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GAZETTE
MAY/JUNE 1995
Supreme Court in Ireland, in the
following terms:-
"//a person cannot consult his
legal adviser without being
liable to have the interview
being made public the next day
by an examination enforced by
the courts, the law would be
little short of despotic. It would
be a prohibition
upon
professional advice and
assistance."
Some of the potential objections to
sectiori 153 in relation to the client's
right to legal professional privilege
are mitigated by the
"in preparation
for litigation "
saver in section
153(8). Even allowing for this and
for the legal assistance/ legal advice
distinction drawn by the Supreme
Court in the
Smurfit Paribas
case,
however, section 153 tenches deeply
into clients' legal professional
privilege to such an extent as to fail
to respect a fundamental feature of
the constitutional right of access to a
lawyer.
These are
not
technical, merit-less,
'lawyers' points' by which
legalistic special pleading is being
invoked to frustrate a legitimate
measure. An independent legal
profession plays a crucial role in
the administration of justice. If a
citizen cannot have the existence
and means of exercise of a right
explained to him he effectively
loses that right. The right against
self-incrimination and a client's
right to legal professional privilege
are badges of a free democratic
society. It is the rights of citizens,
not simply of lawyers, which are
under attack from this provision. It
is a threat to the constitutional
rights of every citizen if lawyers
are to be made agents of the State
rather than of their clients.
That this is indeed a civil liberties
issue would probably be much
more clearly identifiable if it was a
measure proposed in the general
area of criminal law rather than in
the Revenue area. The principles at
stake, however, remain the same.
One must not lose sight of the fact
that we are dealing here with
potentially very serious criminal
offences. If constitutional rights are
to be impugned, there should be
minimal restraint of the exercise of
the protected right in the exigencies
of the common good. The objective
must be of sufficient importance to
warrant overriding the
constitutionally protected rights.
On the legal advice to the Society,
that is not the case here.
It was on the basis of this very
strong legal opinion from
constitutional law experts, to the
effect that section 153 at is applies
to lawyers is unconstitutional, (an
opinion which according to
newspaper reports has now been
given to the Government by the
Attorney General) that the Council
of the Law Society at its meeting
on 4 May 1995 decided to
recommend to its members that
they should not comply with
section 153 if it is enacted.
This was not a decision taken
lightly by the Law Society Council.
It is obviously a major step for the
Society to issue to its members a
recommendation that they ignore
statute law passed by the
Oireachtas. It has done so only
based on a compellingly-argued
expert opinion, the conclusion of
which is that it would, in fact, be
the Oireachtas which would be
failing in its duty to respect the
Constitution by enacting section
153 as it would apply to lawyers. If
section 153 were to be enacted then
the Society would in all likelihood
launch a constitutional law action
immediately to have the provision,
as applied to lawyers, struck down
by the courts.
The Society accepts that the
motivation of the Minister for
Finance and of the Government in
introducing this measure is entirely
honourable. Their objective is
laudable. The Society in no way
condones tax evasion and would
support any reasonable measure
introduced by the Government to
help curb it. However, it will not
support measures which
unreasonably and disproportionately
undermine important constitutional
rights of citizens.
If the Minister had restricted
section 153 to auditors as
recommended by Mr. Justice
Hamilton in the Beef Tribunal
Report, then the constitutional
problems arising from the special
role played by legal advisers in the
administration of justice would
probably not have arisen. As the
Government clearly cannot proceed
with legislation which is likely to
be struck down by the courts as
unconstitutional, the Society now
calls on the Minister to either
amend section 153 so that it will no
longer apply to legal advisers or
else to drop the section completely.
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