ANALYSIS:The public will welcome more transparency in itemising costs. But professionals will be irked by other elements, writes CAROL COULTER
THERE IS no doubt that reform of the legal professions and the legal system generally is long overdue. Previous governments and the professions alike have been less than proactive in promoting such reform, and it has taken the EU and the International Monetary Fund to force it onto the agenda.
Unfortunately, the lack of engagement over the past five years with the recommendations of the Competition Authority and two committees on legal costs has led to a situation where now legislation must be published to meet the troika’s requirements, with a danger that some of the proposed reforms may prove counter-productive.
The Cabinet approved the publication of the Legal Services Bill by Minister for Justice Alan Shatter yesterday, and he outlined some of its measures to journalists. The full Bill, which runs to 260 pages, will be published on Friday or Monday.
Much of the devil will be in the detail of the Bill, but, while some of its proposals derive directly from the 2006 report of the Competition Authority and will be widely welcomed, other measures run counter to its recommendations and indeed to reforms that have been introduced elsewhere. These will prove more controversial.
While the attention of the public will focus on the measures to bring transparency to costs through itemising the elements that can go to make them up, and on the setting-up of an independent adjudicator to deal with disputes, the legal professions will be more exercised by the proposed Legal Services Regulator.
This body will take over the regulation of the profession currently exercised by the Law Society and the Bar Council in setting rules and drawing up a code of conduct. The Law Society has an extensive apparatus that deals with regulation, and which carries out investigations into the accounts of solicitors to ensure that there is no interference with clients’ money. Barristers do not deal with clients’ money, so their regulatory machinery is less elaborate.
The Competition Authority recommended a regulatory body that would supervise these activities on the part of the two bodies, and ensure that they were totally separate from their representative function. This is also the model adopted, after lengthy consideration, in England and Wales.
However, the model proposed by Shatter will entail the closure of the regulatory functions of the two professional bodies, and these functions, along with many more, being taken over by a new and necessarily substantial body, a majority of whose members will be appointed by the Government on the nomination of the Minister. It will report to the Oireachtas, and be funded by a levy imposed on the professions.
Shatter insisted yesterday that the legislation would specify that this body would be independent, and its majority of seven lay members would have to meet criteria laid down in the legislation. However, he acknowledged that there was no mechanism in the Bill for people to seek nomination to it and to be independently assessed.
The Law Society has already indicated that it considers this model less than independent, and questions why the Minister chose to depart from the Competition Authority recommendation. However, there is little indication that these concerns have, as yet, any traction with the public.