The Gazette 1975

behaviour of Parliament and the Executive over 50 years, our Supreme Court has always taken a conserva- tive view and as narrow a view as possible of its con- struction rights. It is likely that in a section like this you are now starting another process—one can thank God one has the Constitution—where the Courts will do what the Supreme Court of the USA did and exercise its wider rights as the Judiciary and ultimately interpret its place in the Constitution as it is meant to be in principle as the guardian of the rights of both State and individual. This section and particularly this amendment touches an absolutely vital point. Instead of helping law en- forcement, instead of avoiding legal action, instead of bringing about harmony and preventing tax evasion, you may very well produce a situation where very re- strictive elements may be introduced that may restrict this House as well as the Executive. I hope our Judges take note of their power. Sooner or later a case will be brought and I am glad our Supreme Court has a mind of its own, as we saw in some recent cases. As sure as I am here, a case will arise where new principles will be developed and the Minister and his successors Will rue the day that this approach was taken. I thank the Lord we have a Constitution and our Supreme Court to protect principles from amoral attitudes on ministerial benches. Mr. R. Ryan: I can be as moral as the rest. Perhaps it is because of the moral stand this Government have taken against tax evasion that they i i a ve come in for so much abuse. I shall not endeavour to defend what was wrong by quoting another wrong because two wrongs do not make a .right- However, I should like to draw the attention of Deputy de Valera and others to section 176 of the Income Tax Act, 1967. That section incor- porated sections from the Acts of 1918, 1958 and 1963. The 1967 Act was a codifying measure and Deputy de Valera was an active and useful member of the com- mittee that prepared that Act for the House. Section 176 of the 1967 Act does not contain any savers whatever in regard to solicitors' privilege. There are savers in the 1974 Act. I wrote in special provisions which limited the information that could be sought from solicitors and, to that extent, I identified the privilege and respected the need to retain it. There is no question there of saying the solicitor would only give the name and address of persons to whom money is given. The full value of the money had to be given. It was an anti-avoidance measure to ensure that the Revenue Commissioners obtained parti- culars of income or money that people received in respect of activities within the State. Section 59 of the 1974 measure provides that where money is transferred abroad for the purpose of tax evasion or for the purpose of avoiding liability to tax, the name and address of the transferor or transferee be given. It is not a terrible departure from section 176 of the 1967 Act, from section 66 of the 1958 Act or Part III of the 1963 Act except that I provide for limitation to the information that can be sought from solicitors. Words mentioned in the confessional box and the relationship between doctor and patient have been

mentioned in the course of this debate. A certain par- allel has been drawn between the criminal law and the tax law. There are many aspects of the tax law that do not conform to the criminal law. For instance, under criminal law every person is deemed innocent until proved guilty but under the tax law everyone is not deemed to be without income until the Revenue Com- missioners are in a position to prove he has an income. If that were a principle of tax law the Revenue Com- missioners could not issue assessment notices in advance of information received. They would have to wait until they got information and I am sure every Member would be honest and pragmatic enough to admit the tax law would be wholly unworkable if that principle were introduced. We are simply providing the Revenue Commissioners with the weapon necessary to collect the tax that the Legislature, in its wisdom or otherwise, says should be paid. Mr. Colley: The Minister is breaching the seal of the confessional in that section. ' Mr. R. Ryan: I am not aware that anyone has suggested the confessional box is used for the purpose of transferring money abroad with the intention of avoiding tax liability. Major de Valera: The Minister has made some interesting points and, for the second time, I have to thank him for giving me my most cogent argument. The section he has accused me of voting for states . . every person in whatever capacity . ..". It says nothing about solicitors or clients. It is for the Courts to interpret what the content is. The only intent of Parliament that is taken cognisance of is the Court's interpretation how far it goes. Otherwise we would not have the provisions of this section. If the Minister is to stand on this section it should be enough for him to do so on his own argument and that he would not need to bring in a specific section to try to capture lawyers and so on. "Every person"" should be sufficient. The Courts would be careful to distinguish such socially and legally important principles in the relationship between solicitors and clients. Thé Minister had to go specifically after the solicitor-client relation- ' ship to try to enforce his line of approach here. In relation to this section, why not have it tested? Sooner or later it will be tested by the Supreme Court. It is a good thing that what we say in Parliament will not be evidence of intent or of the slightest use in the Courts. I should like the Minister to take all this in the spirit in which it is given. I do not think he or the authorities concerned can complain about our anxiety to assist the Revenue Commissioners in the use of their functions. Deputy Colley, as a predecessor of the Minister, cannot but share his concern to get after tax evasion. How- ever, I do not think this will be of much use in getting after evaders. I would ask t he Minister to restore fully the privilege I tried to trace earlier and I suggest there should be a trial before a morass is created in this area because I have a feeling that sooner or later some cases will come before the Courts and there might be very peculiar results. I say that this is a step towards initiating a situation which I should not like to see develop, namely, that

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