Legal Services Regulation Bill 2011: Second Stage 13 May 2015

I warmly welcome this Bill in principle, which is intended to deliver greater speed and transparency and easier access, as well as to tackle excessive legal fees. It represents the most comprehensive reform of our legal structures and legal services industry in the history of the State.

We have a great responsibility as legislators to deliver this reform responsibly. I want to sound a loud note of caution at this stage about putting on a statutory footing any rules that are incompatible with competition law and in particular any rules that have already been ruled by the Supreme Court to be non-judicable and therefore not legally binding. For instance, in 2005 the Supreme Court ruled that the code of conduct of the Bar Council of Ireland is non-judicable. The reform provided for by this Bill is crucial and long overdue. We must devise an appropriate balance between the right of the public to access justice by way of recourse to a well-functioning legal profession at a fair cost, and the needs of legal practitioners to carry out their work in an appropriate and professional environment for reasonable remuneration.

We must also acknowledge that action in this regard was a prerequisite of the EU-IMF-ECB troika programme and the enactment and delivery of the Bill remain the subject of a country-specific recommendation under the EU semester process which has succeeded the troika programme. The European Commission will therefore continue to monitor the Bill’s progress closely.

In developing the Bill, both the Minister for Justice and Equality, Deputy Fitzgerald, and her predecessor, Deputy Alan Shatter, have dealt with many of the most complex and significant issues in our democratic system. These include the constitutional independence of the legal professions and the role of the professions in enabling citizens to access justice and in its fair administration. I cannot emphasise too strongly the importance of access to justice. I will raise two issues at this juncture, the first of which concerns costs. Access to justice for all regardless of income or background is a core democratic value, yet it has long been known that legal costs in Ireland are prohibitive for low-income families. Ireland shares with the UK the dubious honour of charging the highest legal costs in Europe. The Bill purports to deliver a new and enhanced legal costs regime that will bring greater transparency to legal costs and will apply to both barristers and solicitors.

The high legal costs regime in Ireland is caused by severe restrictions on access to lawyers. There are hundreds of barristers who are available and willing to act directly for consumers but are prevented from doing so by the Bar Council in so-called contentious matters and many other matters. A sum of €1,000 to €1,500 would get a meeting with a solicitor and an opinion from a barrister on a routine matter. That is a significant amount of money for the vast majority of people in Ireland. Many will think of it as a monthly mortgage payment, a month’s rent or a month of child care. The courts are currently awash with lay litigants who simply cannot afford to pay for formal legal representation. I am reliably informed that many barristers would be only too happy to act directly for those lay litigants for modest fees. For them, some work and some payment is better than none.

However, there is an issue concerning direct access to barristers. On closer inspection, direct access is permissible only in non-contentious cases, which represent a mere 2% of barristers’ work. The response that contentious work involves handling client money does not add up, as not all contentious work involves this. Of course, there must be rules around handling client funds. Such rules already exist in the Solicitors Act and could very easily be applied to barristers. Instead of seeing barristers leave the profession in large numbers, as happened particularly during the recession, they should be let stay and earn a living providing excellent, good value and lower-cost services on a direct professional access basis. There is no legislation on the Statute Book preventing that.

We need to exercise extreme care in putting the prevailing anti-competitive restrictions concerning barristers onto the Statue Book. Indeed, as the Bar Council itself is not currently a statutory body but a private body, I wonder why it is being put on a statutory footing at all. I remain unclear on this and perhaps the Minister can clarify it.

The second issue I wish to raise concerns the restrictions on advertising and commercial communications by lawyers. The Irish Competition Authority’s report into the competitive practices of barristers and solicitors in 2006 concluded that the legal profession was in need of substantial reform and was permeated with unnecessary and disproportionate restrictions on competition, the overall effect of which limited access, choice and value for money for those purchasing legal services. It recommended:

 for both barrister and solicitor advertising that:…the existing rules should be reformed. Truthful and objective advertising gives clients useful information and helps them to choose among competing lawyers. Advertising should be controlled in a more pro-consumer manner by way of rules that focus on preventing factually inaccurate advertising or advertising which would bring the administration of justice into disrepute.

Despite a target date of 2008 for the implementation of the Competition Authority reforms and despite the initiation of an infringement procedure against Ireland by the European Commission in November 2013 for continuing to allow the Bar Council to maintain the restrictions it has on advertising, and a letter of formal notice in late 2014, what we see before us in the Bill, namely, in section 158, still does not comply with Article 24 of the services directive, regulation No. 25 of SI 533/2010 or the Charter of Fundamental Rights.

I am very concerned that the State’s course of action in failing to address the deficiencies and in resisting the Commission’s case since 2013 is building up a liability for the Irish taxpayer. I acknowledge the commitment by the Minister, Deputy Fitzgerald, in the Dáil, specifically in response to an amendment tabled by Deputy Catherine Murphy, that she will table an amendment in this regard on Committee Stage in the Seanad. I look forward to considering that amendment. I note with slight concern that the Minister spoke of finding the appropriate balance between the exigencies of the services and those of Government policy. Ireland is required to comply with the requirements of an EU directive.

I will engage on Committee and Remaining Stages but I wanted to outline the two areas which I believe need greater attention.

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”