The Gazette 1995

GAZETTE

MAY/JUNE 1995

measure woyld discourage foreign investment in Ireland.

Human Rights to be an essential feature of the right to a fair hearing under Article 6(1) of the European Convention of Human Rights. The right, which finds a classic expression in the fifth amendment to the Constitution of the United States and which is also recognised in European Union law, has been held by the courts in Ireland to be fundamental to the rules under which criminal trials are conducted and to come within the terms of the guarantee of a fair trial contained in Article 38.1. There has been a considerable body of case law on the application of the test of proportionality to the overriding of a constitutionally protected right and, following examination of this case law, the opinion concludes that, linked to the judicially established constitutional right of access to a legal adviser, it must be seriously doubted whether the Oireachtas could ever trench upon the right against self-incrimination in the manner suggested in section 153. 2. Section 153 undermines a client's right to legal professional privilege. A client's right to legal professional privilege, like the rule against self-incrimination, is a necessary aspect of the constitutional right of access to a lawyer. It is an essential feature of the rule of law and the proper administration of justice. A classic formulation of this appears in a judgment of the United States Supreme Court which our advisers believe would be followed by the

In order for anyone to obtain proper legal advice, it is necessary to make a fulMisclosure to the legal adviser. Accordingly, we would submit that it is wrong in principle to create a risk of undermining in a general way the public's trust and confidence in its lawyers. The members of this Committee have received a six-page submission from the Society setting out the grounds of many of the objections in principle and problems in practice which the Society's Taxation Committee sees in section 153. All of the points made above and made in the said document are considered by the Society to be important but are subsidiary to the primary point which now follows. The Society's fundamental objection is that section 153, as it applies to lawyers, constitutes a serious erosion of the protection of citizens' rights in dealing with State authorities and violates rights protected by the Constitution of Ireland. This view of section 153, as it applies to lawyers, occurred to the Law Society on first sight of the Bill on 12 April, 1995. The Society subsequently sought and obtained a fully argued opinion from two barristers who are recognised as unquestionably among the foremost experts on Irish constitutional law. This opinion unequivocally expressed the view that, insofar as it would apply to lawyers, section 153 trenches deeply and disproportionately on established constitutional rights and would be struck down by the courts as unconstitutional. Their grounds for reaching this conclusion in relation to section 153 are, in outline, as follows:- 1. Section 153 undermines the constitutional right against self- incrimination. The centuries-old common law right against self- incrimination has been explicitly recognised by the courts as a right protected by Article 38.1 of the Constitution. In addition the right against self-incrimination had been deemed by the European Court of

position and we deeply resent it. A lawyer's duty to defend an accused person must not be confused with sympathy for the crimes of which his client has been accused. The Society is indeed opposed to the application of section 153 to lawyers but we have excellent grounds for being so opposed. We believe that it is profoundly wrong in principle to create an obligation on lawyers to report their clients to the Revenue Commissioners in violation of the confidentiality which has historically attached to information disclosed by a client to a solicitor. In its ultimate application it can be envisaged that solicitors would be compelled to give evidence in court against their own clients concerning information which had been revealed to the solicitor in confidence. Insofar as the Society can determine, such a law would be without precedent anywhere in the free world. Colleagues in other countries have been both amazed and shocked to hear from us that it was proposed to impose such an obligation on lawyers in Ireland. The Society considers that section 153 is not merely wrong in principle but that it would create enormous difficulties in practical terms. Given that tax law is exceedingly complex and contains many grey areas, indeed even experts may profoundly disagree on what constitutes evasion, the application of this provision would create impossible practical dilemmas for lawyers. In addition, there is a real risk that clients would seek tax advice abroad rather than from advisers based in this country and that the

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