The Gazette 1995

GAZETTE

MAY/JUNE 1995

V I E W P O

I N T

Sect ion 153 - Why We Fought

A disappointing feature of the recent battle over Section 153 of the Finance Bill was the fact that so few of the measures' proponents appeared to understand the special role which lawyers play in the administration of justice and why, as a consequence, it would have been wrong to require the legal profession to report their clients to State authorities for suspected breaches of the law. The politicians, in particular, seemed shocked by the vehemence of the Society's opposition to the proposed measure. The Minister for Finance, Ruairi Quinn, TD, described the Society's position as "outrageous". Opposition finance spokesman, Charlie McCreevy, TD, said it was "disgraceful". A number of seasoned backbench deputies remarked that the lobby on Section 153 was the most intense they had ever experienced on an issue other than abortion. Only one member of the Dail Select Committee on Finance and General ; Affairs, Michael McDowell, TD, made it clear that he completely understood and fully supported the strong line which the Society had taken in advising its members not to violate their clients' constitutional rights by complying with Section 153 in the period prior to its anticipated striking down by the Courts as unconstitutional. Although the strength of the position taken by the Society meant that it was the legal profession which effectively led the opposition to Section 153 it was, of course, not just solicitors, but also accountants and tax advisers, who were opposed to it. IBEC advised the Government not to enact it as did the Chambers of Commerce of Ireland, the Institute of Directors and Small

newspapers ran editorials recommending it be dropped.

Accused by one Deputy of seeking to obtain a competitive advantage for solicitors over accountants, the Society completely rejected any such motivation. Indeed, the Society viewed with concern the undermining of confidentiality in the relationship between any body of bona fide professional advisers and their clients. The ultimate fate of Section 153 was its transformation into Section 172 of the Finance Act which puts on a statutory basis the long existing ethical position whereby solicitors must cease to act for clients who request assistance in engaging in illegal activity. The Society views this as an acceptable outcome in the light of what had been originally proposed in Section 153. The Society's fundamental objection to Section 153, however, was that, as applied to lawyers, it undermined the citizen's constitutional right against self-incrimination and thereby represented a civil liberties issue of genuine significance. The right against self-incrimination is a badge of a free society. It would be a threat to the constitutional rights of every citizen if lawyers were made agents of the State rather than of their clients. Accordingly, the identification by the solicitors' profession of the unconstitutionality of Section 153 as originally drafted was a public service. Much legal work is mundane. It is, however, the highest calling of the legal profession to stand between the State and its citizens when the rights of the latter are under threat. It is a role which does not endear lawyers to the State, but it is one which the profession has never shirked and which it did not shirk on this occasion.

Indeed, other than from some members of his own party and one trade union, the Minister received few public expressions of support for his proposal to extend Mr. Justice Hamilton's Beef Tribunal recommendations far beyond auditors to include anyone engaged in supplying tax advice or assistance to companies. It was notable that at the Dail Committee debate the majority even of Government deputies expressed reservations about the proposal and suggested it be deleted. In this Gazette we publish in full the submission made by the Society representatives on the first occasion in the history of the Oireachtas when a Dail committee has heard the views of interested parties as part of the law- making process. The invitation to make this submission and to answer Deputies' questions subsequently for an hour provided a welcome opportunity to communicate the professions point of view. In response to questions about the propriety of the Society advising its members not to comply with the law, the Society's representatives made clear the position that it would, on the contrary, be the Minister and the Oireachtas who would be failing to comply with their obligations under the law, constitutional law, if Section 153 were to be enacted as applied to lawyers. The position taken by the Society was exceptional. Indeed the Society's representatives knew of no precedent for it. It was based solely on the need to protect the constitutional rights of clients, however, and accordingly it was a principled and appropriate measure in the circumstances.

Firms Association among many others. Business commentators condemned it and many national

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