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position and we deeply resent it. A
lawyer's duty to defend an accused
person must not be confused with
sympathy for the crimes of which his
client has been accused.
The Society is indeed opposed to the
application of section 153 to lawyers
but we have excellent grounds for
being so opposed. We believe that it is
profoundly wrong in principle to
create an obligation on lawyers to
report their clients to the Revenue
Commissioners in violation of the
confidentiality which has historically
attached to information disclosed by a
client to a solicitor. In its ultimate
application it can be envisaged that
solicitors would be compelled to give
evidence in court against their own
clients concerning information which
had been revealed to the solicitor in
confidence. Insofar as the Society can
determine, such a law would be
without precedent anywhere in the
free world. Colleagues in other
countries have been both amazed and
shocked to hear from us that it was
proposed to impose such an obligation
on lawyers in Ireland.
The Society considers that section 153
is not merely wrong in principle but
that it would create enormous
difficulties in practical terms. Given
that tax law is exceedingly complex
and contains many grey areas, indeed
even experts may profoundly disagree
on what constitutes evasion, the
application of this provision would
create impossible practical dilemmas
for lawyers. In addition, there is a real
risk that clients would seek tax advice
abroad rather than from advisers
based in this country and that the
measure woyld discourage foreign
investment in Ireland.
In order for anyone to obtain proper
legal advice, it is necessary to make a
fulMisclosure to the legal adviser.
Accordingly, we would submit that it
is wrong in principle to create a risk
of undermining in a general way the
public's trust and confidence in its
lawyers.
The members of this Committee have
received a six-page submission from
the Society setting out the grounds of
many of the objections in principle
and problems in practice which the
Society's Taxation Committee sees in
section 153. All of the points made
above and made in the said document
are considered by the Society to be
important but are subsidiary to the
primary point which now follows.
The Society's fundamental objection
is that section 153, as it applies to
lawyers, constitutes a serious erosion
of the protection of citizens' rights in
dealing with State authorities and
violates rights protected by the
Constitution of Ireland.
This view of section 153, as it applies
to lawyers, occurred to the Law
Society on first sight of the Bill on 12
April, 1995. The Society subsequently
sought and obtained a fully argued
opinion from two barristers who are
recognised as unquestionably among
the foremost experts on Irish
constitutional law. This opinion
unequivocally expressed the view that,
insofar as it would apply to lawyers,
section 153 trenches deeply and
disproportionately on established
constitutional rights and would be
struck down by the courts as
unconstitutional. Their grounds for
reaching this conclusion in relation to
section 153 are, in outline, as follows:-
1. Section 153 undermines the
constitutional right against self-
incrimination. The centuries-old
common law right against self-
incrimination has been explicitly
recognised by the courts as a right
protected by Article 38.1 of the
Constitution. In addition the right
against self-incrimination had been
deemed by the European Court of
Human Rights to be an essential
feature of the right to a fair hearing
under Article 6(1) of the European
Convention of Human Rights. The
right, which finds a classic
expression in the fifth amendment to
the Constitution of the United States
and which is also recognised in
European Union law, has been held
by the courts in Ireland to be
fundamental to the rules under
which criminal trials are conducted
and to come within the terms of the
guarantee of a fair trial contained in
Article 38.1. There has been a
considerable body of case law on the
application of the test of
proportionality to the overriding of a
constitutionally protected right and,
following examination of this case
law, the opinion concludes that,
linked to the judicially established
constitutional right of access to a
legal adviser, it must be seriously
doubted whether the Oireachtas
could
ever
trench upon the right
against self-incrimination in the
manner suggested in section 153.
2. Section 153 undermines a client's
right to legal professional
privilege. A client's right to legal
professional privilege, like the rule
against self-incrimination, is a
necessary aspect of the
constitutional right of access to a
lawyer. It is an essential feature of
the rule of law and the proper
administration of justice. A classic
formulation of this appears in a
judgment of the United States
Supreme Court which our advisers
believe would be followed by the
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