevant professional code and furnish it with a copy of the code as amended, and

(ii) notify the Authority of the revocation of a relevant professional code.

(7) (a) The Authority shall make available for inspection free of charge to members of the public in an appropriate format a copy of every professional code furnished to

it under subsection (6), other than a code which the Authority has been informed, under subsection (6)(c)(ii), has been revoked.

(b) A copy of a professional code made available under paragraph (a) shall state the date on which the code has effect and, where applicable, the date on which the revocation of the code has effect.

(c) Where the Authority has been informed under subsection (6)(c)(i) of the amendment of a professional code, a reference in paragraph (a) to a professional code is a reference to that code as amended.

(8) This section is without prejudice to any other power of the Authority under this Act.

(9) In this section, “relevant professional body”, in relation to a professional code, means a professional body—

(a) that has adopted that code,

(b) on whose behalf the code has been adopted, or

(c) whose members are, as a condition of their membership of that body, otherwise subject to the code.".

Amendment put and agreed to.

Amendments Nos. 39 to 41, inclusive, are related and will be discussed together by agreement.

I move amendment No. 39:

In page 26, line 21, after "may" where it firstly occurs to insert ", after consultation with the professional bodies,".

These amendments arise out of previous discussions during earlier Stages of the Bill. As the Minister of State will be aware, there are staff in the Law Society of Ireland and the Bar Council who are already dealing with complaints mechanisms and are skilled in this area. As a result of the establishment of the new regulatory authority, their positions will become redundant. There is precedence in terms of ensuring that the establishment of a new body does not result in job losses. That is the objective of these three amendments. During discussions on earlier Stages of the Bill I received reassurance first from the former Minister, Deputy Shatter, and then from the Minister, Deputy Fitzgerald, the Government would be sympathetic to these issues and would try to ensure current skilled staff who are relevant, who could help to get the new authority up and running smoothly and who would have a lot to offer to the authority are retained. I accept there will be some degree of training required and new corporate management structures to be put in place and so on but the hope is that as few people as possible will be made redundant and that there will be no re-inventing of the wheel when there are people available who have worked in this field and can bring an awful lot to a new authority. I hope the Minister of State will be able to accept these amendments.

I thank the Deputy for his amendments. Amendments Nos. 39 and 41 seek to make the appointment by the authority of its staff and the determination of their duties subject to "consultation with professional bodies". This would be contrary to the independence of the regulatory authority in its functions, which we have enhanced as desired by the professional bodies and Deputies through a series of substantial amendments. To make the authority amenable in its staffing or other operational decisions to those interests whom it is purportedly regulating on an independent basis would be self-defeating.

In any event, the legal professional bodies are among the nominating bodies for membership of the authority and their successful nominees will have a subsequent voice in its decision making. Staff will be employed independently by the regulatory authority and the professional bodies will not have an employer relationship in this regard.

The staff of the new authority have to be seen to be independent of the professional bodies to maintain public confidence in the new regulatory regime. This would also make it untenable for the regulatory authority to have to consult with those very bodies it is regulating in the making of key staffing decisions and in the subsequent designation of their tasks and duties. We can see the potential conflict of interest that might arise there.

Under this Bill, members of the public will no longer go to the Law Society or to the Bar Council with their complaints in the first instance, as happens at present. Instead, they will make such complaints through the legal services regulatory authority. Deputy Mac Lochlainn will, therefore, appreciate how important it will be that the new legal services regulatory authority be independent of the legal professions and of the Government in the performance of its functions. The independence of the new regulatory authority and of its attendant complaints and disciplinary tribunal procedures is, therefore, fundamental to their success and to the avoidance of any perception among members of the public that complaints about lawyers are being dealt with by lawyers themselves, including their own representative bodies.

At the same time, it is clear that the proposed reforms to the legal professional conduct regime will have implications for a number of existing and appropriately-skilled staff who currently deal with public complaints made through the legal professional bodies. This concerns approximately 18 full-time equivalent posts in the Law Society along with a small number of posts at the Bar Council. Deputies will recall that there was a detailed discussion of this specific aspect with the former Minister, Deputy Shatter, in January 2014 in which Deputy Mac Lochlainn himself was involved. On that occasion, broad support was given by Deputies from across the parties to finding a workable solution which can reconcile the competing human resource and policy considerations involved. This is something which the Minister, Deputy Frances Fitzgerald, has under active and ongoing consideration.

This brings me to the third amendment, which is Deputy Mac Lochlainn's amendment No. 40, which concerns the possible transfer of those complaints staff of the Law Society and the Bar Council who currently administer their respective complaints regimes. As I stated, the Minister, Deputy Fitzgerald, is continuing to consider the possible options for resolving this situation. For example, there are issues around pension and redundancy rights and liabilities that could have serious cost implications for the Exchequer. However, these human resource aspects of the establishment of the new legal services regulatory authority are not solely in the hands of the Department of Justice and Equality. They will, therefore, have to continue to be negotiated in detail with the Department of Public Expenditure and Reform which has overall responsibility in these areas.

In assuring Deputies that the Minister, Deputy Fitzgerald, is actively looking into these complex and sensitive human resource issues, she would ask that this be facilitated by the withdrawal of the proposed amendment pending the identification and negotiation of a viable solution which will be brought forward at a later stage. Any amendments in this regard will come back before the Houses for due consideration.

I am happy to withdraw amendments Nos. 39 and 41 as I accept the points made about the independence of the authority.

What the Minister of State, Deputy Dara Murphy, stated about amendment No. 40 is encouraging. Of course, there will be human resources challenges, pensions issues and such changes, but undoubtedly there would be a desire on the part of the Law Society and the Bar Council that the professional staff who work for them would continue to be in employment. If the same will was on the side of the Government and the relevant Departments, I believe that this can be facilitated. It is common sense and it is also just and fair. There is no question regarding the professionalism or integrity of those who have worked in this sphere and it would be great to have that pool of skills available to a new authority.

If the Government is indicating that it will bring forward amendments in the Seanad that would facilitate this, I will withdraw the amendment in good faith. I do so only on the basis that when this comes before the Seanad, there will be a firm proposition on the table rather than a sense that it is being worked on.

With respect, they have had a long time to work on this matter. I am disappointed that there is not a firm proposal today, stating clearly that this issue is being addressed. However, the language is encouraging. I will withdraw the amendment if I am given an assurance that there will be a firm proposition on the table in the Seanad.

To affirm the point Deputy Mac Lochlainn made about the professional standards and abilities of the staff concerned, those involved are of the very highest quality. The Minister, Deputy Fitzgerald, has made it clear that she is looking into complex and sensitive issues that involve not only her own Department, but also the Department of Expenditure and Reform, and there will be a discussion on where matters have reached during the Seanad debate.

I am not asking that it be discussed in the Seanad. I am asking that the Minister have an amendment before the Seanad that deals with this issue.

The intention is, once we get through Second Stage, that there will be an amendment in the Seanad dealing with this matter.

Amendment, by leave, withdrawn.
Amendments Nos. 40 and 41 not moved.

Amendment No. 42 in the name of the Minister and Deputies Pádraig Mac Lochlainn and Niall Collins. Amendments Nos. 42 to 44, inclusive, are related and may be discussed together.

I move amendment No. 42:

In page 28, to delete lines 34 to 36.

The joint Government and Opposition amendments Nos. 42 and 43 relate to the ban on the chief executive officer of the legal services regulatory authority expressing an opinion to an Oireachtas committee on the merits of any policy of the Government as currently found in sections 25 and 26 of the Bill. The amendments propose that this ban be removed in both instances, respectively. As previously signalled on Committee Stage, the Government is persuaded by this view and I am now happy to agree to both amendments, namely, amendments Nos. 42 and 43. The lifting of this ban will be welcomed by those Deputies and stakeholders who raised concerns about these provisions in the past.

In relation to Deputy Mac Lochlainn's additional amendment No. 44, we would consider it a step too far for current regulatory purposes. We would not, therefore, propose to delete section 26(3), as his amendment suggests. The existing provision simply provides that the chief executive will not be forced to give an account before the relevant committee of the Oireachtas on any matters which are, or may be, before the courts or are specific to a determination by the regulatory authority in respect of a particular legal practitioner. We believe these to be reasonable safeguard provisions, which protect the integrity of any relevant court or regulatory proceedings or the new authority from external comment or controversy. We need to avoid an open-ended risk of disrupting due process in other fora through inadvertent or inappropriate public comment. Given the legally prudential and protective nature of section 26(3), I ask that Deputy Mac Lochlainn withdraw his proposal for its deletion under amendment No. 44.

With regard to amendments Nos. 42 and 43, I welcome the fact that the Minister has recognised that if we are to live in an open democracy, with more work transacted at committee level, then we cannot stand over a situation in which people are limited in their input at committee. As such, if the chief executive officer of any organisation is asked to appear before a committee, there should be no limits or barriers on what he or she may want to enter into in terms of debate. I welcome the amendments.

Like Deputy Collins, I welcome the fact that the Government has addressed the concerns we had through amendments Nos. 42 and 43.

I will set out a relevant example for amendment No. 44. Not long ago, the former Secretary General of the Department of Justice and Equality, Brian Purcell, came before the Oireachtas Joint Committee on Justice, Defence and Equality. He restrained himself from giving evidence because of matters now subject to investigation by the Fennelly commission. I am concerned that the Bill as currently worded could allow a broad opportunity for someone not to appear before an Oireachtas committee to give account. It could limit the ability of a committee to work. Obviously, if someone came before an Oireachtas committee and explained that because of legal privilege and matters subject to decision by a court he cannot give evidence, the committee would have to accept that, as we did, reluctantly, in the case of Brian Purcell. However, I am concerned that the wording is a little too broad and too open to interpretation. It may limit the ability of the Oireachtas justice committee or any committee to hold a body to account. That body may be independent but it is funded by the taxpayer and plays an important role on behalf of the public. That is my concern.

As Members are aware, in the other two amendments, the concerns of Members have been taken on board by the Minister. They acknowledge the important role of committees in the functioning of these Houses. This amendment, however, is considered a step too far. It is a straightforward provision. There is a risk of open-ended disruption when there may be other forums where an issue could be discussed. Unfortunately, we are not in a position to accept the amendment.

Amendment agreed to.

I move amendment No. 43:

In page 29, to delete lines 1 to 3.

Amendment agreed to.

I move amendment No. 44:

In page 29, to delete lines 4 to 8.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 45 and 46 not moved.

I move amendment No. 47:

In page 33, line 10, to delete “1 year” and substitute “2 years”.

Amendment agreed to.

I move amendment No. 48:

In page 34, line 7, to delete “2 years” and substitute “4 years”.

Amendment agreed to.

Amendments Nos. 49, 49a, 49b, 61a, 65a, 77a, 78a, 79a and 80a are related and may be discussed together by agreement. Amendment No. 49a is a physical alternative to amendment No. 49.

Amendment No. 49 not moved.

I move amendment No. 49a:

In page 35, to delete lines 25 and 26 and substitute the following:

“35. (1) Subject to subsection (2) a legal practitioner shall be entitled to hold client moneys of clients and no professional code shall operate to prevent a legal practitioner from holding moneys of clients.”.

Essentially, this amendment seeks to change the terminology so as not to distinguish between barristers and solicitors when it comes to client moneys. Amendment No. 49b seeks to change the terminology to "legal practitioners". This would remove the prohibition on barristers' holding client moneys. I am unsure where the distinction originally came from, but it was made before the State was founded. It puts barristers at a severe disadvantage relative to solicitors, who may receive, for example, the proceeds of a settlement or expenses in advance while barristers cannot. This is about people being able to function and have a little control over their lives.

If this prohibition continues it would make barristers dependent on solicitors to engage with clients and it would frustrate the objective of enabling direct professional access in all matters. It is a critical issue. While it might seem a rather small amendment in terms of the terminology, it is an important one.

I thank Deputies for their amendments. Amendments Nos. 49a and 49b, tabled by Deputy Murphy, would in effect enable all barristers and solicitors to immediately hold clients' moneys and allow the Minister to regulate for this. However, key safeguards have been put in place in case such an event arises, and, therefore, we cannot support the amendments. We consider that the serious safeguards should remain a crucial part of the public consultation process on the holding of clients' moneys to be conducted under section 99.

The transition to the new legal service models will involve a staged approach to ensure they can be delivered in a prudential manner that will protect the interests of legal practitioners and the consumers of their services.

I will take Deputies through the Minister's initial amendment in this group, amendment No. 61a. This tightens up the definition of "contentious matter". It is now proposed to provide that a "contentious matter" means a matter that arises in and that relates to the subject matter of proceedings before any court, tribunal or any other body or person, rather than a matter that has arisen in proceedings, as originally set out. These changes are being made as a matter of interpretation under Part 8 on the advices of the Office of the Parliamentary Counsel. I therefore propose them for agreement under amendment No. 61a.

The proposed amendments to part 8 provide for the introduction of alternative business structures, such as multidisciplinary practices and legal partnerships. The introduction of these alternative business structures remains central to the achievement of the structural reforms to which the Government is committed. The Bill, having been a reform under the EU-IMF-ECB troika programme, is now a structural reform commitment covered by the relevant country-specific recommendation agreed under the EU semester process.

The strategy proposed today in respect of the introduction of legal partnerships and multidisciplinary practices has three main elements. First, we are distinguishing the provisions relating to legal partnerships and multidisciplinary practices to more clearly delineate the modalities of their introduction and regulation. Under this revised approach, legal partnerships will precede multidisciplinary practices in their introduction and both models will be subject to periodic review.

Second, I am introducing a series of new amendments to strengthen the regulatory powers of the new authority and to apply additional prudential conditions on participation in multidisciplinary practices and in legal partnerships. At the same time, I am being careful not to unduly restrict the type of legitimate businesses that may participate in these new legal services models. I wish to alert Deputies that we will address these particular regulatory enhancements relating to the new legal business models later within the separate group of amendments to which they have been assigned. Whether we get to that this morning or not, we will see.

Third, over three years after publication of the Bill and in recognition of the fact that multidisciplinary practices are still being rolled out in other jurisdictions, such as England and Wales, I am meeting the recognised need to conduct independent and professional research on the likely effects their introduction may have on competition and on the Irish legal services market itself. This research will be allowed for by the proposed amendment.

Under amendment No. 65a, Deputy Catherine Murphy proposes to change the current provision of section 85 of the Bill, which prohibits a professional code from preventing direct access to a barrister in regard to non-contentious matters by opening up such access to contentious matters as well. The policy approach being taken under section 99 of the Bill is that the authority will, within a year of its establishment, carry out a public consultation on the retention or removal of restrictions on a barrister receiving instructions in a contentious matter directly from a person who is not a solicitor. It will also examine the reforms, whether administrative, legislative or to the existing professional codes, that are required to be made in the event that the restrictions are retained, or, as the case may be, removed. This approach will enable us to carefully examine the issues involved and ensure that the necessary administrative, legislative and prudential structures are put in place, if access to barristers by members of the public is to be extended to contentious matters. It would be a risk-laden approach to proceed with such an opening up of direct access to barristers without first considering the viability of this option and then putting the necessary prudential safeguards in place to protect the moneys and interests of any clients concerned.

Government amendment No. 77a proposes a replacement for section 98 that will now deal exclusively with the public consultation process in regard to legal partnerships - that is, the new legal business model of barrister-barrister and barrister-solicitor partnerships. Separately, a new section 99 will provide for the consultation process in regard to multidisciplinary practices. It will now be provided under amendment No. 77a that the legal services regulatory authority will, immediately following its establishment, and periodically thereafter, carry out consultations in regard to the regulation, monitoring and operation of legal partnerships. The authority will carry out its initial consultation and report to the Minister within six months of its establishment and the Minister will lay the report before the Houses within 30 days of its receipt. Deputies will also wish to note that it is our intention to introduce, in the Seanad, an amendment to section 1 of the Bill, which deals with commencement issues. It is intended that the Seanad amendment will provide that legal partnerships will come into operation within six months of the completion of the initial six-month consultation process and report. Some other consequential or technical amendments may arise to dovetail with these changes at that time.

It is our considered view that the introduction of legal partnerships, augmented by today's amendment, will provide early, viable and duly regulated alternatives in the way solicitors and-or barristers can work together in responding to the needs of a modern legal services market. Both are regulated professions and have established status and rights of appearance before the courts and both are eligible to apply for judicial appointment. There is already an established, recognised and regulated system for switching between the professions of barrister and solicitor, and this is something which now takes place on quite a regular basis. Indeed, there is now a growing number of practitioners who have worked under the two professions. The two legal professions already work closely with each other in the conduct of legal business and litigation. They have common legal expertise and competence in areas such as arbitration and mediation. Some barristers already share premises and facilities, as solicitors do, and legal partnerships will enable both professions to avail of the economies that can be achieved to the benefit of both lawyers and the consumers of their services, be they private citizens or enterprises.

Both of the legal professions will be regulated by the new legal services regulatory authority and by the new conduct and disciplinary regime under which they will both be answerable. They will both be answerable ultimately to the legal practitioners disciplinary tribunal. Without going outside the two existing legal professions, which already have established, regulated and, in some cases, overlapping functions, there is a very substantial platform upon which, supported by the public consultation process as now set out under amendment number 77a, we can modernise the legal services market through the early introduction of legal partnerships.

Amendment No. 78a provides that a new section 99 will set out the consultation process for multidisciplinary practices or, as they may be called, MDPs. I am now proposing that the authority will, within six months of its establishment, prepare an initial report. This will provide us with an opportunity to learn from the experiences of other countries which have introduced these new business models. It should be remembered that these are complex entities, combining different professions and standards in order to offer the consumer choice and better value. It is also important to ensure we have the right structures in place to protect consumers and their moneys. The initial report, therefore, will include research on the operation of multidisciplinary practices in other jurisdictions, including the legislative and regulatory measures which underpin them. The report will also focus on their likely impact on legal costs, the provision of legal services to consumers and the access of persons to legal practitioners. Again, it will be laid before the Houses within 30 days of receipt.

I am providing that, following the initial exploratory report to the Minister, the authority will conduct, within a further six months, a public consultation on the establishment and impact of multidisciplinary practices alongside other factors such as their regulation, monitoring and operation. It will then make a final report to the Minister with recommendations based on the research and the results of the public consultation process, which will also be laid by the Minister before the Houses within 30 days of receipt. The commencement of the provisions governing the introduction of MDPs will then become a matter for the Minister.

In summary, I am front-loading the MDP process with a six-month research module, which will give depth to the public consultation process that will follow it. I want us to take stock of MDPs, their implications and their benefits for our own legal services market and the lessons we can learn from elsewhere. Rather than having an automatic commencement date for the introduction of multidisciplinary practices, we are now proposing that the Minister, following receipt and consideration of the final report under the procedure I have set out, will have the discretion to proceed with their appropriately regulated introduction.

Amendment No. 80a, which inserts a new section 100, provides that the authority will carry out periodic reviews of the operation of Part 8 with respect to legal partnerships and multidisciplinary practices. As part of the review process, it will be open to the authority to make recommendations to the Minister for the amendment of any provision of Part 8 that it considers necessary. The initial review for multidisciplinary practices will be started not later than two years after their commencement and completed within one year, which is a total period of three years. The initial review relating to legal partnerships will start within four years of their commencement and be completed within one year, which is a total period of five years. Thereafter, the reviews for the two new business models will be conducted at five-year intervals.

The timely advancement of legal partnerships between the two established, regulated and highly developed legal professions and an informed research-driven approach to the introduction of multidisciplinary partnerships will provide the basis for a well managed delivery of structural reform in these key areas, while allowing legal practitioners to continue to practice under the more traditional legal practice models where they so wish. Therefore, I commend the Government amendments I have proposed to the Deputies for their agreement.

I seek clarification with regard to amendments Nos. 49a and 49b. The Minister of State referred to section 99 and said it was a critical part of the public consultation process. Can he clarify that there will be another opportunity to deal with client moneys in that context?

I refer to amendment No. 65a, which relates to contentious matters. I accept that the Government is pursuing this Bill, which was needed well in advance of its coming into office. I would like to quote something that was said nine years ago by the Competition Authority. It stated:

The Competition Authority strongly believes that direct access to barristers for legal advice should be extended to all members of the public. As is currently the case, barristers should be free to choose whether they wish to take on direct access briefs or not. It is not clear from the Competition Authority’s perspective why a barrister cannot represent direct access clients for contentious issues. There are some regulatory issues surrounding client’s monies, touting and advertising which would need to be addressed but these are hardly insurmountable. The Competition Authority believes that direct access for contentious issues would be beneficial for consumers but that the issues surrounding its implementation should be examined in more detail, by the Legal Services Commission recommended in Chapter 3.

I accept that this is a significant Bill and will change things in many ways. However, we need to have some very firm timelines on issues such as this.

I refer to amendments Nos. 49a and 49b. The Bill sets out very clearly that there must be public consultation. The Minister has considered amendment No. 65a. The policy approach being taken is that under section 99 the authority will carry out public consultation in that area. If the Deputy's points come to bear at that stage, they can then be raised. It will also examine whether the required administrative or legislative reforms to the existing codes should retain their restrictions or, as the case may be, remove them.

There has been a fair degree of change in the area of multidisciplinary practices since Deputy Alan Shatter was Minister. He was gung-ho about them, even though it was pointed out to him that they could create an elitist approach to accessing law. Some of the more talented barristers would be sucked up into one building, and there would be issues of oversight, with accountants, solicitors and barristers operating from one building. It could be argued that ethical issues might arise.

The Minister of State is from Cork and I am from Donegal. My major concern is about somebody in one of those counties, which are far removed from the large legal firms in cities, who is facing a difficult case involving corporate, environmental or family law. Under the current regime, such a person would go to his or her local solicitor, who would consider the pool of barristers available and try to find a specialist to argue the case. In a sense, that created a level playing field.

Multidisciplinary practices are on the way out in many countries. One thinks of Hollywood movies in which the best and brightest graduate from university and are head-hunted by large legal firms and paid large amounts of money, and the balance is swayed in favour of big business. Those who can afford to pay the most can attract the best and brightest, whereas an ordinary citizen cannot access such services.

Free Legal Advice Centres, FLAC, is an advocate for affordable, fair and balanced access to justice. The Bar Council and the Law Society have views, but those organisations which are advocates for citizens as much as for the legal fraternity are particularly important. We have a new Minister. I am concerned that this idea was Deputy Shatter's brainchild. He was on a crusade in terms of his views on the legal fraternity, particularly barristers. The Minister has introduced a six-month period of research followed by a six-month period of consultation, and perhaps after all that she will make changes. She could instead have got rid of the thing. Why is what I hope will be the inevitable being delayed by a year? I would like an explanation of the approaches taken. International evidence, with the exception of one example given by the previous Minister, Deputy Shatter, shows clearly that this is not the way to go, and it is not something that people in Ireland are demanding. Who in Ireland is knocking on the doors of Deputies-----

Your time is up, Deputy. You had only two minutes, but I have given you three.

Can I come back when the Minister responds?

To be clear on the issue of Donegal and Cork, we are not disbanding the independent referral bar. The Deputy's points are well made on the fact that the ambition of the Bill is to ensure access for citizens to legal processes in a way that is reasonably priced and available wherever one is from, rather than in major centres in Dublin. We have moved to make sure that the interests of consumers are protected. The idea of the multidisciplinary practice is complex, combining and meshing different professions and standards in order to offer consumers more choice and value. It has long been an ambition of successive Governments. As I said in response to the previous answer, there will be public consultation in a year's time.

Debate adjourned.