OPINION:Self-regulation of the legal profession has not benefited public interest or the profession itself, writes ALAN SHATTER
THE LEGAL Services Bill 2011 provides for an independent Legal Services Regulatory Authority (LSRA) to regulate the provision of legal services, and for an independent legal practitioners’ disciplinary tribunal to deal with allegations of misconduct.
The Bill says the LSRA must be “independent in the performance of its functions”. This nucleus of real independence has certain features that deserve comment.
First, the LSRA will enjoy independence to oversee the legal profession and the legal-services market. Its functions will include reviewing legal education; professional codes; and how legal services are provided. It will be able to create a system for the supervision of lawyers’ accounts and for inspection.
The Bill sets out the LSRA’s objectives: to protect the public interest and the interests of consumers and promote competition in the provision of legal services; support the proper and effective administration of justice; encourage a strong and effective, independent legal profession; and promote and maintain adherence to professional principles which include the duty of lawyers to “act with independence and integrity”.
These balanced statutory objectives shape the LSRA’s role. It will be able to do whatever it considers necessary to allow it to perform its functions, including liaising and co-operating with other statutory, professional, or consumer bodies.
Second, the LSRA will have structural independence. The governance of the LSRA will vest in its pluralistic, expert membership totalling 11 people, appointed by the government, and including: two each nominated by the Law Society and the Bar Council; a legal costs accountant and an officer of the Minister for Justice and Equality. It must have a lay majority and a lay chairperson.
The government must ensure its membership includes persons with expertise in one or more of the following: (a) provision of legal services; (b) legal education and training; (c) competition law and policy; (d) maintenance of standards in professions regulated by a statutory body; (e) dealing with complaints against members of professions regulated by a statutory body; (f) business and commercial matters; and (g) needs of consumers of legal services.
The clear inference is that no government has the legal power to pack the authority. Its chief executive will be appointed by open competition.
Third, the LSRA will have a vindicatory independence that empowers it to preserve the integrity of its oversight role.
It will be able to conduct investigations independently; impose certain sanctions on misbehaving lawyers; apply for a High Court order prohibiting a lawyer or any other person from infringing any provision of the Act; and prosecute summarily offences under the Act.
It will be able to disseminate information to the public in respect of legal services, including the cost of services, and contribute to policy-making by informing the minister of developments in the provision of legal services.
Accountability justifies reasonable checks to ensure that regulatory bodies do not become runaway or wasteful. The Bill requires the LSRA to submit its strategic plan to the minister for approval and the approved plan must be laid before both houses of the Oireachtas; to present its annual report to the minister and an Oireachtas committee and to present audited accounts to the minister and the comptroller and auditor general, which must also be laid before both houses. The chief executive may be requested to answer to Oireachtas committees on certain issues.
Lawyers will continue to be free to exercise their independent professional judgment in the service of their clients, free from government control or pressure. Indeed, a record of “professional independence” is a criterion for promotion to the status of senior counsel which will be open to solicitors and barristers.
Lawyers will, as they should, continue to be free to represent clients seeking redress in the courts against the State and others. Any suggestion that they will become answerable for so doing to the government of the day or to me as Minister for Justice is completely wrong. Just as the appointment of members of the judiciary by government has not affected judicial independence, appointment by the government of the LSRA with a statutory remit of independence, will not affect its operational independence.
Any interaction between the minister and the new independent regulatory regime under the Bill is intended to serve the public interest and democratic accountability.
By any reasonable test the LSRA will be independent. Crucially, it may not be sanctioned because of decisions displeasing to Government. It will be able to function with fearless objectivity. Self-regulation of the legal profession has not benefited consumers, the profession, or the public interest. The paradigm shift is to independent regulation, enhanced governance and transparency. Developed in the light of successive reports going back to the 1980s, this policy is clearly set out in the Programme for National Recovery and our EU-IMF undertakings.
Alan Shatter is Minister for Justice and Defence