The Gazette 1995

GAZETTE

MAY/JUNE 1995

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. 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. That this is indeed a civil liberties issue would probably be much 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. • 141

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