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GAZETTE
V I E W P O
I N T
MAY/JUNE 1995
Sect ion 153 - Why We Fought
A disappointing feature of the recent
battle over Section 153 of the Finance
Bill was the fact that so few of the
measures' proponents appeared to
understand the special role which
lawyers play in the administration of
justice and why, as a consequence, it
would have been wrong to require the
legal profession to report their clients
to State authorities for suspected
breaches of the law.
The politicians, in particular, seemed
shocked by the vehemence of the
Society's opposition to the proposed
measure. The Minister for Finance,
Ruairi Quinn,
TD, described the
Society's position as "outrageous".
Opposition finance spokesman,
Charlie McCreevy,
TD, said it was
"disgraceful". A number of seasoned
backbench deputies remarked that the
lobby on Section 153 was the most
intense they had ever experienced on
an issue other than abortion.
Only one member of the Dail Select
Committee on Finance and General
;
Affairs,
Michael McDowell,
TD, made
it clear that he completely understood
and fully supported the strong line
which the Society had taken in advising
its members not to violate their clients'
constitutional rights by complying with
Section 153 in the period prior to its
anticipated striking down by the Courts
as unconstitutional.
Although the strength of the position
taken by the Society meant that it was
the legal profession which effectively
led the opposition to Section 153 it
was, of course, not just solicitors, but
also accountants and tax advisers, who
were opposed to it. IBEC advised the
Government not to enact it as did the
Chambers of Commerce of Ireland,
the Institute of Directors and Small
Firms Association among many
others. Business commentators
condemned it and many national
newspapers ran editorials
recommending it be dropped.
Indeed, other than from some
members of his own party and one
trade union, the Minister received few
public expressions of support for his
proposal to extend Mr. Justice
Hamilton's Beef Tribunal
recommendations far beyond auditors
to include anyone engaged in
supplying tax advice or assistance to
companies. It was notable that at
the Dail Committee debate the
majority even of Government
deputies expressed reservations
about the proposal and suggested it
be deleted.
In this
Gazette
we publish in full the
submission made by the Society
representatives on the first occasion in
the history of the Oireachtas when a
Dail committee has heard the views of
interested parties as part of the law-
making process. The invitation to
make this submission and to answer
Deputies' questions subsequently for
an hour provided a welcome
opportunity to communicate the
professions point of view.
In response to questions about the
propriety of the Society advising its
members not to comply with the law,
the Society's representatives made
clear the position that it would, on the
contrary, be the Minister and the
Oireachtas who would be failing to
comply with their obligations under
the law, constitutional law, if Section
153 were to be enacted as applied to
lawyers. The position taken by the
Society was exceptional. Indeed the
Society's representatives knew of no
precedent for it. It was based solely on
the need to protect the constitutional
rights of clients, however, and
accordingly it was a principled and
appropriate measure in the
circumstances.
Accused by one Deputy of
seeking to obtain a competitive
advantage for solicitors over
accountants, the Society completely
rejected any such motivation. Indeed,
the Society viewed with concern the
undermining of confidentiality in the
relationship between
any
body of
bona fide
professional advisers and
their clients.
The ultimate fate of Section 153 was
its transformation into Section 172 of
the Finance Act which puts on a
statutory basis the long existing
ethical position whereby solicitors
must cease to act for clients who
request assistance in engaging in
illegal activity. The Society views this
as an acceptable outcome in the light
of what had been originally proposed
in Section 153.
The Society's fundamental objection
to Section 153, however, was that, as
applied to lawyers, it undermined the
citizen's constitutional right against
self-incrimination and thereby
represented a civil liberties issue of
genuine significance. The right
against self-incrimination is a badge
of a free society. It would be a threat
to the constitutional rights of every
citizen if lawyers were made agents
of the State rather than of their
clients. Accordingly, the identification
by the solicitors' profession of the
unconstitutionality of Section 153 as
originally drafted was a public
service.
Much legal work is mundane. It is,
however, the highest calling of the
legal profession to stand between the
State and its citizens when the rights
of the latter are under threat. It is a
role which does not endear lawyers to
the State, but it is one which the
profession has never shirked and
which it did not shirk on this
occasion.
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