Ivana Bacik

Second Stage

Senator Ivana Bacik: I welcome the Minister of State, Deputy Conor Lenihan, to the House and I welcome the introduction of the Bill. Like Senator McDonald, before commenting on the legislation I declare an interest as a practising barrister and a member of the Bar Council. This is an important time to debate the regulation of the legal profession, although currently the focus is on the regulation of a different group, namely, members of the banking community. Certain commentary in the newspapers have referred to bankers as “banksters” in recent times, which reflects the public disapproval at present of banking practices and of the lack of regulation of banking. We have seen all too clearly the results of a lack of regulation. I have said in the House and elsewhere that it is not simply a matter of a lack of regulation. In recent years we have introduced extensive regulation of financial services. However, it is the lack of enforcement of the regulations in place as much as anything which has led to the culture of non-compliance that has caused such problems in the financial services sphere. The lesson to be learned while we debate this welcome Bill is the need to ensure regulation exists and that it is seen to exist. The need for public trust and confidence is as important as anything else in the legal profession as it is in the banking and financial sectors.

I listened to the contribution of Senator McDonald who raised some very worthwhile points, especially the need to ensure we do not simply impose another layer of meaningless bureaucracy. There have been enough scandals and public concerns raised related to the legal profession throughout the years. There have also been enough thoughtful and considered proposals to ensure the need to introduce another layer of oversight or scrutiny, which is what the legal services ombudsman represents. This is a layer of oversight or scrutiny which is more than simply a layer of bureaucracy, it has an important function in ensuring not simply that legal services are properly regulated and that the concerns of clients and consumers are supported, but also that the people perceive that the legal profession is well regulated and trustworthy.

I refer to some of the context of the reform. The Minister of State outlined some of the various disciplinary procedures within the professions and the Bar Council and Law Society, both of which have lay person representation on their disciplinary boards, which is important. The new legislation involves another layer of oversight covering the existing procedures. There have been a number of recommendations for change. As far back as 1990, the Fair Trade Commission referred to a lack of public confidence in the complaints procedures in place at that time. The commission indicated the concerns could be remedied by lay representation, which has been introduced, and by the establishment of a legal ombudsman office. In 2005 and December 2006, the Competition Authority reports recommended the need for an independent legal services commission to replace the system of self-regulation, which represents a somewhat different recommendation.

I conducted research with colleagues in Trinity College Dublin in 2003, which was published as Gender InJustice and funded by the Department of Justice, Equality and Law Reform. We received funding for an important study into gender discrimination in the legal professions. One of the issues examined was the regulation of the professions. We examined the matter from a slightly different perspective, that is, discrimination experienced within the profession. However, I believe some of our findings are pertinent and provide a somewhat different perspective to the Bill. Rightly, most of the focus in the legislation is on the concerns of the public, who are clients of the legal profession. Some have complaints concerning the way their cases were handled by barristers or solicitors.

We examined complaints within the profession involving mainly women barristers and solicitors who experienced discrimination and stated how difficult it was for them to seek redress. Time and again the lawyers we surveyed responded that Ireland is too small a place in which to make complaints, that the law is not for lawyers, rather depressingly, and that the law is a lawless domain when discrimination is experienced within the profession. We found a disturbing level of harassment within the profession. We also found that the Chair of the Bar Council at that time stated no legal action had been taken to enforce codes relating to the conduct of its members within the previous ten years, and that the Society of Kings Inns stated that it had not disbarred any persons for disciplinary reasons in living memory.

That is the context in which we recommended, as others had previously done, the need for a legal ombudsperson to whom complaints could be made in confidence by those experiencing discrimination. This measure will go some way towards addressing the problems we identified as much as the problems identified by the other bodies mentioned.

I refer to the provisions of the Bill. The Bill provides in a most welcome fashion for the appointment of an independent ombudsman who would not be drawn from members of the practising professions, which is an important point that has been mentioned previously. The ombudsman would oversee the complaints procedures already in existence and provide for remedies where persons believe the complaints procedures have not adequately been carried out.

One complaint made concerning the Bill was put forward by the Consumers Association of Ireland. It complained that the proposed legislation reinforces existing self-regulated mechanisms and that the powers of the ombudsman are too restricted. I understand why the association made this complaint and the matter is worth reviewing. However, it is enough to say that the ombudsman is acting in an oversight capacity. I do not believe there is a need for the ombudsman to reinvestigate complaints. I accept the concerns of the association. It states the problem for consumers is that the ombudsman may simply direct the professional bodies to re-investigate original allegations. The ombudsman would have a supervisory role similar to that of the High Court in the case of a judicial review and would not examine the merits of the original case. Consumers may believe this is simply not enough.

I refer to the number of allegations of complaints made. The Minister of State referred to 1,700 complaints against solicitors in any given year and approximately 20 complaints against barristers, who clearly are not handling clients money and, therefore, in a practical way tend not to be the subject of complaints to the same extent. There is also a difference in the numbers as there is a greater number of solicitors and a good deal more contact by individuals with solicitors than with barristers.

It is enough to say the ombudsman would provide oversight rather than a reinvestigation procedure. One complaint of the Consumers Association of Ireland may deserve consideration. This is the complaint that it will be too long and drawn out a process because it requires individuals to have gone through the complaints procedures of representative bodies and only if they are dissatisfied will they have the option of pursuing the case with the ombudsman. Section 22 of the Bill meets some of these concerns in allowing a complaint to be made where complaints have not been investigated in an adequate time by the disciplinary bodies. A clearer direction in terms of time limits is important. The most specific ruling on time limits in the Bill is the six month time limit, although it may be extended in special circumstances, within which time someone may make a complaint to the ombudsman. There is a clear time restriction on the member of the public making the complaint and a good deal less clarity in terms of time limits related to the investigation of complaints by professional bodies and the ombudsman.

Section 23 requires a great deal of fleshing out. It provides that the ombudsman can establish procedures related to the investigation of complaints. There will be a great deal of importance attached to the detail in that section. The procedures for investigating complaints will be vital in terms of ensuring people are satisfied with the way in which complaints are handled.

I refer to other specific aspects of the Bill. Section 15 refers to the power of the ombudsman to prepare reports on the admissions policies of the legal bodies. That is very important and I am aware from my research that it is difficult to establish and to get figures from the professional bodies. This does not apply to admission levels which are easier to establish. However, the attrition rates from the legal professions are missing from the Bill and could be usefully inserted.

Senator Phelan referred to the change in the economic climate. The chill wind blowing through the economy generally has already affected the legal professions. There are an increasing number of redundancies from solicitors’ firms and great difficulty in junior solicitors getting traineeships and in law graduates getting employment. It would be very useful in this context for the legal bodies to supply the ombudsman not only with figures on admissions, but also figures on departures from the profession, that is, numbers leaving the profession in any given year. I wish to see the legal services ombudsman empowered - the Minister of State may be interested in this point - to require the professional bodies to conduct exit surveys of those leaving the professions and to establish the reasons for leaving. We found anecdotal evidence that this is a matter of particular concern among lawyers surveyed in 2003. However, it was impossible to get data on the numbers who left and the reasons they left. I believe we will see increasing numbers leaving. It would be useful to see why they are leaving and what can be done to ensure people worth keeping in the legal profession are kept there and do not leave for the wrong reasons. Our study indicates people are leaving because they are experiencing discrimination which is a cause of concern to us all.

The Consumers Association of Ireland raised the question of the legal proceedings that may be taken against the legal services ombudsman. It argued there should be an explicit provision in the Bill for an appeal by consumers against decisions of the ombudsman. Section 34, providing for legal proceedings to be taken against the ombudsman, places a restriction that is becoming increasingly common in Bills including the Immigration Bill, such that proceedings may be taken only with the leave of the High Court and on 14 days’ notice to the ombudsman. This restricts the usual power to apply for judicial review. While that is not a problem in itself it would be more worthwhile to place a specific right of appeal in the Bill because it is anticipated that those dissatisfied with the ombudsman’s findings will take proceedings against him or her. It might be of benefit to consumers of legal services to see something more specific about appeals.

Senator McDonald raised the issue of representation. Many of us have heard people complain that they cannot get representation from solicitors where they believe they have a case against another solicitor. Undoubtedly some of those complaints are vexatious or frivolous and the ombudsman will have the power to make that finding. There remains, however, a real problem for people who believe they have a valid grievance against a solicitor or other member of the legal profession and cannot get legal representation. It is very important that they feel the procedures of the ombudsman are accessible to them. I am glad to see the ombudsman may accept an oral complaint. It is important that the complaint does not need to be presented in a particular written format. That is why the appeal right against the decision of the ombudsman or the right to review that decision should be stated more clearly in the Bill.

I welcome the Bill. There is an increased need for public confidence in the professions. Legal professionals who have brought the profession into disrepute have been highlighted recently. That is a matter of real concern for all of us in the profession and is of greater concern to the wider society. To provide for an ombudsman of this kind allows the public to see that greater levels of scrutiny will be applied in the legal professions. This entails more than creating the regulations. The recent banking scandals have shown that it is not enough to put financial services regulators in place but we need to ensure that they work, that they enforce the law and are seen to do so and that sanctions are imposed on people guilty of wrongdoing.

Committee Stage:

Section 9

Senator Ivana Bacik: I was going to hold my fire for later sections but having been brought in by Senator Norris I would like to speak on this section. I must first, however, declare my interest as a member of the trade, being a barrister.

Senator David Norris: Profession.

Senator Ivana Bacik: The profession, as the Senator prefers, and a member of the trade union for the profession, that is, the Bar Council.

Senator David Norris: And a pinkie-communist-socialist.

Senator Ivana Bacik: I thank Senator Norris for that accolade.

It is important the legal services ombudsman would assess the adequacy of admissions policies. Senator Norris has reminded me of a campaign in which I was centrally involved in 1988 and 1989 when the Law Society operated a restrictive admissions policy in the form of a quota for the number of people who could pass the entrance exam. The Minister of State may recall this because it was a high profile matter at the time. Several of us students occupied the offices of the Director General of the Law Society at Blackhall Place in the course of the campaign. The position did change and the Law Society lifted the quota but following another case involving students from Queen’s University the society changed its entrance requirements again.

The training by the Law Society and the Bar Council has greatly improved. The Minister of State raised the difficulty, for those who are trying to hold down a job, of trying to pursue a course of training to become a barrister. That has been rightly highlighted as a problem. The Bar Council is seeking to address this by again offering its course part-time. This course is much better than it had been and is geared for vocational training. It is important because of the difficult history of admissions policies to the legal profession that the legal services ombudsman would provide some oversight so its reach would be not just to receive and investigate complaints but also to review admissions and so on. We will address the ombudsman’s report on number of persons admitted to practice under later sections.

On Second Stage I said it would be a good idea for the ombudsman to review the attrition rates from both professions. I did research on discrimination in the legal profession some years ago and found it was difficult to establish with any certainty the numbers leaving the professions and why. The concern was that people were leaving not because they were unmeritorious but the opposite, people of merit were being lost to the professions because the culture was discriminatory or made it difficult for people to get on. That would be a useful matter for the legal services ombudsman to keep under review.

Senator O’Donovan commented on incomes in the legal profession. Barristers and solicitors have earned extraordinary levels of income. We see those in the public domain, the tribunal fees, but there are also exorbitant commercial fees. In 2006 the Competition Authority provided information on a much broader level, not just those in the public domain, and found that members of the junior Bar earned on average only €30,000 per year. The median income of recently qualified barristers is just over €30,000, and solicitors earn just over €48,000, while at the other end of the scale the average income for senior counsel is €330,000. There is an enormous disparity in those figures, perhaps beyond the remit of the legal services ombudsman. It is useful to keep sight of that by way of context.

Section 11

Senator Ivana Bacik: The Bar Council has already raised with the Minister of Sate the cost of the legal ombudsman service. Section 11 gives the necessary power to the ombudsman to employ persons on particular terms and conditions and to engage the services of professional and other advisers and so forth. That is important. It is necessary to keep the cost of running the service as low as possible. Given the difficult times we are in I am sure the Minister of State will be in full agreement with that. The figures for other commissions are available, for example, the running costs for the Standards in Public Office were just over €1 million of which €737,000 was staff costs. Costs in any of these services or agencies can run high, even when kept fairly tight and within budget. I have no doubt the legal services ombudsman will keep to strict budgets but it is necessary to ensure that superfluous staff are not recruited under the authority of this section.

Section 15

Senator Ivana Bacik: In my Second Stage speech, I referred to section 15(1) the Bill, which states that “the Legal Services Ombudsman shall prepare and submit to the Minister a report . . . specifying the number of persons admitted to practise”. This section is incomplete in the absence of a provision requiring the ombudsman to review the number of people who have left the profession and to monitor the figures in general. In light of what I have said about cost overruns, I hope that will not be too costly an exercise. With some of my colleagues, I participated in a research programme that was funded by the Department of Justice, Equality and Law Reform some years ago. We found it quite straightforward to collate the number of people who had been admitted to practice over the years and to break them down by gender. I do not think it would cost too much if a little more detail were to be included in the report submitted to the Minister, thereby building on the research we did and the figures that are available to the Law Society and the Bar Council.

A little more information about the nature of the profession should be provided. When we surveyed barristers and solicitors extensively, we found evidence of real concern about the existence of a discriminatory culture in the profession. Many of those who responded to our survey described it as an “old boys’ network” or “old boys’ club”. They suggested that the culture in question was militating against the retention by the profession of able people. In particular, young female solicitors in rural areas complained that they encountered exclusion from social networks etc. rather than overt discrimination. We are concerned that people who should be retained in the profession, good and meritorious professionals, may be lost to it. The Bar Council has suggested to the Minister that the ombudsman should have less reporting functions rather than more. While it is useful that section 15 of this Bill will ensure that the ombudsman monitors the number of people in the profession, somewhat more detail could be supplied. I accept that section 15(1)(b) provides that the ombudsman shall assess whether “the number of persons admitted . . . is consistent with the public interest in ensuring the availability . . . at a reasonable cost”. While that is a good measure, there is room for other criteria to be applied by the ombudsman in gathering figures for the purposes of these reports.

Senator Ivana Bacik: I am grateful to the Minister of State for indicating his willingness to consider this important point. He is as aware as I am that there is anecdotal evidence of high levels of attrition. When we did our study, we were concerned to get hard data on that. We found that neither the Bar Council nor the Law Society was able — I am not sure they were not willing — to provide information on attrition in the profession. They simply did not keep figures on attrition. Part of the ombudsman’s great service to the public should be to ensure that such figures are kept. Exit interviews, which are quite common in other sectors, should be conducted with people when they leave the legal profession. We need a better sense of the number of people leaving the profession and their reasons for doing so.

I am glad to say that one of the positive consequences of our report was that the Law Society adopted the recommendation that its members should pay women solicitors a full salary during maternity leave. That had not previously been the practice. We found that it was one of the real impediments to the retention of women in the profession. I understand the Bar Council has adopted a similar policy, to the effect that women members pay reduced fees during what is, in effect, their period of maternity leave. As barristers are self-employed, they do not have the same statutory pay and leave rights. These practical changes are important if we are to increase the rate of retention of highly qualified and able barristers and solicitors. I hope the ombudsman will be able to keep this sort of thing under review.

Section 17

Senator Ivana Bacik: I share Senator O’Donovan’s concern about this section of the Bill, which seems rather open-ended. I would have thought that the Joint Committee on Justice, Equality, Defence and Women’s Rights would be the obvious committee before which the ombudsman would appear. I am slightly bemused as to why any other committee would require the ombudsman to appear before it. On this section I pondered why it is necessary to specify that the legal services ombudsman would attend. We have had recent public concern about people refusing to attend Oireachtas committees. I would have thought by nature of the office the legal services ombudsman would be obliged to appear if required. Perhaps the Minister of State will enlighten me on that. Will this provision be standard in any legislation establishing a body of this nature? It seems implicit that while serving as legal services ombudsman they should be obliged to appear before a relevant committee, but perhaps I am wrong about that.

Section 19

Question proposed: “That section 19 stand part of the Bill.”

Senator Ivana Bacik: Again, this relates to the levy to be paid for the establishment of the expenses of the ombudsman, or “ombudsperson”. I am grateful to Senator O’Donovan; I also like to use that word to symbolise that it could be a man or woman. This levy is to be paid by the Bar Council and Law Society. The Bar Council has approached the Minister and I did not table an amendment to subsection (4) because I did not think it was appropriate as this might be reviewed in the future. It seemed reasonable to take 10% from each professional body. However, I am conscious from the figures, which the Minister put on the record on Second Stage, that there is an enormous gulf between the level of complaints against barristers and solicitors. In 2007-08 there were 24 complaints against barristers compared with 1,745 against solicitors. The complaints against barristers represent 0.01% of the overall total of complaints. In that context perhaps 10% is rather too much for the Bar Council. I did not feel it was appropriate to table an amendment on this because it will have to be reviewed and section 20 gives the Minister quite extensive power by regulation to examine how the levy is paid, although not to overrule subsection (4).

Leaving the remaining 80% to be paid pro rata seems to allow for equity but we return to the issue of the overall running costs of the legal services ombudsman. The 10% figure may not be particularly significant if the overall running costs are kept low. It is not inappropriate for each professional body to pay 10% but I acknowledge that the discrepancy in the numbers of complaints may mean the Bar Council may have some merit in its argument that it should pay less. Senator Norris has put his disbelief on the record. My other point is on the Minister’s power by regulation to provide for the payment of the levy, but perhaps I will leave that for section 20.

Senator Ivana Bacik: I accept what Senator O’Donovan stated about solicitors being on the front line in that they offer services directly to clients much more frequently than barristers. I should stress that I approve of the idea of the levy. I certainly was not putting it any higher than simply raising the difference in numbers of complaints. I accept fully that both the Bar Council and the Law Society should pay into the levy. It is a reasonably fair proposal that the 80% remainder of the levy would be split pro rata according to the number of the complaints.

All of this is subject to how much the overall cost of the ombudsman service will be and how much it will cost to run a service that provides the necessary scrutiny for members of the public who are dissatisfied with the service they have received from barristers and solicitors. We must never lose sight of the important objective of the ombudsman’s office while at the same ensuring it does not generate enormous cost overruns in doing so.

Section 21

Question proposed: “That section 21 stand part of the Bill.”

Senator Ivana Bacik: I welcome this section. This is the crux of the Bill, enabling the making of complaints to the ombudsman. As I stated on Second Stage, I welcome it because it provides for a necessary degree of oversight and scrutiny of what for a long time has been regarded as self-regulating professions.

I acknowledge the professions have made quite significant amendments to their own disciplinary procedures to allow for much greater input of laypersons to the extent of lay majorities, etc. At the same time the legal services ombudsman has been long recommended by many bodies and many reports over the years. The provisions in section 21 will provide an essential remedy for consumers of legal services and clients who feel they have been unfairly or badly treated by barristers or solicitors. As the Minister of State said on section 19, as with any new procedures, time will be needed to bed down the procedures and for members of the public to become aware of their existence.

I am glad to see subsection (6) allowing the ombudsman to accept complains after the six-month limitation period where special circumstances exist. That will be important, especially in the first few years of the existence of this service for people who are not aware of the service. It may take longer for people to get around to submitting a complaint or they may simply be unaware of the existence of the procedure in the early years of the existence of the ombudsman.

I wonder about subsection (10): “A complaint to the Legal Services Ombudsman may be made by any person on behalf of another person.” In light of Senator Norris’s revelation that he has acted in the past as an amicus curiae — in the English courts it was called a McKenzie friend, a person who was not legally qualified who appeared on behalf of another person, and after the poll tax riots I recall many McKenzie friends appearing in the magistrates’ courts in England — it strikes me that the provision could be problematic. Has the Minister of State any thoughts on it? How is the ombudsman to know? Clearly he or she must act in good faith in accepting a complaint but if it is made by a person who is not the person who made the original complaint to the Law Society or Bar Council under the earlier subsections, I wonder how that will work in practice if another person can then step in to make a complaint on behalf of the original complainant. I am not sure what the section aims to do. It could be important where a complainant feels unable to make a complaint. If it facilitates people making complaints who would not otherwise be able to do so, that is important. I am just not sure whether that is the purpose. Perhaps the Minister of State could explain it.

Section 22

Question proposed: “That section 22 stand part of the Bill.”

Senator Ivana Bacik: I welcome the principle expressed in section 22. I have often been approached by people who are unhappy with the service they have received from a solicitor or barrister. Often delay is a major factor in people’s dissatisfaction, with calls not being returned or unexplained delays in procedure. I know how difficult it is for practitioners to keep on top of work so there are points on both sides, but delays within the disciplinary processes should be included as matters the legal services ombudsman may investigate. Where either the barristers’ professional conduct tribunal or the Law Society’s procedures have delayed unreasonably in processing complaints, the ombudsman may step in.

A person may make a complaint to the ombudsman even when he is entitled to bring a complaint in a court so the ombudsman’s power of scrutiny is overriding. There has been a problem with delays in court judgments, a matter the European Court of Human Rights has raised. I doubt, however, it is within the scope of this Bill to resolve that today.

Section 28

Senator Ivana Bacik: I echo Senator Norris’s words of welcome for the Bill. I thank the Minister of State for all his work on it and for answering the points we raised with substantive replies, rather than formulaic ones that we sometimes get on legislation. The Bill will provide for an important extra layer of scrutiny, as has been said. It will improve the quality of services provided to members of the public, which is the ultimate aim. It will ensure that all legal practitioners are more accountable and subject to scrutiny, not just within our own professional disciplinary procedures but also through this extra mechanism of scrutiny and oversight.