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TDs will tonight debate the second stage of the Legal Services Regulation Bill, a set of reforms for the legal system introduced by justice minister Alan Shatter.
Here, the director general of the Law Society argues that reforms are necessary, but the bill must be amended – as it stands, it would undermine key principles of democracy.
IRISH READERS OF the Wall Street Journal may have been surprised recently to see reference, in that globally influential publication, to concerns about the future independence of the legal profession in Ireland.
The issue of 5 January 2012 contained a report on regulatory reforms that “threaten one of the core principles of the legal profession: regulation independent of the executive branch of the state”.
The report was of a letter written by the President of the American Bar Association and the President of the CCBE to the Managing Director of the International Monetary Fund, Christine Lagarde. Ms Lagarde, who is a former chairman of global law firm Baker & McKenzie, was asked to pass on their concerns within the IMF, and to her counterparts in the European Commission and the European Central Bank.
In a separate letter, Marcella Prunbauer-Glaser, President of the CCBE (which represents more than one million lawyers in Europe through its member bars and law societies in 42 countries) expressed her concerns on 11 January to both Taoiseach Enda Kenny and Minister for Justice Alan Shatter. In the final sentence of her three-page letter, she said:
“At present, the CCBE considers the bill to constitute a grave threat to the independence of the legal professions in Ireland and, consequently, a threat to the rule of law.”
Ms Prunbauer-Glaser was one of the very distinguished group of national and international speakers who addressed an audience of 600 in the Dublin Convention Centre on 5 December 2011 on the need to defend the profession’s independence.
Numerous reports have now appeared in international legal journals about what the Gazette of the Law Society of England and Wales has described as “growing international concerns” on this issue.
“The bill is not perfect,” Minister Alan Shatter acknowledged when he met with representatives of the Law Society at his office on 16 January 2012. He confirmed that he intends to bring forward amendments at committee stage so that “certain aspects might be improved”.
However, he did not specify what precise amendments he intends to bring forward. Until the bill’s committee stage is concluded, therefore, the final form of the Legal Services Regulation Bill 2011 hangs in the balance.
In his speech at the second-stage reading of the bill on 16 December 2011, the minister denied that there was any ‘hidden agenda’ with regard to ministerial functions or appointments under the bill. He said he was “happy to invite any constructive suggestions that might enhance the bill’s regulatory framework in this regard within the Government’s stated policy objective of independent regulation”.
At the two-hour meeting with the minister and his officials, the Law Society was represented by the president Donald Binchy, myself, and members of the Society’s task force on the bill: Michael Quinlan, Kevin O’Higgins, Mary Keane (deputy director general) and John Elliot (director of regulation).
Beginning with a welcome for the many elements in the bill that the Society supports (45 of the bill’s 123 sections present no obvious problems), the Society then set out its areas of concern, beginning with its chief concern – that the bill, as published, represents a real and dangerous threat to the continued existence of an independent legal profession in Ireland, with incalculable consequences for such fundamental democratic principles as the separation of powers, access to justice and the rule of law.
Whether intentionally or not, in the Society’s view, the bill as published contains a blueprint for Government control of the legal profession. To be a truly independent regulator, the proposed new authority must be made free of the potential for control by the Government, in addition to being free of the potential for control by the profession.
The Society also raised its concerns about the absence of any proper controls on the potential cost of the proposed new regulator. This was a major and legitimate concern for a profession that is suffering severe economic distress due to the depth of the continuing recession. It was proposed that the cost of the proposed new regulatory model should be limited, at most, to the cost of the current model. Measures to control costs should be written into the legislation.
The bill appeared to envisage that the solicitors’ profession would retain the responsibility to make contributions to, and payments out of, the Compensation Fund. The fund was being left with the Society for these two purposes. However, it seemed that the power to police compliance with the Solicitors’ Accounts Regulations – thereby controlling the risks to the fund – was to be transferred to the new regulator. It would be better policy if the responsibility to police the fund were also left with the Society, where there is the expertise and the incentive to do it well, in the interest of both the profession and the public.
The Society also expressed concern that some of the fair procedures in relation to complaints, which are built into the current system, appear to have been omitted from the bill. Also, the legal difference between misconduct and inadequate professional services needs to be maintained.
The Society made a great many points about numerous other aspects of the bill. The minister asked that these, and all other suggested amendments, be communicated to him in writing, which the Society is in the process of doing, and he promised to give them all due consideration.
One major omission, in the Society’s view – from the bill’s section on structures – was any reference to limited liability partnerships or to limited companies. The Society, as so often previously, urged legislation to permit solicitors’ firms in Ireland to practise through these 21st century business models as they do in most other common law jurisdictions.
Prior to a dinner in Mayo on 3 December 2011, Taoiseach Enda Kenny invited Council member Kevin O’Higgins and myself to brief him on the Society’s concerns in relation to the bill.
He assured them privately, and then said publicly, to 100 or more guests at the dinner:
“This bill will not be bulldozed through”; and “The only decision taken by the Government in relation to this bill was to publish it.”
In a preliminary report on the bill, the Irish Council for Civil Liberties says:
“As it is currently drafted, the Legal Services Regulation Bill creates the Authority as a creature of the minister/ Government and is inimical to the rule of law.”
It concludes that: “the appointment of personnel to the Legal Services Regulatory Authority should be carried out by an independent body”.
The Law Society believes that significant amendments are necessary in order to ensure the future of an independent legal profession in Ireland, and with this to safeguard essential principles of democracy.
Ken Murphy is the Director General of the Law Society.
This is the self preservation society!
No, it’s about ensuring that the legal system’s integrity is maintained for the protection of all of us as citizens. However, it is easy to misunderstand this since it is deliberately driven by the populist idea that if the state can’t control the legal providers, they will be allowed to run amuck. Don’t be a monkey – think for yourself!
It is no such thing – this Bill, like the Referendum on Judges Pay before it – is an extremely dangerous document focusing on centering power firmly in Mr. Shatters hands.
As usual however, the electorate love it because they perceive it as “hitting the fat cats”.
Disasterous.
I’m afraid Ciaro is right. This is a rearguard action by the legal professions to preserve their existing entitlements. Their is much wrong with our system of justice, not least the costs that it generates and the huge pecuniary benefit it bestows on those at the top of these professions. Reform is overdue. Complaints from the legal fraternity that this will lead to the collapse of the law or lead us into a totalitarian state are preposterous. The extremism of such claims are in inverse proportion to the actual impact of these reforms. If anything they do not go far enough.
How can you possibly know what the future ramifications of giving the Minister control of the legal profession will be?
Do you not think it would be safer to have any supervisory body independent of government?
The Politicans and Ministers of this country have proven themselves again and again and again to be unworthy of public trust. The tribunals have been caused by their corruption. The country has been destroyed as a result of their incompetence. The Church was able to abuse and batter the lives of our youth thanks to Governments arrogance and elitism.
And the electorates view on all of this? Give the government MORE power. This time over the Law.
Its a scary world we live in. No wonder they dont want a referendum when the Public can be relied upon to get it wrong so completely and so consistently.
the govt at present have control of the legal profession. who appoints the barristers , judges, attorney general etc. it is very hard to believe they are independant considering their sponsors of their lucrative posts.
Judges are appointed by the Government which is very very bad
But then the People went and gave the government MORE power over the Judges.
The government appoints the AG – because its a government position.
The government dont appoint Barristers or Solicitors. They hire them to represent them.
Entitlements indeed. You could find a barrister to do work for a low rate if you wanted. However, you allow your solicitor to choose on your behalf and then usually don’t even pay the barrister in the end.
It should be more like the USA and make people pay retainers and much more than you pay here for legal services. Would be a wakeup call for you then.
The Legal profession have proved incapable of regulating their closed shop.
Really? Based on what?
There are ways of bringing effective regulation to the legal profession without governmental control. The concern is that the Bill as published gives control of the regulating body to the Minister of Justice who is known to be anti- barrister and pro- solicitor. A previous incumbent, Michael McDowell would have had the reverse outlook.
The solution has to be an appointments process overseen by a constitutionally empowered select committee of the Dail.
We are entering into a very worrying time for our democratic process with this Government. One Minister holds the portfolios for Defense and Justice. In his hands lay the appointments of Judges, Senior Garda Officers, Prison Service Management and Senior Defence Forces Officers. And now he wants control of the legal profession. We allow such concentration of power over the rule of law at our peril
Totally agree. This would be very dangerous and a big jump away from democracy.
And if that was what the professional bodies were seeking I’d be in there with them, but unfortunately it’s not. The professional bodies are still banging the drum for self-serving regulation. It’s only through gritted teeth that that are prepared to wear “independent” regulation.
But what does that matter Desmond?
If you want a change thats fine. But surely you must campaign for independent regulation. Siding with the government on this issue is ludicrous.
The professions may be agreeing to independent regulation “through gritted teeth” – but at least theyre willing to meet the Minister halfway at a point which is best for everybody.
Shatter wants it all HIS way – no compromise whatsoever. And the result? Its bad for the State, its bad for government, its very bad for the professions but most of all it is APPALLING for the People.
If one thing is certain in Ireland, self regulation is not regulation. The Irish legal profession charges excessive fees and has very little accountability of its members in comparison to the price of similar services in other developed nations. In Ireland it is virtually unheard of for one solicitor to act for a client with a legitimate claim against another, in other jurisdictions legitimate claims for malpratise are taken all the time, why does that not happen in Ireland? The Bar acts to ensure an ease of access to socially and politically connected entrants at the expense of an equal opportunity to compete on merit for those without such connections. An independent study examining all of this ought to be done, as any practicing barrister or solicitor (you will note it is mostly barristers opposing this) can not make objective assertions. The Law Society failed to prevent fraud and dishonest on a significant scale being perpetrated by their members on the citizens of this country. Self regulation is a contradiction in terms. This is not just an issue for the profession every citizen pays a price when they live in a country with a deliberately protected and manipulated market for legal services, without sufficient accountability, whether they seek to acquire such services for their own representation or in the higher fees they must pay for Insurance and Utilities as a result of the higher fees paid by the providers of same. Apart from the economic argument, any person defending the retention of practices lavished with the cultural and symbolism of a colonial past, utterly irrelevant to the supply of professional services in a 21st Century Republic can only really be acting on self interest alone. How can anyone defend the use of “My Lordship” in a court of law in Ireland today, apart from amusement it is a term in stark contrast to the alleged Ideals of this State and again has no place in the sophisticated resolution of criminal charges or civil disputes in a modern democracy. One independently (that means no interference from govt too) regulated, transparent and accountable profession competing in an open and unprotected market for legal services is a requisite for the effecient vindication of citizens rights in a modern democracy. The Law Society have had to be always dragged into reform against their own intentions and in contrast to the kind of codswallop asserted by their publicity machine on full display here. Sooner or later the indefensible reality of the market manipulation, lack of regulation and non market based fee structure will be exposed by fact and the non disclosed use of a a disproportionate political influence to defend such organised largess for a select few at the expense of the citizens of this state and the legitimate ambitions of new entrants to the profession will finally be ended, but on this occasion there should be no surprises if the bill doesn’t make it. On the issue of the oversight alone, as is the case in many other civilised democracies, it would be very easy for the Minister to establish independent regulation clearly protected from a continuing influence of the office of the Minister, if that really is the only concern of the legal profession.
I wont read that nonsense because frankly, without paragraphs and sensible writing, its unreadable.
Suffice to say Economicopoly – your views are grossely out of touch.
The choice is not between self-regulation v control by this Minister for Justice, but effective independent regulation (like the medical profession) v a potential future Burke, Haughey, or Doherty. In any power grab by government, it is best to think of the worst case scenario.
The Independence of the Judiciary and the legal profession which serves under it is vital to a functioning democracy, but such a requirement is no excuse for blatant protectionism and resistance to real accountability and regulation.
Protectionism?! You must not know any barristers down for less than 5-7 years. All broke, earning nowhere near minimum wage and not entitled to the dole. Nobody seems to care about that though, least of all the bar council.
I can understand that The law Society would be concerned at the introduction of regulatory reform and that they are entitled to speak on behalf of their members in relation to it’s likely effects.
What I don’t agree with is whenever reforms like these are proposed we get the usual argument about how the independence of the legal profession from government influence might be affected to the detriment of society at large. The recent reports of the appointment of legal practitioners with government party political affiliations to the judiciary indicates that such independence does not exist.The absence of this kind of independence is of more concern to the citizen of the state as the decisions of the judiciary have a more direct bearing.
The actions of Judge Hugh O’Flaherty and Judge Cyril Kelly in the Phillip Sheedy case in 1996 was a case in point where the sleazy trail of financial ‘digouts’ to Bertie Ahern by Councillor, builder and member of the ‘Drumcondra Mafia Joe Burke who had employed Sheedy as an architect resulted in the political influence being used to ensure the early release of Sheedy.
It is this lack of independence in the legal profession that needs to be addressed in the interest of the citizen and any arguments made by a The Law society about the protection of independence are irrelevant when this kind of thing can reoccur.
John why must you ALWAYS do this?
This Bill is about the regulation of practising legal practitioners. It is NOT about the appointment of Judges.
How can you expect to be taken seriously when all you do is bang on about the same thing again and again and again?
The method of appointing Judges is appalling in this country. Yet the country voted to give the Government MORE power to limit their independence in the last referendum.
None of which has ANY bearing on this whatsoever.
This is yet another power grab by Shatter to control the profession in the way he sees fit and ultimately eliminate the Bar.
The government should not be in control of legal practitioners regulation – it should be independent. That is what this is about so stick with that.
Hello Felix.
Thought you would catch up with me on this one!
Felix, I have no problem with Ken Murphy representing the interests of Law Society members – that’s his job. I accepted that at the outset of my comment.
What irks me is that each time the Law Society or the Bar Council wish to represent the interests of members the old ‘independence’ argument is trotted out. The above article is full of it and it is not out of context for me to throw my saddle across the same jaded old beast. I saw the same old nag being brushed down and reshod for the last referendum in defense of the protection of judges pay for pitys sake!
The issue of independence in the practice and application of the law is a very important matter in the interest of the private citizen and not just a handy old reliable to be used by representative bodies to their own ends.
Along with the example of the Sheedy case above I will also add that the propensity of judges to imprison people for minor fines clogging up an already disastrous prison system is indicative of the policy of lower court Judges to protect the interest of State institutions in the collection of revenue. After all who appoints them and who legislates on their pay?
First of all I didnt mention Ken Murphy.
You, yet again, had a go at the independence of the judiciary. That is something which is totally, utterly and completely irrelevant to what is going on here.
Theres another guy commenting around here who, no matter the content of the article, continues to spew nonsense about “opinions being used in law” and how its supposedly illegal. No matter the content – thats what he comes out with. It makes him seem like a total crackpot. Which, in fairness he is.
The independence of the Judges or lack thereof is not relevant to the comments made by Murphy or the Bar Council vis a vis the new legislation. That legislation deals with practitioners and practice. Not the Judges.
Independence here is a very serious concern – as it was with the Judges pay – and for you to so bligthly dismiss it is just outrageous.
I have absolutely no problem with the Solicitors/Barristers profession being stripped apart and changed. None whatever. I have a very serious problem with power of them residing in the Minister. Its not a jaded nag its a very very serious issue. Separation of Powers is vital for any State that wants to remain democratic and this blurs those lines.
There is no reason, none whatever, for the Minister to have that kind of influence.
Its entirely hypocritical for you to constantly whinge about the lack of independence in the Judicial appointments and then condemn the legal practitioners for asking for MORE independence. Totally absurd.
Judges should not be appointed by the Government – but they are and they wont change it.
Judges remuneration should not be controlled by the Government – but now it is and it seems you voted for it to be.
Legal Practitioners should not be suject to regulation by the Government – but here you are condemning the practitioners for asking for independent regulation.
Just which side of the line on independence do you stand on or is it simple “whatever the lawyers say I will oppose regardless of its content”?
And WHAT relevance does putting people in prison for failure to pay fines have to do with anything (another issue you constantly harp on about regardless of relevance) and WHAT are Judges supposed to do when people convicted FAIL/REFUSE to pay fines? Just let them off?
Felix. The damn article IS written by Ken Murphy! You can’t criticize me for irrelevance on the basis of my reference to the author of the article we’re discussing. If you’re a legal practitioner I’d love to be having you the next to get up.
You also criticize me for repetition of my views. The repetition is not mine, the representative bodies of the legal professions Repeatedly make the case that any proposal for reform (justified or not) will affect the matter of some illusion of independence in the application of the law. There is no independence, either to be enhanced or diminished by this legislation, or indeed the last referendum, or indeed any legislation that this government or any government will ever introduce and it is disingenuous for that argument to be repeatedly made by the likes of the Law Society .
I don’t think you read my comments very thoroughly.
No John – just no. This is where you lose all credibility or any semblance of being an informed citizen with genuine concerns.
First of all – lets get the little issue of relevance out of the way. The article may be about Ken Murphy but your original post (to which I objected) was not. It was, as usual, on the subject of the independence of the judiciary. It was this that my reply to you focused on and this which I criticised you for. I didnt mention Ken Murphy. You then specifially addressed me and said “I have no problem with Ken Murphy….”
John I never alleged that you do have a problem with Ken Murphy. My reply was entirely focused on your Judiciary obsession. In the context of said obsession Ken Murphy is not relevant. Indeed the basis for my entire criticism of you is that Murphy and the judiciary are two distinct entities and neither one relevant to the other.
But as to the substance…
This is where you totally lose it John. Entirely. There is no substance to or justification for the absurd argument that the ENTIRE legal profession is not independent and the ENTIRE Judiciary is not independent. Its an indefensible ludicrous distortion of fact.
Your whole argument is based on the premise that neither are independent:
“How can they say that this legislation or that referendum will threaten their independence? Theyre not independent now!”
That is your argument as I understand it and its complete rubbish.
The Bar are entirely independent as are the Law Society. THAT is the basis for their objections. Allowing the Minister more control over those bodies is not democratically safe. It is a point that is being raised all over the world.
Your strange fixation with the judiciary is completely flawed. I have a serious problem with the appointment with Judges in this country, not because I have concerns over their independence once they take office, but because I do abhor nepotism. The best people are not given the jobs – Fine Gael people are given the jobs. THAT is a disgrace to judicial appointment. Party politics should be irrelevant – qualification for the post, MERIT should be the only factor in appointing a Judge. THAT is my problem with the appointments. I have few concerns over their independence once they are appointed however.
YOU on the other hand are suggesting that no irish Judge, anywhere, is independent from government. That is frankly laughable – athough it may not remain so now that the electorate have so foolishly given the Minister the power to control their pay.
It is NOT disingenuous for both the Law Society and Bar Council to raise legitimate concerns about the independence of the legal profession when legislation places the power to discipline practitioners in the hands of a politician who is above reproach.
It is NOT disingenuous for the judiciary, legal professions and former attorneys general to raise legitimate concerns about the independence of the judiciary when a Minister seeks to centralise the power to effect their remuneration in his own office.
And I repeat – you have once again bashed the Judiciary for imprisoning people for a failure to pay fines, despite its total utter irrelevance to the issue at hand, without showing any understanding of why this is done in the first place or suggesting a single meaningful and above all practical alternative to the policy. I asked you – what is a Judge supposed to do when a convicted person refuses to pay a fine? Have you any suggestions at all?
Those are fair points, Peter, and are worth considering but I don’t hear the professions making them. Indeed, I’m sure that if the minister made such proposals the next line of attack from the professions would be “Do you want politicians (we all know about them) choosing your solicitors and barristers for you?”
The professional bodies lack credibility in their opposition to these reform proposals. They have sought to defend indefensible and anti-competitive practices for so long they’ve run out of credit. If the prof bodies really are interested in creating the conditions for an independent, accessible and cost-effective system of legal representation in this country they have precious little time left to make that case.
The legal profession, like the politicans, have made the bed they now must lie in.
This is a dangerous and undemocratic piece of legislation.
But the legal orofession only have the,selves to blame – they did nothing to address the perception of themselves in the public, nothing to reform outdated practices and nothing to foster a modern and competitve legal system.
And now the choice is out of their hands.
The Bar will suffer for this massively as Shatter is so fiercely anti-law library. But the Bar Council are to blame for that.
Felix.
The Bar Council/Law Library indeed only have themselves to blame and it’s because of it’s incestuous relationship with politics that has pertained since the establishment of the state. It kinda reminds me of some 18th Century cartoon of a bewigged whore sitting on the knee of some drunken lecherous politician tickling his chin in the hopes of another drink!
When the route to grandeur – either by judicial appointment or by state commissions – resides in the murky depths of political ear licking the interests of ordinary, independent but talented young barristers will be ignored and the profession will of course be the subject of the suspicions of the public.
No John the Bar Council have only themselves to blame because they did nothing to protect their profession. They thought only of themselves – individually. Which is fine when youre a self-employed, self financed practitioner trying to make a living.
If you are elected to the Bar Council though you then undertake to protect the profession as a whole. Rather than advance it and ensure it was and is a modern, efficient, cost effective and transparent service they stuck to the way things have always been done.
Public perception is nake hatred. They have no support, no moral authority and little or no idea what to do.
Now there is an enemy in power. One who hates the Bar and would greatly prefer if it was gone. And there is nothing the Bar can do about it. THAT is why the Bar council is to blame for its current predicament.
i also agree desmond i think the day these guys policed themselves is over ask my brother if i am a liar , i have heard horror stories the problems some people have had with the legal profession i cant mention them here because of legal issues.there is a website if people want to have a look at the inside track http://WWW.CROOKED LAWYERS.COM or VICTIMS AGAINST THE LEGAL PROFESSION
Thankfully that website does not exist. I would urge anyone who wishes to learn what actually goes on in courtrooms to attend court.
Reading thos ewebsites is a total waste of time.
Felix.
I agree on your comment about the website, but as a regular contributor to courtroom antics in my day I doubt if attendance that will do much to assure anyone of the honour of the legal system.
It will at least inform people as to what goes on as opposed to commenting on what they presume to go on.
Will the Journal publish an article from anyone not defending the status quo in the Legal Profession today?
Yes I say they would why not write it and see if they do
In regards to the above both ideas do not sit right with me self regulation does not work but then again neither does government regulation as we all can see
maybe a bit of both would be better
Im sorry but where is the evidence that self regulation does not work?
The reason it is so vital to have independent regulation in this particular instance is not because self-regulation does not work its because the public believes it doesnt work. The difference between perception and reality.
No one anywhere has produced any stats/facts to justify the position that the Bar/Solicitors have been ignoring large disciplinary problems.
I have no problem with independent regulation of the bodies. I have a MASSIVE problem with allowing the Minister for Justice (particulary and most especially THIS Minister for Justice) to have control of the legal bodies.
But seriously Garreth – what basis have you for suggesting it does not work?
Shatter, did Anonymous(although I don’t agree with their ways, I agree with the cause) not tell you and your buddy sherlock to get lost twice already? what are you that little kid that needs everything three times? Seriously its people like him who make me call for Swiss styled direct democracy so often here’s how it works http://www.youtube.com/watch?v=y5W45Va0cPE&feature=pyv
have your say