A Government Bill proposing major reform of the legal profession needs to be amended in a number of “significant” ways to ensure it does not encroach too far into the independence of the profession, the Irish Human Rights Commission has said.
The commission today published its observations on the Legal Services Regulation Bill 2011, which it has submitted to Minister for Justice Alan Shatter.
The legislation establishes independent regulation of the legal profession and aims to improve access and competition, to make legal costs more transparent and to ensure adequate procedures for addressing consumer complaints.
It proposes the establishment of three bodies: a new regulatory authority known as the Legal Services Regulatory Authority (LSRA) the Office of the Legal Cost Adjudicator and the Legal Profession Disciplinary Tribunal.
President of the human rights body Dr Maurice Manning said it welcomed aspects of the legislation that would have a positive outcome for users of legal services.
“We consider that robust independent oversight of the legal profession is important. Greater transparency and accountability in relation to legal costs can also increase access to justice,” he said.
Dr Manning said that from a human rights perspective, the proposed legal services regulatory body must be able to discharge its functions independent of government or any government minister. He said the regulatory authority could be strengthened by usuing the concept of independence drawn from the United Nations principles (Paris Principles) upon which the Irish Human Rights Commission itself was established.
Acting chief executive of the IHRC Des Hogan said independent appointment of the new legal regulator’s board and recruitment of its staff were essential. The LSRA must also be able to publish reports of its own volition and agreement on codes of conduct for the legal profession should not require the consent of the Minister for Justice, Mr Hogan added.
In relation to the regulator’s remit to inspect complaints, there should be sufficient safeguards built into the legislation to ensure that any encroachment into solicitor-client confidentiality was “minimal and directly proportionate to the purpose of the investigation”.
With regard to access to justice, the commission said the new Bill should ensure the vindication of human rights through making lawyers more accessible.
“While the Bill envisages a reduction in the costs of legal services, a positive and welcome proposal in its own rights, it is noted that there is no specific objective to address equality of access to justice as a basic human right,” its submission states.
The commission noted that access to justice was a fundamental right under the European Convention on Human Rights.
“The IHRC considers that if properly regulated legal services are the objective of the Bill, then human rights standards in relation to access to justice for vulnerable and marginalised members of society should be explicitly addressed in the context of the overall reform of such services.”
The commission called for reform of the civil legal aid system, recommending that the Civil Legal Aid Act 1995 be reviewed in conjunction with the new legislation.
Independent human rights organisation Flac, which promotes equal access to legal services, recently claimed the new legislation did not prioritise access to the legal system and would not improve the situation for many people.
It said it did not see the new Bill increasing access to legal services for non-commercial bodies and that it would not reduce legal costs, nor would it address the “overloaded” courts and the “underfunded” civil legal aid system.
Speaking in the Dáil during a debate on the Bill last week, Mr Shatter said claims the new regulatory authority could increase legal costs for consumers were "fallacious".
The Minister said the Law Society currently spends €11.5 million on its regulatory functions, and that this was paid by solicitors "who no doubt have regard to it in determining levels of legal costs charged to their clients".
He criticised what he claimed was the damage done by "negative campaigning" against the regulation Bill conducted "at international level".
He said this had allowed other lawyers to "undermine Irish legal practice and its international reputation in a way discouraging to potential investors".