Legal Services Ombudsman Bill 2008 - Committee and Remaining Stages - 3rd March 2009

Legal Services Ombudsman Bill 2008 - Committee and Remaining Stages - 3rd March 2009.

SECTION 6.
Question proposed: “That section 6 stand part of the Bill.”
Senator David Norris: I wish to deal with a point I raised previously about this type of legislation, that is, definitions. Subsection (6) states: “A person ceases to hold the office of Legal Services Ombudsman when the person — (a) is nominated as a member of Seanad Éireann,”. There is confusion in this provision. The university Senators, for example, must be nominated by ten graduates in good standing. The word “nominate” is used in that context, but it would be more accurate and clear if the provision used the word “appointed”. When I teased this matter out on a previous occasion, I was told that what was meant was not the process of nomination to stand for election to the Seanad but what is effectively appointment by the Taoiseach, under his right to appoint 11 Members of the House. The provision would be much clearer if it stated “appointed” as a Member of Seanad Éireann.

Minister of State at the Department of Justice, Equality and Law Reform (Deputy Barry Andrews): Senator Norris referred to the terminology used in section 6, specifically subsection (6) which sets out the circumstances in which a person ceases to hold the office of legal services ombudsman. These include when the person is nominated as a member of Seanad Éireann or is elected as a Member of either House of the Oireachtas or of the European Parliament. This terminology is used to deal with circumstances in which the person ceases to hold the position because he or she is nominated or elected to one of the Houses, whereas section 5 deals with those people who are not eligible to be appointed legal services ombudsman in the first instance. A distinction must be drawn in this context.
Senators will note that in section 5(3)(a) reference is only——

Senator David Norris: If I may ask the Minister of State——

An Leas-Chathaoirleach: Please allow the Minister of State to finish.

Deputy Barry Andrews: ——made to a Member of either House of the Oireachtas.
On Senator Leyden’s comments, the functions of the legal services ombudsman are dealt with in section 9. The Senator’s concerns are encompassed in the first function, which is to receive and investigate complaints about the whereabouts of wills in solicitors’ offices. This issue clearly comes within the function of the ombudsman. 4 o’clock
Senator Buttimer raised the issue of the proposed six-year term of office for the ombudsman. I understand this is a standard term for this type of appointment and that other ombudsmen may be reappointed. The Government also has a right to remove the ombudsman, albeit in highly circumscribed circumstances which are not dissimilar to the provision in the Constitution on the removal of the President or a judge on the grounds of ill health or stated misbehaviour. Section 6(4) sets out the grounds on which the Government may remove the legal services ombudsman. These include, in subsection (4)(c), where “the Ombudsman’s removal from office appears to the Government to be necessary for the effective performance of the functions of the office”. This power is reserved to the Government if serious concerns can be raised about the manner in which the ombudsman is discharging his or her office. I am a supporter of local authority members’ having a role, as they do in VECs and local policing committees and as they used to in health boards. However, what is envisaged here is a clean break between this very important high level office and elected office.
The issue of unemployment among solicitors was mentioned. As a former lawyer, I am aware of the major pressures on the legal profession. One of the key functions of section 9, specifically section 9(1)(c), is “to assess the adequacy of the admission policies of the Law Society to the solicitors’ profession and of the Bar Council to the barristers’ profession”. In addition, under section 15(1) the annual report of the legal services ombudsman may specify the number of persons admitted to practice as barristers and solicitors during that year and an assessment of whether such number is consistent with the public interest. There is an argument that too many people are being admitted to some training courses where they are given an expectation of a lucrative career that may not be available, certainly in the circumstances in which we find ourselves. The role of the ombudsman in this regard is important.

Senator David Norris: I mentioned the issue of nomination, which can cover nomination to stand as a candidate. Many people are nominated for positions and not all are chosen. At the previous Seanad election in Trinity College there were about 14 candidates but only three of us were successful. Thus, 11 were not successful, although there may not have been quite as many as that. What about people who are nominated and do not accede to the position? Why should they be excluded?

Deputy Barry Andrews: I think differently about the phraseology, although I bow to the Senator’s expertise in matters of grammar. If we were talking about people who were simply nominated as candidates the Bill might have spelt that out a little more clearly, but in my view it could not be interpreted as anything other than a person who is a Member of Seanad Éireann so nominated by the Taoiseach. That is expressed in the disjunction from paragraph (b) which refers to a person elected to either House. That is simply there to indicate that the legal services ombudsman ceases to hold office if appointed, or nominated, to the Seanad. There are many words to describe what we are talking about. It is fairly clear in my view.

Senator David Norris: I will not be tedious on this matter. However, it is instructive that the Minister of State himself instinctively used the word “appointed”. I am sure if he were prosecuting a case in court he would make hay with that fact. The current wording is perhaps a coyness on the part of Government which does not like to admit too openly that it appoints people to the Seanad. Linguistically, “nominating” usually means putting a name forward. The Taoiseach actually has the power to do considerably more than that as he or she appoints Members. I will not push it but the Minister of State, by instinctively turning to the word “appointed”, makes that point effectively for us. Perhaps at some later stage in this legislation we can consider this again. From a practical point of view, I know there is not a snowball’s chance in hell of this Bill going back to the Dáil, especially on a small point such as this, so there is no point in wasting time.

Question put and agreed to.
Sections 7 and 8 agreed to.

SECTION 9.
Question proposed: “That section 9 stand part of the Bill.”
Senator David Norris: Section 9 confers a fairly general power in terms of function which is to receive and investigate complaints. That is terribly wide. The bodies named are the Bar Council and the Law Society and it is implicit in this that complaints may not be entertained if they are against the Judiciary. Can the Minister of State tell me whether this is the case? Can the legal ombudsman entertain a complaint against a member of the Judiciary? If this is not the case, why not? As a Member of the Oireachtas I have received complaints from time to time. Some of these appear to be rather excitable and not entirely well founded. There may be an element of conspiracy theory and judges are blamed because litigants did not get the judgment they wanted. However, there are occasions on which they appear to be well founded. There was a case recently which interested me, in which a mistake was clearly made by a judge which may have resulted in imprisonment. The person whose rights were transgressed in this case found they had no recourse in law for compensation. This seems to be a matter that could be addressed to the legal ombudsman. Is the Judiciary excluded from the operation of the ombudsman?

Deputy Barry Andrews: As Senator O’Donovan noted, it is intended to introduce a judicial council Bill for the purpose of making complaints against judges. Issues clearly arise in regard to separation of powers and the Constitution. It is not intended in respect of the present Bill to invest the legal services ombudsman with powers to investigate complaints against members of the Judiciary.
I cannot say that the issue of attorneys-at-law holding themselves out as lawyers is addressed in this Bill. Many barristers are dual qualified as attorneys-at-law and can legitimately advertise themselves as such, though they would not have a right of audience in court solely on that basis. Perhaps consumer protection legislation is the most appropriate vehicle for protecting consumers against what is in effect false advertising. We must guard against the possibility that a client would rely on the legal advice of an individual who is not a solicitor or barrister.
I agree with Senator Phelan that equality of access has improved dramatically. The King’s Inns formerly provided classes that begun at 4.30 p.m., which was convenient for working students. As a teacher, I was able to take advantage of these courses but now that the course is full-time it is much more difficult for people with other careers to enter the profession. I hope this will not have a negative impact in terms of equality of access to this part of the legal profession. The Bill, in later sections, deals with issues relating to clients of a barrister. Nowadays, there is direct access by professionals to barristers. In other words, other professionals such as accountants can be clients of a barrister.

Senator David Norris: I am grateful for the Minister of State’s reference to proposed legislation in regard to judges. I accept absolutely the separation of powers between the Oireachtas and the Judiciary. However, Senator O’Donovan is correct that while judges must be independent that does not mean they are infallible. I do not believe in infallibility, even for the particular gentleman who spends much of his time in the Holy City. It would be invaluable if such legislation were to come before the House.
I wish to address a couple of other matters, including the issue of attorney-at-law, of which I had not heard in the context of this profession although we have come across it in respect of other professions, in particular architects. Legislation, introduced in this House, created a necessity for professional competence in architecture, given the number of people in Dublin without the relevant qualifications purporting to be architects and the absence of any law to prevent them so doing. These people were purporting to be in a position to give professional advice.
With regard to the question of whether a civilian can ever play a useful role in the law, I am tempted to advertise my services. Some years ago an acquaintance of mine was involved in restoring an 18th century house in the centre of Dublin and while he did very well, he irritated some of his neighbours who manufactured a case against him. I received a telephone call late one night from this person who was in floods of tears. The following morning, I could tell the way the case was going that he was going to get himself into serious trouble. Having been an ardent fan not alone of Rumpole but of Perry Mason, I stood up in court and asked the justice if I could be recognised as amicus curiae. I am not sure such person was at that time known in Irish law but it certainly was known in American law. The judge, perhaps because texting or idly dreaming of the golf course, did not stop me and I managed to put the garda back in the witness box and demonstrate that the summons had been incorrectly served — it had not been served at all. I also put the witnesses back in the box and showed they were all lying and that they had conspired to give the same evidence but were too stupid to do it.
At the end of the case, the judge stated he had never come across such a situation and that I was correct, and he dismissed the case. I had earlier stated that, on the basis of the cross-examination, I wanted the case against my client dismissed. It was with immense pride that I uttered the words “my client”. I must say but for my advanced years I would have been tempted to take up a career at the Bar. The elation I experienced on winning my first and, so far, only case was enormous.
Last week it was reported that a woman who is party to the anti-abortion lobby had attempted to join, I thought rather impertinently, a case involving retained embryos. She raised the question of amicus curiae and attempted to have herself recognised. While the learned judge gave a ruling which barred this woman from being accepted as amicus curiae the nature of her ruling would leave one to believe she was giving some credence to the existence of the role of amicus curiae.
Earlier, I wondered whether the attorney-at-law issue might, perhaps, be covered by the Trades Description Act, which is a British act. A very distinguished practitioner made the point rather urgently to me that lawyers are not trade.

Senator Ivana Bacik: On a point of order, that was a joke.

Senator David Norris: A very good one. I do not despise trade: I have relatives who are in trade.
Senator David Norris: I forgot to say I am glad to see subsection 1(c) about the admission policies because I raised a matter on the Adjournment here some years ago concerning a young man, Frank McGowan, who had been disbarred from admission to the courses in the Incorporated Law Society. I am not sure whether there was subsequently a legal case but I do not think there was. It was ultimately resolved. My friend and colleague, Senator Bacik, informs me that she was very much involved in that agitation too. I am not sure whether she wants to speak on this matter. There was certainly a narrowing at that point and, through a combination of student protest and the operations of the Houses of the Oireachtas, the Law Society did reform its very narrow policies.
I would have thought that Senator O’Donovan’s acquaintance, who seems to have been very unfortunately treated, would have had recourse under civil law against the person who had fraudulently misrepresented himself or had failed him in various ways. There may be wiser counsel here.

Senator Denis O’Donovan: He lost all his dollars in the first venture and does not have the finance to pursue it.

Senator David Norris: That is regrettable.
If I was a really unscrupulous politician, which I hope I am not, I would catapult myself in on top of advice that my distinguished colleague Senator Bacik whispered to me and pretend that it was my own wisdom. She may feel entitled to put it on the record herself. I will refrain from so doing because I disdain those practices which are rampant in this House.

Senator Ivana Bacik: I was going to hold my fire for later sections but having been brought in by Senator Norris I would like to speak on this section. I must first, however, declare my interest as a member of the trade, being a barrister.

Senator David Norris: Profession.

Senator Ivana Bacik: The profession, as the Senator prefers, and a member of the trade union for the profession, that is, the Bar Council.

Senator David Norris: And a pinkie-communist-socialist.
Deputy Barry Andrews: There is a contrast between Senator O’Donovan’s concern about the attorneys and Senator Norris representing an acquaintance. If Senator Norris’s acquaintance had been taken away in chains he would have no recourse albeit the outcome on the day was fantastic. It points to the difficulty. We have strayed a bit from section 9 but it is good that the legal services ombudsman has a key role in the admissions area and will draw attention to it annually through his or her annual report.
The promotion of “awareness among members of the public of matters concerning the procedures of the Bar Council and the Law Society” is a positive thing with which I was involved. A councillor, Vincent Martin in Cavan-Monaghan, did a lot of work in that regard, demystifying the law.

Senator John Paul Phelan: He is in Monaghan.

Deputy Barry Andrews: He brings in young people, fourth and fifth years and does a great job. He is an old colleague of mine.

Senator John Paul Phelan: He is a Green.

Deputy Barry Andrews: If the legal services ombudsman can do some of that as well it is welcome.

Question put and agreed to.
Section 10 agreed to.

Senator David Norris: I compliment the Minister of State and his advisers who have played a role in this matter. Of course, I am not for a second suggesting that the Minister of State relies extensively on the advisers, but they were a good team. The Minister of State showed himself to be in full command of this Bill. I was a bit surprised when I discovered that no amendments had been tabled to the Bill because this House has a number of eminent legal people among its Members. When I mentioned this to them they said the Bill was not bad. It is good to have a Bill that apparently does not require extensive amendment, which is a tribute to its draftsmanship, even though I raised a technical point. I see the Minister of State is waving the Constitution at me. Perhaps over a friendly cup of tea at some stage during the week, I may have the benefit of his further wisdom on this matter. I compliment him in particular on answering the points effectively, especially after a fairly gruelling time last night. I was watching him on television and he behaved with considerable dignity under pressure in a difficult situation. We in this House welcome the professionalism he brings to his job.