Legal Services Regulation Bill 2011- Second Stage

I commend the Minister for his introduction of this legislation. It merits mentioning that when in opposition he had a unique record of introducing reforming Private Members’ Bills and since coming into government he has introduced a raft of legislation, much of it reforming, radical and new.

The backdrop to this legislation is provided by the recommendations of the Competition Authority, notably in 2006, the exhortation by the IMF-EU troika last year, and a plethora of other reports and recommendations. The objective of the legislation, in simple lay person’s terms, is to reduce the cost of access to the law and make access easier. The Bill deals with the regulation of legal services, education and training, new business structures, complaints handling and cost adjudication procedures.
It is worth mentioning, before we talk about the much debated regulatory authority, that there is nothing in the legislation that will impinge on the professional independence of individual solicitors or barristers. Their independence remains sacrosanct in that they take a brief and act independently and with total professional integrity; they are immune from challenge in that respect. There is nothing in the legislation that will interfere with that time-honoured precedent, rightly so.

Part 2 of the Bill proposes the establishment of a legal services regulatory authority. That results from the acceptance of what is implicit in Competition Authority reports and in other recommendations from the troika and so forth that we cannot allow the legal profession to self regulate any further. That is not to suggest malpractice in the past but it is not the best method for transparency, for the reassurance of the public and to get the optimum result. If self regulation is to go out the window, it is to be replaced with the regulatory authority. An old college friend of mine, Mr. Ken Murphy, the director of the Law Society of Ireland, is in the Visitors Gallery. I acknowledge that the Law Society has accepted the principle of independent regulation of the legal profession.
In so accepting, however, it very validly comments on the proposed regulatory authority. The purpose of the authority will be to protect the public interest, the proper administration of justice and the interests of consumers and to promote competition. The questions are about the membership of the authority. The legislation provides that there will be two members from the Bar Council, two members from the Law Society and seven will be nominees of the Minister. The controversy arises from this. I am very impressed by the fact that everybody who lobbied me on this issue was at pains to accept the bona fides of this Minister in this regard. Their fears existed in the notional sense that a Minister at a given time in the future could misuse the appointment procedure in the legislation. I am confident of this Minister’s bona fides but I appeal to him to consider amendments on Committee Stage that will reassure the public and, very importantly, the profession in that regard.

I made the point earlier that the professional independence of individual lawyers dealing with cases is not at issue and is not challenged in any fashion. However, it is important that it is obvious to them that the independence of the regulatory authority is also in no way compromised in terms of its membership. I appeal to the Minister to consider various models. He might examine the possibility of having the Commission for Public Service Appointments deciding on the membership or the possibility of nominating bodies making nominations to the authority. He might also examine the possibility, although it is fraught with its own difficulties, of using the Oireachtas committee procedures. The Minister has the expertise, both personally and within the Department, to examine methods whereby it can be clear that his intention to achieve independence of regulation, which is implicit in the legislation, is transparently the case and that the profession is confident about it. I ask him to consider all these matters on Committee Stage, and I look forward to his response and to discussing amendments that might emerge on that Stage. Perhaps the Minister would consider a specific nominating body from consumers, that is, people who will be the users of the law. They must be the critical consideration.
The legislation provides for the establishment of a legal practitioner disciplinary tribunal with 16 members. Again, I urge the Minister to examine the method of appointment to this tribunal with a view to eliminating any perception of a possible risk in that area. I believe he will give consideration to that point.

The Bar Council and individual barristers who have spoken to me about the Bill are concerned that if the new procedures and the regulatory authority become too expensive and too cumbersome administratively, the levies on legal practitioners will become prohibitive. That would defeat the purpose of the Bill in terms of the numbers who could reasonably enter the profession and their capacity to practise. I appeal to the Minister to reassure us on the streamlining of the authority with regard to minimising costs and to reassure us that there will not be a level of fees on barristers which would make it impossible for them to practise. This is an important point and I appeal to the Minister, Deputy Shatter, to consider it.

I am impressed that the authority can consider the issue of professional legal education and the possibility that it could be provided through other accredited authorities or institutions. I am aware from both personal experience and anecdotally from my constituents that the cost of professional training in the legal profession is excessively high. Anything that can be done to introduce competition and reduce costs in that area should be done. Deputy Penrose spoke earlier about how he was able to access the legal profession from a working class background. My information is to the contrary and that many individuals from the working class and the poorer sections of our society find it impossible to muster up the required fees for a legal education. It is important that something be done to limit those while maintaining standards. I welcome the possibility that more institutions will be accredited in that area and that it will become subject to competition.

Finally, with regard to the mixed business structures, I welcome the possibility of multidisciplinary practices with solicitors and barristers practising together. It is the Minister’s intention that the sole practitioner and smaller practices will still be able to survive independently and that there will be mixed structures. I look forward to his response on that issue on Second Stage.
A number of Members spoke on an issue germane to the Second Stage debate, although it is not specific to this legislation. It is the question of legal costs for local authorities and the State. I appeal to the Minister to consider tendering in this area and annual check-ups on expenditure by authorities on legal costs. It would be a shame if this reforming legislation, the objective of which is to reduce legal costs for the consumer, were implemented but we did not conduct other exercises to reduce costs to the consumer through taxation of the legal profession.

Senator Joe O'Reilly representing Cavan & Monaghan 2010. | An ExSite website