CHECK AGAINST DELIVERY

Opening Statement

by

David Stanton TD

 

Minister of State at the Department of Justice and Equality

with special responsibility for

Equality, Immigration, and Integration

 

Thursday 21st July 2016

 

Dáil Motion: Approval of Appointment of Members of the Legal Services Regulatory Authority

That Dáil Éireann, noting that the Government agreed on 13 July 2016 to propose, for the approval of Dáil Éireann, the appointment of the persons concerned to be members of the Legal Services Regulatory Authority, and pursuant to section 9 of the Legal Services Regulation Act, 2015, approves the appointment, with effect from the establishment day to be appointed by the Minister for Justice and Equality in accordance with section 7 of that Act, by the Government of the following persons to be members of the Legal Services Regulatory Authority, six of whom shall hold office for a period not exceeding four years from the date of his or her appointment as the Government shall determine and five of whom shall hold office for a period of three years from the date of their appointment in accordance with section 10(2) of that Act: Angela Black, Don Thornhill, Deirdre McHugh, Gerry Whyte, Stephen Fitzpatrick, Dermot Jewell, David Barniville, Joan Crawford, Nicholas Kearns , Geraldine Clarke and James MacGuill.

______________________________________

Leas Ceann Comhairle,

I move the motion.

I am speaking on behalf of the Tánaiste and Minister for Justice and Equality who regrets that she cannot be present due to other official commitments.

In our consideration of the motion before us today, we are preparing the way for the coming into operation of the new Legal Services Regulatory Authority. This is the new body charged with the oversight of legal practitioners, legal services and a more transparent legal costs regime in the State as provided under the Legal Services Regulation Act 2015.

At its meeting of 13th July 2016, the Government agreed to propose, for consideration under today’s motion, the appointment of named persons to be members of the new Authority. Though the Government is the appointing authority for the members of the new Regulatory Authority under the Act, these appointments must first be approved by resolutions of both Dáil and Seanad Éireann. I am today, therefore, seeking the approval of this House for those people being nominated under this motion to be appointed by the Government as the members of the new Authority. The motion before you today therefore follows the similarly required motion that was passed by the Seanad earlier this week, that is to say on 19th July.

The persons named under today’s motion are the nominees of the nominating bodies which are set out by name in the Act, indeed this is the sole process whereby these names have been selected. The independence of the statutory nominating process set out in this reforming legislation will speak for itself as I set it out before you.

 

The Tánaiste has, earlier this week, signed a Commencement Order in respect of certain provisions of Part 1 and Part 2 of the 2015 Legal Services Regulation Act. This has been done as necessary to support the start-up of the new Legal Services Regulatory Authority including under the approval being sought from this House under today’s motion.

Further parts of the Legal Services Regulation Act will be commenced on a phased basis in the autumn as the new Authority gets up and running and ready to take over key areas such as inspections, public complaints and the new legal business models. The sequencing of these further commencements is being planned very carefully. Great care will have to be taken to ensure that the various commencements are correctly executed, including in relation to each other, and that the replacement of existing regulatory regimes leaves no unintended gaps.

As Deputies will appreciate, the establishment of this new Regulatory Authority and the assumption by it of regulatory oversight of all legal practitioners in the State, including the handling of complaints against them, and the Authority’s responsibility to oversee the operation and opening up of the legal services market in Ireland, are historical structural reforms of the regulatory architecture in these areas.

Under today’s motion it is also being proposed that the relevant appointments to the new Legal Services Regulatory Authority, once approved, will be with effect from the Authority’s establishment day. Under section 7 of the Legal Services Regulation Act the Tánaiste will shortly, therefore, be making the required order to set 1st October 2016 as the establishment day of the Legal Services Regulatory Authority.

The setting of 1st October 2016 as “establishment day” will give momentum to the establishment and coming into operation of the new Legal Services Regulatory Authority and will trigger a number of specific measures under the Act. It will provide greater focus and depth to the process of modernisation and change that the new regulatory regime is intended to deliver.

Levers of Reform

Rather than considering the nominees for approval under today’s motion for appointment to the new Regulatory Authority in isolation, it is worth recalling the key levers of reform which are contained in the 2015 Act and will come under their remit. These are -

· a new and independent, Legal Services Regulatory Authority with responsibility for oversight of both solicitors and barristers.

 

· an independent complaints system dealing with legal professional misconduct. This will provide a first port-of-call for the public in making complaints independent of the legal professional bodies. There will also be a new and independent Legal Practitioners’ Disciplinary Tribunal to adjudicate on serious misconduct in relation to both solicitors and barristers.

 

.an enhanced legal costs regime bolstered by a set of Legal Costs Principles and which places more extensive obligations on both solicitors and barristers to keep clients informed about the details of their legal costs. Separately, the new Office of the Legal Costs Adjudicator will assume the role of the existing Office of the Taxing-Master and keep a public register of its legal costs determinations.

 

· a framework for new legal business models. These new business structures will include public consultation and the early introduction of “Legal Partnerships” between barristers and solicitors or between barristers themselves. Provision is also made for the introduction of “Limited Liability Partnerships”. Lawyers will now, as a matter of law, be able to avail of the new legal business models and to operate them freely. The more traditional forms of legal practice will, of course, remain available to practitioners but now as a matter of greater choice. A pathway is also provided under the 2015 Act for the introduction, on foot of formal research and public consultations, of “Multi-Disciplinary Practices” whereby services can be provided at more competitive cost by legal and non-legal service providers together.

 

The new Act also opens up other aspects of legal practice. For example, it allows employed or corporate lawyers to act in proceedings on behalf of their employers and for direct access to barristers on non-contentious business. It also allows barristers sharing a premises to advertise themselves as such – these had all been prevented by existing codes.

 

The aim of opening up these areas is that there will be greater choice in how legal services may be provided and in how they can be accessed by consumers while also on a more competitive basis for all concerned.

Nominees for Approval

To underpin the independence of the new Legal Services Regulatory Authority, the members of the Authority are nominated to the Government by ten nominating bodies specified in section 9 of the 2015 Act. These bodies have been purposely set in the legislation to represent a balance between the interests of lawyers and those of consumers and other stakeholders in our regulation of legal services and of legal costs.

Membership is also staggered by the drawing of lots at the first meeting of the Authority as a result of which there will be some four-year members and some three-year members. This ensures the continuity of expertise and functions of the new Regulatory Authority.

The Authority is to consist of eleven members of whom a majority, that is to say 6 members, including the Chairperson, are to be lay persons nominated by the six prescribed non-legal bodies. The remaining 5 members are nominated by the prescribed legal bodies.

Each prescribed body, with the exception of the Law Society which nominates two members, has nominated one person for appointment as members of the new Authority. In the case of all of the bodies except the Law Society, each body was also required to nominate a substitute nominee of the opposite gender to their primary nominee in order to facilitate gender balance - the authority must have no fewer than 4 members who are women and no fewer than 4 members who are men. The Law Society has two nominees reflecting the fact that solicitors outnumber barristers being regulated under the 2015 Act by about five to one – there are around 10,000 practising solicitors as compared to around 2,000 practising barristers.

The key requirement of the Legal Services Regulation Act is that the nominees must have knowledge and expertise in specified areas – for example, in the provision of legal services, competition; legal training and education, dealing with complaints against members of regulated professions, the needs of consumers of legal services, business and commercial matters and professional standards regulation.

The nominees and their nominating bodies are:

· Angela Black - The Citizens Information Board

· Don Thornhill – the Higher Education Authority

· Deirdre McHugh - the Competition and Consumer Protection Commission

· Gerry Whyte - the Irish Human Rights and Equality Commission

· Stephen Fitzpatrick - the Institute of Legal Costs Accountants

· Dermot Jewell - the Consumers Association of Ireland

· David Barniville - the Bar Council

· Joan Crawford - the Legal Aid Board

· Nicholas Kearns - the Honorable Society of King’s Inns

· Geraldine Clarke and James MacGuill - the Law Society

The Government has also agreed at its meeting of 13th July 2016 to appoint one of the nominees under today’s motion, Dr Don Thornhill, to be Chairperson of the new Authority. The power is given to the Government under the 2015 Act to make that appointment but this is, of course, subject to the candidate having been first approved as a member of the Authority by a motion of both Houses.

Dr. Thornhill is a respected public figure who has successfully held several public leadership roles spanning different sectors. I am confident that he will bring much experience, knowledge and clout to the role of Chair. He has also led the National Competitiveness Council in its campaign to cut legal costs for consumers and enterprise. With these qualities I think you will agree that he is well placed to provide the inaugural Authority with the kind of direction and vision needed to be a successful and highly regarded independent regulator.

The nomination and appointment procedures for the Regulatory Authority, which include seeking the necessary approval under today’s motion, are legislatively robust. This is no accident. It is a model that was introduced by Government amendment in direct response to independence concerns that were raised in 2011 on initial publication of the Legal Services Regulation Bill which had only used standard public appointment provisions. Something more was required in this instance. I am delighted that we have now been able to avail of a nominating process in the 2015 Act which draws from a group of prescribed nominating bodies representing the balance of stakeholders concerned. The nominating bodies have been able to put forward, as named for approval under today’s motion, a competent team who can make a real contribution in real time to the work of the new Legal Services Regulatory Authority.

I commend the motion to the House.