Select Committee amendments to the Legal Services Regulation Bill 2011

Previously, I wrote about the Legal Services Regulation Bill 2011. I mentioned 3 misgivings I had with the text of the Bill and wrote the Minister with these concerns. see http://outside-of-the-walls.blogspot.ie/2011/12/letter-to-sundry-tds-about-legal.html

Happily, he seems to have listened and the amendment list published today deals reasonably well with one of my misgivings and decisively with the other. see http://www.oireachtas.ie/documents/bills28/bills/2011/5811/b5811d-dscn.pdf

Amendment 29 on this list deals with my main problem -the wording requiring the new Authority to merely keep legal education under review. Amendment 29 extends this to allow the Authority make proposals to the Minister also. While this is far more conservative than what I personally wanted to see, nevertheless it improves the bill considerably. It still falls short of what is in the explanatory memorandum and troika commitments: In particular, commitments to open up legal training to competition. However, it will create a foundation for such liberalisation at a later date, once the Authority is established.

Amendment 7 follows my advice for dispersing the power of appointing lay members to independent bodies seperate from the Govt. I think this is also an improvement.

Overall, I am quite happy with the list of amendments published. I think it will make the bill much better and addressess my 2 greatest concerns with it. These amendments deserve to be carried and the Bill to pass in its present form -however, I would still like to see a much more robust approach taken to the liberalisation of training places. An inexplicable monopoly.

Further correspondence with Coillte about Sralagagh

I have just sent the following letter to Coillte in response to correspondence from them received this week. My response and their letter pasted below.

XXXXXXXXXX,
Litigation Manager, Coillte.

Dear XXXXXXXX,

Thank you for your recent letter in response to previous correspondence.

I interpret your quotation of the definition of “Occupier” as meaning that you do not see Coillte as falling within this definition (please correct me if this is wrong, it is not completely clear from the previous letter).

However, I do not understand how you can think this. Clearly, as the landowner, Coillte exercises control over the lands. Turbary right holders have a right of access and a right to take mud –but that is all. They cannot buy or sell the land, deny entry, alter it beyond their specific rights etc. They are not leaseholders and have no control over the land. Indeed, your suggestion in the same letter that Coillte permit turfcutters to carry out the repairs only illustrates the control that Coillte retains over this land –and the consequent liability it retains also. I do not know how the Act could be interpreted differently.

Furthermore, without conceding that turbary rights amount to exercising control over the lands, I would also point out that the road is not subject to turbary rights anyway and passes between the plots unburdened. The only attachment of the turfcutters to this road is a right of way.

It seems obvious that Coillte is the sole occupier, turfcutters are mere visitors (entrants as of right) and section 3 of the Act places the burden on Coillte to make the lands safe for visitors and other entrants. Coillte has been in breach of section 3 since last Autumn.

I will not address your point that Coillte does not use this road –that is beside the point.

I am disappointed by Coillte’s reckless disregard for the danger to entrants at this location. I would not expect my neighbour to leave a roadway in such a dangerous condition –let alone a semi-state company.

However, I can see that this is useless. For whatever reason, Coillte is happy to leave the road in a dangerous condition, and no one else can sensibly repair the road without incurring liability themself. Preventable accidents will follow, hopefully not serious ones.

I will be making this correspondence available to whoever has the misfortune to have an accident at this spot so they can demonstrate that Coillte was made aware of the danger in ample time.

Thank you for your time, I only regret that we could not reach a more fitting resolution.

Sincerely

==============================

5^th July 2013

 

 

XXXXXXXXXXXXXXXXXXXXX

 

 

 

Re: Lands at Sralagagh, Ballycastle, Co. Mayo

 

 

Dear XXXXXXXXXXXXXXXXXXXXXXXXXXx,

 

I refer to previous correspondence with yourself and others, including An Taoiseach’s office and Michael Ring TD, Minister of State for Tourism and Sport.  The road you refer to is, as you state, a bog road used by turbary rights holders for bog cutting.  It appears it is a former Land Commission road which was in existence when Coillte or its predecessor in title acquired the lands.  Coillte has never used this road and has no requirement to do so in future. It is, as per your map, firmly within the turbary plots and is used for access to same by the rights holders. Coillte recognise that you and others have a right over same and have no objection to the users of the route maintaining and repairing it for their purposes and in accordance with the rights held.

 

With regard to your reference to the Occupiers Liability Act please note that the definition of “occupier” therein is as follows:

 

“occupier”, in relation to any premises, means a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser;

 

 

 

Yours sincerely,

 

 

 

 

 

_________________________

XXXXXXXXXX

Litigation Manager