I am in agreement with the Minister that the sector requires reform. The central problem is that of costs and this was included in last year’s agreement with the IMF and the troika. It is unacceptable that citizens who wish to have their rights vindicated or supported are prevented from doing so because of an appalling financial consequence they may face should they lose in proceedings. For too long this profession has been shielded from effective competition in services offered to ordinary citizens. As a result, costs associated with the legal sector have continuously been well above those of our European competitors. As the Minister said, at a time of economic disadvantage this cannot continue.
I agree a new regulatory structure is needed for the legal sector to ensure that all citizens can have full access to legal services as they require them and which is their constitutional right. It is vital that the independent regulation of the sector is of the highest standard and is above reproach. For these reasons the Minister’s action to reform the sector is to be welcomed. I had some hope the Minister would ensure the independence of the legal sector under an independent regulator and that the Bill would provide for reducing the costs of the legal sector and allow for access by all citizens. However, the Bill fails on those objectives and this is very disappointing.
The Minister has a golden opportunity over the next few months to influence the direction of the legal sector for many decades which I hope he will do in a positive and constructive manner. If he is intent on tabling amendments on Committee Stage, I ask if it would be possible to supply amendments to the committee in draft form so we can study them and consult with the various bodies as to their impact on the legislation. This would make for more effective scrutiny of the legislation by the committee.
We will support many of the provisions of the Bill. I welcome the provisions of the Bill which will make it easier for younger people and new entrants to qualify as either barrister or solicitor. I welcome the provision to bring more transparency to the costs involved in legal representation. I hope this will make it easier for clients to challenge costs which they regard as unfair or unjustifiable by means of the new office of the legal costs adjudicator. These are progressive steps which will open up this area and may remove some of the fear associated with the defence of rights. However, many elements of this Bill are distasteful. My party intends to oppose these elements and to table many amendments on Committee Stage. I am particularly concerned about the selection process and the appointments procedure for this new legal services regulatory authority. It should be noted that the Minister and his colleagues campaigned prior to the election against the establishment of quangos and this is a new quango. My party has no issue in principle with the establishment of an authority and we welcome an independent authority to oversee the legal profession. However, the selection and the process of appointment to the body, its budget and the manner in which the cost of the authority will eventually be levied on the consumer, despite what the Minister stated in his contribution, are serious concerns.
This body will, in essence, control and regulate the legal profession. Given the extent of the powers outlined by the Minister and the importance of the legal system in the running of the country, this body will require scrutiny more than most. That the Minister will be responsible for the appointment of seven out of 11 members of a so-called independent regulatory authority is a cause for concern as to its independence. The board appointees -seven of whom will be ministerial appointments – will be responsible for the appointment of the chief executive officer and the staff. No fixed term limits are provided for and neither can the board comment in public on the policy of the Government of the day. In my view, the Minister cannot proceed on this basis. The Minister of the day and the Department will appoint and remove members of the authority. The Minister will determine various terms and conditions of the authority and he or she will be kept informed of all authority developments as to the provision of legal services by lawyers. The Minister and the Department are now central to every activity of the legal sector in this country. This presents many challenges that do not become apparent in other sectors. For instance, the State is often a litigant or a defendant in cases. This presents a conflict of interest. A Minister may at any time decide to challenge the authority or to change the powers of the authority by means of the seven ministerial appointees. This is not a truly independent authority. If the Minister disagrees on this point then we are not using the same standards of independence. The Government has a policy of public advertisement of appointments but the Minister in this case is choosing to maintain the traditional model of establishment of a body. I ask why the Bill does not provide for the Oireachtas committee system to be employed to examine these appointments. Given its importance and the importance of the legal system, something completely different would have been preferable, to remove the appointment of members of the authority out of the hands of the Government of the day.
This new authority will approve the code of practice for the legal profession. That code of practice must be submitted to the Department before being made public. The consent of the Minister and the Department is required in order to implement the proposal and the Minister may make changes and impose qualifications. This is standard practice in the case of many State bodies but this new body is being invested with significant power and authority and the legal system controls every aspect of life in this country.
We have to change the rules and challenge the standards in place. The legislation, as it stands, will hand responsibility for regulating the legal profession to the Department and Minister of the day. In such circumstances, the new body cannot be said to be independent.
My party wants to engage constructively on this matter and I hope the Minister also wishes to do so. Some weeks ago in Ballina the Taoiseach indicated he would engage constructively on the issue. Let us agree to get the kicking of the various agencies out of the way today and try to sit down with them and work through their concerns. Let us try to do this constructively in the next few months.
The Minister must also listen to the concerns raised by the business community on the independence of the proposed new authority. Business does not have any self-interest in this issue. Its concerns do not equate to barristers or solicitors representing their interests. It is the commercial sector raising legitimate concerns about the lack of independence of the proposed body and how this will influence investment decisions.
The president of the American Bar Association, Bill Robinson, spoke frankly on this issue on 11 October when he stated that a truly independent legal profession is an essential bulwark in a democratic society. Referring to the Bill, he stated what was really at stake for the people of Ireland is constitutional democracy. Clearly, Mr. Robinson has an interest in the issue. Rather than rolling his eyes to heaven, perhaps the Minister will address the specific issues he raised. I had hoped he had learned the lesson of the referendum result but clearly he has not done so. Let us deal with the issues rather than tackling the man. Let us ascertain if the Bill can be amended to address the issue of independence. In five or ten years, the Minister will no longer by in office and other Ministers and officials will enjoy the enormous power being handed over on the regulation of the legal system.
While the idea of having multidisciplinary practices sounds good in theory, it gives rise to several concerns. I draw the Minister’s attention to an article written by Mr. Peter Ward of the free legal advice centres during the week. I am also concerned about the ability of those who do not live in the capital to access the best legal services, as they can do both in practice and theory at present. Large Dublin based legal firms with significant budgets will certainly embrace the multidisciplinary practice concept but will those of us who do not live in Dublin continue to have access to the best barristers given that they may be tied to specific firms through the multidisciplinary practices? Will we be forced to go through specific firms?
One must examine whether it is a good idea to allow a number of professions to practice under one roof. I refer not only to barristers and solicitors but also financial experts because it has been intimated that they will be able to operate under the roof of a multidisciplinary practice. Combining the legal and commercial sectors under one roof could potentially influence legal advice being given. Surely the lesson we have learned in recent years is that we need to establish rigorous safeguards. The difficulty with the manner in which multidisciplinary practices are construed in the Bill is that the model proposed will reduce accountability among various professions and conflicts of interest will undoubtedly arise.
The Minister’s approach to the legal services regulatory authority is one of, “It will be all right on the night”. Barristers and solicitors pay substantial levies and the Minister has indicated it is simply a case of transferring these levies to the new authority. The authority will cost a substantial amount. The proposal to pass this cost to the Law Society, while fine in theory, fails the test of seeking to reduce costs for consumers. As sure as night follows day, the cost will be passed on to consumers, notwithstanding the models constructed in the legislation. This new quango, if it is fulfil the functions envisaged by the Minister, will need a substantial, highly skilled staff who will expect to be paid well. Currently, 71 people are involved in regulation in the Law Society. One assumes, therefore, that the model required will be similar to the Competition Authority or Medical Council. What budget does the Minister envisage will be needed for the new authority? I ask him not to give a vague answer.
Deputies have not been provided with a regulatory impact assessment on how the legislation will work and impact on businesses and consumers. While the legislation details how the transfer of the current powers of the Law Society and Bar Council to the new authority will take place, it is not immediately clear how the Bill will impact on consumers. I estimate an annual budget of between €5 million and €6 million will be required for the new body. Given the cuts the Minister has made to a range of services in his Department, is the proposed model the most effective solution?
The size and duties of the new quango are extensive. Its role could be performed differently and we will propose a number of amendments. We propose that the Minister’s power of appointment to the legal services regulatory authority be transferred. The Minister could consider transferring it to the Oireachtas Committee on Justice, Defence and Equality but the committee is political and the exercise of this power would leave it open to making political appointments. For this reason, I ask him to consider giving the power of appointment to the Chief Justice. Thereafter, the Chief Justice would not be involved in the day to day running of the authority. The position would be similar to that which obtains in the United Kingdom where the Lord Chancellor appoints members of the relevant authority. Such a move would guarantee the full independence of the new body. As the Minister stated, the Judiciary in this country has consistently been above politics.
The scale, cost and power of the new quango are too extensive. Given the lack of detail and absence of a regulatory impact assessment, it is not possible for the Fianna Fáil Party to support the transfer to the new authority of the disciplinary and regulatory functions of the Bar Council and Law Society. We are being asked to buy a pig in a poke because we do not know what will be the impact of the proposal. Is it the Minister’s intention to publish a regulatory impact assessment? If not, we propose that the new authority assume a supervisory role over the Bar Council and Law Society with a view to ensuring they implement their regulatory functions in a fair manner and all firms are subject to regulation and discipline. Pending the publication of the regulatory impact assessment, I will not comment further on that issue.
I do not agree with the Minister’s proposition that the Legal Services Ombudsman Act is insufficiently strong. I ask him to explain the reason he adopted that position last May. The ombudsman model is leaner and potentially much more effective than the model proposed in the Bill. If changes are required to the Legal Services Ombudsman legislation, we should make them.
Regulation on multidisciplinary practices is too vague and indicates a lack of understanding of where people are at in terms of commercial issues and what has happened not only here but across the world in the area of multidisciplinary practices in the past ten years.
The Fianna Fáil Party welcomes provisions on costs and the measure precluding costs being added without the client being notified. The language in section 82 needs to be tightened to ensure no exceptions can be made to the requirement to publish costs. Notwithstanding the issue of identifying the client, the costs of all cases should be published, especially in the area of family law. Unfortunately, this area of law is the one most people using the Courts Service avail of and seek information on.
I ask the Minister to take a constructive approach in the coming three months. If, as has been suggested, a large number of amendments will be tabled on Committee Stage, I ask the Minister to provide a draft copy in order that Deputies have an opportunity to examine them before making a decision on their merits. I also ask him to put aside his distaste for and displeasure with the various representative associations in the interests of consumers and the profession of which he is a member and work with them to identify areas in which improvements can be made.
It would make for a far more positive legislative engagement than that currently being pursued. This is not about lawyers or about people settling personal scores. It is about the regulation of the legal system in Ireland and the manner in which the rights and laws we implement in this House are protected, defended and challenged. Over the next few months, we will write a roadmap for the legal services sector that will be in place for many decades to come. People want decreased costs and increased access. They want to respect the independence of the legal sector. The Bill, as currently designed and construed, fails on the cost issue, on the independence issue and on many other things. I ask the Minister to follow the guidance of the Taoiseach by engaging constructively and openly on changes to this legislation.