Legal Services Regulation Bill 2011 – My contribution to the debate.

08/02/2012

I would like to begin by thanking the Minister for bringing this Bill through the House. Reforming our national legal system is a complicated task, a task laden with responsibility. I believe that this is one of the most important pieces of legislation that will pass through this House in the duration of this Government, and therefore will form a significant part of its legacy, perhaps more that we presently realise.

This is a difficult challenge to undertake, and I commend the Minister for his commitment to legal reform and for ensuring that this Bill is given the appropriate time and opportunity to be discussed and debated in this House.  
Fine Gael emphasised the need for legal reform both before and during the election with the intention of making legal representation more affordable and more accessible to every citizen in this country and it is commendable that this Bill be debated so early in our term of office.
Whilst seeking to reform our legal services we must surely be aware that we should not and must not reduce all argument and change to the lowest common denominator merely because we are experiencing a financial crisis.  Any changes that are made today will be felt for years to come and we must, therefore, be assured that any reform is for the good of our society and our country as a whole.   
We have been presented with a great opportunity to reform our legal services, an opportunity which we must not waste, for it is sure that history will judge us harshly if we do squander this opportunity.
There has been much discussion of the Irish legal system in the weeks and months preceding this debate, with much focus on the complications surrounding the reform of regulation of the legal professions and Government involvement in this regulation.  What is clear to me is that this Bill has been written with reform and the public interest and greater accessibility to and competition in the legal sector in mind; and it is, to my mind, important that we balance these goals with the need for an independent legal profession.
Our legal professionals, the vast majority of which have enormous respect for the law, justice and the reputation of their profession have, to date, been self-regulated by their respective regulating bodies, the Law Society and the Bar Council.  This Bill proposes the establishment of a new regulatory authority for both professions.
I welcome Minister Shatter’s recent statements relating to his commitment to form a regulatory body that will be independent.  The ratio of appointees, along with certain functions that this body will be given has been exposed to robust debate from both national and international bodies. However, I believe that the make up of the Regulatory Authority has been designed not only with competition and consumer focus in mind but also fair and proportionate regulation of the professions.  It is an expert group that will advise on more than legal policies, but will also make recommendations on what is best for the consumer and the industry as a whole.

We have a lamentable history in this country when it come to Government appointees to boards and authorities and whilst I acknowledge the Minister’s bone fides in this regard is beyond reproach, I do think that the appointment of the members of the proposed legal regulatory authority is worthy of debate at committee stage.  

The vesting of certain powers with the Minister of the day (such as the power to appoint or remove members if necessary) may leave a door open to old ways which should be firmly shut.  There is no place for political interference in such authorities now or in the future if we want genuine reform in this country.

While I believe that these provisions are placed in this Bill by the Minister to ensure that this Authority will be held accountable for proper reform and change, who will the next Minister or the one after that be accountable to if allowed to make decisions that are not in the public interest? 
As a government we have been forced to introduce Bill relating to Political Reform due to the corruption and interference of our predecessors, and I am anxious that with this Bill, while we close one door we may be opening another one, instead of learning from our own unfortunate history.
With this in mind, I fully welcome the Minister’s decision to reconsider his role in establishing codes of conduct, and I think that we can set a precedent as to how the legal profession and Government can strike a balance in other areas of this Bill.  It would be my hope that the Department of Justice and Equality will be able to assess a means by which a panel of possible experts are nominated by both professions, with equal debate and eventual agreement from both Government and the legal professions as to who is an appropriate appointment to this authority. This information would have to be made public and transparent, so that the reasoning for appointment is justified to members of the public.
Legal professionals have been open to reform for some time and have been faced with particular difficulties since the economic downturn.  Solicitor firms across the country are struggling to keep above the water and many trainee solicitors cannot secure an apprenticeship. 
Junior members of the Bar, especially those who are devilling or at the beginning of their career, are struggling to survive financially.  Any reform of the professions must be made with this in mind. 
At the same time, it must be borne in mind that there is a level of distrust in the legal profession by the general public due, in large part, to the mis-management of tribunal process by successive Fianna Fail Governments and other individuals in both establishing the tribunals and being the catalyst for the need for the tribunals in the first place which I would hope that this Bill will serve to restore the publics confidence in the legal profession.
If we are to succeed in what this Bill is attempting to legislate for – full transparency, advertising, an opening up the legal services market, individuals will have the security of mind to make informed decisions without the fear of being charged unfair or extortionate prices that have been associated with the legal profession. I believe this will increase confidence in the legal profession.

I hope that by speaking today I will ensure that while bringing through this Bill we do not lose sight of the fundamental importance of a proper functioning legal system that operates in the best interest of the country and its citizens.  I hope that the regulatory authority considers the long term implications of creating new business models when it comes to multi-disciplinary practices, to ensure that expertise remains fairly available to every citizen seeking legal advice. We do not want to replace one elitist model with another, in an effort to make the process more affordable in the short term.
It is true that a one stop shop can ensure a less intimidating process, however, we also know from experience that success of large corporations come at a price of losing small business, quality produce and specialised expertise. This may also introduce a conflict of interest for Barristers; by directly introducing the influence of the practice in which he or she operates and the loss of the independence of the Bar, something that has long served consumers and their rights.
There are other economic values to having an independent Bar. It is a resource available to all solicitors and consequently  the consumer. Any legislation that may undermine these practices should only be entered into if we can safely say that it does not lead either to a loss of proper independent legal representation or to further costs for the consumer in the long run.  For example, in the current process under the cab bank rule, all solicitors have access to a range of expertise, of which they will make their choice depending on past efficiency and budget.  This cab rank rule results in a competitive and independent Bar with some 2,300 Barristers competing for business.
If there are five leading barristers whose expertise are in the area of environmental law, each of these are in competition with each other and the solicitor can access the best possible person to do the job at a competitive price. Should we take three of these barristers out of the equation, into the more attractive and lucrative area of commercial law we are taking valuable expertise from the consumer and reducing competition at the Bar, while creating a monopoly of expertise in multi-disciplinary partnerships.  Further to this, these proposals were not set out by the IMF or in the Competition Authority Report.

I would therefore call on the Minister to commit to carrying out economic research in this field to produce evidence that this transformation of the Bar will in fact benefit the customer enough to justify this impact on the legal profession, and to revisit the decision to include it as legislation in the Bill, instead of introducing a further amendment at a later date to reduce the risk of making such a distinctive change for change sake.
I have spoken to many law students in relation to their own opinions on this Bill and am pleased to note the positivity on many levels, mainly of course in relation to access to entering the profession itself.  I look forward to debate at Committee level relating to the proposed changes to the manner in which students may qualify as a legal professional.

In finishing, I would like to quote an Irish judge in the 19th century, Sir James Mathew (1830-1908)  who said:

In England, justice is open to all – like the Ritz Hotel.”
I am grateful for the opportunity to speak on this topic and it is my hope that this Bill will seek to make this comment completely untrue of the Irish legal system.  I look forward to debating the issues raised in my speech and many others at Committee level to ensure that such significant change to our legal services serve the public whilst maintaining the independence of the legal professions.