I am speaking on behalf of the Tánaiste and Minister for Justice and Equality who regrets that she cannot be present owing to other official commitments.
I thank the Seanad for giving me the opportunity to make my remarks on this important motion which heralds the coming into being of the new Legal Services Regulatory A uthority which was legislated for in the Legal Services Regulation Act 2015. Under the Act, the Government is the appointing authority for the members of the new Legal Services Regulatory Authority. However, these appointments must first be approved by resolutions of both Dáil and Seanad Éireann. At its meeting of 13 July 2016 the Government agreed to propose, for consideration by this House in the motion, the appointment of named persons to be members of the new authority. I am, therefore, seeking the approval of the House for their being nominated under the motion to be appointed by the Government as the members of the new authority. The persons concerned are the nominees of the nominating bodies named in the Act and this is the sole process whereby the names have been selected. I will return to that subject since it is important to note the independence safeguards contained in the particular nominating process in this legislation.
In tandem with consideration of the motion by the House, the Tánaiste has now signed a commencement order in respect of certain provisions of Parts 1 and 2 of the Legal Services Regulation Act 2015, as necessary to support the start-up of the new Legal Services Regulatory authority. Further parts of the Act will be commenced on a phased basis in the autumn as the new authority gets up and running and ready to take over key areas such as inspections, public complaints and the new legal business models. The sequencing of these further commencements is being planned very carefully.
As Senators will appreciate, the establishment of the authority and the assumption by it of regulatory oversight of all legal practitioners in Ireland, including handling of complaints against legal practitioners and the authority’s responsibility to oversee the operation and opening up of the legal services market in Ireland, are all major public regulatory steps. Great care will have to be taken to ensure the steps will be correctly executed and that the replacement of existing regulatory regimes will leave no gaps.
Under the motion, it is also being proposed that the relevant appointments shall be with effect from the establishment day of the new regulatory authority which the Tánaiste will fix by order to be 1 October 2016. I understand the Tánaiste will be making the requisite order to that effect shortly under section 7 of the Legal Services Regulation Act. The setting of 1 October 2016 as establishment day will give momentum to the establishment and coming into operation of the new Legal Services Regulatory Authority. It will also provide greater focus in the implementation of the structural reforms now set out in the Legal Services Regulation Act.
In very broad terms, the main levers of this reform are as follows. First, there will be the new and independent Legal Services Regulatory Authority, with responsibility for oversight of both solicitors and barristers. Second, there will be an independent complaints system dealing with legal professional misconduct which will provide a first port of call for the public in making complaints independent of the legal professional bodies. There will also be a new and independent legal practitioners’ disciplinary tribunal to adjudicate on serious misconduct in regard to both solicitors and barristers. Third, there will be an enhanced legal costs regime, bolstered by a set of legal costs principles, which also places more extensive obligations on both solicitors and barristers to keep clients informed about the details of their legal costs. Separately, the new office of the legal costs adjudicator will assume the role of the existing Office of the Taxing Master and keep a public register of its legal costs determinations. Fourth, there will be a framework for new legal business models. These will include the early introduction of legal partnerships between barristers and solicitors, or between barristers, limited liability partnerships for solicitors and public consultations on other business alternatives such as multidisciplinary practices.
To underpin the independence of the new Legal Services Regulatory Authority, the members of the authority are nominated to the Government by ten nominating bodies specified in section 9 of the 2015 Act. These bodies have been purposely set in the legislation to represent a balance between the interests of lawyers and those of consumers and other stakeholders in the regulation of legal services and of legal costs. Membership is also staggered by the drawing of lots at the first meeting of the authority as a result of which there will be some four-year members and some three-year members. This ensures the continuity of expertise and functions of the new regulatory authority.
The authority is to consist of 11 members, of whom a majority, that is to say, six members, including the chairperson, are to be lay persons nominated by the six prescribed non-legal bodies. The remaining five members are nominated by the prescribed legal bodies. Each prescribed body, with the exception of the Law Society of Ireland which nominates two members, has nominated one person for appointment as member of the new authority. In the case of all of the bodies except the Law Society of Ireland, each body was also required to nominate a substitute nominee of the opposite gender to their primary nominee in order to facilitate gender balance - the authority must have no fewer than four members who are women and no fewer than four members who are men. The Law Society of Ireland has two nominees, reflecting the fact that solicitors outnumber barristers being regulated under the 2015 Act by four to one, with some 8,000 practising solicitors as compared with some 2,000 practising barristers.
The key requirement of the Legal Services Regulation Act is that the nominees must have knowledge and expertise in specified areas, for example, in the provision of legal services, competition, legal training and education, dealing with complaints against members of regulated professions, the needs of consumers of legal services, business and commercial matters and professional standards regulation. The nominees and their nominating bodies are as follows: Angela Black, Citizens Information Board; Don Thornhill, Higher Education Authority; Deirdre McHugh, Competition and Consumer Protection Commission; Gerry Whyte, Irish Human Rights and Equality Commission; Stephen Fitzpatrick, Institute of Legal Costs Accountants; Dermot Jewell, Consumers Association of Ireland; David Barniville, Bar of Ireland; Joan Crawford, Legal Aid Board; Nicholas Kearns SC, Honourable Society of King’s Inns; and Geraldine Clarke and James MacGuill, Law Society of Ireland.
The Government also agreed at its meeting of 13 July 2016 to appoint one of the nominees under the motion, Dr. Don Thornhill, to be chairperson of the new authority. The power is given to the Government under the 2015 Act to make that appointment, but this is, of course, subject to the candidate having been first approved as a member of the authority by a motion of both Houses. Among his many achievements as a holder of senior public offices, Dr. Thornhill has led the National Competitiveness Council in its campaign to cut legal costs for consumers and enterprise. He is a respected public figure and will bring much experience, knowledge and clout to the role of chair. As such, he should provide the inaugural authority with the direction and vision needed to be a successful and highly regarded independent regulator that will enjoy the confidence of the public for the years to come.
I believe Senators will agree that the nomination and appointment procedures for the regulatory authority which include seeking the necessary approval under the motion have great integrity by way of protecting the interests of all stakeholders concerned, with the independence of lawyers in the discharge of their duties to their clients and the courts. It is a model that was introduced by Government amendment in direct response to independence concerns that were raised in 2011 at the time of initial publication of the Legal Services Regulation Bill. The approval of this House for appointment of the persons being nominated to be members of the new authority under the motion would be a key moment in the history of the legal services and legal costs regimes. By the same token, such approval would also enable the new members of the authority to hit the ground running, independently recruit their chief executive and thereby spearhead the coming into operation of the new Legal Services Regulatory Authority. I commend the motion to the Seanad for its considered agreement.