Amendment No. 99 is consequential on amendment No. 96 and both will be taken together.
SECTION 37.
I move amendment No. 96:
In page 47, subsection (1), line 8, to delete "three" and substitute "five".
The purpose of this amendment is to ascertain why the Minister decided on the period of three years. The section states:
A solicitor shall not, without the written consent of the Society, for a prescribed period (not in any case to exceed three years). . .
The Minister has put a cap on the amount of time within which the society can restrict a solicitor from going into private practice. The Progressive Democrats support the idea of such a restriction. We mentioned while debating earlier sections that some young solicitors need to be protected from their own eagerness to get into the market place. An examination of the circumstances of some solicitors who get into difficulties in terms of the management of their practice, might show that youth and inexperience are contributing factors.
I tabled another amendment relating to the training of solicitors. I have grave concerns that at the pre-qualification stage solicitors are not given management practice training. If the society commits itself to continuing legal education, it must examine the type of training solicitors are getting before formally qualifying. I know solicitors who have come out of Blackball Place who have never seen a balance sheet and do not know how to run a business. That is what we are discussing in the context of this amendment.
At times negligence can turn to fraud. In an attempt to cover up negligence arising from shoddy workmanship, inexperience and plain ignorance of how businesses work and the management of client moneys, solicitors can get themselves into terrible difficulties and become involved in fraud. That is why I support a restriction on young solicitors becoming sole practitioners.
I mentioned five years to ascertain whether the Minister believes three years is long enough. It may be restrictive for older solicitors such as mature students or barristers and accountants who changed their profession in middle age. Any restriction would be undesirable in those circumstances. However, as phrased, the section states that "a solicitor shall not, without the written consent of the Society, for a prescribed period . . . commence to carry on practise. . ." There is room there for the solicitor to appeal to the society and make a case for an exception. Perhaps three years is sufficient and five years is better but I am willing to listen to the Minister when he responds to that amendment.
I recently talked to an experienced solicitor whose view was that a person should have ten years experience of working in an office that was well organised as a group practice, where he would see the routine and cross checks that are carried out. I support the principle but I am not sure as to the number of years. It is clear that temptation should not be put in the way of young solicitors who may find themselves with money and nobody to oversee what goes on because they are the boss in their domain. They should be protected. It is difficult enough for them to get jobs. There are so many solicitors at present that some cannot get an apprenticeship. However, once they are qualified and set up, they should not be left in a position where they can encounter difficulty. They need to gain experience from training staff.
I wish to counsel the Minister in this area. At present, it is almost impossible for people to get apprenticeships. We are talking about a quasi apprenticeship post qualification where people will in effect have their freedom of action restricted. Whereas I agree that there must be some period of induction into proper practice, the process should not be brought to the stage whereby there is effectively a cohort of solicitors who are restricted by law to employment by others for too long a period. That is the stuff of which exploitation is made in the long run.
This emphasises the difficulty in this whole area. We want to focus on client protection. This is a vital client protection provision, as Deputies O'Donnell, McDowell and Browne recognised. It is a matter of where the line is drawn but ultimately, it is for the Law Society to draw the line. The section states such period as may be prescribed and we have to insert an upper limit.
I am advised that a similar provision in the jurisdiction of England and Wales states three years. I am not sure if that is a fixed period of three years or whether it is in relation to a provision which states that the law society in England shall prescribe a period of not more than three years. I will have to check. If they are precluded from practising for a fixed period of three years, I might be disposed to examine it again. Generally speaking, people do the leaving certificate at 18 years of age. It takes three years to do a degree and they are then 21 years of age. They are 24 years old by the time they do an apprenticeship and if there was a five year maximum period, they could not practise on their own until they were 29 years old. Perhaps that is not necessarily a bad thing but I am pointing out how restrictive it could be.
A long time living with one's mother.
It is not just for the protection of the public. It is also to protect solicitors.
It is for themselves as they are so impatient to get out and make money.
I will consider it and examine the exact situation in England and Wales.
Amendment, by leave, withdrawn.
Sitting suspended at 4.15 p.m. and resumed at 5 p.m.
Amendments Nos. 97, 98, 110 and 111 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 97:
In page 47, subsection (1), line 9, after "solicitor" to insert "during which period he shall have worked full-time as a solicitor in the provision of legal services".
As drafted, section 37 (1) would not ensure that a solicitor who is qualified for three years would gain appropriate full-time experience as a solicitor before practising as a sole practitioner or as a partner. Amendment No. 97 achieves this and strengthens the section as a client protection measure. Amendment No. 98 is more precise than the words it replaces. It makes it clear that the other partner or partners must have been engaged fulltime in the provision of legal services. Amendment Nos. 110 and 111 are consequential amendments which ensure that the same requirements apply in relation to foreign lawyers proposing to practise here.
Is the Minister satisfied that the formula he has chosen covers a situation where somebody has had discontinuous service? Supposing somebody was working for six months with company A, left that company and could not get employment, and worked the balance of the three years with company B after a break of three months. Is there a problem with the phrase "during which period he shall have worked fulltime. . ."? Does that tie the person down to having to have a continuous run? Would the Minister look at that on Report Stage? It might be a bit harsh on somebody who had a break in service.
I take Deputy McDowell's point. It is not intended to tie somebody down in the way he suggests. Looking at it again, however, I can see that it could possibly do so. I propose that we accept it today and I will recast it because that is not the intention.
Amendment agreed to.
I move amendment No. 98:
In page 47, subsection (1) (b), line 14, to delete "in continuous practice as a solicitor" and substitute "engaged full-time in the provision of legal services".
Amendment agreed to.
I move amendment No. 99:
In page 47, subsection (1) (b), line 15, to delete "three" and substitute "five".
Is this amendment being pressed?
No, I will not press it. It concerns the extension of three to five to be consistent with my previous amendment and the Minister is going to look at the whole area.
Amendment, by leave, withdrawn.
I move amendment No. 100:
In page 47, subsection (4), line 27, to delete "which order shall be final".
Does the phrase "which order shall be final" automatically do away with the constitutional right of appeal to the Supreme Court? Is a person entitled to go to the Supreme Court if he or she is dissatisfied?
I had qualms about the fact that it might be presumed to be a specific attempt to exclude the possibility of a further appeal to the Supreme Court. The constitutional concept of an appeal to the Supreme Court should not be limited yet it seems to me that the term "which order shall be final" might be construed as a restriction on the constitutional right of appeal to the Supreme Court on any matter.
There is a subsequent section, the number of which escapes me at the moment, dealing with the question of appeals to the Supreme Court on a point of law which extends people's right to appeal to the Supreme Court. I am advised that this amendment is acceptable.
Amendment agreed to.
Amendment No. 108 is related to amendment No. 101 and both will be discussed together.
I move amendment No. 101:
In page 47, between lines 29 and 30, to insert the following subsection:
"(6) For the purposes of this section where there is a restriction on a newly qualified solicitor, the Society shall ensure that each such solicitor shall be paid the minimum salary recommended by the Society and such amount shall be increased annually in accordance with any increase in the consumer price index.".
This amendment relates to our discussion earlier about the concept of restricting solicitors and the age at which solicitors might be free to enter the market as fully qualified independent solicitors in sole practice. At present the society recommends a salary of about £13,000 for newly qualified solicitors. However, no attempt is made by the society to police that or to guard against exploitation.
Some young men and women are so desperate to get jobs that they are working for salaries which are very much below the recommended salary. This Bill imposes a restriction on when solicitors might practise as sole practitioners, so the society should at least ensure that newly qualified solicitors are not exploited and that their salaries are not totally determined by market forces. There is a long tradition, which stretches back to Dickens's time, of abusing and exploiting young solicitors and apprentices. It is about time the society took a stronger hand in maintaining the status of newly qualified solicitors by ensuring that they are not paid small sums of money that are sometimes less than what is earned by the most junior secretary in the firm.
The point has been made about how long it takes to qualify as a solicitor. It is an expensive course of study. Three or four years are spent at university. They must pay £2,500 for the professional course, £1,000 for the advanced course and £1,000 for indentures and so forth. The total cost is about £4,500 after completing university. After such expense the recommended salary of £13,000 might be very welcome to solicitors because some young solicitors are working for as little as £9,000. The solicitors' profession should take an interest in this elongated childhood, as Deputy McDowell calls it. How can a solicitor be expected to be of independent means on such a small salary? The society should be more vigorous in protecting its young members and less inclined to leave them at the mercy of market forces which can be abusive.
I support this amendment. I was shocked some time ago to hear about the experience of one young man who is a qualified solicitor. He went for a job interview and there were so many candidates that the job was given to two people and the single salary was divided between them. It is deplorable that a member of the profession should treat a young member in such a fashion.
We spoke earlier about protecting young solicitors from temptations. The best method of doing that might be to ensure that there is a reasonable salary for those who secure employment. It is becoming almost impossible to secure employment.
I also support the amendment. There is no doubt that there is gross exploitation of young solicitors and, indeed, young barristers entering the legal profession. The public finds that difficult to understand. When a member of the public engages a solicitor they are charged the top price. Often the firm of solicitors which charges that price employs solicitors who, although they are working on that case, are paid appallingly low rates of pay.
We cannot expect the Law Society, in the case of solicitors, or the Bar Council, in the case of the Bar, to seriously address the problems of solicitors' apprentices or newly qualified solicitors or barristers. The Law Society and the Bar Council are predominantly made up of people who have made it in the profession and who are employers, in the case of solicitors, of junior solicitors.
There are three possible ways to address this problem. One is to make an arrangement within the profession whereby people can go into independent practice more quickly than in the case at present and if they are good enough they will succeed. Second, as proposed in the amendment, one can legislate for minimum standards and conditions under which solicitors can be employed. Third, it is perhaps time for newly qualified solicitors and solicitors who are working in exploitative situations to organise themselves in the same way as did workers who were exploited in the past. The problem of exploitation is not new to, for example, junior hospital doctors and it drove many of them to join trade unions as a means of addressing the problem. There is a serious exploitation problem and it must be addressed.
I support Deputy O'Donnell's amendment. I understand that there are still statutory controls on the wages of solicitors' clerks. Unionisation did not work in that context and if it would not work for solicitors' clerks it certainly will not work for young solicitors. They cannot call in shop stewards to tell senior partners in firms what they should be paid.
In an over-supply situation there is a risk of people being exploited. It is not fair that solicitors' clerks have a statutory broard to oversee their remuneration and that employment inspectors can prosecute cases of exploitation while there is no such protection for solicitors who are open to the same exploitation albeit on a different level. If solicitors' clerks are entitled to a minimum salary there is no plausible excuse for saying that solicitors are not entitled to at least that amount and to the same protection.
I agree with the principle of what has been said. I see the situation Deputy O'Donnell is attempting to tackle in her amendment. I support her if it can be done and if this is the best way to do it. There are no statutory minimum wages prescribed by other professional bodies. However, that is not an argument for preventing the solicitors being pioneers in that respect.
If one opts for the five year period, which the Deputy proposed earlier, the case is strengthened because, as Deputy McDowell correctly pointed out, there is a larger pool of people who are working for other people and who are not partners and do not have the capacity to become partners or sole practitioners. The difficulty is that if the market is not allowed to determine wages rates, there will be a provision in legislation, ostensibly for the benefit of young solicitors, which will operate against them if people cannot afford the minimum wage rates. A person may work in a firm as an assistant solicitor, perhaps being badly paid but at least gaining experience and learning the law. It is another matter for a person to be qualified from Blackhall Place and go on the dole. I am worried about that possibility and I will have to give the matter some thought.
The same applies with even greater force to apprentices. Deputy McDowell rightly said it is extremely difficult to get an apprenticeship, as every practising politician knows. I and some of my colleagues are inundated with requests from people looking for apprenticeships. Other sections in this legislation will make it easier for solicitors as masters to take on more apprentices but whatever provisions are available will only make it easier; they will not create an incentive.
The last thing I want to do is create a disincentive. We can at least make matters easier. For example we can loosen the rules by reducing the period of practice from seven years to five years, or by allowing a solicitor to have two apprentices at the same time for each assistant solicitor.
In view of the widespread support for this I am prepared to reflect, on it, but I cannot make a decision now. We all deplore someone being exploited but at least if someone is in work he is learning something and making himself more marketable. If someone is on the dole queue or working in a fish and chip shop, as some people who have qualified from Blackhall Place are, he is not enhancing his future employability or marketability within the profession.
I take the Minister's point but we are suggesting a voluntary commitment by the Law Society. The issue will be regulated by the society as it regulates everything relating to the profession. Nonetheless it would be useful to put something in the Bill to recognise there has been exploitation and a culture of low pay. It is unacceptable for that to continue. One of the awful aspects of such cultures is that they are self-perpetuating. Once people have gone through the ordeal they decide that because they had to go through it so shall others; because they were paid a pittance others also should be and they are lucky to have jobs.
This demeans the profession. Young people go through the Law Society at an enormous expense to themselves or their parents, often involving bank loans. At the end of their training they are presented with low paid jobs. The profession should take an interest in this. Why does the Law Society have a recommended starting salary but make no effort to enforce it or ensure solicitors comply with it? Is there a disciplinary or complaints procedure for young solicitors? Can they inform the society they are being abused, paid £9,000 a year and working an eight hour day while their fees are costed to the client at £100 per hour?
There must be some way for the Law Society to address this. This legislation is an appropriate place to raise the matter. We are discussing self-regulation and this is a way to give young solicitors a voice. Given market forces and their desire to get jobs while not rocking the boat, they do not have a voice. This is classic exploitation; people are afraid to complain about low wages because they are afraid they will not get a job. This is an opportunity for us to address the matter but I will wait for the Minister to deal with it on Report Stage.
I strongly agree with Deputy O'Donnell on this matter. Deputy McDowell referred earlier to the regulated position of solicitor's clerks. The Department of Enterprise and Employment publishes periodic reports on the degree to which employers are complying with employment regulation orders and the minimum levels of pay provided therein. Solicitors have not been found to be the worst offenders but they are consistently among those who comply least with employment regulation orders. This is an area where bad employment practice is highly prevalent.
The legislation before us is presented as primarily for the protection of the consumer. A consumer may go to a reputable solicitor's firm with a piece of work he needs transacted. In practice he will be dealing with a solicitor whom the Law Society will not permit to practise independently on his or her own. That solicitor may be underpaid. He or she will be totally responsible for this piece of work and in practice will not be working under direct supervision. This is the worst of both worlds. Entry into the profession is controlled to avoid competition from emerging new solicitors from Blackhall Place.
These are not all young solicitors. There is an assumption that we are talking about a young solicitor who has a primary degree, has completed the professional course but is rather inexperienced and therefore needs supervision until he or she matures and can practise independently. Today many people who want to become solicitors have reached a high level of maturity and they should be allowed to practise independently. The Law Society cannot have it both ways by preventing people from practising independently and competing against established practices while also deciding what trainee solicitors should be paid, when they have no option but to seek paid employment in the larger practices.
To reiterate what I said, I know young solicitors who were badly paid during the recession in the mid-1980s. I also know young solicitors who were well paid when they went to work for firms in London, because of the prevailing economic circumstances of the time. The rates of pay in professions, including for those employed within the professions, depend on market forces to a large extent. It depends on the demand for the services of the profession.
From personal experience I know that many young solicitors are unemployed and many others cannot get apprenticeships. The last thing I want is to exacerbate that position and increase unemployment among newly qualified solicitors, or increase the difficulty in obtaining apprenticeships. I do not support exploitation by solicitors' firms which could afford to pay their employees more but do not. I believe in a fair day's pay for a fair day's work.
I also want to enable people to enter the profession. I do not want to put any further barriers in their way to prevent them entering and getting work within the profession. One can learn as much as one likes in the universities and in the Law Society but the only proper training one receives in the legal profession is on the job training, what one does in practice. One can learn theory and attend many courses but I want people to get into the profession so they can learn on the job.
I understand the Deputies' point. I am anxious to prevent exploitation but only if I can do so consistent with preventing an increase in the risk of unemployment or preventing even more potential solicitors from becoming apprentices. I will give consideration to what has been said. I am not sure this is the best way to tackle the matter but I will think about it between now and Report Stage.
This is a minimum figure recommended by the Law Society. However, I do not know what action, if any, it takes to follow this up. If a solicitor in a small practice takes on two newly qualified solicitors who are willing to work for less than the minimum rate, is there a system whereby they can apply to the Law Society for an exemption from the basic rate of pay? The society should have respect for the minimum salary it recommends, but no effort is taken to ensure this happens.
Between now and Report Stage I will discuss this matter further with the Law Society because, as the Deputy said, it seems strange that it recommends certain wage rates when there is no mechanism to follow it up. I will talk to the society to see if we can find the appropriate balance.
Amendment, by leave, withdrawn.
Section 37, as amended, agreed to.
Sections 38 and 39 agreed to.