Minister for Justice Frances Fitzgerald has said long-awaited legislation to reform the legal profession will be in place by the end of the year. However the Legal Services Regulation Bill, originally published by former minister for justice Alan Shatter nearly four years ago, is a diluted version of the original. So far there have been 235 amendments – and it will be subject to more changes before it is signed into law.
The Bill was drafted following a 2010 memorandum of understanding with the EU and the International Monetary Fund. Its aim was to introduce independent regulation and implement recommendations around transparency and competition made by the Competition Authority and the Legal Costs Working Group.
Shatter described the Bill as bringing the legal profession “out of the 19th century and into the 21st century”.
The establishment of an independent legal services regulatory authority, with responsibility for overseeing barristers and solicitors, was central. So was a legal practitioners’ disciplinary tribunal to deal with professional misconduct, and a legal costs adjudicator to address costs in a more transparent way.
There were also proposals to allow barristers and solicitors to practice together in legal partnerships and in multidisciplinary practices alongside other professionals, such as accountants. The legislation suggested that new business structures could be introduced after a process to consider how they would be regulated.
There were plans to allow the public to have direct access to barristers, bypassing the usual route through a solicitor. Proposals to allow a new profession of conveyancer were to be considered by the authority.
The Bar Council and the Law Society raised many concerns about the legislation. These included the possible negative economic impact of new business structures on the profession, on competition and on access to justice. They also questioned the independence of the proposed authority, given that seven of 11 board members would be appointed by Government.
After much debate and 235 amendments, the legislation was passed by the Dáil in April and completed the Seanad second stage in mid-May. It will face further amendments at the Seanad committee and report stages.
It has already been diluted. The central structures of authority, tribunal and adjudicator remain in place, but the plan for legal partnerships will first be subject to a six-month public consultation process, after which a report and recommendations will be produced for the minister for the justice.
Direct access to barristers will also require lengthy public consultation before going ahead. A report will be provided to the minister within 12 months of the authority being established.
The authority will also prepare initial research and a report on multidisciplinary practices within six months. This will be followed by public consultation on the establishment and impact of the practices. Within a further six months, a final report will be sent to the minister for justice, who will decide whether or not to allow the practices go ahead.
Ms Fitzgerald, described the changes to the draft legislation as “a pragmatic and prudential approach”. Other amendments to the legislation are aimed at addressing concerns about the independence of the authority. Though board members will still be appointed by the government, they will have to include members of organisations such as the Citizens’ Information Board, the Human Rights Commission and the Competition Authority.
The role of the minister for justice in the appointment of staff to the authority has been dropped and the minister will no longer have a role in deciding the levy to be imposed on the profession to fund regulation. A clause requiring members of the authority to disclose any interests in matters to be considered by the authority has also been dropped.
Members of the disciplinary tribunal will be appointed by the president of the High Court and not by government. There is also more emphasis on informal resolution of client complaints before formal disciplinary procedures are initiated.
The Department of Justice has said consultation with stakeholders is ongoing and that work continues on the legislation. Further substantial amendments are expected before the Bill is completed, and these will be circulated in advance of the Seanad committee stage.
“It is the intention that the Legal Services Regulation Bill be completed so that the new Legal Services Regulatory Authority can come into operation without delay this year,” a department spokesman said.
