The Gazette 1991

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GAZETTE i SEPTEMBER 1991
In
this
Issue
The Latest Hazard to
Guarantees - S. 31,
Compan i es A c t, 1 9 90 2 61
Lawbrief 2 71
People and Places 2 76
Civil Liability for the Supply
and Sale of Alcohol -
Massachusetts Experience 2 83
M. J. Connor & Co.
Mu s e um 2 8 5
Recent Changes in t he Social
We l f a re Code - Personal
Representatives 2 87
Book Reviews 2 91
Professional I n f o rma t i on 2 94
Editor:
Barbara Cahalane
Committee:
Eamonn G. Hall, Chairman
Michael V. O'Mahony, Vice-Chairman
John F. Buckley
Patrick McMahon
Elma Lynch
Advertising:
Seán Ó hOisín. Telephone: 305236
Fax: 307860
Printing:
Turner's Printing Co. Ltd., Longford.
The views expressed in this publication,
save where otherwise indicated, are the
views of the contributors and not
necessarily the views of the Council of
the Society.
The appearance of an advertisement in
this publication does not necessarily
indicate approval by the Society for the
product or service advertised.
Published at Blackhall Place, Dublin 7.
Tel.: 710711. Telex: 31219. Fax; 710704
GAZETT INCORPORATE D
LAWSOCIET Y
OF IRELAND
Vol. 85 No. 7Septembe r 199
Viewpoint
Competition Act - An Unguided Missile?
The Competition Bill, 1991 has now
been enacted into law. Readers will
be aware that one of the primary
objectives of the Act is to outlaw
agreements, decisions and con-
certed practices which have as
their object or effect the prevent-
ion, restriction or distortion of
competition in trade or the supply
of services. The Act will establish
a Competition Authority with
powers to enforce the new com-
petition rules. In this respect,
Ireland is moving in the direction
already taken by most other
Member States of the EC (with the
exception of the United Kingdom)
in implementing directly into its law
provisions analogous with Articles
85 and 86 of the Treaty of Rome.
The Minister for Industry and
Commerce, Mr. O'Malley, made it
clear, when introducing the Bill,
that it would apply to the pro-
fessions, including the legal
profession, and an examination of
the Act makes it clear that it could
have far-reaching implications.
There seems little doubt that
legislation of this kind, which seeks
to improve the competitiveness of
the economy, will be welcomed in
many quarters and will be seen as
desirable to ensure that consumers
of goods and services get the best
possible deal in the market place.
The distortions of trade, to the
ultimate detriment of the con-
sumer, that have been evident in
the past through the operation of
cartels can now be tackled
seriously. Even in relation to the
professions, it is at least arguable
that such restrictions as may result
from the concerted practices of
professional organisations should
be subjected to the scrutiny of a
body such as the Competition
Authority to ensure that any
distorting or harmful effects they
might have on competition would
be eliminated.
The problem, however, is that the
Government, bowing, perhaps, to
pressure exerted by Mr. O'Malley,
seem to have chosen this legisla-
tion as a vehicle through which to
attempt to alter in a fundamental
way the manner in which the legal
profession is organised in this
country and legal services are
delivered to the public. We would
submit that a Competition Act,
designed principally to tackle
abuses of an essentially economic
kind, is not a proper instrument to
effect change in the structure of the
legal profession. On its face, the Act
has nothing whatever to say about
the legal system or about how
lawyers organise themselves and
deliver services to their clients.
Moreover, in the course of its
passage through the Oireachtas,
very few members of either House
adverted to the implications of the
legislation for the professions in
general or for the legal profession in
particular. One wonders, in this
regard, whether, in giving Mr.
O'Malley the green light to bring
forward this legislation, the
Government were at all conscious of
its potentially serious implications.
We are not suggesting, of course,
that there is anything improper
about the Government deciding to
bring forward legislation which
seeks to effect change in the legal
profession. We do say, however,
that, in such a vitally important
area, it is essential that such
changes as are proposed are
carefully considered and evaluated,
brought forward in legislation
which makes it clear on its face
what is being proposed and,
ultimately, subjected to the scrutiny
which all legislation gets in the
course of debate and passage
through the Dail and Seanad.
Moreover, it hardly needs to be said
that the Minister with responsibility
for the administration of justice and
the legal system as a whole, who
is the Minister for Justice, is the
(Cont'd on p.266)
259