Vol. 194 Tuesday, No. 5 3 March 2009

DI´OSPO´ IREACHTAI´ PARLAIMINTE PARLIAMENTARY DEBATES

SEANAD E´ IREANN

TUAIRISC OIFIGIU´ IL—Neamhcheartaithe (OFFICIAL REPORT—Unrevised)

Tuesday, 3 March 2009.

Business of Seanad ………………………………275 Order of Business …………………………………276 Visit of Former Member ………………………………281 Order of Business (resumed)……………………………281 Legal Services Ombudsman Bill 2008: Committee and Remaining Stages ……………292 Adjournment Matters: Registration Fees ………………………………311 Home Loans …………………………………313 SEANAD E´ IREANN

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De´ Ma´irt, 3 Ma´rta 2009. Tuesday, 3 March 2009.

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Chuaigh an Cathaoirleach i gceannas ar 2.30 p.m.

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Paidir. Prayer.

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Business of Seanad. An Cathaoirleach: I have notice from Senator David Norris that, on the motion for the Adjournment of the House today, he proposes to raise the following matter:

The need for the Minister for Health and Children to review as a matter of urgency the significant increase in the registration fee for pharmacy students and the timing of the dead- line for payment of this fee.

I have also received notice from Senator Pearse Doherty of the following matter:

The need for the Minister for Health and Children to outline the progress made to date on the establishment of a satellite radiotherapy centre for the north west.

I have also received notice from Senator Fidelma Healy Eames of the following matter:

The need for the Minister for Finance to use his influence with the banks by asking them to allow hard pressed mortgage holders who entered fixed rate home loan agreements within the past two years to renegotiate new rates at current variable or fixed mortgage rates.

I have also received notice from Senator Cecilia Keaveney of the following matter:

The need for the Minister for Transport to report on his interactions with his Northern counterparts to address the international port status of Magilligan, which has placed an econ- omic noose on the Foyle ferry that is currently out for re-tender and is in need of a change of security status for this cross-Border project to thrive.

I have also received notice from Senator Eugene Regan of the following matter:

The need for the Minister for Transport to direct Iarnro´ dE´ ireann to discontinue parking charges and clamping, including a fine of \120, at weekends in Booterstown and Dalkey DART stations in the Du´ n Laoghaire area.

I regard the matters raised by Senators Norris, Doherty and Healy Eames as suitable for discussion on the Adjournment and they will be taken at the conclusion of business. I regret I have had to rule out of order the matter raised by Senator Regan as the Minister has no official responsibility in the matter. Senator Keaveney may give notice on another day of the matter she wishes to raise. 275 Order of 3 March 2009. Business

Order of Business. Senator Dan Boyle: The Order of Business is No. 1, Legal Services Ombudsman Bill 2008 — Committee and Remaining Stages.

Senator Frances Fitzgerald: Does the Deputy Leader agree that a new budget is needed that is fair and balanced and that addresses expenditure and taxation measures? Will he clarify when the new central banking commission will be established? Will it replace the Central Bank and the Financial Regulator? I assume those bodies will no longer exist under the new banking commission. Is that correct? Has the Government taken a decision on capping the salaries of bank chief executives and what is that cap? What is the Green Party’s position, and that of the Government, on protecting front-line services? I remain concerned that many of the current cutbacks are blunt in their application and hit the most vulnerable. I am speaking particularly about the recent cuts in provision for children with special needs, book grants and Travellers’ grants, and funding for schools that work with the most disadvantaged groups. Is a policy being put in place to protect front- line services?

Senator Joe O’Toole: I would appreciate if the Leader would provide for a debate not just on the point raised by Senator Fitzgerald about regulation and regulators but about regulation in general and how it works. What always seems to happen is that we run into one issue after another and the burden of difficulty always lies with the regulator. There is a classic example in this regard. I heard the Chairman of the Oireachtas Joint Committee on Economic Regulat- ory Affairs on the radio last week telling the world that when the Financial Regulator was contacted by the Government about 110% mortgages, his answer was that the market would sort that out. I knew when he was saying it that that was incorrect and that it was not possible. I double-checked it afterwards to confirm that the regulator did not have any authority to rule out 110% mortgages. I recollect, as I speak, that the Deputy Leader made a similar reference when speaking somewhere about two or three months ago and I should have corrected it at that stage. It is still incorrect no matter who says it. He did not have the authority to rule out any product. Something similar is happening today. This afternoon on the plinth the ESB will announce a reduction in the cost of energy. Why is this happening? Politicians have rightly and under- standably criticised the Commission for Energy Regulation for not allowing the ESB to reduce the price of electricity. My colleague, Senator Norris, and others have raised this. It is incompre- hensible. It brings regulation into disrepute. However, the reason is simple. Ten years ago many on these benches pointed out that the efforts by Government to control electricity prices was simply a device to increase the cost of electricity to make it more profitable and therefore more attractive to the private sector. This has succeeded beyond the Government’s wildest expectations, at a cost to Irish taxpayers——

Senator David Norris: Hear, hear.

Senator Joe O’Toole: ——who have been paying for the second most expensive electricity in Europe over the past ten years, completely unnecessarily, in order to comply with a policy option of Government to open up the market. There is something daft about that. Twenty years ago I used to argue with people in the trade union movement who were bound up in principle on issues of nationalisation and privatisation. The same thing is happening now in Government. If somebody would give a little injection of pragmatism into some of these decisions as we go along, life would become easier. I ask therefore that we consider the general issue of regulation and particularly the point made by Senator Fitzgerald. 276 Order of 3 March 2009. Business

It would be nice to offer a view, be asked for a view or be consulted about the nature of financial services regulation. Many of us questioned at length the decision to break up the regulatory system and remove the responsibility from the Governor of the Central Bank when this was done five or six years ago. It did not seem to make sense then, or at least there was no practical reason for it. Now we are changing things back. We need to consider these issues seriously and we can do so in a way that allows everybody to have his or her say and Govern- ment may be informed by it.

Senator Alex White: Senator O’Toole makes an excellent point about the need to review the level of regulation. As has been pointed out before, this House may have a peculiarly important role to play in that regard. I have a proposal to make to the Deputy Leader which we might consider in the coming weeks. It occurred to me in the context of the publication yesterday of a report entitled National Integrity Systems by a group called Transparency International. I wonder whether the Deputy Leader would agree that it would be timely for us to have a debate on the issues pointed out by this report.

Senator Fidelma Healy Eames: Hear, hear.

Senator David Norris: I agree, and I have tabled a motion on it.

An Cathaoirleach: Senator White, without interruption.

Senator Alex White: The report is not all negative and is not an attack, nor does it lack balance. It notes that progress has been made in preventing petty corruption, especially in regard to public matters, and grand corruption, which we have addressed through various tribunals. However, the report also notes with regret that what it describes as legal corruption continues to exist. It states:

While no laws may be broken, personal relationships, patronage, political favours, and political donations are believed to influence political decisions and policy to a considerable degree. The situation is compounded by a lack of transparency in political funding and lobbying.

I acknowledge that the Deputy Leader and his party previously expressed interest in this area. Given that the Government does not appear to be willing to listen to Opposition Members on much else, this might be an opportunity for us to make a positive contribution by establishing a group, perhaps in this House, to consider the report’s conclusions. The question of regulating financial institutions does not have to be addressed on a partisan basis. I accept that some may wish to go further than others in that regard but while that is a genuine political difference, it is a matter which we can productively debate in this House. All the institutions of the State, including political parties and the Houses of the Oireachtas, as well as other institutions, such as the legal profession and the Judiciary, are now subject to scrutiny. However, we should also scrutinise our press and broadcast media.

Senator David Norris: Hear, hear.

Senator Alex White: Important public bodies should not escape unscathed. It would be valu- able if we could find an opportunity to examine the media in a manner which does not seek to demonise or attack people. At a time of significant public concern and fear, there is an extra- ordinary amount of opinion but very little analysis in the media. These Houses can be accused, perhaps fairly, of a similar failing but it is readily apparent in most of our newspapers and broadcast media. 277 Order of 3 March 2009. Business

Senator Denis O’Donovan: I seek a debate on the seafood industry. This issue is an old hobby horse of mine and I was prompted to raise it again by a statement made by the chief executive of Bord Iascaigh Mhara, Jason Whooley, at a conference in Galway last week. At a time when jobs are being lost, there is considerable potential along our coastline for the pro- motion of the seafood industry. In my neck of the woods, seafood producers such Shellfish De La Mer in Castletownbere and Bantry Bay Seafoods are developing added-value products for export. Our coastline has been decimated but it can recover through the development of the seafood industry. Chile, Spain, France and Norway are streets ahead of us in this regard. The plans we developed in the early 1990s to produce 30,000 tonnes of mussels became stuck at 10,000 tonnes. There is too much regulation and scientific mismanagement of some of our seafood areas. The control of AZA toxins in mussels is rightly a major issue because food security is important. The same toxins are found in Canada but are unknown in the United States, Chile and Argentina. It is time we had a debate on this matter with one of the Ministers of State at the Department of Agriculture, Fisheries and Food, Deputy Sargent or Deputy Killeen. The seafood industry can create employment at a time when jobs are haemorrhaging left, right and centre.

Senator Joe O’Reilly: Thousands of our fellow country people are living in stranded, fugitive circumstances in America. They are not able to enter the workforce in the normal way or avail of regular employment protections and cannot return home for family funerals, weddings and other events. They live in constant fear, which is horrendous and wrong. It is clear a comprehen- sive immigration Bill will not go through the legislature in America this year and that there is no support for such legislation. I ask that the Deputy Leader arrange for a debate in this House in regard to the Government seeking a bilateral agreement between the United States and Ireland to address and regularise the situation of the undocumented Irish——

Senator Fidelma Healy Eames: Hear, hear.

Senator Joe O’Reilly: ——and to put in place a quota system as is provided for in respect of Australia, thus allowing these people to live a dignified life. Given the current economic climate of unemployment here these people no longer have the option of returning home and are in no man’s land. We have a special responsibility towards them. I ask the Deputy Leader to ensure the Government uses Ireland’s goodwill in America to negotiate a bilateral agreement, which Fine Gael has been recommending for a long time. This is the way to go. I appeal to the Deputy Leader to provide time for such a debate in this House and to bring this issue to the attention of the relevant Minister. It is especially apt, in the context of St. Patrick’s Day, that we deal with this issue now.

Senator Cecilia Keaveney: I concur with Senator White about regulation of the media, in particular in terms of media coverage last Sunday which slurred the thousands of decent people who attended the Fianna Fa´il Ard Fheis. It is wrong that people can state their opinions and not have to adhere to facts. The sooner there is more examination of what is being written, the better. I concur with Senator O’Donovan about a debate on seafood. I renew my call for the appointment of one Minister with responsibility for the marine. Currently, this matter comes within the remit of seven ministries, which makes it impossible to drive the potential of the marine sector. I ask the Deputy Leader to bring this matter to the Taoiseach’s attention. I draw attention to the decision taken by the Scottish Government to deal with its serious alcohol problem. Scotland is ranked eighth in the world in terms of alcohol consumption. The 278 Order of 3 March 2009. Business cost in this regard to its economy is \2.2 billion with 42,000 people attending emergency services for alcohol related injuries and so on. Scotland is considering the introduction of minimum pricing and the abolition of happy hours and deals such as two drinks for the price of one. It was stated in this House prior to Christmas that people were leaving this country in the droves to purchase cheaper alcohol in the North. I ask that the Deputy Leader provide time for a discussion on this issue. If Scotland, which is ranked eighth in the world in terms of alcohol consumption, is concerned then Ireland, given it is ranked second in the world, should also be concerned. This issue is raised often in this House. I ask again that time be provided for a debate on alcohol in the context of the introduction of an all-Ireland VAT rate on alcohol to deal with access and availability of cheap alcohol and that this issue be drawn to the attention of the British-Irish Council, the British Irish Interparliamentary Body and at all forthcoming North-South Ministerial Council meetings. We should also be discussing with the Scottish Par- liament how it is addressing this issue, what advice we can offer it and, what lessons we can learn from it in this regard. I believe this would be a worthwhile exercise.

Senator David Norris: I have called over recent weeks for a rolling debate on the economy and do so again today. I will not put it to a vote because that would be a waste of time. However, we have plenty of time today. There is only one item of legislation to be discussed to which no amendments have been tabled. As a result, today’s business is going to collapse embarrassingly early. I do not see any reason we cannot have a debate on the economy today. It is important we do so, in particular given the Bank of Ireland cannot now even control its petty cash of \7 million compared with the \7 billion of taxpayers’ money guzzled by the banks. I disagree with my distinguished colleague, the Senator for the Sunday Independent, Senator Harris, who fulminated last week against the Garda Sı´ocha´na for engaging in a dignified pro- test. I believe we are extremely lucky to have such a remarkable, fine and active force of men and women. I congratulate the off-duty garda who last week managed to kick a gun from the hands of a bandit. That was an act of great bravery. Members of the Garda were on the ball, despite the paucity of information they were given, when they managed to apprehend people with several million euro in the back of their car. We should be grateful to have such an excellent force. We need a debate on the economy. The Government appears to think it can cure it by licensing casinos, as if the entire financial system had not become a casino anyway. I call for this debate to examine some inconsistencies such as in the centre of Dublin where businesses are closing down one after another with sales offering 50% reductions and luxury hotels offer- ing rooms for \20 a night. This apparently is economically possible for them even though rents are increasing. Rent reviews can only go upwards. This should be addressed in legislation. There is plenty of talent in this country. Look at Eileen Gray, a young woman from Wexford who went to Paris. We hardly even heard of her here but she became one of the greatest designers of the 20th century. The so-called dragon chair went for \22 million at the recent Yves Saint Laurent auction. We certainly have talent. Visitors to the Chamber often remark that its kind of ceiling could not be done nowadays because people no longer have the talent they once had in days gone by, but I point out that young craftspeople put the entire central section of the ceiling in place when I was a new Senator. There is plenty of talent in this country if we encourage the ingenuity and foster the talent of the people.

Senator Ned O’Sullivan: I call on the Deputy Leader, Senator Dan Boyle, to arrange a debate on the functions of the taxi regulator. Many rural towns, including my home, Listowel, do not have taxis but have hackney drivers. The hackney driver holds an old and honoured position. Unlike a taxi driver, the hackney cannot cruise for work. He does not have a rank. He operates 279 Order of 3 March 2009. Business

[Senator Ned O’Sullivan.] from his home. He has to be commissioned before he undertakes a drive. In recent years at festive times, such as race meetings or Christmas, taxis from other towns and even from another county come into a town where the hackney drivers normally ply their trade to the disadvantage of the hackney drivers who cannot compete with them. The taxi regulator needs to address this anomaly. I have been using taxis quite frequently here and notice more and more of the drivers are not familiar with the city. It is quite common when one gives directions to an address close to O’Connell Bridge, the heart of the city, that some of these drivers must switch on a satellite navigation system. I was in the ridiculous situation last week of trying steer a taxi driver home and found him driving up pedestrianised Grafton Street——

Senator Joe O’Reilly: Was he caught?

Senator Jerry Buttimer: The Senator is a queer looking Miss Daisy.

Senator Fidelma Healy Eames: Lost in Kerry.

Senator Ned O’Sullivan: The unfortunate man was intercepted by an on-duty Garda.

(Interruptions).

Senator Ned O’Sullivan: I regret that on all these occasions the taxi drivers tend to be non- nationals. I have the greatest sympathy for non-nationals trying to earn a living here for them- selves and their families in a foreign land. Whether they are Irish, English, French or Greek, the taxi regulator needs to ensure all the taxi drivers in the city at least know where O’Connell Street is.

Senator Fidelma Healy Eames: It is worth supporting Senator Norris’s proposal for a rolling debate on the economy because that is where the game is at. We should spend at least between 45 minutes and an hour daily discussing the economy. The Deputy Leader should consider that. I was delighted to see AIB and Eugene Sheehy facing up to reality and putting some serious plans in place to face worst-case scenarios. I am intrigued, however, that he is willing to write off billions of euro in bad debts. Whose debts is he writing off? How many are the debts of home owners? Are these the debts of developers or commercial loans? What is 3 o’clock happening to the land banks? We need answers to these questions because land will never go out of fashion. It will always have a value, even if that value is lower. It is important for us to hear that. I would like to ask a second question about AIB. There are conflicting reports in the public domain about AIB. It has been suggested that it is due to be nationalised, but Mr. Eugene Sheehy has said that it does not need to be nationalised. Will the Deputy Leader clarify the current position in that regard? Can he make more infor- mation available on this issue? As Fine Gael’s spokesperson on education in this House, I want to say clearly that I am sick and tired of the use by the Minister for Education and Science, Deputy Batt O’Keeffe, of the policy of inclusion to justify the placement of children with special needs in mainstream classes, many of which are not ready to offer an appropriate education to them. Some of these children need to be toileted. Some of them cannot talk. Many mainstream classes are not ready for them because the Minister has not implemented the Education for Persons with Special Edu- cational Needs Act 2004, which was supposed to make sure that the special educational needs of children would be met on a statutory basis. It is time for the Minister to be brought into this House to answer these questions. He needs to explain to many parents throughout the country 280 Order of 3 March 2009. Business (Resumed) what the position will be next September with regard to their children and their schools. I have been asked to meet parents, teachers and children. The Minister, Deputy Batt O’Keeffe, boycotted this House for four months after last year’s budget and I do not want that to happen again. I ask the Deputy Leader to tell us when the Minister will come to this House and face up to this issue.

Visit of Former Member. An Cathaoirleach: I welcome Mr. Charlie McDonald to the Visitors Gallery. Mr. McDonald is a former Member and office holder of this House.

Order of Business (Resumed). Senator Terry Leyden: I ask the Deputy Leader to arrange for his party colleague, the Mini- ster for Communications, Energy and Natural Resources, Deputy Eamon Ryan, to come to the House to explain why the energy regulators, Michael G. Tutty, Tom Reeves and Dermot Nolan, are resisting the efforts of the ESB to reduce electricity prices by at least 10%. Some 16,500 people have switched to Bord Ga´is from the ESB since Bord Ga´is made its new offer. They are depriving the ESB of valuable income. We have to bear in mind that 7,800 people are employed by the ESB and 1,800 people are employed by Bord na Mo´ na, which is one of the ESB’s biggest suppliers. The movement of many electricity customers to Bord Ga´is is jeopardising many Bord na Mo´ na jobs in the midlands, as well as some jobs in the ESB. It is time for the chains to be taken off the ESB, which provides mains electricity. The ESB was responsible many years ago for rural electrification, which was known as the quiet revolution. The latest quiet revolution is the transfer of many electricity customers from the ESB to Bord Ga´is. That will cause great difficulties in the future. The ESB is responsible for the maintenance of the main lines and wires and the repair of storm damage. A great deal of infrastructure has been provided by the ESB, using taxpayers’ money and now another semi-State body is com- peting for the business on the same lines. I ask the regulator to make a decision. I understand it is about to take place, but why has it been delayed for so long? I expect more people to join the 16,500 people who have already switched to Bord Ga´is on foot of the proposed reduction. I ask the Leader to arrange for the Minister for Agriculture, Fisheries and Food or his colleague, the Minister for Communications, Energy and Natural Resources, to come to the House to comment on the recommendation made by the Department of Communications, Energy and Natural Resources to the European Commission that there should be a total ban on eel fishing in the Republic of Ireland for over 90 years. That is the proposal that is before the Commission. No such ban is proposed, however, in Northern Ireland.

Senator David Norris: I raised this matter on the Adjournment two weeks ago.

Senator Terry Leyden: It is a strange anomaly that eels will be protected south of the Border, but if they travel North they may be caught. The State is creating a new division on this island.

Senator David Norris: Hear, hear.

Senator Terry Leyden: Just as there are no grounds for depriving 170 people of their jobs, there are no grounds for preventing the export of eels from the Republic to Europe. It is strange that the Department, under the stewardship of the Minister, Deputy Eamon Ryan, is proposing a ban of 90 to 95 years. It is unheard of.

Senator David Norris: Like the Senator’s friends in the ESB. I just wanted to maintain the equilibrium. 281 Order of 3 March 2009. Business (Resumed)

Senator Jerry Buttimer: Does Senator Leyden know anybody in Government?

Senator Maurice Cummins: It is the Fianna Fa´il parliamentary party.

Senator Terry Leyden: I ask the Minister to come into the House to try to rectify the situation and ensure this proposal is withdrawn in Brussels. They are in favour of conservation, but not a 90 to 95 year ban. It is outrageous. Treaties such as the Lisbon treaty are always questioned because of regulations from Europe. We are too compliant with Europe and it is time we took our own stand.

Senator David Norris: They asked for only a 40% cut.

Senator Ro´ na´n Mullen: I thank Senator Leyden for his illuminating comments. There has been much talk today about standards and transparency. My colleague, Senator Alex White, raised the report of Transparency International. I am very happy to put my signature to Senator Norris’s notion——

Senator David Norris: It was more than a notion.

Senator Fidelma Healy Eames: He has many notions.

Senator Ro´ na´n Mullen: I mean Senator Norris’s motion on this matter. I am interested to hear people giving out about standards in the media. Senator Alex White said there is an extraordinary amount of opinion to be heard these days in the media. That phenomenon goes back to when Senator Alex White was a producer in the media. The danger with politicians is that we start giving out about the media only when they start saying things that make us feel uncomfortable. When I tabled amendments to the Broadcasting Bill that would have sought to bring a greater emphasis on fairness and impartiality to the media’s coverage of a range of issues, there was no support from the Government. People must be careful that they will not sound convincing if they start giving out about the media only when the criticism starts to irritate them. There are issues about media standards in this country. The media is unaccount- able in many ways.

An Cathaoirleach: Are you calling for a debate on that?

Senator Ro´ na´n Mullen: Yes, I would like a debate, thank you for reminding me, because it badly needs to be discussed. In promoting standards we must be consistent if we are to have any credibility with the public. I support the comments and findings of Transparency International. The issue of patronage will always be there in society and there will always be a degree of that in politics. I was in Italy recently and there was a very intense discussion on the phenomenon of raccomandazione on Italian television. People feel they do not live in a meritocratic society but in a culture of who one knows. We need a discussion in the House on that matter and whether we should have a body that is responsible for making appointments to State boards. It does not matter which party is in power, each party will try to put its friends into positions which arise.

Senator Fidelma Healy Eames: The Senator speaks for himself.

Senator Ro´ na´n Mullen: We have to honestly examine our expenses. Transparency Ireland mentions politicians’ unvouched expenses. If we are to have any credibility we need a fair and honest discussion on that issue. In today’s edition of The Irish Times there is a report on Oireachtas committees. Leaving aside people’s salaries, with which we do not quibble, we are 282 Order of 3 March 2009. Business (Resumed) looking at over \2 million. Chairmen of committee’s are responsible for approximately \500,000 in expenses.

An Cathaoirleach: Are you calling for a debate on that? I do not want a speech.

Senator Ro´ na´n Mullen: One good thing about the media is that people will pay attention to those issues and as we ask difficult questions of hard-pressed taxpayers in this country, we will be expected to lead by example. Good news was reported yesterday about a breakthrough in stem cell research. Members will know I had a Private Members’ Bill prohibiting embryo-destructive research up for debate in this House in November. The good news is that scientists have managed to get adult cells to revert to an embryonic-like state so that it will, hopefully, be possible to have a limitless supply of stem cells while avoiding the ethical dilemma of destroying embryos.

An Cathaoirleach: Senator Mullen has taken four minutes on the Order of Business. If every Member tries to take four minutes we will not get many speakers in.

Senator Ro´ na´n Mullen: With due respect, I am not the worst offender in this House.

An Cathaoirleach: I did not say you were the worst offender but there is a number of other Senators who wish to get in and I want to control the time.

Senator Ro´ na´n Mullen: I respect that the Cathaoirleach has a job to do. The problem is that others get to gallop away to the races constantly and are barely interrupted. That makes it difficult. I conclude——

An Cathaoirleach: Senator Mullen has made his point.

Senator Ro´ na´n Mullen: ——by asking for a debate on that——

An Cathaoirleach: I call Senator Glynn.

Senator Ro´ na´n Mullen: ——and also encouraging people to buy U2’s new album because the Dutch economy needs the money.

Senator Camillus Glynn: There are few Members in this Chamber——

Senator David Norris: Very few today, that is true.

Senator Ro´ na´n Mullen: There is plenty of time for us to speak today.

An Cathaoirleach: Respect who is speaking, Senator Glynn without interruption.

Senator Camillus Glynn: There are few Members of this House or of the Lower House or, indeed, members of any chamber right around the country, local authority and other, who have not from time to time made representations for people to be housed. I welcome that and long may it continue. I ask my party’s spokesperson on housing, Senator Butler, and the Deputy Leader of the House to arrange a debate on local authority tenancies and tenancies in general with a view to ensuring tenants are aware of their obligations — they tell us often enough about their rights but they have obligations as well — and also on the management of housing estates, private and public. The matter merits a serious debate in this House. 283 Order of 3 March 2009. Business (Resumed)

[Senator Camillus Glynn.]

On two previous occasions I mentioned the rolling out of the joint policing committees and the municipal policing committees. This is a unique opportunity for Members of this House and of Da´il E´ ireann, local authority members and, indeed, leaders of the various communities in which they operate, to play a part in assisting the Garda in the control of crime. I ask the Deputy Leader, Senator Boyle, to arrange for a debate on this important matter as soon as possible. This new arrangement provides almost every elected member of the Oireachtas and local authorities with an opportunity of playing his or her party in combatting crime.

Senator Jerry Buttimer: I join with Senator O’Reilly in asking the Deputy Leader to convey to the Minister for Foreign Affairs and the Taoiseach the importance of an immigration agree- ment with the United States of America, and if we can see a rekindling of the McCain-Kennedy immigration Bill. This morning on “Morning Ireland” we heard the story of an Irish person being deported and of the fear of thousands of our fellow citizens in America. The Deputy Leader himself will be aware, from our own city of Cork, of people who are afraid to come home, who cannot come home and who need to have their position regularised. I also ask him to have a debate on the medical card for the over 70s. This week thousands of pensioners are in distress. I hope thousands of them do not comply with the regulation, do not hand back the medical card and do not go back with the forms. They should have the medical card. They deserve it. They have been treated with disrespect by the Deputy Leader and his colleagues in Government. We need an urgent debate on that.

Senator Terry Leyden: Is that Fine Gael policy?

Senator Jerry Buttimer: At least we have policies, unlike Senator Leyden’s party. It is important, in the context today of the Minister for Communications, Energy and Natural Resources’s announcement regarding the reduction in energy prices with the ESB, that we have a debate on regulation. There is complete mayhem in the area of regulation. There is a taxi regulator who will not agree with the taxi drivers, the ESB wanted to reduce prices and the energy regulator stated the company could not do so, and the banking regulator fell asleep at the watch aided by Government. There is no regulation. There is nobody watching regu- lation. It needs to be explained, it needs to be co-ordinated and, more importantly, it needs to be on the side of people. I agree with Senator Keaveney. There is not enough analysis in the newspapers. There are people writing in the newspapers every day who are giving an opinion on everything from the colour of the hair of the dog to the price of cabbage in the organic markets and, frankly, many of them know nothing. There are some of them in this House as well — not Senator Harris, by the way, whom I respect and who has taken the soup a long time ago so we know in whose stable he is. There are members of the media writing on politics who, frankly, should be ashamed of their profession.

Senator David Norris: Hear, hear. Well said.

Senator John Hanafin: I share the welcome that has been extended on the research finding for the embryonic versus adult stem cells, and the proof conclusive that adult stem cells are as pluripotent as embryonic stem cells and, therefore, there is no reason whatsoever for research to be undertaken in this country on embryonic cells. As an ordinary backbench Member, I find it is sometimes difficult to make a contribution, despite the best efforts of the Cathaoirleach. We may as well be straight and say that Senator 284 Order of 3 March 2009. Business (Resumed)

Norris takes up a lot of the time here. I request the Cathaoirleach cuts back on that so that all of us get an opportunity to speak.

Senator David Norris: That is a little bit personal. Perhaps the Cathaoirleach will place on record how long I spoke for today, as opposed to his eminence, Senator Mullen.

An Cathaoirleach: Senator Norris has already contributed.

Senator John Hanafin: He holds a doctorate in interrupting and I support any efforts the Cathaoirleach makes to correct this.

Senator David Norris: That is very nasty.

Senator John Hanafin: We must focus on competitiveness. The world market is becoming more difficult and a wide range of areas, including the cost of all inputs, must be debated regularly in this House. I welcome the Government proposals to concentrate on jobs and export-led growth, which offer the only opportunity we have to get through this recession. We should benchmark State expenditure against expenditure in terms of a job. For example, if a decision was made to spend \300,000, it could be argued that 30 jobs could be supported if that decision was not made. That could be considered in debate. If a couple earns \70,000 per year, their pension alone is valued at over \1 million, because one must have 17 times that amount to bring in \70,000 a year. Why should the State in this terrible financial crisis subsidise millionaires who have \1 million in their pension?

Senator Nicky McFadden: I rise to ask the Deputy Leader, who has a very strong conscience, about Mr. Eugene Sheehy of AIB Bank and the fact that he apologised for not waking up as the bubble burst, leading to \2.9 billion being written off. I was brought up to believe that debts had to be repaid, but this is not being done here. Senator Healy Eames referred to people who have land that is worth something, no matter how low the value. Why is Mr. Sheehy being let off scot free when he has said he was sorry, that he was in charge, but he is not calling in the debt? The assets of these people, land or otherwise, should be repossessed and used to support this debt. Why should they get away with it? Mr. Sheehy has no intention of quitting. He is on his fat salary, but he gets away scot free. I ask the Deputy Leader to ensure that he is taken to task. Whether we agree with the way in which Jade Goody, who is dying, is conducting herself in public — that is her business — she has heightened awareness of cervical cancer and I applaud her for that. I also welcome the Government’s cervical cancer screening programme. For once we are getting value for money. I ask, however, in light of our finally getting rid of the e-voting machines, that the money that was spent on their storage be spent on a pilot area for the cervical cancer vaccine for young women, some of whom will die because they did not get that vaccine.

Senator Larry Butler: I support my colleagues who have called on local authorities to encour- age tenants to become involved in policing boards. It is a great opportunity for Members of the Oireachtas and local authority members to get involved with local community policing. It is a step in the right direction and is probably long overdue. We have an opportunity to ensure tenants are properly vetted when local authorities put them into a property. Tenants must have a responsibility to their neighbours. We all know that a few people have caused mayhem over the years in different estates, but that is not acceptable. As Senator Glynn said, it is vitally important to have a properly structured debate on that issue which affects many people. 285 Order of 3 March 2009. Business (Resumed)

[Senator Larry Butler.]

I concur with Senators who raised the matter of energy costs and we must examine how we can drive those costs down. Senator O’Toole is right but he did not mention that the cost of labour in the ESB is the highest in Europe.

Senator Joe O’Toole: The ESB reduced its staff numbers from 12,000 to 8,000.

Senator Larry Butler: In fairness to Senator O’Toole, that is true. He is quite right but the actual pay per person in the ESB is the dearest in Europe. It is not competitive enough. We should examine that matter.

Senator David Norris: Through the Chair, do they need it?

Senator Larry Butler: It is the only thing that Senator O’Toole did not mention. We have an opportunity to become more competitive when it comes to maintaining jobs. We are losing jobs because we cannot compete in the electricity sector and elsewhere. I also wish to call for a debate on eel fishing. While it might not be a big amount, there are probably a couple of thousand people affected in that sector who fish, smoke and export eels. Every job counts at the moment and we really need the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan, to attend the House to explain why we should restrict eel fishing. Perhaps there is a good reason but I would like to hear it from the Mini- ster himself.

Senator David Norris: The Senator should read the Minister’s reply to my recent Adjourn- ment matter.

Senator Larry Butler: I congratulate the Minister for all he is doing concerning the ESB by using imaginative and innovative ideas to reduce costs in the long run.

Senator Eoghan Harris: Senators Buttimer, O’Toole and Butler have rightly drawn our atten- tion to the lack of regulation of banks, the ESB and other companies. Against that background, may I say a word on behalf of the media which have the same role in society as rat catchers or people like Dyno-Rod who clear out sewers? It is not pretty and it is a bit rough and ready, but the truth is that they are the media. May I add, in parentheses, that nobody detests anybody as much as people in the media detest each other. One can be sure that if one section of the media calls something “black”, the other will call it “white”. However, the media have been doing a good job in this recession by throwing the lantern on many problems that have been neglected by regulators. Because of the media we know stuff about banks and the ESB that we would not normally know. Therefore, in the absence of regulation — or people whose function it was to regulate but who fell down on the job — the media do a very important job. They do the same job the Romans referred to when they talked about Plato’s idea that there would be a perfect society in which a group of guardians would control everybody’s behaviour. The Romans, who were a sensible people, rightly asked quis custodiet ipsos custodes — who will guard the guardians. The media’s function is to guard the guardians. They do it in a rough and ready way, albeit sometimes unpleasantly and they may offend people. They do guard the alleged guardians of our society, however — the so-called regulators whose job was to regulate but who fell asleep on their watch. In recent months, as well as regulating the regulators and guarding the guardians, the media have also performed two other important functions. The media have allowed the public to vent all its anger. That anger, if not vented somewhere, could turn incredibly nasty on our streets. There has been a large outpouring of anger, necessary for 286 Order of 3 March 2009. Business (Resumed) lancing the boil. The media have also given us a mass education on our society and political economy. May I say, if not three cheers, at least two cheers for the media.

Senator Ann Ormonde: I also endorse the call for an ongoing discussion on the economy, especially on financial services regulation as raised by many Members. For one, I know very little about the regulator’s role, the work he does and what will be the new regulatory role. The public wants to feel comfortable that the new regulations will be transparent. Many want to understand the role and function which up to now they did not know existed. It is important this is coupled with a debate on the economy. I would like if the Minister for Education and Science came back to the House to debate once again the cutbacks in special needs education. At no time in the previous debate did he say that any child would be deprived of special needs education. That is well documented. While I agree the media may be doing a good job, in this instance I hope they will be balanced in giving the other side of the debate. Every school’s management is aware that no child will be deprived. Many case studies have shown that if it is necessary to give special needs education to a particular child in a school because the class might be discontinued, that child will not be deprived.

Senator Fidelma Healy Eames: They need an appropriate education.

An Cathaoirleach: Senator Ormonde, without interruption.

Senator Ann Ormonde: I did not interrupt the Senator when she spoke. How dare she interrupt me now.

An Cathaoirleach: No interruptions.

Senator Fidelma Healy Eames: Senator Ormonde should get the facts right and tell the truth. Children are being deprived.

An Cathaoirleach: Senator Healy Eames, please do not be interrupting other Senators.

Senator Fidelma Healy Eames: The Minister is hiding behind the policy of inclusion.

An Cathaoirleach: Senator Healy Eames, I ask you to refrain from interrupting. It is not allowed in the House

Senator Ann Ormonde: The Senator is so rude it is unbelievable.

An Cathaoirleach: Senator Ormonde should conclude.

Senator Fidelma Healy Eames: Senator Ormonde should stick to the facts.

Senator Ann Ormonde: I want the Minister to return to the House to give the facts as he always does. It is out of order for the Senator to suggest otherwise.

Senator Fidelma Healy Eames: He never comes into the House at all.

An Cathaoirleach: Senator Healy Eames should respect the House and not interrupt other Members.

Senator Fidelma Healy Eames: Is the Cathaoirleach going to throw me out for sticking to the facts? 287 Order of 3 March 2009. Business (Resumed)

Senator Labhra´sO´ Murchu´ : Other Senators spoke about the recent breakthrough in adult stem cell research, which I believe is good news. We should not distract from or minimise the breakthrough for ideological reasons because it will help many people who are suffering. On previous occasions, we had the opportunity to debate the growing progress with adult stem cell research. What has happened is that the debate on embryonic stem cell research has distracted from the great progress made in the adult stem cell field. It would be worthwhile if the Deputy Leader could provide an opportunity to debate further the progress made in this area.

Senator John Hanafin: Hear, hear.

Senator Labhra´sO´ Murchu´ : I hope we could have that debate in a temperate and moderate manner because we must think of those who are suffering and vulnerable. I support Senator O’Reilly’s comments regarding the undocumented Irish in America. He put their case particularly well. These are our people who are in America for personal and social reasons. One can only imagine the terrible suffering they must endure. They are really non-people in the sense of being undocumented. The danger is that, because we faltered at the first hurdle when we thought we would succeed in resolving the issue, we might not keep up the momentum we achieved. The approach to St. Patrick’s Day is a good time to regenerate and energise our efforts in this regard, especially as there is a different Administration in America. There is no doubt the Taoiseach will raise this matter when he visits Washington soon. This House could also assist in resolving the issue by showing its concern for the undocu- mented Irish in America every so often. That description is somewhat clinical in nature, partic- ularly when one considers that these individuals are our people. For the benefit of anyone who takes notice of what is said in this House, I wish to state that the American ambassador might at least be able to relay our concerns on this matter to the President of the United States and others in that country who are responsible for making decisions.

Senator Dan Boyle: Senator Fitzgerald inquired as to whether there will be a new budget. In the aftermath of both Houses taking measures in respect of the public sector pension levy, it is hoped that the fall in tax receipts evident in the tax returns for November and December will be corrected. It is also hoped that the next budget will be introduced in December of this year as planned. If the position relating to tax receipts deteriorates any further, the Government has the option of introducing new measures. Such measures could be budgetary in nature and could come in the form of a new Finance Bill. The Senator also inquired whether it is intended that new central banking commission will replace the Financial Regulator and the Central Bank and Financial Services Authority of Ireland. It is certainly intended to supersede both bodies. We hope the legislation being pre- pared will confer on the new commission powers that are additional to those which the bodies in question already possess. It is also hoped that a distance will be achieved between the act of regulation and those being regulated. The system in that regard has proven to be extremely deficient in recent years. Senator Fitzgerald further inquired about salary caps for those in financial institutions and banks. The Government anticipates receiving a report on that issue in the early part of this month and this report will inform a Cabinet decision. I hope that part of that decision will be a recommendation that particular caps be placed on levels of remuneration in banks and financial institutions. The Senator proceeded to ask about front-line services. It is not the Government’s intention to diminish any such services. In the context of the measures announced last year and in the first two months of this year, it will not be possible to provide the additional expenditure announced in the past three years in respect of many of the areas to which these services relate. 288 Order of 3 March 2009. Business (Resumed)

This has led to a diminution of services in some of those areas to the levels that obtained in 2007, 2006 or 2005. It is not the intention of the Government to diminish any of these services below a level which the public purse can support. Senator O’Toole requested a debate on financial regulation. There have been numerous requests — mainly from Senator Norris — for a rolling debate on the economy and if the latter took a thematic form, a debate on regulation could be accommodated within an overall sched- ule which we might discuss. Senators O’Toole, Alex White and Leyden referred to the reduction in energy prices. An announcement was made earlier today to the effect that, from April, electricity prices are to be reduced by 10% and gas prices by 12%.

Senator Fidelma Healy Eames: Hear, hear.

Senator David Norris: Well done.

Senator Frances Fitzgerald: Not before time.

Senator Dan Boyle: Senators Alex White and Mullen inquired about the report by Trans- parency International. I understand that report is excellent and refers to many issues which deserve discussion in the House. I refer, for example, to the issue of political fund-raising — which was addressed at an event last weekend — and the need to deal with how this is provided, the amounts collected and the purposes for which these are used. The report also refers to the question of political appointments, a subject in respect of which I introduced a Private Members’ Bill in the Lower House a number of years ago. A debate on the report would assist in informing the legislation we will require in respect of this area in the future. The programme for Government contains a provision in respect of the introduction of an independent electoral commission which would supersede the existing Standards in Public Office Commission. Part of the role of this new body will be to consider matters such as public fund-raising and public appointments.

Senator David Norris: Then why not take No. 35 on the Order Paper in Government time?

An Cathaoirleach: The Acting Leader, without interruption.

Senator Dan Boyle: Senators O’Donovan and Keaveney requested a debate on the seafood industry. Senator Keaveney also inquired about the distribution of functions relating to the marine among several Government Departments. It would be apt for the House to engage in a debate on the seafood industry. Meetings are taking place today among representatives of the fishing industry, the Department and EU officials regarding the days at sea directive. The outcome of these meetings might assist in resuscitating life in many of our coastal communities. Senator O’Donovan is seeking a wide-ranging debate on this matter and on the economic impact that might result from the provision of additional support to the seafood industry. The Minister of State at the Department of Agriculture, Fisheries and Food, Deputy Killeen, has responsibility for fisheries and forestry. As a result, he also has direct responsibility in respect of the matter to which the Senators refer. Inquiries will be made with the Minister of State in respect of whether he would be prepared to come before the House in order to engage in a debate on the seafood industry. Senators Keaveney, Buttimer and Harris asked about control of the media in the context of statements made at the weekend. Senator Buttimer referred to people in the media passing 289 Order of 3 March 2009. Business (Resumed)

[Senator Dan Boyle.] opinion off as fact, while Senator Harris likened the role of the media to a sewage-clearing system which operates, in the public interest, in the area of politics.

Senator Nicky McFadden: Dyno-Rod.

Senator Dan Boyle: The House recently dealt with the Broadcasting Bill 2008, the debate relating to which was quite detailed in nature. On the previous occasion on which I acted in the Leader’s stead, I was obliged to bring the proceedings of the House to a halt at 11 p.m. as a result of the nature of the debate on that legislation. I accept the need for a wider debate on all aspects of the media and I will consider how this might be incorporated into our schedule. Senator Keaveney also raised the cost of alcohol abuse and referred to measures being introduced in Scotland. I am aware that similar measures have been put forward in Finland which, like Ireland, has major social problems caused by the level of consumption of alcohol. If a Government representative can be found to come before the House to engage in a debate on the matter, we should invite him or her at the earliest opportunity. Senator Norris referred to the need to re-examine the legislation relating to rent reviews. Many people would support the Senator in that regard, not only in respect of private rented accommodation but also in the context of the State continuing to pay, through the rent sup- plement scheme and the rental accommodation scheme, large amounts of money to landlords in respect of properties to which reduced rents apply. The State could make considerable savings in this area. A debate in the House could inform the development process relating to any new legislation in respect of this matter. Senator O’Sullivan requested a debate on the taxi regulator, while other Members requested debates on the Financial Regulator, the energy regulator and regulation itself. I will see if it might be possible to discuss these matters in the context of a single debate. Senator Healy Eames referred to Allied Irish Banks’s write-off of bad loans. I understand that the revision of bad debts on the part of the banks came about as a result of the fact that the security they took for those loans in the first instance was based on properties that were overvalued. In addition, people could not subsequently sell those properties for sums sufficient to cover the loans in question. We are referring here to money that never really existed because people pretended that properties etc., were worth more than was actually the case. That is the reality with regard to the bad debts that are being written off.

Senator Fidelma Healy Eames: Are home loans included in the figure for bad debts?

Senator Dan Boyle: I suspect that AIB is referring to its largest debtors in this regard.

Senator Joe O’Toole: Some 81% of the bad debts written off relate to developers.

Senator Dan Boyle: I thank Senator O’Toole for clarifying the position. The Government does not have plans to nationalise any other financial institutions. We just approved a recapitalisation measure and we are waiting to see whether this will have the desired effect. If such an effect is not forthcoming, consideration may be required in respect of a further injection of capital. The option of nationalisation has not been considered by the Government in recent times. Senator Healy Eames also referred to special needs and recent decisions relating thereto. The Minister provided some clarification in respect of situations where the numbers fall short of the 1:9 ratio, how classes can be combined and how certain children with special needs are 290 Order of 3 March 2009. Business (Resumed) identified as being most capable of being placed in mainstream classes. If the Minister is required to make further clarification to the House in this regard, then he will be asked to do so.

Senator Fidelma Healy Eames: That is needed.

Senator Dan Boyle: Senator Leyden asked about the energy regulator and eel fishing, as did Senator Butler. I will bring their concerns to the attention of the Minister for Communications, Energy and Natural Resources. I suspect the proposal is made on scientific grounds and if the Minister needs to explain it to the House, I am sure he will do so.

Senator David Norris: He has done so.

Senator Dan Boyle: Apparently he did so in a recent Adjournment debate. Senators Mullen, Hanafin and O´ Murchu´ raised the recent scientific breakthrough in adult stem cell research. The House should note that and bear it in mind in the context of any further discussion it has on this issue. I am sure a request will be made for such a discussion; it has been made regularly in this House. Senator Glynn spoke about the need for a debate on local authority tenancies. This is a local authority election year and it would be in the interest of the House, given that so many of its Members are directly elected by local authority members, to have such a debate to help inform that election process with regard to whatever revision of local authority election legislation is required. I will request the Minister and his Department to facilitate that. The Senator also spoke about the need for a debate on how local policing committees are functioning. They are still very much in their infancy. The committees allow local authority members as well as Members of the Oireachtas to make an input. An early debate will examine whether this initiative is successful at identifying and dealing with crime at local level. Senator Buttimer, after an earlier intervention from Senator O’Reilly, spoke about the need to address the issue of the undocumented Irish in the United States. It is clear that the United States Government, like most other governments, has become preoccupied with legislative needs to deal with its economic situation and the issue of immigration and the undocumented Irish has slipped down its list of priorities. The proposal made by Senator O’Reilly will be passed to the Minister for Foreign Affairs. We will come back to the Senator and the House on how it is received. Senator Buttimer also asked about the medical card for people over 70 years of age and spoke about an individual with an income of \700 per week or a couple with a combined income of \1,400 per week having their medical card removed. The House has already debated that issue. The change was made for reasons that have as much to do with equity as anything else. The time to return to the debate is in the context of social welfare or health legislation being brought to the House. Senator Hanafin sought a debate on competitiveness. This would fit in with the rolling debate on economic matters which has been requested. Senator McFadden asked about the statement by Mr. Sheehy of AIB and the write off of loans. I hope I went some way in explaining the issue in response to the views of Senator Healy Eames. I believe much change can be effected in the existing banking system on a personnel level by bringing in new people to infuse new energy into the private banks as well as into the system of State regulation, which will get us far away from where we are as a result of a bad system of finance and regulation. I hope that happens sooner rather than later. Senator Ormonde agreed with the need for a further debate on the economy and raised particular points about special needs education. I believe I have covered the questions asked by Members. 291 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

Senator Nicky McFadden: I asked about the cervical cancer vaccine.

Senator Dan Boyle: I am sorry. Senator McFadden pointed out the success and prioritisation of the screening programme and mentioned the current coverage in the media of a young woman who is dying of the disease in the United Kingdom. The Senator mentioned the savings it is hoped will be made on the e-voting system. It is unfortunate that when we talk about saving money, the money is not available to be spent on other things due to the huge hole in our public finances. However, everybody agrees that when it is possible to engage in new expenditure, that must be a priority area. Until then, the screening programme will be our main weapon for dealing with this unfortunate condition.

Order of Business agreed to.

Legal Services Ombudsman Bill 2008: Committee and Remaining Stages.

Sections 1 to 5, inclusive, agreed to.

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 E´ ireann,”. 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 E´ ireann.

Senator Terry Leyden: I welcome this Bill. However, the issue of exclusion of people who can serve in these positions is always included in Bills such as this. The Ombudsman must be a person of particular standing and he or she cannot be a practising barrister or solicitor. There is an aspect of this Bill that has not been taken into account and the Minister might consider it. I brought forward the Registration of Wills Bill that went through this House. It has not yet gone to the Da´il. A number of solicitors have been discredited recently and I am very con- cerned about the wills books in their practices and where they are being retained. The people who made the wills should be informed by the Law Society of exactly where the wills have been stored after being taken from the discredited practices or practices that have become insolvent. People are concerned that in the case of some wills that were made, the people are now deceased. In some cases, people will not benefit from the last will and testament of the person. This is an important issue which the legal services ombudsman will probably have to address when he or she is appointed. I hope the Minister of State, an experienced barrister, will bear this in mind when ideas are being put to the ombudsman on his or her appointment to office.

Senator Jerry Buttimer: I concur with Senator Norris’s point on the use in section 6(6)(a)of the word “nominated” as opposed to the words “appointed” or “elected”. Under the current proposals, the person appointed could serve two consecutive periods of six years. The Pres- ident’s term lasts for seven years, while Members of the Houses serve a maximum of five years 292 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages before elections are held. Why is the proposed term of the ombudsman not similar to those of Members or the President? Why are members of local authorities precluded from being appointed legal services ombuds- man? During the debate on the charities legislation, the Minister of State, Deputy Curran, made a recommendation on foot of comments made by Senators, including Senators Cummins, Leyden and myself, regarding the role of local councillors. Local authority members can bring a wealth of experience acquired as public representatives and in their employment to any position. Two terms of six years is a long time for a person to hold office.

Senator Denis O’Donovan: I concur with Senator Buttimer that a six-year term is lengthy. Our experience of the ombudsman system, while relatively recent, has been a major success. As a practising lawyer and paid up member of the Law Society, I believe the establishment of a legal services ombudsman must be broadly welcomed as an extremely positive development. The role will be one of overseer and the ombudsman will operate in conjunction with the systems in place in the Law Society and Bar Council for dealing with complaints, practice and procedure. As one who has practised law for more years than I care to remember, I believe the Law Society has by and large dealt with complaints exceptionally well. Every organisation can make mistakes and I accept in principle the reason people ask who guards the guardians and why the legal profession should engage in self-regulation. The Law Society complaints’ board consists of laypersons and has an input from the High Court. When serious matters arise, as in a number of recent cases, the society can take serious steps. I welcome the concept of establishing a legal services ombudsman. Senator Buttimer raised the possibility that an appointee to this position could serve for 12 years. Obviously, the person appointed, whether a man or woman, must be carefully chosen and must not have a connection with the profession. The example of a retired judge springs to mind. We must find the right person, one who will do the job successfully and, critically, one who will enjoy public confi- dence, without which any ombudsman will fail. Unfortunately, I did not speak on Second Stage. The Bill is well founded and not before time and will restore, in a belt and braces fashion, public confidence in lawyers and barristers. The number of practising solicitors currently exceeds 8,000. Unfortunately, due to the recession hundreds of partially and fully qualified solicitors do not have a job. I have received many requests from young people who have completed their degree and done the examinations in Blackhall Place, having probably spent six or seven years studying law, who are not in a position to qualify. I presume the ombudsman will not have a role in determining numbers in the profession. While competition is good, one does not want to bury a profession by having too many people qualify. Since I received my parchment in 1978 the number of solicitors has quadrupled from 2,000 to 8,000. We also have a vast number of barristers. While we always hear about barristers and, in some cases, solicitors who do extremely well, have acquired considerable wealth and have high earning capacity, many practising solicitors are in financial difficulty. Some have been unable to secure employment, while others have been made redundant. In the 1980s, not long after I qualified, I emigrated because work was scarce. One firm in Cork, which will remain nameless, laid off ten conveyancing solicitors at that time. We have entered a similar period. While I welcome the decision to establish a legal services ombudsman and accept the importance of restoring public confidence in the legal profession, it is important to have some sympathy. As is the case with politicians, the media, whether in print or broadcast- ing, tend to tar lawyers with one brush and give an impression that all lawyers are milking the 293 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

[Senator Denis O’Donovan.] system. While this may apply in the case of a small element in the profession, there are many decent lawyers and barristers. I fear for the future of many young people in the legal profession who will not be able to emigrate in the next four to five years. In my mid to late 20s, I had no such problems. While I could have gone to America, I chose to spend two years in England. This option is not open to young people in the profession. We need to spare a thought for recently qualified young lawyers as well as those about to sit the Bar or law exams who do not see any light at the end of the tunnel.

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 E´ ireann 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. 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 4 o’clock 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 Govern- ment 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 294 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages 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 E´ ireann 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 prosecut- ing 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 con- sider 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 Da´il, 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 295 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

[Senator David Norris.] could be addressed to the legal ombudsman. Is the Judiciary excluded from the operation of the ombudsman?

Senator Denis O’Donovan: Senator Norris raises an interesting point. With regard to the Judiciary, the equivalent of a bar council, which was mooted some years ago, should have been set up. I do not want to cross swords with my learned colleague but having regard to the independence of the Judiciary as recognised in our Constitution, this ombudsman should prob- ably cover only solicitors and barristers. However, I am sure the Minister of State will clarify that. Perhaps this is a red herring but there is one issue in which I have a particular interest arising from a complaint by a constituent of mine. Apparently a person can put up a plate stating that he or she is an attorney at law. The Irish version of a solicitor is an attorney. This complaint arose when a person from another jurisdiction wished to engage legal services on a question of copyright. He engaged a firm in Dublin which advertised itself as attorneys at law. However, it transpired after much investigation that the firm consisted of neither solicitors nor barristers. The person concerned complained to the Law Society because it obviously had nothing to do with the Bar Council, but the Law Society said the people presenting themselves as attorneys at law were not members of the Law Society so it could not deal with it. This was a serious complaint that cost a constituent many thousands of euro with no redress. He relied on the skill and judgment of this firm. It has a plate here in Dublin saying “attorneys at law”, yet its members are not solicitors or barristers. I meant to raise this in another forum but here we are setting up a legal ombudsman. It is an anomaly. Nobody should be allowed to practise law unless he or she is——

Senator John Paul Phelan: Covered by this.

Senator Denis O’Donovan: ——qualified under the Law Society’s rules and regulations or those of the Bar Council. A person may present himself as an attorney at law, which is a phrase set aside to cover solicitors in a more American type of jargon. It has happened in this country. An effort to pursue the company involved, which was not some Mickey Mouse operation, failed because the gentleman in question relied on the fact that the members of this company were qualified people, yet they turned out not to be so. This is something I am worried about, and it should be investigated, although not through this legislation. I might give the details, which are well documented, to the Minister of State or his colleague. There is something of a vacuum in this regard and I am concerned that others might be caught in the same trap. The case is less than three years old and has cost a person — I am not sure whether he is a citizen but he is certainly living here — a substantial sum of money. He was led up the garden path. He relied on the skill and judgment of the members of a particular firm who were neither solicitors nor barristers, and his complaint has fallen into a boghole. Unfortunately, it got nowhere. However, sin sce´al eile. On section 9, I will return to the Minister of State’s response to the point made earlier about limiting the number of people entering the legal professions. The number of practising solicitors stands at 8,000. I urge the Minister of State to bı´ cu´ ramach in that regard. In the mid to late 1970s, when I was a young man starting on the road to becoming a solicitor, many people walked away from the Bar or the solicitor’s office because they believed the professions were the preserve of the very rich and the landed gentry. As someone who comes from a relatively humble background, I do not wish a return to those days. I was fortunate in being able to enter the system but others decided to follow different avenues. One has to be extremely careful in restricting numbers solely on the basis of academic merit and capacity. I would hate to think 296 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages people might be prevented from entering their chosen profession merely because they lack the wherewithal to stand their ground. I welcome the provisions in section 9 for handling complaints fairly and efficiently and assessing the adequacy of admission policies. The numbers studying law were too high at one stage, with the result that the Law Society introduced restrictions which were not in place when I took my degree. I had to complete first, second and third law and entrance examinations were only introduced as I was finishing my studies in Blackhall Place. I put my hands up to say the newer breed of solicitors are better trained than my generation. I completed my law degree without much practical experience but my son, who is an apprentice at present, spends one day every second week observing court proceedings. In my time, one swatted for the examinations and then licked stamps for one’s first six months in a solicitor’s office. When the younger generation of students have completed their studies, they are already well trained even if they lack experience. I have read, although perhaps not in section 9——

An Leas-Chathaoirleach: We are on section 9.

Senator Denis O’Donovan: I accept that. In regard to barristers, solicitors and their clients, anybody can be a client of a solicitor but one must be introduced to a barrister by a solicitor. Perhaps further clarity could be provided in that regard because one cannot approach a barris- ter directly with a request to be represented in court. It is much more common now than 40 years ago for junior counsel to represent clients in the District Court. When the ombudsman considers clients’ complaints against barristers, will “client” be understood to be the solicitor or the person who engaged him or her? I am unsure which section makes this provision and apologise if it is not section 9.

Senator John Paul Phelan: I welcome the Minister of State. Senator Norris raised a legitimate question regarding complaints against the Judiciary. The former Minister for Justice, Equality and Law Reform, Michael McDowell, explored mechanisms for such complaints. All Members of the Oireachtas receive complaints regarding members of the Judiciary, although 99% are of the excitable and conspiracy theory nature described by Senator Norris. Perhaps this Bill is the appropriate vehicle for a complaints system. Senator Donovan identified the anomaly of people who claim to practise as lawyers but are not subject to the complaints procedures of the Law Society. They will fall through the cracks in this Bill. I can compile a list of young people at various stages in their law training who are now being cast on the scrap heap. I concur with Senator O’Donovan that the legal profession was traditionally seen as the preserve of the elite but this has dramatically changed in the past several years. I hope we never return to those days but a problem has clearly arisen in regard to the expectation among students that they can find lucrative employment as solicitors and barristers. Increasing numbers of students cannot complete their training because solicitors’ firms are closing. I am aware of several firms in Kilkenny which have gone out of business over the past 12 months. The trainees in those offices face a difficult future because they are not yet qualified. I welcome the provision in section 9(1)(d) for promoting awareness among the public of the procedures of the Bar Council and Law Society. There is a perception that the two bodies operate behind closed doors in smoke filled rooms or whatever the current equivalent of these may be. 297 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

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. Now- adays, 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 legis- lation 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 indepen- dent that does not mean they are infallible. I do not believe in infallibility, even for the part- icular 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 298 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages 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 Denis O’Donovan: I am glad Senator Norris raised the issue of infallibility of judges. A Bar Council was enunciated eight years ago by a previous Minister for Justice, Equality and Law Reform, the Ceann Comhairle, Deputy John O’Donoghue. It is a concept I have always supported, in particular given that I chaired a committee that examined matters in regard to a certain judge who was not infallible, as the learned Senator will know. Perhaps the Minister of State will enlighten me on the following matter. Given the current call to patriotic duty by the Minister for Finance, the salaries of all, including Senators and Deputies, are being scrutinised, which is fair enough. We are being asked to take a cut in expenses and so on for the sake of the economic survival of the country. However, I have not yet heard any judge, from the Supreme Court to the District Court, offer to come on board this patriotic voyage and take a 10% cut in salary. A District Court judge earns approximately double the salary of that of humble Members of this House, and good luck to them, but in this era of total protection of the Constitution there is a moral obligation on judges to bear their fair share of the burden. If judges were to agree to a 10% pay cut for the next four years or until such time as we wade our way out of this difficult situation, this act of great patriotism would send out an important message to the public. I have never experienced an economic downturn of such severity. I urge the Judiciary, while not suggesting they should or must do so, to consider taking a 10% pay cut for the next three or four years. That would send out an important message to the public. I use the opportunity of this debate to call, for what it is worth, on the Judiciary to do so. I wish to address two further issues. I put on record my congratulations to the Law Society — my colleague, Senator Bacik will be aware of this — on its proposal to offer students the opportunity to undertake their examinations at a new school in Cork rather than in Blackhall Place. This is a great achievement. It made no sense that people from Cork, Kerry or Munster in general had to travel to Dublin to do their examinations. It is a wonderful step forward. On a related matter, I have called on numerous occasions in this House for the establishment of a High Court in Cork. While this issue may be outside the remit of this legislation, perhaps the Minister of State will comment on it. By way of clarification in regard to the attorney issue, the plate concerned was erected by a firm which has more than one office in the city. They are neither barristers nor solicitors and they have misled people. The person who raised this issue with me, an American citizen, 299 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

[Senator Denis O’Donovan.] originally lodged a complaint with the Law Society, which had no record of the firm concerned. He then approached the Bar Council which also had no knowledge of the firm. As far as I am aware—Iamopen to correction on this point — he also lodged a complaint with the Depart- ment of Justice, Equality of Law Reform, through the Minister, and got nowhere either. This type of practice must be stamped out. This firm is still plying its trade, probably within a 5 mile radius of this Chamber. That should be stamped out, possibly not under this legislation but I hope it can be taken on board. Neither the Incorporated Law Society nor the Bar Council is at fault because these people never came through them. It is like the old story of people calling themselves architects when they were not qualified. A wrong has been done and there is no remedy. I think it was King John who said “where there is a writ there is a remedy” or there should be. A wrong has been perpetrated, possibly affecting others apart from my acquaintance, and I would like to see it remedied if possible.

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.

Senator Ivana Bacik: I thank Senator Norris for that accolade. It is important the legal services ombudsman would assess the adequacy of admissions poli- cies. Senator Norris has reminded me of a campaign in which I was centrally involved in 1988 300 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages and 1989 when the Law Society operated a restrictive admissions policy in the form of a quota for the number of people who could pass the entrance exam. The Minister of State may recall this because it was a high profile matter at the time. Several of us students occupied the offices of the Director General of the Law Society at Blackhall Place in the course of the campaign. The position did change and the Law Society lifted the quota but following another case involv- ing students from Queen’s University the society changed its entrance requirements again. The training by the Law Society and the Bar Council has greatly improved. The Minister of State raised the difficulty, for those who are trying to hold down a job, of trying to pursue a course of training to become a barrister. That has been rightly highlighted as a problem. The Bar Council is seeking to address this by again offering its course part-time. This course is much better than it had been and is geared for vocational training. It is important because of the difficult history of admissions policies to the legal profession that the legal services ombuds- man would provide some oversight so its reach would be not just to receive and investigate complaints but also to review admissions and so on. We will address the ombudsman’s report on number of persons admitted to practice under later sections. On Second Stage I said it would be a good idea for the ombudsman to review the attrition rates from both professions. I did research on discrimination in the legal profession some years ago and found it was difficult to establish with any certainty the numbers leaving the professions and why. The concern was that people were leaving not because they were unmeritorious but the opposite, people of merit were being lost to the professions because the culture was discriminatory or made it difficult for people to get on. That would be a useful matter for the legal services ombudsman to keep under review. Senator O’Donovan commented on incomes in the legal profession. Barristers and solicitors have earned extraordinary levels of income. We see those in the public domain, the tribunal fees, but there are also exorbitant commercial fees. In 2006 the Competition Authority pro- vided information on a much broader level, not just those in the public domain, and found that members of the junior Bar earned on average only \30,000 per year. The median income of recently qualified barristers is just over \30,000, and solicitors earn just over \48,000, while at the other end of the scale the average income for senior counsel is \330,000. There is an enormous disparity in those figures, perhaps beyond the remit of the legal services ombudsman. It is useful to keep sight of that by way of context.

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 acquaint- ance 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 pro- cedures 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. 301 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

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.

SECTION 11.

Senator Ivana Bacik: The Bar Council has already raised with the Minister of Sate the cost of the legal ombudsman service. Section 11 gives the necessary power to the ombudsman to employ persons on particular terms and conditions and to engage the services of professional and other advisers and so forth. That is important. It is necessary to keep the cost of running the service as low as possible. Given the difficult times we are in I am sure the Minister of State will be in full agreement with that. The figures for other commissions are available, for example, the running costs for the Standards in Public Office were just over \1 million of which \737,000 was staff costs. Costs in any of these services or agencies can run high, even when kept fairly tight and within budget. I have no doubt the legal services ombudsman will keep to strict budgets but it is necessary to ensure that superfluous staff are not recruited under the authority of this section.

Deputy Barry Andrews: The Senator is absolutely right to mention the need for restraint. Section 11(4) requires that professional advisers be engaged solely with the consent of the Minister. If the legal services ombudsman requires professional advice, it will probably relate to a case or complaint that is being brought against a fairly well resourced barrister, solicitor or group of solicitors. The potential for an escalation of costs in a dispute of that nature is the reason for the requirement that the consent of the Minister be obtained. That is why section 11(4) has been included in the Bill.

Question put and agreed to.

Sections 12 to 14, inclusive, agreed to.

SECTION 15.

Question proposed: “That section 15 stand part of the Bill.”

Senator Ivana Bacik: In my Second Stage speech, I referred to section 15(1) the Bill, which states that “the Legal Services Ombudsman shall prepare and submit to the Minister a report . . . specifying the number of persons admitted to practise”. This section is incomplete in the absence of a provision requiring the ombudsman to review the number of people who have left the profession and to monitor the figures in general. In light of what I have said about cost overruns, I hope that will not be too costly an exercise. With some of my colleagues, I partici- pated in a research programme that was funded by the Department of Justice, Equality and Law Reform some years ago. We found it quite straightforward to collate the number of people who had been admitted to practice over the years and to break them down by gender. I do not think it would cost too much if a little more detail were to be included in the report submitted to the Minister, thereby building on the research we did and the figures that are available to the Law Society and the Bar Council. A little more information about the nature of the profession should be provided. When we surveyed barristers and solicitors extensively, we found evidence of real concern about the existence of a discriminatory culture in the profession. Many of those who responded to our 302 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages survey described it as an “old boys’ network” or “old boys’ club”. They suggested that the culture in question was militating against the retention by the profession of able people. In particular, young female solicitors in rural areas complained that they encountered exclusion from social networks etc. rather than overt discrimination. We are concerned that people who should be retained in the profession, good and meritorious professionals, may be lost to it. The Bar Council has suggested to the Minister that the ombudsman should have less reporting functions rather than more. While it is useful that section 15 of this Bill will ensure that the ombudsman monitors the number of people in the profession, somewhat more detail could be supplied. I accept that section 15(1)(b) provides that the ombudsman shall assess whether “the number of persons admitted...isconsistent with the public interest in ensuring the availability . . . at a reasonable cost”. While that is a good measure, there is room for other criteria to be applied by the ombudsman in gathering figures for the purposes of these reports.

Deputy Barry Andrews: Senator Bacik’s points are well made. The purpose of section 15(1)(b) is to ensure that the ombudsman tests whether there is competition, whether prices are being kept as low as possible and whether people can access the available legal advice. Those guiding criteria were selected with regard to the Competition Authority’s previous report on this area. As I said during the debate on section 9, one of the functions of the legal services ombudsman will be to try to ensure the admissions policy is improved. The annual report that is submitted to the Government will be significant. The admissions policy will reflect whether people are being retained in the profession. The Law Library found six or seven years ago that the rate of attrition was very high. It found that approximately 40% of those who were admitted to practice were no longer practising five years later. It is a very high level of attrition. One of the functions of the legal services ombudsman will be to examine the available information and prepare a report on the patterns that emerge. As Senator Bacik said, the socioeconomic significance of the figures in question will have to be examined. It is an important function of the ombudsman.

Senator Ivana Bacik: I am grateful to the Minister of State for indicating his willingness to consider this important point. He is as aware as I am that there is anecdotal evidence of high levels of attrition. When we did our study, we were concerned to get hard data on that. We found that neither the Bar Council nor the Law Society was able — I am not sure they were not willing — to provide information on attrition in the profession. They simply did not keep figures on attrition. Part of the ombudsman’s great service to the public should be to ensure that such figures are kept. Exit interviews, which are quite common in other sectors, should be conducted with people when they leave the legal profession. We need a better sense of the number of people leaving the profession and their reasons for doing so. I am glad to say that one of the positive consequences of our report was that the Law Society adopted the recommendation that its members should pay women solicitors a full salary during maternity leave. That had not previously been the practice. We found that it was one of the real impediments to the retention of women in the profession. I understand the Bar Council has adopted a similar policy, to the effect that women members pay reduced fees during what is, in effect, their period of maternity leave. As barristers are self-employed, they do not have the same statutory pay and leave rights. These practical changes are important if we are to increase the rate of retention of highly qualified and able barristers and solicitors. I hope the ombudsman will be able to keep this sort of thing under review.

Deputy Barry Andrews: The points made by Senator Bacik are fair. I reiterate the point I made during the debate on section 9. As I understand it, the issue of retention will be examined during the assessment of the adequacy of the profession’s admissions policies. The structure of 303 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

[Deputy Barry Andrews.] our courts system can make things difficult for mothers of young families in particular. I did not know that lower fees are charged in circumstances of maternity leave. It could be suggested that as mothers try to develop their careers and meet their child care responsibilities, the manner in which the courts are ordered and the legal diaries are constructed is anti-family. A fair degree of work is needed in this area.

Senator Ivana Bacik: I thank the Minister of State.

Question put and agreed to.

Section 16 agreed to.

SECTION 17.

Question proposed: “That section 17 stand part of the Bill.”

Senator Denis O’Donovan: It is good that the ombudsman will have to appear before an Oireachtas committee, at its request, on an annual or biannual basis. I am slightly concerned about this section of the Bill, which provides for the ombudsman’s appearance before “other committees” of the Oireachtas. It needs to be teased out logically. There are 20 Oireachtas committees at present. If an agriculture-based complaint is made against a barrister or a solici- tor by a person from a farming background, the Joint Committee on Agriculture, Fisheries and Food might want to discuss it with the ombudsman. It is obvious that the complaint might also be said to be relevant to the Joint Committee on Justice, Equality, Defence and Women’s Rights or the Joint Committee on Communications, Energy and Natural Resources. It is very loose-ended. When the ombudsman is appointed or nominated, it will be unfortunate if he has to appear before 20 committees of the Oireachtas. It would be an unfair burden of responsibility. While I have not tabled an amendment to this section, I suggest that the phrase “those committees that are deemed appropriate”, to include the Committee of Public Accounts and the Joint Committee on Justice, Equality, Defence and Women’s Rights, be included in this section. It would be unfortunate if the ombudsman were to end up before the Joint Committee on Agriculture, Fisheries and Food to discuss an agrarian complaint, or before the Joint Com- mittee on Communications, Energy and Natural Resources to discuss a marine or fisheries complaint. The remits of some committees overlap. This will be an important function of the ombudsman, who will have an important job. This section, as it stands, seems very open-ended. I would feel sorry for the ombudsperson — male or female — if the circumstances I have suggested turn out to be an unintended consequence of this legislation.

Senator Ivana Bacik: I share Senator O’Donovan’s concern about this section of the Bill, which seems rather open-ended. I would have thought that the Joint Committee on Justice, Equality, Defence and Women’s Rights would be the obvious committee before which the ombudsman would appear. I am slightly bemused as to why any other committee would require the ombudsman to appear before it. On this section I pondered why it is necessary to specify that the legal services ombudsman would attend. We have had recent public concern about people refusing to attend Oireachtas committees. I would have thought by nature of the office the legal services ombudsman would be obliged to appear if required. Perhaps the Minister of State will enlighten me on that. Will this provision be standard in any legislation establishing a body of this nature? It seems implicit that while serving as legal services ombudsman they should be obliged to appear before a relevant committee, but perhaps I am wrong about that. 304 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

Deputy Barry Andrews: This is a standard drafting mechanism where such appointments arise. If the legal services ombudsman thinks the call to the committee is oppressive or outside his or her vires in any way, he or she may decide not to appear and that can be subsequently determined by the High Court, as the Senator can see in the rest of the section. If the High Court so orders, the appearance will have to be made. There are protections and it is a fairly standard and balanced section that is part of this type of legislation on other appointments.

Question put and agreed to.

Section 18 agreed to.

SECTION 19.

Question proposed: “That section 19 stand part of the Bill.”

Senator Ivana Bacik: Again, this relates to the levy to be paid for the establishment of the expenses of the ombudsman, or “ombudsperson”. I am grateful to Senator O’Donovan; I also like to use that word to symbolise that it could be a man or woman. This levy is to be paid by the Bar Council and Law Society. The Bar Council has approached the Minister and I did not table an amendment to subsection (4) because I did not think it was appropriate as this might be reviewed in the future. It seemed reasonable to take 10% from each professional body. However, I am conscious from the figures, which the Minister put on the record on Second Stage, that there is an enormous gulf between the level of complaints against barristers and solicitors. In 2007-08 there were 24 complaints against barristers compared with 1,745 against solicitors. The complaints against barristers represent 0.01% of the overall total of complaints. In that context perhaps 10% is rather too much for the Bar Council. I did not feel it was appropriate to table an amendment on this because it will have to be reviewed and section 20 gives the Minister quite extensive power by regulation to examine how the levy is paid, although not to overrule subsection (4). Leaving the remaining 80% to be paid pro rata seems to allow for equity but we return to the issue of the overall running costs of the legal services ombudsman. The 10% figure may not be particularly significant if the overall running costs are kept low. It is not inappropriate for each professional body to pay 10% but I acknowledge that the discrepancy in the numbers of complaints may mean the Bar Council may have some merit in its argument that it should pay less. The 80% rule——

Senator David Norris: Huh.

Senator Ivana Bacik: I am not putting it any higher than that.

Senator David Norris: I apologise; that is spelled “H-U-H”.

Senator Ivana Bacik: Senator Norris has put his disbelief on the record. My other point is on the Minister’s power by regulation to provide for the payment of the levy, but perhaps I will leave that for section 20.

Senator John Paul Phelan: I have a slight interest which I did not declare. I concur with the Minister of State’s view about how difficult it is to combine doing a job and the night course in the King’s Inns because I have class at 5.45 p.m. so I hope we can expedite the rest of the Bill.

Deputy Barry Andrews: I will do my best. 305 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

Senator John Paul Phelan: Does the proposal that the costs of the ombudsman be paid by the Bar Council and the Law Society relate to the entire cost, including the salaries paid to the ombudsman and all staff in the office? We have had many complaints recently about partic- ularly high pensions being paid to people who have given up public positions. Will the pensions of the ombudsman and staff be covered by the levy on the Bar Council and Law Society?

Senator Denis O’Donovan: I commend the draughtspeople and the Minister of State on the prosed levy. It is a very good concept that might go unrecognised whereby the professions against whom complaints are likely to arise and proceed will have to pay a levy towards the upkeep of the ombudsman’s office. I cannot but concur with Senator Bacik’s point that a very small proportion of complaints is made against barristers. However I would vary the pro- portions of the levy in a different way. Regrettably, solicitors find themselves at the coalface of dealing with the public and obviously are much more likely to be hit by complaints. Barristers are somewhat shielded because, despite the professional access, by and large people do not walk in off the streets to barristers but come to them via solicitors. The biggest single complaint against the legal profession in the past decade has been on the inordinate fees reaped by senior counsel at the tribunals, especially the more recent tribunals on zoning of lands in Dublin, some of which were extraordinary. Some of the senior counsel made \1 million per year. This is a major issue. If one examines the capacity to earn and the earnings achieved by some senior counsel, the levy should be pro rata on the basis of earning capacity or earnings. We recently touched on young solicitors and some at the Bar who are at the lower echelons of their careers. If they begin at the age of 25 and live to be 65, they will never earn more in that 40 years, allowing for taxation, than some of the big hitters at the tribunals. They might be in a minority, but we should examine those who have earned this money. Those who can most afford it should pay. I have great respect for Senator Bacik, but solicitors are hit because they are at the coalface of the complaints mechanism. Many complaints I have seen made were caused by engineers, architects or somebody else. Solicitors rely on their skill and judgement and they take the flak, so it runs down the line. If the Minister of State is minded to make any change 5 o’clock it should be pro rata on the basis of earnings. It is a bit unfair that a young practising solicitor, allowing for professional negligence and so on, should be down \15,000 before ever earning a crust. Professional negligence insurance is expensive. Their contribution to the Law Society for membership is probably minimum, forgetting about pro- fessional negligence. I ask the Minister of State not to hit the weak earners but to do it on the basis of those who make the most money, whether the huge firms of solicitors or the high earners in tribunals. Regrettably, tribunals have become a gravy train over the past 15 to 20 years. They were set up by the Oireachtas and they were let run without fetters. I have contended in this House and in another forum that there were three tribunals of inquiry worth the name of tribunal: the Stardust tribunal, the Whiddy disaster tribunal, both of which involved much loss of life, and the Blood Transfusion Service Board tribunal. The others could have been dealt with by another mechanism. They have cost the State a great deal of money. Those who make big bucks should pay pro rata into this fund.

Senator David Norris: Hear, hear.

Senator Ivana Bacik: I accept what Senator O’Donovan stated about solicitors being on the front line in that they offer services directly to clients much more frequently than barristers. I should stress that I approve of the idea of the levy. I certainly was not putting it any higher than simply raising the difference in numbers of complaints. I accept fully that both the Bar 306 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

Council and the Law Society should pay into the levy. It is a reasonably fair proposal that the 80% remainder of the levy would be split pro rata according to the number of the complaints. All of this is subject to how much the overall cost of the ombudsman service will be and how much it will cost to run a service that provides the necessary scrutiny for members of the public who are dissatisfied with the service they have received from barristers and solicitors. We must never lose sight of the important objective of the ombudsman’s office while at the same ensur- ing it does not generate enormous cost overruns in doing so.

Senator Denis O’Donovan: I have one final point I forgot to raise earlier when I got carried away on my issue about the high earners. It is mentioned in the Bill that the complaint must be made within six months. Perhaps I am confused in this. What worries me are issues we have come across in legal complaints where a person is not compos mentis and there is a time lag or a complaint has been initiated by an elderly person who then dies. Perhaps I am reading this incorrectly. I would be slow in applying strict time constraints on a person who is under age where the complaint might not come to light for some years until the person attains the age of 18, or on a person who because of a mental incapacity is not capable of processing the complaint. Does the Statute of Limitations apply or has the ombudsman a free hand? The ombudsman should have a much freer hand than hitherto. We have seen where the Statute of Limitations in many instances wrongly deprived people of the right to make complaints regard- ing issues that came to light many years later or did not manifest themselves within the period concerned.

Deputy Barry Andrews: Senator O’Donovan refers to section 21. The ombudsman can accept a complaint after the six-month period if he feels justice requires it. Returning to the section we are dealing with, to answer Senator John Paul Phelan, section 19 also deals with the superannuation of the staff and the ombudsman. While the 10%-10%-80% divide might seem a little unfair given that solicitors are at the coal face, solicitors outnumber barristers by approximately ten to one.

Senator Ivana Bacik: It is 9,000 solicitors to 2,000 barristers.

Deputy Barry Andrews: That is less, approximately five to one. Nevertheless 10% of the levy will come from the Law Library and a little more after that. It is getting towards a representa- tive figure while allowing the flexibility of a pro rata system. It would be reasonable to allow this to bed down to see whether fairness is reflected in the way in which the levy operates. It should also be remembered that the levy is charged to the two professional bodies and it is up to them to decide how they raise it from their members. I recommend the section the House.

Question put and agreed to.

Section 20 agreed to.

SECTION 21.

Question proposed: “That section 21 stand part of the Bill.”

Senator Ivana Bacik: I welcome this section. This is the crux of the Bill, enabling the making of complaints to the ombudsman. As I stated on Second Stage, I welcome it because it provides for a necessary degree of oversight and scrutiny of what for a long time has been regarded as self-regulating professions. I acknowledge the professions have made quite significant amendments to their own dis- ciplinary procedures to allow for much greater input of laypersons to the extent of lay majori- ties, etc. At the same time the legal services ombudsman has been long recommended by many 307 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

[Senator Ivana Bacik.] bodies and many reports over the years. The provisions in section 21 will provide an essential remedy for consumers of legal services and clients who feel they have been unfairly or badly treated by barristers or solicitors. As the Minister of State said on section 19, as with any new procedures, time will be needed to bed down the procedures and for members of the public to become aware of their existence. I am glad to see subsection (6) allowing the ombudsman to accept complains after the six- month limitation period where special circumstances exist. That will be important, especially in the first few years of the existence of this service for people who are not aware of the service. It may take longer for people to get around to submitting a complaint or they may simply be unaware of the existence of the procedure in the early years of the existence of the ombudsman. I wonder about subsection (10): “A complaint to the Legal Services Ombudsman may be made by any person on behalf of another person.” In light of Senator Norris’s revelation that he has acted in the past as an amicus curiae — in the English courts it was called a McKenzie friend, a person who was not legally qualified who appeared on behalf of another person, and after the poll tax riots I recall many McKenzie friends appearing in the magistrates’ courts in England — it strikes me that the provision could be problematic. Has the Minister of State any thoughts on it? How is the ombudsman to know? Clearly he or she must act in good faith in accepting a complaint but if it is made by a person who is not the person who made the original complaint to the Law Society or Bar Council under the earlier subsections, I wonder how that will work in practice if another person can then step in to make a complaint on behalf of the original complainant. I am not sure what the section aims to do. It could be important where a complainant feels unable to make a complaint. If it facilitates people making complaints who would not otherwise be able to do so, that is important. I am just not sure whether that is the purpose. Perhaps the Minister of State could explain it.

Senator Denis O’Donovan: Senator Bacik hit the nail on the head when she stated this section is the cornerstone of the Bill. I note the ombudsman is an additional layer of control over the legal professions. In the Solicitors Acts, which regulate the solicitor profession, there are substantial mechanisms along these lines and from my experience and knowledge, they are well utilised. Many solicitors have been struck off and others have been severely disciplined. It should also be noted that complaints of misconduct against solicitors may be made by clients to the society or the solicitors disciplinary tribunal, which is an independent statutory tribunal appointed by the President of the High Court under the 1994 Act to investigate com- plaints of misconduct against solicitors. Members of the tribunal appointed by the President of the High Court include lay persons. There is a notion abroad that the Law Society regulates itself, but it is far better dealt with in practical terms. In this regard, the appointment of the ombudsman is an extra layer with which I have no problem. The same may be said of the Bar Council which has its rules and regulations. A client who has a complaint against a solicitor has many avenues open to him. He can make a com- plaint to the Law Society and it will be investigated. It may end up at the solicitors’ disciplinary tribunal, as many serious complaints have, and if that fails, the client has a right to go to the legal services ombudsman if he is not entirely happy. When I set up a small practice on 4 April 1981, I was advised to take out professional negligence insurance, at a cost of £750, which was a lot of money then. We cannot practice without professional negligence insurance so it is possible to undertake civil action against a solicitor on the grounds of being ill-advised or that the client lost money when relying on a solicitor’s skill and judgment. Many avenues are available in the event of a complaint; this is a cornerstone of the legislation and it is a good thing. It gives the public extra comfort that there are so many steps. There is 308 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages a perception that solicitors and barristers are untouchable, but it is not true. In the early 1980s when I started, it was almost impossible to find one solicitor who would take on another. I was pursuing a particular medical negligence case where I had to engage a British consultant because no Irish consultant would act against a colleague. That has changed. Now, in every county, there are solicitors on a panel ready to chew up their colleagues for making mistakes. Everyone makes mistakes and there are civil remedies. The more serious mistakes where there is gross misconduct, however, deserve criminal sanc- tion so this is an important aspect of the Bill. This is not the first avenue for a complaint, it could be the fourth or fifth.

Senator Paddy Burke: Senator John Paul Phelan asked on section 19 about the funding of the ombudsman’s office. The Minister of State outlined that not alone do the Bar Council and the Law Society have to fund the ombudsman’s office but all future pensions of the ombudsman and the staff. That will be a huge cost in future and there is no provision in the Bill for pensions for ombudsmen or their staff. Will the person who makes the complaint be charged? The ordinary client of the solicitor pays anyway, because it will be taken into account when decid- ing costs.

Deputy Barry Andrews: There is no charge for the complainant. Under section 21(10), the complaint to the legal services ombudsman may be made by any person on behalf of another person. That relates to the capacity of the person on whose behalf the complaint is being made. A further safeguard against anything untoward in that regard can be found in section 22(4)(b), which states that the legal services ombudsman may decide not to investigate a complaint if he or she is satisfied the person making the complaint has an insufficient interest in the matter. There are safeguards. Senator O’Donovan mentioned the solicitors’ disciplinary tribunal. The right balance is found here. The Bill does not get rid of the tribunal, it gives a vote of confidence in it while providing an extra dimension. Section 22 states that the ombudsman can go ahead with the investigation of a complaint if the Law Society does not get on with it in sufficient time. By reading the two sections together, the right balance is struck between preserving the good practice that has existed until now and providing an extra safeguard for the future, which is the purpose of the Bill

Question put and agreed to.

SECTION 22.

Question proposed: “That section 22 stand part of the Bill.”

Senator Ivana Bacik: I welcome the principle expressed in section 22. I have often been approached by people who are unhappy with the service they have received from a solicitor or barrister. Often delay is a major factor in people’s dissatisfaction, with calls not being returned or unexplained delays in procedure. I know how difficult it is for practitioners to keep on top of work so there are points on both sides, but delays within the disciplinary processes should be included as matters the legal services ombudsman may investigate. Where either the barristers’ professional conduct tribunal or the Law Society’s procedures have delayed unreasonably in processing complaints, the ombudsman may step in. A person may make a complaint to the ombudsman even when he is entitled to bring a complaint in a court so the ombudsman’s power of scrutiny is overriding. There has been a problem with delays in court judgments, a matter the European Court of Human Rights has raised. I doubt, however, it is within the scope of this Bill to resolve that today. 309 Legal Services Ombudsman Bill 2008: 3 March 2009. Committee and Remaining Stages

Deputy Barry Andrews: The Senator is right, delay is a source of complaint and it is some- thing the legal services ombudsman can investigate. Equally, delay in the investigation of a complaint can lead to an injustice for the person against whom the complaint is made. He is entitled to have the complaint investigated promptly. Those safeguards are reflected in the section.

Question put and agreed to.

Sections 23 to 27, inclusive, agreed to.

SECTION 28.

Question proposed: “That section 28 stand part of the Bill.”

Senator Denis O’Donovan: This is another important section. Here, the ombudsman can issue directions to the Bar Council or the Law Society following investigations. There is room for improvement in any system of investigation and once the ombudsman’s office is up and running, in five or seven years, I would like to see it point out its successes before an Oireachtas committee. I heard the former secretary general of the Law Society saying that less than 1% of com- plaints were eventually found to be of merit or substance, which is an important fact. Many people who never give up, have gone through the legal process with solicitors or barristers. The facts show that there is a substantial number of spurious complaints against the professions. In time to come, I hope the legal services ombudsman will bear that out. When that office is established it will be able to give directions, hopefully, in a balanced and guided way so that the professional conduct of the Law Society or the Bar Council can be improved overall and we will have a better service for citizens.

Deputy Barry Andrews: I welcome the Senator’s comments. The intention of the Bill is to provide a better service for those using legal services. In addition, legal practitioners will also benefit from whatever will be learned from all of this. The powers to be afforded to the legal services ombudsman will be quite wide and will have all the necessary balances. As I said, the legal services ombudsman can exclude a complaint if he or she is of the opinion that it is frivolous or vexatious. It is a well crafted Bill and much of the drafting reflects the concerns about balance that have been expressed by Senators.

Question put and agreed to.

Sections 29 to 38, inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: “That the Bill do now pass.”

Senator Denis O’Donovan: I do not want to delay the Minister of State but I wish to express my gratitude to him for taking this Bill through the House. At the start, I should have welcomed him to the House. I was a close working colleague of his in the last Da´il and I am delighted to see he has been promoted. He is doing an excellent job and I wish him well in dealing with a delicate and difficult portfolio. I have do doubt that he has the capacity to make his own mark on it and I am confident he will do so.

310 Registration 3 March 2009. Fees

Senator Paddy Burke: I congratulate the Minister of State on bringing this Bill through the House. He has done an excellent job and knows his brief inside out. It was a privilege to hear him answering the many questions from various Senators on all sides. I wish him well.

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.

Senator Ivana Bacik: I echo Senator Norris’s words of welcome for the Bill. I thank the Minister of State for all his work on it and for answering the points we raised with substantive replies, rather than formulaic ones that we sometimes get on legislation. The Bill will provide for an important extra layer of scrutiny, as has been said. It will improve the quality of services provided to members of the public, which is the ultimate aim. It will ensure that all legal practitioners are more accountable and subject to scrutiny, not just within our own professional disciplinary procedures but also through this extra mechanism of scrutiny and oversight.

Deputy Barry Andrews: I thank Senators for their kind words and I acknowledge the role played by my advisers. I was waving the Constitution around because one of my advisers brought to my attention that Article 18.1 states: “Seanad E´ ireann shall be composed of sixty members, of whom eleven shall be nominated members and forty-nine shall be elected members.” I could not help raising that issue.

Senator David Norris: The Constitution is badly drafted.

Deputy Barry Andrews: Yes, but the Bill is extremely well drafted, which is reflected in the lack of amendments, although specific issues were raised.

Question put and agreed to.

An Cathaoirleach: When is it proposed to sit again?

Senator Denis O’Donovan: Maidin ama´rach ar 10.30 a.m.

Adjournment Matters.

————

Registration Fees. Senator David Norris: I raise this matter of concern to pharmacy students and, in particular, the sophister students. I raised an issue regarding their situation in the previous session. It concerns the increase of their registration fee to \1,500. The fee seems extraordinarily high and the deadline for payment is also rather harsh. I anticipate the Minister of State’s response. He will start by saying that the money is spent on admissions, registration, student records, examinations, academic quality assurance and so on. I made an inquiry earlier and this is what 311 Registration 3 March 2009. Fees

[Senator David Norris.] is being passed on to me and to the students. It is a very bureaucratic reply and does not take cognisance of the hardship suffered by the students concerned. The duties and services provided do not really seem to justify the level of fees. They talk about 170 plus graduates, which is moving up to 200, so we are getting close to \3 million in registration fees. That is an enormous amount simply for organising a few examination papers and quality assurance, which is a vague phrase. One must bear in mind that we are in a period of considerable stringency. I just heard on my little transistor radio that the Government will introduce a mini-budget at the end of the month. The Minister of State may not even be aware of that. I do not know whether he is, but this has just been announced because of the considerable shortfall in taxes. More people will be put out of work, perhaps including some parents of these students. We are in a situation of considerable economic stringency, yet the response of the regulator is to increase these fees enormously and place a very difficult timescale on students to pay them. As the Minister of State well knows, regulators are under fire at the moment. The students request that the amount of the fees be significantly reduced. Under the Pharmacy Act, the Pharmaceutical Society of Ireland’s council has the right and the power to waive, vary or reduce these fees. The Minister must draw to the attention of the Pharmaceutical Society of Ireland and the regulator the difficult economic situation faced by these students. This comes just at a time when the students are facing their final year exams. The fee is payable in March 2009 in order to allow them to commence their pre-registration year in October 2009. They feel a strong grievance about the late notification of the fee. I was approached first by a senior academic in the school of pharmacy at Trinity College, Dublin, and then by the students. Students in Trinity College, Dublin, and the Royal College of Surgeons in Ireland were informed of the matter only on 5 December 2008. Students at University College, Cork, have not been told yet officially and have heard it on the grapevine through the actions of the other students. That is an intolerable discourtesy to students. The fee is being yanked up and a harsh deadline is being imposed but the students are not even informed about it. That is disgraceful. The students are entitled to an apology from the Pharmaceutical Society of Ireland. The society ought to have a little more human feeling. When these students began their courses in 2006, they had to pay \250 for preliminary registration to the previous incarnation of the Pharmaceutical Society of Ireland. The Pharmacy Act 2007 states no fee shall be payable by students for enrolment. Why should they then have to pay twice? Why can the 2006 fee not be taken into account? It makes a farce of the whole idea of free fees, a stupid and ugly phrase which is an oxymoron. The students have asked me to seek clarification on certain issues with the society’s council. They want to know the amount of fee charged this year in comparison to previous years. They want the payment for preliminary registration on the roll of students and a refund or further reduction pre-registration fee to take into account this money. They want clarification on the charging of both a pre-registration fee and an examination fee. They want the provision of a document outlining the purpose of any fee to be charged and for what it is to be used. I have anticipated the Minister of State’s response on this. I am not convinced that it will take \3 million to do the silly things about which we have been told. The students also want an assurance that once the fee is charged, no new fees can be added during the training year. The students have also made the point that in principle they are prepared to pay their way, but they need to know for what the fee is and a justification of the amount. They also do not want to be served by a late notice of the fee.

Minister of State at the Department of Health and Children (Deputy Barry Andrews): Iam taking this Adjournment on behalf of the Minister for Health and Children, Deputy Harney. 312 Home 3 March 2009. Loans

The profession of pharmacy has undergone a dynamic change since the Pharmacy Act was enacted in May 2007. Pharmacy graduates are obliged to complete six months post-qualification training before they are eligible to become registered pharmacists. This course of study, super- vised work experience and examination is conducted by the Pharmaceutical Society of Ireland in conjunction with hospitals and community pharmacists. According to the society the cost of the pre-registration training, up to this time, has been borne by practising pharmacists and pharmaceutical assistants through their annual registration fees. The society’s position is this situation may have been acceptable when the number of graduates was relatively low at 50 graduates a year, from one pharmacy school. However, there are now up to 170 graduates a year from three pharmacy schools and the former arrangement is no longer tenable. Furthermore, the society points out that no other health care profession funds the vocational training of graduates at the expense of the practising profession. The society undertakes a substantial and comprehensive service for the management and administration of the pre-registration training programme. The running of a postgraduate prog- ramme requires it to provide services in admissions and registration, student records and exam- inations office, academic quality assurance and academic support office and a student support office. The society is a self-financing body. In arriving at a new pre-registration fee, it felt the full management and administrative costs associated with running a national education function in the society must be covered as it has no other source of funding available. Pre-registration pharmacy students are employed, either in the hospital or retail pharmacy sectors, and earn a salary during their vocational training. Viewed in this light, the fee level of \1,500, which is in line with the third level student registration fees approved as part of the 2009 budget, cannot be considered excessive. This fee will be applied by the society in the same manner as the registration fee in the higher education sector. The society has commissioned a review of pharmacy education in Ireland, the pharmacy education and accreditation reviews, PEARS, project. The final report from the project is due in early 2010 and interim reports on a quality review of the pre-registration training year and on accreditation models are due in March and November 2009, respectively. In this regard, the pre-registration fee may be regarded as an interim measure until a new model of training is agreed and in place for all pharmacy students.

Senator David Norris: I understand the Minister of State is just reading a script. However, will he return to the Minister for Health and Children with the requests I made? It is an embarrassment to seek \3 million for a bit of administration. No teaching is being done and I am perfectly morally certain there is much double-jobbing going on there. The people adminis- tering this are otherwise occupied and are paid for by the Pharmaceutical Society of Ireland. The figure of \3 million is excessive and I believe it is going back to the central fund. I raised several itemised points on behalf of the students. Will the Minister of State take them back to his colleague, the Minister for Health and Children? I attach no blame to the Minister of State for the paucity and inadequacy of his response. However, I believe it is not too late. I understand that today a meeting will be held on this matter. Will the Minister of State ask his colleague to take these matters into account when making a final decision?

Home Loans. Senator Fidelma Healy Eames: This matter relates to the need for the Minister for Finance to use his influence with the banks by asking them to allow hard-pressed mortgage holders who entered fixed rate home loan agreements within the past two years to renegotiate new rates at current variable or fixed mortgage rates. Some of the people in question are in danger of losing their homes. 313 Home 3 March 2009. Loans

[Senator Fidelma Healy Eames.]

My aim is to enable people to retain their homes and avoid foreclosure. As matters stand, every household to which a mortgage applies is under threat because no one’s job is safe. Even if people are not currently affected in this regard, uncertainty will arise at some future date. As a result, a psychological weight has been placed on the entire population. I wish to propose one way to alleviate this pressure in respect of those who took out fixed rate mortgages in recent years. Some couples are finding their circumstances especially difficult. The current European Cen- tral Bank, ECB, rate is 2%. This is due to be further reduced on Thursday next. It is likely that bank interest rates will follow and will drop by perhaps 0.5%. A number of the couples and individuals I represent in Galway — I accept that this matter is of national significance — entered into fixed rate mortgages to which rates of between 5.3% to 7% apply in the past two years. They did so because their loans are for a 30-year period. These people may have nego- tiated a fixed rate for three or five years. In the interim, people have lost their jobs and there may now be only one income earner in a family. As a result, a new form of pressure is being exerted upon them. I ask that the Minister for Finance use his considerable leverage with and authority over the banks in order that couples and home owners in general might be allowed to break their fixed rate mortgages without incurring a subsequent penalty. Fixed rate agreements can be broken but this results in a penalty of six months’ worth of payments. I know a couple with a mortgage of \400,000 to be repaid over 30 years. It would cost these people \15,000 to break their fixed rate agreement. If they could renegotiate that agreement and have the current variable rate applied to their mortgage, they would save \400 per month or \100 per week. One of these people has been obliged to pay the new pension levy, which is a further charge on them. If they were allowed to break their fixed rate agreement, the savings made would at least cover the cost of that levy. It appears what I am suggesting is a no-brainer. Each day we discuss issues relating to the real economy. The matters to which I refer come into that category. The Lower House has shown considerable leniency towards the banks and, despite the mistakes they made, given them a great deal of latitude. The Minister of State, Deputy Barry Andrews, is in a position to influence the Minister for Finance and should urge him to use his authority over and leverage with the banks to ensure some of the latitude afforded to them might be passed on to home owners who are under considerable pressure as a result of having taken out fixed rate mortgages. I am aware of another case in respect of which a real double whammy applies. The case in question relates to a 35 year old man who bought an affordable house from Galway County Council and who is making repayments of \890 per month. The man in question lost his job as a scaffolder in January 2008 but has been able, through the social welfare system, to avail of a mortgage interest supplement for the past 12 months. However, the latter, which provided him with additional income of approximately \400, has expired. I was approached by this individual and his parents yesterday. He asked whether I would make representations on his behalf to the council in order that he might rent out his home and move back in with his parents. As already stated, this man is 35 years of age and he feels he must take the latter course of action. As the Minister of State will be aware, if one owns an affordable house, one cannot rent it out in its entirety and one is only allowed to rent out a room. The second issue that arises in this case is that the man in question is locked into a fixed rate mortgage. I am not concerned about the first difficulty that has arisen for this individual but I am concerned with regard to the second.

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I look forward to hearing the Minister of State’s reply in respect of this matter. It is time taxpayers and home owners were afforded some latitude by the banks. The Minister for Fin- ance should see to it that this happens.

Deputy Barry Andrews: I thank Senator Healy Eames for raising this important matter, to which I am replying on behalf of the Minister for Finance. I will begin by addressing the Senator’s concerns for those who may fall into arrears on their mortgages and on the supports available to them. I will then address the issue of fixed rate home loan agreements and the role played by the Government and the Financial Regulator in this regard. It is obviously most desirable that as few people as possible fall into arrears with their mortgages. One of the ways of achieving this is to ensure mortgages are affordable in the first instance. Successive budgets since 2006 have increased the level of mortgage interest relief available to first-time buyers to refocus this relief towards home owners who are in most need of assistance. The Minister for Finance has consistently highlighted the need for responsible behaviour by both borrowers and lenders and, in particular, the need to factor in to their financial decision making the effects of potential future changes in economic and financial conditions. In early January, the Financial Regulator published tips on its consumer website www.itsyourmoney.ie to help consumers to manage on less money. This follows on from consumer research conduc- ted by the Financial Regulator in which more than one quarter of respondents indicated that they had experienced a drop in income in the past six months. More than two thirds of respon- dents stated they were reacting to the recession by making some change to their personal finances, for example, through budgeting more carefully, cutting down on day-to-day spending or reducing their credit card spending. The consumer director of the Financial Regulator, Ms Mary O’Dea, recommended that the priority for consumers should be to try to live within their budgets. The Financial Regulator’s practical money tips are aimed at helping consumers live on less, save more for emergencies and start off the year on a good financial footing. In terms of support for payment of mortgages, the mortgage interest supplement, adminis- tered by the community welfare service of the Health Service Executive on behalf of the Department of Social and Family Affairs, provides assistance in respect of the interest paid, where the mortgage relates to a person’s principal private residence in the State. Anyone experiencing difficulty in repaying a mortgage or other loan should discuss the matter with the loan provider and seek appropriate financial advice without delay. People in debt or in danger of getting into debt can avail of the services of the money advice and budgeting service, MABS. The latter is a national, free, confidential and independent service. In 2009, almost \18 million has been provided to assist MABS with its workload. It is a particular priority of the Government to ensure, as much as possible, that difficulties in respect of mortgage arrears do not result in legal proceedings for home repossession. Home repossession should be, and generally is, the last resort for the lender. The preferred method of dealing with arrears cases should be early intervention. In late 2008, the Financial Regulator carried out an examination of procedures for handling arrears and repossessions across credit institutions and other mortgage lenders. This examination focused on residential mortgages and confirmed that mortgage lenders generally have fair and reasonable procedures in place to deal with arrears and repossessions. The Financial Regulator has written to all regulated mortgage lenders with feedback from the examination, setting out best practices identified. The finalised recapitalisation scheme announced on 11 February includes a new code of conduct in respect of mortgage arrears. This code came into force on 27 February and applies to mortgage lending activities to consumers in respect of their principal private residence in the State and is mandatory for all mortgage lenders registered with the Financial Regulator. Under the mortgage arrears code, where a borrower is in difficulty the lender will make every 315 The 3 March 2009. Adjournment

[Deputy Barry Andrews.] reasonable effort to agree an alternative repayment schedule and will not commence legal action for repossession until after six months from the time arrears first arise. In addition, as part of their recapitalisation scheme, the two banks concerned, AIB and Bank of Ireland, will not commence court proceedings for repossession of a principal private residence until after 12 months of arrears appearing. This is subject to the customer continuing to co-operate with their bank. Moving to the specific question of fixed rate mortgages, the Minister for Finance has no function in setting interest rates, including fixed rates. His function is to provide an appropriate and robust legislative framework for regulation of the financial services sector, with a particular focus on the consumer. The choice of mortgage product ultimately rests with the consumer in light of the terms and conditions that their lending institution offers. The decision of borrowers is influenced by factors such as their personal preferences and their own assessment of the relative merits of fixed and variable rate mortgages. Generally mortgages are for long periods. To some consumers a fixed interest rate on a mortgage offers peace of mind in that the borrower benefits from certainty regarding the cost of their mortgage and does not need to be concerned with changes in mortgage interest rates and, accordingly, he or she can budget more confidently. Interest rates charged by banks gener- ally vary in line with the base rate fixed by the European Central Bank, ECB, from time to time. Where a bank offers a fixed rate over a certain period it incurs additional costs in obtaining fixed or other funding in respect of the loan over the period. The additional costs will reflect both the market view of future trends in interest rates for the period and the fact that longer-term deposits generally attract higher interest rates than short-term deposits. In addition, where a consumer changes from a fixed interest rate contract to a variable rate contract before the end of the term for which the interest rate was fixed, there is an associated cost to the lender. In circumstances that lenders were prohibited from passing on this cost to borrowers switching to variable rates, this cost could increase the price and reduce the avail- ability of fixed rate mortgages. Those on fixed rate mortgages have the option of switching to variable rate mortgages under the terms of their existing fixed rate agreement. The Minister for Finance is satisfied that the current level of safeguards available as outlined above is sufficient to protect such consumers at this time. He is also cognisant of the possibility that there may be additional costs to borrowers, in general, and less choice of products available should lenders experience a reduction in revenue as a result of the introduction of measures to allow borrowers who entered fixed rate home loan agreements to renegotiate new rates at current variable or fixed mortgage rates. Therefore, the Minister for Finance currently has no plans to introduce such measures. However he will keep the situation under review in consul- tation with the Financial Regulator.

Senator Fidelma Healy Eames: The Minister said: “Those on fixed rate mortgages have the option of switching to variable rate mortgages under the terms of their existing fixed rate agreement.” However, they can only do that by incurring a six-month penalty. Why will the Minister not intervene on behalf of the home owner? Why would he not use his authority?

An Cathaoirleach: The Minister can talk to the Minister for Finance about the question the Senator raised.

Senator Fidelma Healy Eames: The Minister is letting the banks be king again.

The Seanad adjourned at 5.55 p.m. until 10.30 a.m. on Wednesday, 4 March 2009.

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