Civil Law Reform: Proposed Legislation

Legal Services Regulation Bill 2011

The Legal Services Regulation Bill 2011 gives effect to key structural reforms included in the Programme for National Recovery 2011-2016 namely, to establish independent regulation of the legal professions, to improve access and competition, make legal costs more transparent and ensure adequate procedures for addressing consumer complaints.

The Bill also meets a number of the State’s key commitments in the EU/IMF Programme of Financial Support for Ireland aimed at structural reform building on the recommendation of the Legal Costs Working Group and the Competition Authority.

It provides for three key entities:

a new, independent, Legal Services Regulatory Authority with responsibility for oversight of both of the legal professions,
an Office of the Legal Costs Adjudicator to assume the role of the existing Office of the Taxing-Master which will be conferred with enhanced transparency in its functions. The legal costs regime will be brought out into the open with better public awareness and entitlement to legal costs information, and
an independent complaints structure to deal with complaints about professional misconduct – this will be supported by an independent Legal Professions Disciplinary Tribunal.

A copy of the Bill is available on the Oireachtas website and a copy of the press release announcing Government approval for publication of the new Legal Services Regulation Bill is available at http://www.justice.ie/en/JELR/Pages/PR11000184

Link to Legal Services Regulation Bill on Oireachtas website http://www.oireachtas.ie/viewdoc.asp?DocID=19208&&CatID=59

Mental Capacity Bill

Proposals for the drafting of a Mental Capacity Bill were approved by Government on 3 September 2008. Publication of the Bill is expected in Spring 2009.

The main purpose of the Mental Capacity Bill is to reform the existing Wards of Court system as it applies to adults, and replace it with a modern statutory framework governing decision-making on behalf of adults who lack mental capacity. The Bill will repeal and replace the Lunacy Regulation (Ireland) Act 1871, currently the chief legislation in this area.

A fundamental change from existing law and central to reform in the proposed Bill is in relation to what constitutes lack of capacity. The focus will be on the particular time when a decision has to be made and on the particular matter to which a decision relates, not on any general review of capacity to make decisions generally. This is in line with international best practice, as well as a recommendation of the Law Reform Commission and is a significant change from the current system, where a finding of incapacity applies to every decision a person may make and every legal transaction they may wish to enter into.

In the case of a determination of incapacity, the Bill provides for assisted decision making and where this is not appropriate, substituted decision making, by the Court or court-appointed personal guardians. The intention is to ensure that there is no intervention unless it is necessary, having regard to the needs and best interests of the person. The High Court and the Circuit Court will have concurrent jurisdiction for making decisions on capacity and appointing personal guardians under the Bill. It is anticipated that a substantial proportion of applications will be heard in the Circuit Court, ensuring greater accessibility and lower costs. The Scheme aims to keep the costs of applications to the court as low as possible.

Central to the proposed reform is an administrative structure, the Office of Public Guardian, which will ensure a more effective and appropriate system for persons who lack capacity and their families. The Office of Public Guardian will supervise court-appointed personal guardians and donees of enduring powers of attorney and provide a forum for complaints to be made against personal guardians and donees. The end of the requirement to refer minor decisions to Court, as well as the Circuit Court’s new remit in capacity decisions, will help keep costs as low as possible for those involved. The Bill will also make necessary amendments to the laws on enduring powers of attorney and furthermore will provide additional necessary safeguards for carers of persons lacking capacity.

The legislation will provide greater protection for adults with intellectual disabilities, persons suffering from dementia or mental illness, and persons who have acquired brain injuries through trauma or accident. The reforms will give effect to recommendations of the Law Reform Commission’s 2006 Report on Vulnerable Adults and the Law. The Bill represents an important part of the process towards ratification of the UN Convention on the Rights of Persons with Disabilities, signed by Ireland on 30 March 2007, and also gives effect to the Hague Convention on the International Protection of Adults, which Ireland signed on 18 September 2008.

The Scheme of the Bill has been published on this website, and can be seen here.

The press release upon publication of the Scheme can be viewed here.

Judicial Council Bill

Work is proceeding on the development of a Judicial Council Bill. The intention is that the Bill will establish a Judicial Council representative of the judiciary of all the courts. The Bill will also deal with the establishment of a code of judicial ethics and set out a process for the investigation of complaints of breaches of ethics by members of the judiciary. There is to be lay involvement in these functions.

These provisions will not displace the constitutional provisions regarding impeachment of judges of the High and Supreme Courts, nor those provisions as extended to judges of other courts. Where investigation of a particular allegation discloses that there may have been a sufficiently serious breach to warrant impeachment, the matter will be referred to the Oireachtas, which alone has responsibility for the impeachment process. Where investigation shows a less serious breach of ethics, the Bill will provide for a range of lesser steps that can be taken, including the giving of advice, issuing a reprimand or recommending changes of practice or procedure as it considers appropriate.

As regards judicial information, the intention is that the council will oversee judicial studies, the sharing of information between judges on matters such as sentencing, library services and related matters.

The proposed Bill is the subject of ongoing consultations with, in particular, the Chief Justice.

Sale of Alcohol Bill

The Government legislation programme makes provision for publication of a Sale of Alcohol Bill, which will update and streamline the law relating to the sale and consumption of alcohol in 2007. This Bill will repeal the Licensing Acts 1833 to 2004, as well as the Registration of Clubs Acts 1904 to 2004, and replace them with provisions more suited to modern conditions.

The comprehensive reforms to be contained in the Bill are intended to modernise and streamline licensing law in order to make it more understandable and user-friendly for the licensed trade, the courts and members of the public. Objectives include the following:

to simplify and streamline the licensing laws
to reduce alcohol-related harm, especially among young people
to promote coherence between the planning and licensing codes, including a strengthening of the role of local authorities in licensing matters
to improve compliance with licensing law by licensees, and its enforcement by the Gardaí

Property Services Regulatory Authority Bill

The Government legislation programme provides for publication of a Property Services Regulatory Authority Bill, which will give effect to key recommendations of the Auctioneering/Estate Agency Review Group, including establishment of the Property Services Regulatory Authority, in 2006. The overall objective of the Bill is to update, streamline and reform the property services licensing system and to improve standards in the provision of services. Increased consumer awareness and protection will in turn lead to improved consumer confidence in the property services market.

The main functions of the new Property Services Regulatory Authority will be as follows:

to operate a comprehensive licensing system covering all providers of property services, i.e. auctioneers, estate agents and property management agents (This will replace the current licensing system for auctioneers and house agents under the Auctioneers and House Agents Acts 1947 to 1973, which is based in the District Court.)
to set and enforce standards for the grant of licences (for example, educational/training standards, levels of professional indemnity insurance) as well as standards to be observed in the provision of property services by licensees
to establish and administer a system of investigation and adjudication of complaints relating to the provision of property services
to promote increased consumer protection and public awareness of property services in general and the cost to consumers, risks and benefits associated with the provision of those services
to establish, maintain and administer the compensation fund to compensate parties who lose money as a direct consequence of the dishonesty of a licensee

Other matters under consideration

Property management companies

As regards the legal framework applicable to property management companies, the position is that the Law Reform Commission published a consultation paper on multi-unit developments in December 2006. A consultation process is currently under way in relation to the draft recommendations set out in the paper, and the commission intends to publish a report containing its definitive recommendations later this year.

In recognition of the cross-cutting nature of many of the issues and the broad range of policy areas involved, including the planning and development code, company law, consumer protection law and the development of regulatory structures, the Government has established a high-level, interdepartmental committee to assist in the development of a coherent and comprehensive legislative response to difficulties arising in relation to multi-unit developments and property management companies. The committee is chaired by this Department.

A key task of the committee will be to identify the key legislative and administrative actions to be taken and to determine a timescale for implementation as soon as possible. In particular, the committee will have regard to recommendations for legislative reforms contained in the Law Reform Commission’s Report on Multi-Unit Developments, which will be published later in 2007.