The Gazette 1975

subsection (3) here are dangerous. The Minister should really think again on this matter. The fundamental mistake being made is trying to get at the client through the solicitor by breaching privilege when surely it is the business of the Revenue Commissioners, if they find the law against the client to get after the solicitor directly as an accomplice. The onus of proof is being quietly completely shifted by the Minister in the whole financial code. It is being done also in the Capital Gains Bill where the onus is being shifted from where it should lie—on the people enforcing the statute to ensure that they are within the terms of the statute and within their rights and proving that they are, if necessary—to the other side so that the State can do what it likes and it is up to the citizen to prove that the State is wrong. That is what the Minister is doing, and in another Bill when he makes taxpayers assess themselves, that is what he is doing. The State is now being put in the position of the big bully and the ordinary taxpayer has to prove that the State is wrong with the whole probability being that the big fellow has all the advantages. This is completely and absolutely foreign to the spirit of our law and I make no apology for being on a normal high horse in regard to this. I think this gallop will be halted in another way and I hope our Judges will take note of what is developing now. When you breach a principle of such a funda- mental nature touching on the rights of the individual in the criminal and civil spheres you are getting very near fundamental rights and thereby coming very near constitutional issues. U p to this, because of the correct

might be indulging in special pleading. As Deputy Golley pointed out, there is a difference between the legitimate evasion of tax and criminal tax avoidance. Secondly the right of the Minister and the State to impose and collect tax rests solely on the statute, outside the legal content of which there is neither crime nor right. That being so, the rest of the right is with the taxpayer and the State has no further right to interfere beyond the taxation rights conferred by statute. Surely, then, the citizen is entitled to seek legal advice and to try to ascertain his rights. Furthermore, having ascertained his rights, he is entitled to act on them. If a mistake is made—if he has overstepped the boundary where the State is concerned—the State has ample opportunity, much more than has the individual, for dealing with the case. The first principle on which the privilege is grounded is that the citizen must have some protection against being penalised in the ascer- taining of his rights and in protecting himself from an unreasonable infringement of his rights. The question is whether a breach of this privilege is less important than the possible disability of the collecting authority of the State to get their facts easily. Deputy O'Malley has put the situation totally in perspective in this regard. It is the whole tradition of our laws that a man is innocent until proven guilty. The whole spirit of our law is that even the worst criminal is entitled to the best help he can get and there rests the privilege of solicitor and client in criminal matters. Extending that to civil rights, there has been the equal principle that a man as against the State should be in a position to preserve his rights as against the dominating power of the other side. That was the whole spirit of Magna Carta. The Minister will prob- ably say that while he agrees with everything I say the position is that, in effect, a solicitor or the person con- cerned is an agent in the committing of the offence. I cannot see how you can escape the privilege with- out implying that the solicitor or the adviser involved is an accomplice. If it is a question of fair enforcement and ascertaining of rights, if there is a doubt and if the solicitor or other adviser is in the clear himself, presumably he will not do anything that is a crime or even unlawful. You can only defend the section by going the whole way logically and what you are saying, in effect, is that the man is an accomplice. If you adhere to the principle that the citizen is entitled to certainty and enforcement of his rights in the law and that the State is only entitled to infringe his rights in law in accordance with the powers given by statute, the prin- ciple of privilege follows. I once took part in a murder defence case and I had some experience of how a matter of privilege could and did arise and the authorities on that occasion behaved with the utmost propriety. But if we begin breaching the privilege that exists, on these grounds, we are open- ing a flood-gate. If the solicitor is acting bona fide professionally or any other professional adviser is acting bona fide and doing it in accordance with professional etiquette and presumably is not breaking the law—if a solicitor makes a client commit a crime he is an accom- plice—there is no defence for breaching the privilege. Without going into the actual wording, the clauses in

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