Sir, – Claims made by visiting representatives of overseas bar associations about the unprecedented nature of the Government’s proposals for regulation of the legal profession (“Warning on legal system becoming like China’s”, Home News, December 6th) are over-stated.
It is not unprecedented for government to appoint independent regulators to oversee the legal profession. This is exactly what happens in England and Wales and in a number of Australian states, including New South Wales and Victoria. Such reforms are calculated to demonstrate that regulation of the legal profession meets the highest standards and are likely to be positive rather than negative in their impact on the capacity of Ireland to market legal services abroad.
Furthermore, it is normal for independent regulators within our system of democratic governance to be subject to a variety of mechanisms of accountability to ministers, not least to provide reassurance that the regulator will not be captured by those it is set up to regulate. Few are wholly independent in a modern state better characterised as exhibiting characteristics of interdependence. As an example, the legal profession is dependent on the state for fees across much of the criminal justice system and in respect of many civil matters too. No one argues that the taking of instructions and fees from government compromises the professional independence of lawyers.
Given the commitment of Government to establish an independent regulator in the EU/IMF aid package it might be more productive for the top brass of the legal profession to engage with the Government over the detail in the Legal Services Regulation Bill and to demonstrate its capacity to undertake the self-regulatory responsibilities envisaged. There are numerous detailed aspects of the Bill which could be debated and improved.
There is, for example, legitimate concern about powers of the Minister to dismiss members of the independent regulator where this “appears to be necessary for the effective performance of the functions of the Authority” (though similar formulations apply to other important regulators). The Bill provides that the regulator will have powers to approve the professional codes set by the Law Society and the Bar Council. The proposed power of the independent regulator to draw up its own codes may be viewed as a reserve power, to be exercised where self-regulation proves unsatisfactory. Accordingly, it would be strategic for these professional bodies to put beyond doubt their capacity for effective self-regulation.
Separation of the representative or “trade union” functions from the self-regulatory functions of the professional bodies, recommended by the Competition Authority in 2006, would be a start. – Yours, etc,