The Gazette 1971

Legal Education for the European

Community

EUROPEAN COMMUNITY SECTION

Graham Goldinig

Dip.Jur.Eur. (U.C.D.), M.A., LL.B. (T.C.D.), Solicitor

"Legal education and provision of legal ser-

vices is a matter of public interest and concern.

The Government and both branches of the

solicitors!' profession have a vital interest in

this field."

[Mr. Brendan A. McGrath, Pre-

sident, addressing a general meeting of the

Incorporated Law Society on 8th May, 1971

(reported in the

Gazette

, Vol. 65, No. 2, at

p.32)]

At the time of writing (July, 1971) it is impossible to

predict with any degree of accuracy whether or not

Ireland will become a full member of the European

Community. Some cry,

"Beware the Jabberwock, my son!

The jaws that bite, the claws that catch!"

—but others, more optimistic, chortle,

"Come to my arms, my beamish boy!

O fabulous day! Callooh! Callay!"

(Lewis Carroll,

Through the Looking Glass)

We are in the midst of a spate of elated and feverish

activity, with comings and goings from Luxembourg

and Brussels by Cabinet Ministers, representatives of

both Houses of the Oireachtas and numerous other

individuals in various capacities—not to overlook the

faceless ones of our diligent Civil Service.

Even if we are not to become a member state of the

EEC, our law (and that of the U.K.) is beginning to

widen its horizons and wake up to the fact that the

solution to all politico-legal problems is not necessarily

reposed within the framework of the Common Law.

Many lessons can be learned from a study of compara-

tive law. That this is true was personified in the late

Gavan Duffy, P., who was not only a master of the

common law (and of ancient Irish law) but was also

well versed in American, Franch and Italian law and

had no hesitation, sometimes openly, sometimes in a

concealed manner, of drawing, in his judgments, upon

the illumination which a knowledge of what he termed

"transmarine" institutions cast upon our own system.

Alas! in this era of specialisation (with some notable

exceptions) we no longer have such personalities in our

branch of the profession, at the Bar or on the Bench.

One example of the manner in which legal institu-

tions with a foreign origin are creeping into our law

will suffice : the Ombudsman. Britain, with almost cata-

strophic consequences, has introduced a "Parliamentary

Commissioner"—a poor reflection of the Ombudsman,

whose origin is to be found in the Scandinavian coun-

tries. In this country, the matter is still in early stages

of debate. The Association of Civil Liberties is strongly

in favour of an Ombudsman (or a rose by some other

name). However, Mr. Colum Gavan Duffy, M.A.,

LL.B., under the auspices of the Council of Europe and

nominated by the Law Reform Advisory Committee, is

in course of preparing a report on the possible establish-

ment of an administrative tribunal in Ireland for

that Committee (chaired by Ó Caoimh, P.).

passant,

it is interesting to note that as long ago as

1935, George Gavan Duffy, S.C. (as he then was)

wrote an article entitled, "Administrative Law: The

Urgent Need of Systematisation and Publicity," (See

The Irish Jurist, (1935) Vol. I. p.34).

Grounding in Comparative Law

Without the foundation of a thorough grounding in

comparative law, at the least, how can the law student

of the present—the practitioner of the future—hope to

be sufficiently well informed so as to be able to cope with

the foreign law which is becoming an integral part of

our legal system?

The matter does not begin and end with a study of

comparative law. If indeed we

enter the EEC, we

shall of course be subject to the law of the Common

Market—an entirely new genus of law,

sui generis,

and

based upon the Treaty of Rome. Part 2, Title III,

Chapter 3, Article 60 (d), of that Treaty provides for the

free movement of services within the Community—in

the words of the Treaty, of the "activities of the liberal

professions". To quote Mr. Brendan McGrath again,

"Among the main topics of interest to the pro-

fession here are the proposed removal of re-

strictions on the right of establishment and the

right to supply professional services . .. recog-

nition of professional diplomas . .. The right of

professional men to cross frontiers for the pro-

vision of legal services naturally raises prob-

lems which are more apparent between the

civil law and common law countries than be-

tween the European States which operate

under basically similar legal systems. The ques-

tion of the right of audience in foreign courts

and the right of U.K. and European lawyers

in the Republic is also engaging attention."

(Emphasis supplied)

—Gazette, Vol. 65, No. 2. at p.34

116