Legal Services Regulation Bill 2011: Report Stage

Before we commence, I remind Senators that a Senator may speak only once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. Also on Report Stage each amendment must be seconded. Government amendments Nos. 1 and 290 to 292, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

I wish to raise a general point and ask the Minister to respond. More than 300 amendments have been tabled. It is indicated that quite a few are intended to reverse amendments made on Committee Stage in this House. Are the majority of these Government amendments on which it has had second thoughts or are they amendments made by the Seanad at the instance of Members of the Seanad? It seems extraordinary that on Report Stage there are 300 amendments and it suggests a certain dithering by Government. I know there have been certain withdrawals from positions that were originally taken by the former Minister, Deputy Alan Shatter. I am curious as to the reason for such an enormous number of amendments, the overwhelming majority from Government and quite a few reversing amendments made recently by the Seanad. Can the Minister give us an elucidation at this point?

I echo everything Senator Norris has said. More than 200 of the amendments seek to amend the amendments made on Committee Stage. The Bill is now an item of solely historic interest. It is impossible to proceed with the Committee Stage amendments, the Report Stage amendments and the Bill, all side by side. We should reprint the Bill as it now is. More than 200 amendments are amending the Committee Stage amendments. What documents are we working off? It is an impossible way to make legislation.

I do not want to delay proceedings but, as has been noted, we are concerned that so many amendments have been tabled so late in the day. We also had hundreds of amendments on Committee Stage which came to us only two days beforehand. I accept we did have a briefing with the Minister's officials but I am concerned that if technical changes are being made at this late stage, something could be missed and, therefore, the Bill will have loopholes and there will be mistakes in it. I wish to note Sinn Féin's dissatisfaction at the way in which the Bill is being rushed through the House. I appreciate why it is being done but I wish to note that this is not the way to make legislation.

The Bill has 120 pages and there are more than 50 pages of amendments. Therefore, the amendments are half the size of the Bill. I cannot recall a situation quite like this before.

May I explain? As Senators are aware it is a complex Bill. Obviously at this point in the development of the Bill we are taking a legal overview of it as a whole. It is primarily technical fixes, given the changes to various sections. As the Senators will see when they go through the amendments, many are grouped which are about technical changes. There is a mix of simple corrections to the layout of the Bill and a series of amendments which we have just introduced at this Stage to the Solicitors Acts. There is quite a number of those which are being inserted. When those are inserted consequent changes are necessary in regard to references. There is also a series of amendments, for example, where we use the phase "practising barrister", as opposed to "barrister" which go through the Bill. There are changes like that which account in large part for the number of amendments.

The original Bill, effectively, was a framework only. A large volume of amendments was always going to be necessary. In terms of policy, as we go through the amendments, if there is a new insertion I will point to that. We are starting off with a new section which I think all Senators will support which is the insertion of pre-action protocols. That is the major issue I am introducing today. Many of the other changes have to do with the rearrangement of the Bill due to the insertion of the new sections and the subsequent changing of numbers. When I say technical I mean literally minor changes to the text as opposed to any substantive change. I ask for the support of Senators to begin to go through this very important Bill which is far-reaching and which, for the first time, sets out independent regulation of the legal profession. We want to move ahead with that.

I appreciate there is much to the Bill. We have new procedures, which we discussed last week, for powers of inspection in terms of discipline and complaints being dealt with by an independent body and the establishment of legal partnerships in the first year of the operation. I have also accepted a number of amendments which came forward here last week, to which I will allude, as I go through some of those suggested by Senator Barrett. I am open to discussing a number of amendments which I will be accepting. I seek the support of Senators to move ahead with the Bill and proceed to the detailed discussion.

I will not hold up the debate. It appears to me that it was hastily and unprofessionally drafted.

No. There is months of work gone into it.

That is what it looks like to me.

The Minister said the Bill has been through the Dáil, it has been through Committee Stage in the Seanad and yet we have this astonishing number of amendments. The Minister said the Bill was presented as a framework only. It is a Bill; it should not be a framework. I do not want to hold up the debate but I want to express my reservations about the situation. Bills are presented as Bills subject to amendment but I have never heard of a Bill introduced as a framework only. I am not going to hold up the debate. We want to get into the discussion of the Bill but it is unusual.

On Committee Stage the Government side relied heavily on the fact that Second Stage was taken in this House on 13 May. I checked my records and found that I was detained at the banking inquiry and, unfortunately, was compelled to attend that inquiry. I apologise to the House for that. I read the debate where the Minister made her contribution. Not mentioned were the conveyancing monopoly, the right of audience or the transfer of Law Society and Bar Council staff to the new authority. That was unsatisfactory and the procedure by which we are now working off three documents is also unsatisfactory. The Minister said on 13 May that she could not give a comprehensive account of the Bill in all its detail. We are progressing in a most unsatisfactory manner. Bits are being added and then changed again subsequently on Report Stage. I appreciate what Senator David Norris has said. We have to ask the Minister, given that she has changed her mind so many times, to explain at each stage what precisely we are asked to vote upon.

There are so many sections, and accepting an amendment means we reject the amendment we accepted the last day.

What is the configuration of the Bill? The Competition Authority was invoked as being supportive of the Bill but listening back to the "Prime Time" programme in question gave me the opposite impression. No discussions have taken place since last April with the Competition Authority and Isolde Goggins said this quite plainly on "Prime Time" on 19 November. We have to conclude this is a producers' Bill. The consumers have been neglected and this House has been neglected and bypassed where it was felt necessary.

On the amendments we accepted the last day, the only new amendments submitted today are ones that are tidying up the Bill. I would say there is no policy change. Where there is any key point on policy, I am noting that, with the main one today being that concerning the pre-action protocols.

I have to say to Senator Norris that there is no question of the work that has been put into this. I cannot emphasise enough the amount of work that is being carried out by the Office of the Parliamentary Counsel and the Office of the Attorney General. We are making major changes in terms of the work of the Bar Council and the Law Society and in terms of transitioning to a new regime. With regard to the compensation fund, my predecessor, Deputy Alan Shatter, decided it would stay with the Law Society. There were good reasons for that but I have had to work through the consequences of it. The issues about public liability, which I discussed the last day and will discuss again today, have to be dealt with. I was asked by Senator Barrett to build in a longer opportunity for people to make complaints, and I have accepted that. I have also accepted from the last Seanad debate the amendment which means people who live outside the State can be on the board of the legal services regulatory authority, and I have accepted a number of other amendments put forward by Senator Barrett.

As we go through the Bill, one will see there is a huge amount of what I would genuinely call tidying up, for example, having to change sections because new sections have been inserted. I would ask for the forbearance of the House in going through the Bill. I will address whatever sections I have to and I am here to give Members as much information as possible in regard to what is a large, complex Bill. A huge amount of work has been done and needed to be done on it, and it is hugely detailed work. For example, the issue of complaints and discipline was dealt with by the solicitors under the Solicitors Act, and they have built up decades of experience in that regard. To now move it into an independent statutory body like the legal services regulatory authority requires hugely detailed knowledge of how it was being dealt with to date.

Huge care has been taken to deal with all of these issues because they are very important. How the courts and the law operate, and how the professions of the Bar and solicitors operate, are critically important in our democracy. That is what we are dealing with in the Bill. I appreciate there are a lot of amendments but, as we go through them, I will point out where there is any policy change, with the big issue being in regard to the pre-action protocols. I gave a lot of detail on Committee Stage. The amendments I am bringing in are mostly technical as a result of insertions.

The Minister uses the phrase "tidying up". I think it is more than tidying up; it looks like a major spring clean to me. However, we will leave it at that and get on to the Bill.

We move to amendment No. 1. Amendments Nos. 290 to 292, inclusive, are related and the amendments may be discussed together, by agreement. Is that agreed? Agreed. Recommittal is necessary in respect of this group of amendments as they do not arise out of committee proceedings.

Bill recommitted in respect of amendment No. 1 and amendments Nos. 290 to 292, inclusive.
Government amendment No. 1:
In page 9, line 12, after “counsel,” to insert “to provide for matters relating to clinical negligence actions,”.

I am very pleased to begin this afternoon’s proceedings with a group of amendments that provide the statutory basis for the introduction of what is termed a “pre-action protocol”, which will take the form of ministerial regulations. The pre-action protocol will set out the steps to be followed and the obligations on all relevant parties to the handling of inquiries into and allegations of clinical medical negligence. As Senators will be aware, this legislative step has been repeatedly called for over a number of years by a wide variety of interested parties ranging from patients advocacy groups to medical professionals and the Judiciary.

The expert Working Group on Medical Negligence Litigation and Periodic Payments was established by the President of the High Court in February 2010, with terms of reference that included the following: the examination of the present system within the courts for the management of claims for damages arising out of alleged medical negligence and to identify any shortcomings within that system; and the making of such recommendations as may be necessary in order to improve the system and eliminate the shortcomings. The group published its final report in March 2012, so I am pleased that, without further delay, the implementation of many of the working group’s key recommendations are taking a big step forward today.

As Senators will know and understand, the insertion of a ministerial regulation-making power into a primary statute, such as the Legal Services Regulation Bill, means that the scope and purpose of the regulations, as well as any legal-technical matters are set out, with the actual detail being left to the regulations themselves. I should like to point out, however, that my Department has already laid the groundwork for that work to take place in consultation with a range of interested parties, with the development of detailed legislative heads. I expect that the actual pre-action protocol will be finalised and in operation within a short time of this new Part 15 of the Bill being commenced.

The aim of a pre-action protocol is to encourage the early resolution of inquiries or allegations relating to possible clinical negligence and to promote good, non-adversarial communication between the parties, with a view to reducing the need to go to court. Access to the courts will still be available to parties where it is warranted but the pre-action protocol steps will ensure that a full disclosure of all relevant information, grounds of complaint and supporting evidence will be made clear at an early stage, thus greatly reducing the likelihood of court adjournments, which are a key factor in the high cost of litigation in this country. I believe this pre-action protocol will have knock-on effects for efficiencies in court, as well as in the cost of litigation, and could possibly lower insurance costs in the medical sphere, which will be to the benefit of all.

This is a very important matter which involves several new sections. It is worthwhile to point out that its introduction at this stage means Members of the Seanad can only speak once-----

No, we are on Committee Stage.

I beg your pardon. I had come from the previous debate, which was on Report Stage.

Amendments Nos. 1 and 290 to 292, inclusive, have been recommitted, so it is the same procedure as Committee Stage.

Thank you for the clarification. I very much welcome section 159, in particular that an apology is not to constitute an admission of guilt. That is a very important point. In situations of clinical liability, where, for example, a child is brain-damaged as a result of some procedure that went wrong in the hospital, these things very often take years and the hospital is inhibited in giving an apology, which would be emotionally satisfying to the parents of the child, because an apology constitutes or can be held to constitute an admission of liability. It is in everybody's interest that a hospital can issue a heartfelt apology that leads to some comfort being given to individuals, for example, the parents of a brain-damaged child, without liability coming into question. I very much welcome this section, which is very good, humane and decent.

As the Senator said, it is an important section, which provides that an apology by a medical practitioner is not to constitute an admission of liability or invalidation of insurance. It is a key plank of this innovation and was very strongly recommended by the working group report on this issue.

It is also mirrored in several other common law jurisdictions. For obvious reasons, the Minister for Health was extremely keen from the point of view of patients and having more efficient legal processes that we would succeed in getting this into the Bill. The Attorney General and her staff worked very hard in recent times to ensure we got this into the Bill. It is a strength to have it in there and it will be very helpful.

It takes the fear of litigation out of the giving, at an early stage, of an apology or the expression of regret. We have seen many cases recently where this has been an issue. It makes a difference to the patients, the clients, the people concerned and the medical professionals who have often been caught in an adversarial situation where they did not have the option to do this. I think this now clarifies that and is very much in line with the working group report.

I congratulate the Minister. It is a good humane measure that improves the Bill.

Amendment agreed to.
Bill reported with amendment.

Amendments Nos. 2, 3, 183, 185, 187 to 189, inclusive, 194, 197 to 200, inclusive, 202 to 209, inclusive, 211, 213 and 214 are related and may be discussed together by agreement.

Government amendment No. 2:
In page 9, line 19, to delete “sections 85 and 87” and substitute “section 85”.

Amendments Nos. 2 and 3 set out the date of coming into operation of the new legal partnerships model being introduced under the Bill, which is to be within six months of the completion of the relevant public consultations. This will allow for the new legal partnerships, barrister-barrister or barrister-solicitor, to be introduced within a year of the establishment of the new regulatory authority. I would hope to see the first of these coming into existence before the end of 2016.

The other amendments have been tabled by Senators Cullinane, Ó Clochartaigh and Reilly. Obviously, if I accepted these amendments, I would be stripping the Bill of a central part of the alternative business models it proposes by way of structural reform of the legal services sector. As this would run totally against Government policy as expressed in this part of the Bill, I cannot accept this cluster of amendments. Indeed, it is not only the Government’s view as a series of reports going back to 1982, including one by the Competition Authority in 2006, have expressed the clear view that people should be given a choice in how legal services are provided. Moreover, that no choice is to be given to consumers of legal services and that we just stay with the status quo, as suggested by these amendments, is the very antithesis of what this Bill is about. We will have to differ on those amendments.

On amendments Nos. 183, 185, 188, 189, 197 to 200, inclusive, and 202 to 211, inclusive, obviously we have a difference in policy. I accept that. However, I want to put on record on Report Stage that these amendments reflect Sinn Féin's opposition to the multidisciplinary practices where solicitors, barristers and accountants operate one practice under the same roof and the same company. The evidence we have reviewed shows us that this model has failed internationally. Our fear is that the best and brightest will be secured by the wealthiest in our society. Big business and large corporations, in particular, will be the ones to gain to the detriment of the average citizen seeking legal representation.

We are very much concerned for the people in rural areas and smaller towns who do not have the wherewithal to go to a big firm and are looking to the smaller companies in their local area to represent them. They will not have the resources that these MDPs would have. We want a level playing pitch for all citizens and we are particularly concerned that citizens in these rural communities should be able to access the barrister with the appropriate skills to represent them through the offices of a local solicitor, as is generally the case at present.

I take the Minister's point that this is definitely a difference of policy. It is obviously part of the Government's policy to go towards this more corporate version of the legal practice and that is where we differ on policy.

I do not agree with the Senator's analysis. It is about offering different models of legal services to the public. It is about choice. The 2006 Competition Authority report, the vast majority of the recommendations of which we are implementing, highlights the need for a choice of different legal models. Sinn Féin is staying with the status quo. The Government is proposing to introduce choice.

I do not agree with the Senator's use of the word "corporate". It is not about corporations. Under the changes proposed, greater choice will be offered to the public in any town around the country. It is in the consumer's interest to have greater choice. What the Senator is saying is obviously quite different from what other Senators are saying. Other Senators are suggesting that we should accelerate the process towards multidisciplinary partnerships whereas the Senator is saying we should not go there at all.

It is a bit disingenuous for the Minister to say that we are not supporting-----

We are not on Committee Stage; we are on Report Stage.

I just make the point that it is a bit disingenuous. We have shown support for the general thrust of the Bill. This is the one section we do not agree with. That should be recognised.

Amendment No. 2 proposes to delete sections 85 and 87, presumably from the Committee Stage. On Committee Stage, the Minister introduced amendment No. 100 to section 85 and amendment No. 101 to section 87. In order to alleviate confusion, what happened between last week and this week such that what the Minister thought was a good amendment last week is amended again this week? What is the practical difference? The sections refer to legal partnerships and professional codes, and multidisciplinary practices and professional codes. To help Members of the Oireachtas to explain to the public, what is the difference between these multidisciplinary practices and professional codes and the ones the Minister sought the House to approve only a few days ago?

There is no policy difference. It is just a technical amendment to changed sections in the Bill. There is no policy difference versus what we agreed last week.

I remind Senator Barrett that we are not on Committee Stage.

What is the purpose of the amendment if there is no difference? We have to explain to people what this is about. As it is presented, it is certainly most confusing.

I have nothing further to say.

Amendment put and declared carried.
Government amendment No. 3:
In page 9, to delete lines 23 to 27 and substitute the following:
“(3) Section 85 shall come into operation on such day, not later than 6 months after the laying before each House of the Oireachtas under subsection (4) of section 102 of a report referred to in subsection (2) of that section, as the Minister shall appoint by order.”.
Amendment agreed to.

Amendments Nos. 4, 9, 11, 12, 19, 42, 43, 49, 56, 57, 79 to 82, inclusive, 102, 103, 105, 107, 109, 112, 115, 119 to 121, inclusive, 193, 195, 196, 225, 225a and 225b are related drafting amendments and may be discussed together by agreement.

Government amendment No. 4:
In page 9, in the subsection inserted by amendment 1 at Committee Stage in the Seanad, to delete “Solicitors Act 1954 to 2008 and Part 14” and substitute “Solicitors Act 1954 to 2011 and Part 13”.

I will go into detail on this so that people understand that these really are technical changes - corrections might be the word.

This group of amendments concerns a range of corrections to wording and to cross-references contained in the Bill at this point - for example, wrong wording or references to legislation including those that are as a direct result of the ongoing amendments being made here in the Seanad by way of progressing the Bill.

I will give some examples. Amendment No. 11 is a technical amendment relating to the definition of qualified barrister which better defines the reference to the timing of a disbarment, if one has occurred, which precludes a person from being within the definition. Amendments Nos. 79 to 82, inclusive, deal with the removal in four places of the words “under this Part” since in final drafting, they became superfluous. Again, that is just a change because of new amendments that have come into the Bill. Amendments Nos. 225a and 225b on the additional list are consequential technical amendments to correct references following on from amendment No. 225 to update references to the Companies Act 2014.

While I accept that there is an extent to which these types of amendment have to be taken in good faith as a grouping, they will not, of themselves, prevent or disrupt us from discussing those substantial matters of amendment that are before us today.

I ask Senators to accept what I am saying, that these are a range of corrections to wording and cross-references contained in the Bill at this point. This change in referencing is needed because of some of the changes we are making. This series of amendments is purely to deal with that aspect. They are consequent to amendments and update references to the Companies Acts and various other definitions in the Bill.

The note beneath amendment No. 3 on the list of amendment states: "For the information of Senators, the is a reference to section 85 inserted by amendment 100 at the Committee Stage". If one reads the Government's Committee Stage amendment No. 100, which refers to legal partnerships and professional codes, there is a note below it on the list of those amendments stating: "Acceptance of this amendment involves the deletion of section 85 of the Bill." We are working at such distances from the reality of what this legislation would look like when we eventually see it in full. Perhaps people with legal training can operate in the way in which we are being asked to do so this afternoon, but it is unfair to elected representatives to have to try to figure their way through this maze of amendments to amendments and deletions from the original Bill, as drafted, which was dated 2011 and which is the basic document from which we are working. This is a most unsatisfactory way to do business in the House.

Does the Minister wish to respond?

I have explained it.

Amendment put and declared carried.

Amendments Nos. 5, 6, 58, 59, 86, 87, 164 to 166, inclusive, 168 to 174, inclusive, 176, 177, 184, 186, 218, 219, 227 to 230, inclusive, 233 and 234 are related drafting amendments and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 5:
In page 9, between lines 29 and 30, to insert the following:
" "Act of 1954” means the Solicitors Act 1954;
"Act of 1960” means the Solicitors (Amendment) Act 1960;
"Act of 2002” means the Solicitors (Amendment) Act 2002;".

As will be seen from a perusal of this cluster of amendments, they fall very much under the tidy-up category in regard to this Bill. I have said, for example, that the phrase "practising barrister" for each occurrence of the word "barrister" concerned is a substitution of that. It makes the relevant provisions coherent with the fact that this Bill will now regulate practising barristers under the proposed levy framework contained in Part 7 of the Bill, as passed by the Dáil. To be a practising barrister one has to be on the roll of practising barristers being maintained by the new regulatory authority.

The other amendments being tabled by the Government in this group address similar issues of congruity across the Bill and their acceptance will enhance the Bill in each instance. It is very much similar to what I have said in regard to the previous section. These amendments are the consequence of changes based on amendments that have been moved and accepted in the Seanad.

Amendment agreed to.
Government amendment No. 6:
In page 10, to delete lines 14 and 15 and substitute the following:
" "complaint” means a complaint made under subsection (1) or (2) of section 42;".
Amendment agreed to.

Amendments Nos. 7, 8, 18, 22, 61 to 65, inclusive, 74 to 77, inclusive, 91, 110, 190 to 192, inclusive, 216, 217, 222, 243 and 280 are related drafting amendments and they may be discussed together by agreement. Is that agreed?

It is not agreed. We are now debating amendments in bunches of 20. I have to object to that procedure.

If the Senator is objecting, we will have to take them individually.

If I may explain, this group of amendments relates to section references. It is not that there is any substantive amendment in each of these amendments. They made changes to the section references. They only relate to the section references. We are reconciling the section references of the Bill with the various amendments made to the Bill since its inception and since it has come before the Seanad. It will be appreciated how difficult it is to maintain correct numbering as we go through the numerous amendments that a Bill of this complexity will generate by way of realising what we are trying to do here from a whole-Bill point of view. These amendments literally deal with the section numbering that we are putting together. As we have inserted new amendments, the section numbering is changing. I am not sure there would be much point in discussing each of those number changes. That is effectively what we are doing here to take account of the amendments that have been made.

Is Senator Barrett happy with that or does he want the amendments to be taken individually?

I would prefer if they were taken individually. As non-lawyers, we have to understand what is going on in this legislation.

Government amendment No. 7:
In page 10, line 16, to delete "section 51" and substitute "section 59".
Amendment agreed to.

We will move on to amendment No. 8 which has not been discussed with amendment No. 7.

Government amendment No. 8:
In page 10, line 19, to delete "section 62" and substitute "section 64".

Does the Minister wish to comment?

I do not have anything further to add because each one of these changes is literally a number change to the section, consequent on the amendments that have been inserted.

Amendment agreed to.
Government amendment No. 9:
In page 11, in the definition of "legal partnership" inserted by amendment 8 at Committee Stage in the Seanad, to delete "barrister" and substitute "practising barrister".
Amendment agreed to.

Amendments Nos. 9a, 27, 31, 32, 34, 37, 39 to 41, inclusive, and 210 are related and may be discussed together by agreement. Is it agreed to take all of them together?

No, it is not agreed.

We will deal with amendment No. 9a.

I move amendment No. 9a:

In page 11, line 30, after "Society" to insert ", the Honourable Society of King’s Inns".

My amendment would insert the words "the Honourable Society of King's Inns" to add that society to the list of professional bodies in the definition section. I should also stress that adding the King's Inns to the list of professional bodies in this section does not interfere in any way with the scheme contemplated by the Bill for the future regulation of this sector.

I do not understand why this amendment has been grouped with other amendments and somebody might be able to explain it. Leaving that aside, in the interests of full transparency, I should declare a personal interest. I am a graduate of the King's Inns, having spent four happy years there, and I am currently a barrister on leave.

The King's Inns is the original professional body for lawyers in Ireland with a recorded history going back to 1541. It is the original professional body from which the two more recently established legal professional bodies, the Law Society and the Bar Council originally sprang. Its continuing role in the legal world is explicitly recognised at several points in the Bill, including the provision giving the King's Inns the right to nominate a member to the board of the new Legal Services Authority. It remains the disciplinary body for the barrister profession for the purposes of processing outstanding cases of complaints against barristers referred to it by the Bar Council, and it retains that power until the new regulatory body ultimately takes over the responsibility to process complaints against barristers and to impose sanctions against them up to and including disbarment. Those are the reasons that I believe the Honourable Society of King's Inns needs to be added to list of professional bodies.

Has the Senator a colleague to second the amendment?

I second the amendment.

I am grateful to all my friends. I am sure even if there was not a Seanad election in the offing that I would have a colleague to second the amendment on this occasion.

I am happy to accept amendment No. 9a proposed by the Senator providing that the Honourable Society of the King's Inns be inserted into the Bill for the purposes of definition of a professional body. This was something of an oversight to begin with and I am happy to accept the amendment.

I thank the Minister for that.

Amendment agreed to.

Amendments Nos. 10, 16, 17, 25, 26 and 161 are related and may be discussed together by agreement. Is it agreed that they be discussed together? Agreed.

Government amendment No. 10:
In page 11, line 31, to delete "Minister" and substitute "Authority".

This amendment has been tabled to make it clear that the definition of a "professional body" means the Bar Council, the Law Society or such other body of legal practitioners as the authority may prescribe.

The substitution of "Authority" for "Minister" is in line with the overall objective of the Bill, which is to have an independent body established to regulate legal services. We will now have a new regulatory authority which will perform many of the functions that were previously completely by reference to the Minister for Justice and Equality. This is obviously a change that came in very early on in the discussions in the Dáil that we should have an independent body. In the early publication of the Bill, the Minister had quite a number of roles in relation to the body. They have all been changed now. It is very clearly an independent regulatory legal services authority that is being established. This makes it clear that in relation to the definition of professional body, it is the authority which decides on that and not the Minister.

There are a number of technical amendments from a public interest point of view. The line Minister for the sector approves, with the consent of the Minister for Public Expenditure and Reform, the holding or disposal of land by a public body. This is a fairly normal provision and obviously there is some management in terms of the remuneration and allowance levels for board members and that would be overseen in the normal way by the Department of Public Expenditure and Reform and by the Minister. Most of the other amendments are to do with prudential oversight by the Minister, with the consent of the Minister for Public Expenditure and Reform, of various fees and expenses rates for the committee members. The main point is that the legal services regulatory authority is the body that decides these issues in relation to professional bodies.

Amendment agreed to.
Government amendment No. 11:
In page 12, line 5, to delete “he or she has been” and substitute “he or she, before the date on which Part 5 comes into operation, has been”.
Amendment agreed to.
Government amendment No. 12:
In page 12, in paragraph (c) of the definition of “Solicitors Accounts Regulations” inserted by amendment 13 at Committee Stage in the Seanad, to delete “Solicitor’s Act 1954” and substitute “Act of 1954”.
Amendment agreed to.

Amendments Nos. 13 to 15, inclusive, and 212 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 13:
In page 13, in subsection (1)(a) of the section 6 inserted by amendment 14 at Committee Stage in the Seanad, to delete “2 years” and substitute “18 months”.

This amendment reflects the policy decision taken by Government that a review of the effectiveness of the legislation should be conducted within 18 of the enactment of the Bill rather than within the longer two-year period we agreed earlier. Amendment No. 14 is a technical amendment to better clarify the application of the section, specifically by reference to Part 7 of the Bill, which would be a review of the operation of the levy that will fund the new authority and disciplinary tribunal.

The intention behind amendment No. 15 is to ensure that the Competition and Consumer Protection Commission will be among the bodies consulted in the periodic review of the functions of the Act. I have made sure it is included and that when the review is taking place within 18 months, the Competition and Consumer Protection Commission will be involved in the review of the function of the authority, ensuring that the commission's two areas of competence are taken into account and the first such review will be 18 months after the establishment of the new authority.

In respect of Opposition amendment No. 212, while I appreciate what Senators Barrett and Quinn are trying to do here in that they want to expedite the review of the operation of the section dealing with the legal partnerships, which was discussed some time ago, it would be very difficult for the legal services regulatory authority to compress the period of review from four years to two years. There is a critical degree to which we have no ensure that the new authority is not hindered from bedding down into what I would call its effective core business and core functions on establishment by the imposition of too many reports that it has to do after establishment. We have to take a position on this that the first job of the authority is to start to set itself up as an efficient authority, hire staff and begin to embed the processes that it will use during the work it does. Obviously, we have given it a series of reports to do. The first job is to establish itself and to hear the complaints that come in from the public. Approximately 1,500 complaints come in every year in relation to solicitors and barristers. That is the core job. We have asked it to establish a new form of legal partnerships within the first year, which is a very important job. That is quite a sea change. We have given it a series of dates for it to do other reports.

If we bring back the timeframe I have given in relation to multidisciplinary partnerships from the four years, it will be a very demanding request on a new authority at this point. I have considered very carefully the timeframe within which the LSRA can do the various reports and all things considered with a new body, the approach we are taking is reasonable.

I welcome the Minister and this change to the review period. I welcomed the review period, which was inserted on Committee Stage. An 18-month review period is a very positive change. Others have spoken about the large volume of amendments on Report Stage. I absolutely agree with colleagues that is not ideal to be trying to read between different texts. I agree with the Minister that most of the amendments are technical but this amendment will make a significant difference to the work of the authority. The Minister pointed out just how much work the authority is being obliged to do.

I hope that in the review that is to be conducted 18 months after the Bill has been passed, we will see consideration being given to extend the remit of the authority to look at issues around access to justice, support for litigants in the public interests and so on, as FLAC has advocated. That is the sort of role the authority could take on in the future once it has fulfilled the functions that it is being tasked with doing in this Bill, as it is being changed. I also note the Minister's acceptance of amendments on Report Stage, which is very positive.

I thank the Minister for reducing the time period and for involving the Competition and Consumer Protection Commission. I commend Ms Isolde Goggin for saying on "Prime Time" that she had not been involved since last April. If this is mending fences and getting proper consultation set up, it is very welcome. The report has been there since 2006 and one can go back 38 years when some of these malpractices and abuses were spoken about. They were ignored in the past six months. It takes much courage for the chair of a quango to bat against a Government policy on a matter. It happens far too frequently that people are overlooked when they should be consulted. This is a welcome development in that it is now in law that people can no longer proceed as if the Competition and Consumer Protection Commission does not exist.

I thank Senator Barrett. This is important. It also suggested the 18-month review and I am very happy to do that. We will have new legal partnerships and a new body. It is important to review that and I am happy to do the 18-month review.

Government amendment No. 18:

In page 17, in the paragraph (c) inserted by amendment 18 at Committee Stage in the Seanad, to delete “section 75,” and substitute “section 75, or”.

Amendment agreed to.
Government amendment No. 14:
In page 13, in subsection (2) of the section 6 inserted by amendment 14 at Committee Stage in the Seanad, to delete “for amendments to this Act” and substitute “for amendments to this Act (including amendments to Part 7)”.
Amendment agreed to.
Government amendment No. 15:
In page 13, in subsection (3) of the section 6 inserted by amendment 14 at Committee Stage in the Seanad, to delete “professional bodies” and substitute “the Competition and Consumer Protection Commission, professional bodies”.
Amendment agreed to.
Government amendment No. 16:
In page 14, line 6, to delete “with the approval of the Minister given with the consent of the” and substitute “with the consent of the Minister given with the approval of the”.
Amendment agreed to.
Government amendment No. 17:
In page 16, line 27, to delete “as the Minister for Public Expenditure and Reform may” and substitute the following:
“as the Minister with the consent of the Minister for Public Expenditure and Reform may from time to time”.
Amendment agreed to.

This is the reference to the numbers in the sections.

Amendment agreed to.
Government amendment No. 19:
In page 17, in the paragraph (d)(ii) inserted by amendment 18 at Committee Stage in the Seanad, to delete “that Act, or” and substitute the following:
“that Act,
or”.
Amendment agreed to.

Amendments Nos. 20, 21 and 23 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 20:
In page 17, line 25, to delete “that Act, or” and substitute “that Act.”.

Amendment No. 20 is a technical amendment to ensure the correct reference to the Act concerned. Amendment No. 23 is being tabled so that the provisions on the functions of the authority better reflect the new powers of inspection provided for in Part 3, as inserted, that is, the authority's powers to investigate complaints under Part 5 and the authority's responsibility to maintain the roll of practising barristers as passed by the Dáil.

I wish to advise Senator Barrett that I undertook, on Committee Stage, to examine his amendment to remove, as a reason for disqualification from being a member of the authority, the fact that a person was no longer resident in the State. On reflection, there is absolute merit in what he had to say and, therefore, I shall table an amendment to remove that element of the section.

I thank the Minister. It was an oversight that the provision was there and I refer to the great Members of this House who have come from Northern Ireland.

I wish to raise an additional point which is of interest. On the Pat Kenny radio programme reference was made to insurance. It was claimed that in Northern Ireland the legal system accepts the bill of quantum without the amount of litigation that goes on in this jurisdiction which results in lower legal and insurance costs. In addition to the principle, on which I fully support the Minister, there may be practical benefits from having some people from a law system other than ours saying how we can reduce costs. We could get an extra benefit from this provision and I thank the Minister for her amendment.

I appreciate what the Minister has said. In terms of having somebody who has the expertise but comes from, lives or has moved outside of the State, it would be a shame to limit ourselves and not have that benefit.

I think the amendment is appropriate and I am glad to accept it.

Amendment agreed to.
Government amendment No. 21:
In page 17, to delete line 26.

Amendment No. 21 is also in the names of Senators Barrett and Quinn.

Amendment agreed to.
Government amendment No. 22:
In page 19, line 32, to delete “referred to in section 38” and substitute “in accordance with sections 38 and 39”.

This is a reference to the numbers of the sections again.

Amendment agreed to.
Government amendment No. 23:
In page 19, to delete lines 33 to 39 and substitute the following:
“(d) establish and administer a system of inspection of legal practitioners for such purposes as are provided for in this Act,
(e) receive and investigate complaints under Part 5,
(f) maintain the roll of practising barristers in accordance with Part 9,”.
Amendment agreed to.

Amendments Nos. 24, 60, 89, 116, 160, 201, 220, 221, 223, 224, 226, 231, 232, 235 to 241, inclusive, 299 and 300 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 24:

In page 20, line 1, after “services” to insert the following:

“and cases where the cost of a grant of probate is charged by the Probate Office at a higher rate to a lay person than to a legal practitioner”.

Senator Quinn and I tabled our amendment because we wanted to look at cases where the cost of a grant of probate is charged, by the probate office, at a higher rate to a lay person than to a legal practitioner. Our source of inspiration came from an article published in The Examiner on 25 November 2011. It reads: "A solicitor taking out a grant of probate on an estate valued at €750,000, pays €375 in fees. A non-solicitor taking out the same grant of probate is charged €750. It's unfair and discriminatory but that's the way it is". Do State offices charge more to lay people, by a factor of two, than to solicitors?

I second the amendment because it seems that a two-tier system has been established which goes back to the old paternalistic days. For example, in Trinity College, if one's father was a doctor one got into the medical school and so on. It is jingoism, which is wrong. There should be a level playing field and the ordinary citizen should be treated exactly the same. Therefore, I strongly approve of and support Senator Barrett's amendment.

I am sure the Minister has an explanation for this situation. It does not seem to make sense to have two different charges in a modern era. The prices differ by quite a substantial multiple although we did not do the sums. It seems to me to be out of the question to have two different rates.

Amendment No. 24 has been tabled by Senators Barrett and Quinn. It proposes to insert a reference to the disparity of costs arising in regard to a grant of probate as between a lawyer and a lay person. While I can see that this is intended to highlight this specific issue there are numerous other issues like this which I am sure the new regulatory authority will, undoubtedly, be dealing with. As the section to which the amendment is proposed concerns the public awareness functions of the new authority I do not want to turn it into a list of all of those issues that the new legal authority will need to address. I do not want to accept the proposed amendment but it is not because I do not believe that the legal services regulatory authority will have to deal with this issue. As has been said, it is a cost anomaly and it is an example of the kind of issue that the new legal regulatory authority will be empowered to deal with. There are many such examples. I do not think, from a legislative point of view, to begin to include a particular one is the way to go. This is the type of issue that the legal services regulatory authority will examine under the costs issue.

I thank the Minister. I am a little worried that she has found far more issues. We found this issue quite by accident.

Could we not do it now as we set up the authority if we know that discriminatory pricing takes place? I would be happy to endorse any of the items that are on the Minister's list. We know about these matters now so there is no need to wait until a new body sets itself up and has establishment costs. Let us tackle the list of anomalies now, which is what the public outside wants. I am worried that the Minister has found far more than the one that came to our attention here. That is the context. I dislike the phrase "kicking the can down the road" but let us do something about this matter instead of kicking everything down the road. We know about this matter so let us tackle it.

All I can say is that it is those kinds of cost anomalies that one would expect a legal services regulatory authority to deal with. Schedule 1 deals with the whole cost issue. We are bringing a new transparency to costs. For example, somebody availing of legal services must be told upfront what the costs are going to be. As the Senator will know, in the past we have had a lot of complaints about cost issues. We have a schedule that deals with the range of costs and making sure the consumer is informed. If there is any expectation, as cases develop as they often do and different costs come into play, then the consumer or client has to be kept informed. There is a new legal costs adjudicator as well. The whole question of costs is central to the Bill in terms of a new transparency and an obligation on the legal services regulatory authority to oversee that.

There is no provision on Report Stage to act like Committee Stage and Senator Barrett has already spoken.

Amendment put:
The Seanad divided: Tá, 13; Níl, 16.

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Craughwell, Gerard P.
  • Heffernan, James.
  • Leyden, Terry.
  • Mullen, Rónán.
  • Norris, David.
  • Ó Clochartaigh, Trevor.
  • Ó Murchú, Labhrás.
  • Quinn, Feargal.
  • Reilly, Kathryn.
  • Wilson, Diarmuid.
  • Zappone, Katherine.

Níl

  • Bacik, Ivana.
  • Burke, Colm.
  • Cahill, Máiría.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • Hayden, Aideen.
  • Keane, Cáit.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Neill, Pat.
Tellers: Tá, Senators Sean D. Barrett and Feargal Quinn; Níl, Senators Paul Coghlan and Aideen Hayden..
Amendment declared lost.
Government amendment No. 25:
In page 23, lines 6 and 7, to delete "with the approval of the Minister for Public Expenditure and Reform, may" and substitute the following:
"with the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform may from time to time".
Amendment agreed to.
Government amendment No. 26:
In page 23, lines 29 and 30, to delete "as the Authority, with the approval of the Minister for Public Expenditure and Reform, may determine" and substitute "as the Authority may determine".
Amendment agreed to.
Government amendment No. 27:
In page 23, between lines 30 and 31, to insert the following:
"(3) Any fees or allowances for expenses due to a consultant or advisor appointed under this section shall form part of the expenses of the Authority.".

This amendment creates a new subsection (3) which provides that any fees or allowances due to consultants and advisers shall form part of the expenses of the new authority.

Amendment agreed to.

Amendments Nos. 28 to 30, inclusive, are related and may be discussed together by agreement.

Government amendment No. 28:
In page 23, between lines 32 and 33, to insert the following:
"Legal privilege
17. (1) Nothing in this Act shall compel a person, other than a person to whom subsection (2) applies, to disclose any information or documentation that the person would be entitled to refuse to produce on the grounds of legal professional privilege.
(2) Notwithstanding the relationship between, or rights and privileges of, a legal practitioner and his or her client, a legal practitioner shall, if so requested by a person authorised in that behalf by the Authority, provide the person with any information (in such form as that person may specify) or documentation which is required by the Authority for the purpose of enabling the Authority to discharge its functions under this Act.
(3) Information or documentation provided by a legal practitioner in accordance with subsection (2) may only be used for the purpose of enabling the Authority to discharge its functions under this Act in relation to legal practitioners.".".

Amendment No. 28 deals both with the power of the legal services regulatory authority to obtain information and documentation from legal practitioners and the protection of the legal professional privilege rights of persons in respect of any such information and documentation. The amendment inserts a new section 17 which obliges a legal practitioner, if so requested by the authority, to provide any information required by the authority for the performance of its functions and, at the same time, to protect a person, other than a legal practitioner - for example, a client - from having to disclose any information or documentation the person would be entitled to refuse to produce on grounds of legal professional privilege. A legal practitioner is obliged to provide any information requested, but subsection (3) of the new section 17 provides that this may only be used by the authority for discharging its functions under the Act in respect of legal practitioners. In other words, it is essentially about regulating practitioners and dealing with complaints. I have been advised by the Attorney General that it is legally necessary to provide for these matters in the Bill, particularly as regards protection of legal professional privilege. The new section serves to protect clients while also retaining the obligation on practitioners to provide information required by the legal services regulatory authority.

I am concerned that these provisions will effect a clear weakening of legal privilege. It is a valued principle in law that the documents and other information exchanged between a lawyer and his or her client are privileged. That privilege is being diluted under this provision. I am not at all sure, moreover, that what is set out here is watertight. Once the information gets out, it is effectively abroad. Amendment No. 30, meanwhile, provides that a client of a legal practitioner may apply to the High Court to determine matters of privilege. That is a bloody expensive route to take. The provision, in effect, is creating a charge for citizens to assert their right to legal privilege. That does not seem right and I am very concerned about it.

The whole area of client privilege is so fundamental to law that I would be very hesitant to change it in any way, which these amendments certainly seek to do. Of course, where a client is willing to give a waiver, there is no problem. The problem arises where the client considers it is in his or her interests not to have certain information disclosed. For instance, if there was information about a possible infringement of law, whether of a slight or major kind, I imagine a client would be very loath indeed to have the types of discussions he or she had with a lawyer bruted abroad.

I will not have an opportunity to come back again on this proposal, so I emphasise the importance of this matter. I am greatly concerned about the violation of privilege. As I said, it is fine if there is no client is involved or if the client gives a waiver. If no waiver is given, however, there is cause for serious concern. Moreover, if such a client seeks to defend his or her rights, there is a considerable cost involved in going to the High Court.

Amendment No. 29 deals with transfer of staff of the Law Society and Bar Council and refers specifically to "appropriately qualified" staff. As a trade unionist, I have a difficulty with the words "appropriately qualified".

The Senator is referring to another amendment.

I apologise. Senator Bacik is correct, I was looking at the wrong amendment.

We must be able to hold lawyers in breach of regulations to account while also protecting the client. The purpose of the original section 17 was to provide protection against the disclosure of confidential information obtained by the authority or its staff in the course of the performance of its functions and make any such disclosure, other than in accordance with the section, a criminal offence. The bar on disclosure of confidential information is subject to some exceptions whereby information may be disclosed to the authority, the Minister or, in certain circumstances, enforcement bodies such as the Garda, the Competition Authority and Revenue, among others.

Amendment No. 29 proposes to remove the Minister as a person to whom confidential information may be disclosed, since the Minister has no residual role in the functions of the new authority, which will be independent.

Amendments Nos. 28 and 30 provide for the power of the authority to obtain information, the protection of legal professional privilege and confidentiality and the disclosure of confidential information in certain circumstances to certain parties, subject to the protection of any privilege which exists. I reiterate that we are seeking to provide for circumstances where a request is made to a legal practitioner by the authority to provide any information which is required by the authority for the performance of its functions, while, at the same time, protecting a person, other than a legal practitioner, for example, a client, from having to disclose any information or documentation that the person would be entitled to refuse to produce on grounds of legal professional privilege. The provision meets the criteria set out by the Senator. A balance has been struck between the demands that can be made on lawyers in respect of legal privilege and the rights of clients. We have taken extensive legal advice from the Attorney General on providing for balance.

The provision still allows the disclosure of information which a client may not want to be disclosed.

It is subject to certain exceptions.

Amendment put:
The Seanad divided: Tá, 20; Níl, 10.

  • Bacik, Ivana.
  • Burke, Colm.
  • Cahill, Máiría.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Cummins, Maurice.
  • D'Arcy, Michael.
  • Hayden, Aideen.
  • Keane, Cáit.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • Ó Clochartaigh, Trevor.
  • O'Neill, Pat.
  • Reilly, Kathryn.

Níl

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Daly, Mark.
  • Heffernan, James.
  • Leyden, Terry.
  • Norris, David.
  • Ó Murchú, Labhrás.
  • Quinn, Feargal.
  • Wilson, Diarmuid.
  • Zappone, Katherine.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Sean D. Barrett and David Norris.
Amendment declared carried.
Government amendment No. 29:
In page 24, to delete line 10.
Amendment agreed to.
Government amendment No. 30:
In page 24, between lines 20 and 21, to insert the following:
"(4) If information disclosed in accordance with this section is subject to legal professional privilege, that information may not be used by the persons to whom the information is disclosed as against the client in respect of whom the privilege is vested.
(5) Where any question arises as to whether information is or is not subject to legal professional privilege, or the use to which such information may be put, the client of the legal practitioner asserting such privilege may apply to the High Court for the determination of any matter relating to such information and the use to which such information may be put and the Court may make such orders as it considers appropriate in determining the matter before it.".
Amendment agreed to.

I move amendment No. 31:

In page 25, lines 35 and 36, to delete ", in such manner as it considers appropriate, with" and substitute "with stakeholders including, but not limited to".

As it stands, the section reads, "the Authority shall consult, in such manner as it considers appropriate, with" a number of listed bodies. We are not very interested in what it considers appropriate. It has a duty to consult stakeholders who are listed, but it should not just be limited to them. I am concerned with much of our legislation where people choose what constitutes consultation and whom they will consult. It is inappropriate to provide for discretion "as it considers appropriate". The legislation should state it is compulsory, not what people consider appropriate. The amendment would strengthen the Bill.

I second the amendment and seek clarification on a matter. The amendment refers to page 25, lines 35 and 36, of the Bill. I do not see the phrase referred to.

Line 35 reads, "the Authority shall consult, in such manner as it considers appropriate".

Perhaps I might assist. In page 25, lines 35 and 36, Senator Sean D. Barrett seeks to delete ", in such manner as it considers appropriate". I understand what the Senator is seeking to do, but the amendment would not be appropriate because it refers to "stakeholders including, but not limited to". There is a difficulty in using a term as vague as stakeholders when we are imposing a requirement on the authority to consult. The section states it "shall" consult the professional body and such other interested parties. There is, therefore, an obligation to consult in such manner as the authority considers appropriate. Without any definition of what is meant by stakeholders, it would not be safe to insert an amendment of this type into this very specific provision which has been drafted in quite a focused manner in respect of the authority issuing codes of practice.

Perhaps I might explain that I was provided with a previous version of the Bill.

Are we dealing with amendments Nos. 31, 32 and 34?

No. We are discussing amendment No. 31 on its own.

Consultation with the legal professional bodies is already provided for in several sections of the Bill. It is provided for in dealing with matters such as the authority's drafting of codes of practice under section 20; its review of professional codes under section 21; its review of the operation of the Bill under section 6; and its development of regulations for professional indemnity insurance and legal services advertising. In the earlier discussion I said we would be fully compliant with the EU directive on the advertising of legal services. There are various consultations and reports. Obviously, people involved in the legal professional bodies will have plenty of opportunities to make their views known.

A key purpose of the Bill is to set up an independent authority that will have regard to but be independent of the representative bodies. In that context,it would be a step too far to place a requirement on the authority to consult the legal professional bodies on the staff it may hire to supervise these very bodies. Moreover, the professional bodies will have an adequate say on such matters by virtue of the fact that their nominees will be members of the authority. In these circumstances I cannot accept amendments Nos. 31, 32 and 34.

Amendment No. 31 is in my name and I thank the Minister for her response. I would like Parliament to tell the bodies the degree of consultation in which they need to engage. Across the sphere there is regulatory capture of regulatory agencies by the bodies they are supposed to regulate in the public interest. Parliament should make a stand on that issue. I appreciate what the Minister has said and will not press the amendment. I am not interested, however, in what the authority thinks is appropriate. I want it to do the job of regulating the sector. The other amendments are in the name of Senator Trevor Ó Clochartaigh.

I wish to clarify that we are only discussing amendment No. 31.

Amendment, by leave, withdrawn.

I move amendment No. 32:

In page 29, line 10, after "may" where it firstly occurs to insert ", after consultation with the professional bodies,".

Sinn Féin is concerned that the staff currently employed by the Law Society of Ireland and the Bar Council of Ireland to handle and investigate complaints may lose their jobs and be replaced by staff in the new authority essentially carrying out the same role. Trade unions have called on these staff to be employed by the new authority.

I second the amendment.

The points Senator Trevor Ó Clochartaigh has just raised are dealt with in amendments Nos. 33, 35 and 36. We are making provision for the staff working in the Law Society of Ireland who are currently handling complaints to transfer. Senator Gerard P. Craughwell raised a question about qualifications. As laid out in the Bill, the reference is to staff who have experience of dealing with complaints.

There was cross-party agreement in the Dáil that the transfer was appropriate for a certain number of staff who were dealing with complaints and had expertise in this area. It is dealt with primarily under amendments Nos. 33, 35 and 36. The amendment we are dealing with now is the Senator’s request to have consultation with the professional legal bodies. There is adequate opportunity for the legal services regulatory authority to consult with the legal professional bodies. In the consultations afterwards, when they are drawing up the various reports, the legal professional bodies will also have an opportunity to put their points of view. It will be part of the work. Given that it is a legal services regulatory authority, there would be consultation with the relevant bodies.

I regret that I oppose what the Minister and Senator Ó Clochartaigh said. If one wants independent regulation, one does not hire those who were responsible for all the restrictive practices through the Law Society and Bar Council. It invites regulatory capture. The public will not be convinced. Somebody said it was Irish Water coming back to haunt us. Those who had been wasting water for years were all hired by a new body called Irish Water. The authority should have nothing to do with those who have very successfully held up progress in this field for 40 years or more. The public will not be convinced if those who they are used to seeing on television defending the restrictive practices of the legal profession are now supposed to be pro-consumer.

The Minister is, sadly, shaking her head.

Amendment put and declared lost.

Amendments Nos. 33, 35 and 36 are related. Amendment No. 36 is a physical alternative to amendment No. 35. The amendments may be discussed together by agreement.

I move amendment No. 33:

In page 29, between lines 11 and 12, to insert the following:

“(2) The Authority should initially seek to appoint members of the Law Society and the Bar Council’s existing administrative staff, with the requisite qualifications and whose positions will be displaced with the commencement of the authority.”.

Again, the section and these amendments deal with the staff of the authority. Notwithstanding what the Minister has outlined about discussions going on, it is important, given that the Bill has had so many amendments and adaptations, to tie this down. We have outlined our concerns about the current staff and their expertise being handed over. While I accept the Minister’s bona fides that the discussions are ongoing, if it is not in the legislation, it is not in it.

I second the amendment.

Amendment No. 33 is consistent with the new section I introduced to the Bill on Committee Stage in the Seanad to deal, in a practical way, with the staff of the two legal professional bodies who have appropriate expertise in dealing with public complaints and whose functions are about to be taken up by the new regulatory authority under the Bill. Given there was cross-party support for it and I have already provided for the kind of practical solution to the staffing issue the Senators had in mind, I ask them to forego the amendment. We have made the relevant provisions on the other issues that arise regarding terms and conditions.

In response to Senator Barrett, the authority will be a new, independent body with independent management. The vast majority of staff will be recruited afresh. However, the authority will also have a group of staff who have expertise, built up over decades, and who are regarded as having done the job of dealing with the complaints that have come in. The issue has been raised across the House and we have come up the solution. It will be to the benefit of the authority to have this group of people who have expertise in the area and that we are making provisions for the transfer across.

Amendment put and declared lost.

I move amendment No. 34:

In page 29, line 12, after “Authority,” to insert “after consultation with the professional bodies and”.

There is no need to rehash the argument. We have a difference of opinion on it. For the reasons already outlined regarding amendments No. 32 and 33, we are pressing the amendment.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 35:

In page 29, to delete lines 19 to 38, and in page 30, to delete lines 1 to 17.

In general, it is a bad principle that people who have operated very successfully in one role defending producers of a product are meant to turn around and become defenders of the consumers of the product. It invites regulatory capture and will not impress the public. The staff dealt with the complaints in an unsatisfactory manner and this is why we have the Bill before us to change it. However, the same people will be coming back to operate the new system.

I second the amendment.

We have already discussed the amendment.

Amendment put and declared lost.
Government amendment No. 36:
In page 29, in the subsection (1) inserted by amendment 30, to delete “Single Service Pension Scheme” and substitute “Single Public Service Pension Scheme”.
Amendment agreed to.

I move amendment No. 37:

In page 32, line 19, after “Authority” to insert “subject to the approval of the Minister”.

The amendment relates to who sets the fees charged by the authority. On Committee Stage, I proposed that the Competition and Consumer Protection Commission might. This was unacceptable, which I accept. Does the Minister set the fees, or will the authority have total discretion?

The amendment proposes inserting an approval by the Minister into the provision allowing the new authority to set fees by regulation for the performance of its functions etc. Given that this discretion is to be exercised by the new and independent regulatory authority, I do not see a need for the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 38, 73, 162, 163, 167, 175, and 178 to 182, inclusive, are related and may be discussed together by agreement.

Government amendment No. 38:
In page 32, to delete lines 30 and 31.

Amendment No. 38 follows further consultations with the Department of Public Expenditure and Reform and rightfully recognises that the independent legal services regulatory authority will not handle fees for the benefit of the Exchequer but rather in support of its own functions under the Bill. Amendment No. 180 provides for the change in the manner in which the authority will handle the levy to be paid by the Law Society, the Bar Council and other barristers. The amendment makes it clear that finance coming into the authority from the levy will be used by the authority to defray its operation costs. Amendment No. 73 is intended to safeguard the public interest regarding regulatory costs and ensuring affordable public access to the new complaints process.

Amendments Nos. 162 and 163 have been tabled to ensure the delicate balance of payment between the legal professions is maintained and enhanced. The amendments are designed to ensure the levy is property apportioned amongst solicitors and barristers. The amendment makes it clear that the cohort of barristers liable for payment of the levy include those who may have ceased to practise after the date of the act or omission cited as the cause of a complaint. Amendment No. 181 is a linked amendment which sets out a definition.

Deputy Sean D. Barrett's amendment, No. 182, would prevent the new regulatory authority from raising a levy on those barristers who will be regulated by it and who choose to practise outside the Law Library model. It would also prevent the authority from issuing the relevant notice to those practitioners or professional bodies that will give rise to its regulatory costs each year. As that would be the effect of the Senator's amendment, he might reconsider it, as I cannot accept it in that format.

The amendment to which the Minister referred was No. 183.

It is very difficult to follow what is happening when there are so many amendments which skip all over the place. I am sure the Cathaoirleach will be indulgent while we find the correct places in the Bill. One has to correlate the amendments and the pages referred to in the Bill all the time. When there are about ten amendments being discussed together, it becomes more difficult.

It was amendment No. 182 to which the Minister-----

What number was it?

Amendment No. 182.

Amendment No. 182 in the names of Senators Sean D. Barrett and Feargal Quinn.

I do not wish to move that amendment.

Amendment agreed to.

I move amendment No. 39:

In page 35, between lines 25 and 26, to insert the following:

"(d) the right of direct access to a barrister other than through a solicitor;".

This amendment concerns right of access to a barrister without the need to have a solicitor present. It could be a major way of cutting costs in the system. There are barristers in the Law Library who cannot be approached except through a solicitor which adds to costs. A later section increases the right of access. I will support the Minister on that section, but it only applies where a matter is non-contentious. As an outsider, it seems that most of what barristers do is contentious. We have a high cost legal system which the Minister is seeking to correct. We support her in that regard and the issue has been spoken about for a long time. I gather it is a Bar Council rule, but why, if people have degrees and qualifications, can we not talk to them without having a third party present, given that it seriously adds to costs? The proposal to reduce costs has been around for long time. Partly because of the recession, to which the Minister referred the last day, there is a surplus of barristers who have the required knowledge, are young and enthusiastic. Why can we not talk to them without having a solicitor present, thus imposing extra costs on the transaction? I do not know what the analogy might be. One can talk to a pharmacist without a doctor being present and the professions are interlinked. If I want to speak to a barrister and take advice from him or her, why should this not be allowed? Why should it not be deemed to be a priority? We should immediately address the issue of why people cannot talk to a barrister without a solicitor being present.

I second the amendment. This is a necessary reform. It is common practice in the United States where there is no division between barristers and solicitors. I understand this formed a crucial part of the original Bill introduced by the former Minister, Deputy Alan Shatter. The Minister can correct me if I am wrong, but I am pretty sure I am right. Certainly I have heard Deputy Alan Shatter say on the wireless that he approved of this reform. The rights of the profession, those of the Bar, are being placed ahead of those of citizens. The citizen comes first; as my colleague, Senator Feargal Quinn, used to say, the customer is king. In this instance, however, it seems the profession is king and it directs that one cannot consult a barrister directly. That is ridiculous; it is feudal stuff. It is acting like a monarch who one cannot approach except through a courtier. I see no reason one should have to go through a solicitor. I am interested in hearing if the Minister can give a reason one has to go through a solicitor to speak to a barrister. It seems idiotic and is time wasting, as well as money wasting. An obstacle is being placed between the client and his or her professional adviser. If there are matters which require the attention of a solicitor rather than a barrister, that is fine. I have had many cases before the courts and sometimes one requires a solicitor to gather information to research certain matters and so on, but that is by no means always the case. I see absolutely no reason one should have to use a solicitor to get through to a barrister. There should be direct and easy access. This Bill is about cleaning up the law to make it more consumer friendly, the client feel more at ease and less exposed to risk and expense. This is a very worthwhile amendment.

No, this provision was not included in the original Bill. It was always envisaged that there would be consultation on this issue. There was a timeframe, which is what we still have.

I want to give the definition of "contentious matter". It means a matter that arises in and relates to the subject matter of proceedings before any court, tribunal or other body or person before which the respective legal rights and obligations of two or more of the parties are determined and to which the person instructing the barrister concerned is a party. Obviously, the non-contentious issue is also dealt with. The approach under the Bill is to provide elsewhere for it. I cannot accept the moving of the direct access issue to this location also. There is a process in place. There is also the issue of clients' moneys in relation to barristers. There is quite a number of complex issues that need to be addressed. That is linked with amendment No. 40 which is about the unification of two legal professions in one year. We need the new authority to bed down and be fully functional in its first year. It already has many reporting obligations in the period of its early establishment. The question of fusing the two professions will have to take account of the developments being enabled to take place under the Bill, particularly the roll-out of the new legal business models. It must be remembered that they are being brought in next year. Legal partnerships are being put in place. If the authority is established on 1 January, as we intend, legal partnerships will have to be in place within six months. That is a totally new model in terms of access to barristers and solicitors practising together. That is extremely important.

I will press the amendment. It states that "without prejudice to the functions of the authority referred to, the authority shall, following appropriate public consultation, prepare and furnish reports to the Minister". That is what we are asking for. Will it, please, prepare a report on an idea that has been around for ages, a right of direct access to a barrister, other than through a solicitor, which has been cogently argued for by my colleague, Senator David Norris? If the Minister rejects the amendment, we will not even receive a report on it. We will have made up our minds and it will become extant. Discussing an item that is absolutely crucial to the reforms and availing of barristers who can only be approached through a solicitor and are sitting in the Law Library would be fantastic to have that knowledge put at the disposal of wider society. I have experience of this, regardless of whether I had complied with the law or whether the matters were contentious. I like talking to barristers and would like wider society to have that privilege. We should at least have the authority study the matter. That is the reason we have tabled the amendment at this point. It is not obvious to very many people why one cannot talk to a barrister without having a solicitor present. If the amendment is rejected, we will not have the issue reported on.

If it were accepted, I presume what is now paragraph (d) would become paragraph (e). Why can the authority not give its views? It may be extremely hostile to the idea. I have tried unsuccessfully to find out the basis on which this practice developed. Let us at least examine the issue, as per the amendment. If such a study were to take place, I would be strongly in favour of the proposal before the House.

It is worth making the point that the new independent legal services regulatory authority will be a great catalyst for change. As I indicated, for the first time, we will have oversight and complaints and discipline being dealt with independently as well as the establishment of the new legal partnerships. This is serious reform and further reforms will be introduced.

The Bill provides for various reports and assessments to be done in the first couple of years after the establishment of the legal services regulatory authority. We are not establishing a large body to take over all functions. It was decided in the Dáil, for example, that the compensation fund would remain with solicitors who have managed it to date, meaning this liability will not be transferred to the State. I will introduce a number of amendments on that issue later.

Provision is made to have the issue the Senator raises examined. As I indicated to Senator Norris, a consultation process was built in to the Bill and I have not made any change in terms of that consultation taking place. It is important that it is allowed. The change in respect of legal partnerships will be implemented immediately next year.

Amendment put:
The Seanad divided: Tá, 11; Níl, 17.

  • Barrett, Sean D.
  • Byrne, Thomas.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Leyden, Terry.
  • Norris, David.
  • Ó Clochartaigh, Trevor.
  • Ó Murchú, Labhrás.
  • Power, Averil.
  • Wilson, Diarmuid.
  • Zappone, Katherine.

Níl

  • Bacik, Ivana.
  • Burke, Colm.
  • Cahill, Máiría.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • Hayden, Aideen.
  • Keane, Cáit.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Neill, Pat.
  • Sheahan, Tom.
Tellers: Tá, Senators Sean D. Barrett and David Norris; Níl, Senators Paul Coghlan and Aideen Hayden..
Amendment declared lost.

I move amendment No. 40:

In page 36, line 32, to delete “4 years” and substitute “1 year”.

I welcome the Minister. The Bill states:

"A report in respect of the matter referred to in subsection (1)(b)

(a) shall be provided to the Minister within 4 years of the establishment day,"

As much of what we are attempting to do in the Bill is well known, why is there a need to wait for four years? Can matters be speeded up rather than having four more years of costs imposed, as the National Competitiveness Council and the Competition and Consumer Commission have stated?

I second the amendment. It seems four years is an inordinately long time.

I make the point again that it will be a new independent body set up to provide for independent regulation. It will have a range of tasks to perform in its first year. It will have to deal with complaints and set itself up as an effective and efficient body. There is a range of tasks which we are asking it to do. I have looked at what it is feasible to do in the first period and do not want to overcrowd the LRSA with work. The two professions will need to take account of the developments being enabled by the Bill, particularly the roll-out of the new legal business models.

I just wish that we were moving faster, but I accept what the Minister has said. She is the person who is trying to accomplish this task and we are on the Opposition benches.

The Independent benches actually.

I express the wish that it should happen sooner and earlier than four years. I thank the Minister for her response.

Amendment, by leave, withdrawn.

I move amendment No. 41:

In page 37, to delete lines 14 to 18 and substitute the following:

“(5) Reports on the creation of a new profession of conveyancer including the conduct of conveyancing by other professions, the extent of monopolistic provision of legal services in the State and the right of direct access to a barrister other than through a barrister shall be provided to the Minister within 1 year of the establishment day.”.

This amendment refers to the reports to be made to the Minister and asks that a report be made available on conveyancing. This is a growing problem. House prices in Ireland used to be two and half times average income levels; they then went to 12 times average income levels and now they are somewhere around five times average income levels. Nobody has been as successful at tying his or her income and the charges for the services he or she provides than a solicitor operating as part of the conveyancing monopoly. We are trying to deal with the consequences of this. The Minister for Public Expenditure and Reform, Deputy Brendan Howlin, was in the House earlier trying to unravel some of the consequences. Why do we not know what a competitive conveyancing market should look like? Why does the cost of the transaction have to be linked with house price in a country in which the rate of inflation in house prices was the worst in any country in the OECD and in which the banking system was eventually brought down, resulting in the State having to avail of an IMF bailout? Why can the conveyancing service not be priced separately? Judging from her statements on earlier Stages of the Bill, I believe the Minister would like this to happen. I said to her on Committee Stage that I had quotes for conveyancing from a company which dealt with emigrants returning to Ireland, a cause dear to her heart and absolutely that of the Minister for Finance, Deputy Michael Noonan. The websites which provide information on returning to Ireland state returnees should be prepared to pay as much as 1.5% of the purchase price of a house or, for example, €4,500 on a house valued at €300,000 which is actually less than the average price of a house in Dublin. The websites state the comparable fee in the United Kingdom could be as low as £200 or €285. The conveyancing monopoly has been criticised, especially by the Competition Authority which has conservatively estimated a potential saving of 25%. That was written before the burst of inflation in house prices which must have seriously enriched conveyancers who charge a fee based on price of a house.

So many people have drawn attention to that, that we must get all aspects of house prices back to some reasonable multiple of incomes because it causes homelessness among other problems. I do not wish to exaggerate the conveyancing part of it but a service that is available for the equivalent of €250 in England can cost €3,500 in this country. Research for the prices commission showed that the conveyancing super normal profits cross-subsidised pretty well everything else that solicitors did, including, as somebody rather wittily pointed out, court work. The point was that the person who buys the house is overcharged the conveyancing fee so that the solicitor involved can subsequently give subsidised legal aid to a person who burgles the same house. It does not make any sense to overcharge people so heavily, as we have been doing through the conveyancing monopoly, on the purchase of a house.

Economists do not like it because this monopoly has gone on for so long. Most house purchasers do not like it much either. We want that to be reported on and not to have to wait for four years. We want reports on the conveyancing profession. I know that solicitors in this country say they do not charge 1.5% any more. The conveyancers did not get much of a market share in the UK but they certainly reduced prices in the UK. The website advising Irish people returning from the UK says they can expect to pay a lot more for their conveyancing because it is related to the house price, in a country where house prices went out of control and one cannot get the flat fee, which the website claims to be £200. I have seen adverts for conveyancing in the Yellow Pages and other places in the United Kingdom. One would expect that having people other than solicitors carrying out this function would lead to a reduction in costs. We need an up-to-date report on the issue because I have never seen any evidence to support the claim that having a solicitor monopoly on conveyancing keeps the price down. It is much more likely to keep it up and the evidence comparing jurisdictions where one has got other people doing it is very definitely in favour of competition.

I second the amendment. The process of conveyancing, as I understand it, deals with legal aspects of the transfer of property from the vendor to the purchaser. It does lead to excessive costs. I know of situations, for example, in which a house has been sold and resold and they go through the whole rigmarole of going back to 1787. That happened in my case many years ago. The house was sold and then immediately sold back to me and the solicitors insisted on doing the whole yoke again. It is just drudgery work; checking up on all the deeds, transfers, purchasers and all that kind of stuff. There is no necessity for it to be done half a dozen times when there are no changes in title involved. I do not see why there should not be a conveyancing and then the conveyancing is lodged in the conveyance office or wherever it is and unless there is a change in status, it does not have to go all the way back to stage one.

It is just a simple transaction that should not cost thousands of euro. One buys a house, one has the deeds and they are certified. I have a house that was built in 1787 and they went back all the way to 1787, and then they went back again, a second time, to 1787. The work should have started in 1978 or whenever I bought the house. Everything up to then had already been certified and lodged, so it was accepted. Why the hell should it not be accepted up to the point that it was lodged previously and anything else could be checked after that but they go through this rigmarole of going all the way back. It does not matter very much in a modern house because it may be the first purchase or first transfer of ownership but when one has a Georgian, Victorian or Edwardian house, it matters and it is complete nonsense to have people going backwards all the time to the beginning. This is a good amendment and I am very happy to support it. I am sure the Minister is also against the monopolistic provision of legal services and the amendment attacks that quite directly. I approve of the amendment and I am happy to second it.

One of the other reforms in the Bill is to create a consultation on the establishment of a profession of conveyancer. The Senators made the point about the efficiencies of how that is done at present but it is another reforming part of the Bill.

There is not a timeframe on this section. A report in respect of the matters referred to shall be provided to the Minister within a period specified by the Minister in a written notice to the authority, requesting a report. I took note of what Senator Barrett said on Committee Stage and today, and I will write to the authority in respect of dealing with this issue as a priority. No time period is specified as the matter is at the discretion of the Minister but in response to the points made by the Senator, I will give him an undertaking that I will say to the legal services regulatory authority that I consider this to be a priority issue and I would like to see it done in the short term rather than the medium or long term. If Senator Barrett is happy to accept that, it would be a response to the points he has made on the section. I reiterate that the Bill is a reforming one and that is evident in the opening up of the system in terms of the issues both Senator Barrett and Senator Norris raise about conveyancing.

I thank the Minister, as always, for her thoughtful and courteous reply. To return to the website for returning emigrants, it says that in Ireland a solicitor must be qualified and registered with the Incorporated Law Society of Ireland. All practising solicitors must hold a practice certificate issued by the Law Society on an annual basis. Unlike the UK and other EU countries, there are no licensed conveyancers, so solicitors have a monopoly here. I appreciate what the Minister wants to do but I want it done today. This is a monopoly which seriously overcharges people in the simple purchase of the basic necessity of a house and I wish to tackle the issue right now. I appreciate the Minister wants to put it at the top of the list but I do not know how much of a delay will be involved in terms of setting up the authority or whether the lawyers on the authority will outmanoeuvre the lay people and preserve their monopoly.

The authority has a lay majority.

One of the rules in dealing with monopolies over the years is that one never asks them for permission to have their monopoly dispensed with. One does it in the wider national interest. I wish to press the amendment because many desirable elements of what the Minister has said appeal to people but it really annoys people that the purchase of a house in this country involves such monopolistic earnings for solicitors given that their fee relates to the price of the house and not the actual transaction. This is the sharp end of high cost legal systems in Ireland for the simple, normal transaction of buying a house, which is such a basic human need. I will press the amendment.

Amendment put:
The Seanad divided: Tá, 10; Níl, 16.

  • Barrett, Sean D.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Leyden, Terry.
  • Norris, David.
  • Ó Clochartaigh, Trevor.
  • Ó Murchú, Labhrás.
  • Power, Averil.
  • Wilson, Diarmuid.
  • Zappone, Katherine.

Níl

  • Bacik, Ivana.
  • Burke, Colm.
  • Cahill, Máiría.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • Hayden, Aideen.
  • Keane, Cáit.
  • Moloney, Marie.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Neill, Pat.
  • Sheahan, Tom.
Tellers: Tá, Senators Sean D. Barrett and David Norris; Níl, Senators Paul Coghlan and Aideen Hayden..
Amendment declared lost.
Debate adjourned.