The Gazette 1975

The advantage to the Revenue Commissioners in- volved in the section is, to say the least, minimal. How- ever, the disadvantage to the Revenue Commissioners ultimately will be far more than minimal, it will be very extensive. In the meantime the whole question of the relationship of solicitor and client will have been attacked and undermined and that has implications far outside any Finance Bill or any activity of the Revenue Commissioners. It can extend right across..«•he board to the various activities in which our citizens engage, wheher under the purview of the criminal or the civil law. The Minister should know a frontal assault on this relationship would be unsuccessful but a small assauít on just one section of the relationship can be followed up by an extension of that beachhead further and further until the whole relationship and its position in law is eroded. Therefore, it is our duty to resist any such encroachment, in particular to resist it when the alleged excuse for it—in other words, the benefits that may accrue through the Revenue Commissioners get- ting certain information—is artificial and fictitious. There is no benefit for the Revenue Commissioners from what is provided here in regard to the informat- ion that can be sought. It is fictitious. Mr. R. Ryan: One would think from what Deputy Colley has said that section 59 of the 1974 Act did not provide special protection for relationship between soli- citor and client. Of course it does. It specifically guards that relationship. It could be very interesting to study why it is that emotion seems to spurt out of the mouths of Members of Parliament when seated in Opposition benches and that realism tends to be the order of the day on the part of those in Government benches. I wish to make clear what the position is in relation to the provisions of the 1974 legislation. The section Deputy Colley is seeking to amend provides for a limi- tation of the information to be given by solicitors to the Revenue Commissioners. No professional gentleman is entitled to any privilege whatsoever other than the privilege of his client—no solicitor may go into court and seek privilege for his own protection. He may claim, and the Court grant, privilege in relation to the protection of his client's interest. The people against whom this section is directed are those who are believed to be engaging in tax avoidance, who are failing in their statutory obligation to furnish information to the Revenue Commissioners, and it would be totally wrong for Parliament to allow any person who has an obligation to pay tax to shield behind a professional adviser. That would be making a mockery of legislation, it would be creating a pretence of having an efficient tax system which could not be seriously entertained. Under the existing general law, lawyers, whether solicitors or barristers, are allowed to claim that infor- mation supplied to them in the course of consultation enjoys the privilege of confidentiality, and advice given by lawyers is under the general law and under the 1974 Finance Act absolutely privileged : no lawyer can be called on to give details of the advice. Deputy Colley is seeking to insert the word "advice". The wording of the amendment has been circulated. Advice is not something which the Revenue Com-

missioners can demand particularly. They may demand in respect of solicitors only the names and addresses of the transferor or transferee associated in certain opera- tions, in other words the names and addresses of persons engaged in tax avoidance practices, so that the Revenue Commissioners may then go after the people themselves in the same way as they would pursue any person who is liable for tax. I use the word "pursue" not in the sense of giving chase but in the sense of contacting people who have an obligation to furnish information. The only information being sought is that which would identify persons who may be liable. That is all. The professional person need not furnish any informa- tion unless and until the person concerned has the authority of his client to do so. The traditional privilege between banks and their customers in relation to transactions between them is also well established in law. Because of the privilege that obtains between solicitors and their clients and banks and their customers, subsections (3) and (4) were inserted to protect that privileged position. To that extent, therefore, the Deputy's amendment in relation to advice given by a solicitor or barrister is met and is clearly seen to be met. Where, however, a solicitor has acted in connection with the actual transfer or any associated operation, then he must give the particulars I already mentioned, the names and addresses of per- sons involved. I mentioned last year in the Seanad that I was dis- appointed the solicitors' profession did not acknowledge that their position was being protected under the Act. Instead, some solicitors, and Deputy Colley today, have done a public disservice by insinuating that there was improper interference with the confidentiality that should exist between solicitors and clients. Our neigh- bours in Britain are no less jealous of the confidentiality of relationships between solicitors and clients. There has been no lack of trust in solicitors or barristers in Eng- land where the section to which such emotive exception has been taken here has been in operation for 39 years. Both Parliament and courts in England have said that it was a duty of everybody to pay a fair share of tax and that Parliament had a duty to ensure that consul- tation with professional people did not give a protection which ordinary citizens did not enjoy. The unrealistic nature of the criticism levelled against the provisions of the 1974 Act is illustrated by the fact that whereas Deputy Colley and some others on behalf of the solici- tors' profession said that the section is unacceptable, the Institute of Chartered Accountants have sought to have applied to them the very exceptions and privileges which the section confers on solicitors. It would be strange, if it was challenging a confidential relationship, that accountants should seek to enjoy the same privi- leges as have been conferred on lawyers by the section. Mr. Colley: Privileges were not conferred. Privileges were taken away by the section. In the case of solicitors the privilege existed and the Minister knows that. Mr. R. Ryan: Subsection (3) specifically limits the information which can be obtained from solicitors. The legal profession, like every other profession, have a duty to tell their clients what the legal position is and that duty involves informing clients if steps about to be taken by them infringe the tax law. I am sure the .217