News Analysis

Wednesday 1 October 2014

Bring down the gavel on frictions between the State and legal profession

Published 02/06/2014 | 02:30

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Taoiseach Enda Kenny speaking with Alan Shatter

THE Westport Entente doesn't have quite the same ring to it as the Magna Carta or the Treaty of Versailles. But there was no mistaking the fact that a certain peace broke out when Taoiseach Enda Kenny and newly appointed Justice Minister Frances Fitzgerald pressed the flesh at the Bar Council's conference.

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Relations between the Government and barristers, as well as their solicitor and judicial brethren, have been under enormous strain since the onset of the recession.

Like most contested divorces, fault lies on both sides. Judges failed to play their part in 2009 when the bench declined, en masse, to take a voluntary pay cut in lieu of the mandatory pension levy imposed on all public sector workers.

More than 90pc of judges did, in time, contribute.

But the damage to public confidence in the judicial arm of government was deep and lasting.

When it swept into power, the Fine Gael/Labour Coalition responded with a populist referendum that overturned the constitutional ban on reducing judges' pay whilst in office – without the much needed safeguard of an independent body to regulate such matters.

Once the referendum was passed, savage cuts and reforms to judges' (admittedly generous) pay and pensions were introduced, leaving many of the country's "brightest and best" lawyers to stay at the bar or their law firm rather than going to the bench.

The Government was less successful with its failed Oireachtas Inquiries Referendum, widely perceived to be an attempt to claw back power from judges. When faced with the option of political show trials or the chance to seek relief in the courts, the public chose Lady Justice rather than Punch and Judy.

The Government deserves credit for "taking on" the legal profession in the form of its troika-mandated Legal Services Regulation Bill which has been hanging around Leinster House like a bad smell since 2011.

But in former Justice Minister Alan Shatter, it chose the wrong person to lead such significant change.

From the outset, Mr Shatter – himself a solicitor – went to war with the legal profession.

The profession did not help itself in the initial battles when it responded in too shrill a manner to many of the provisions.

A stand-off ensued.

The Bar Council, it seemed, were frozen out completely.

In comparison, the Law Society – the ruling body for solicitors – appeared to cloak itself in a Stockholm Syndrome strategy.

The capture bonding approach with Mr Shatter worked, with solicitors securing concessions that will see most of its regulatory staff stay away from the dole office.

The real victim in the cross-fire is the public interest.

It is easy to deride lawyers but now more than ever, we need a robust and independent judiciary and legal sector, one that is accessible by the most vulnerable of citizens.

The State is the largest buyer of legal services and has a major role to play in reducing legal costs.

But the State is also the plaintiff or defendant in 50pc of all legal actions and we need an independent legal profession that can act without fear or favour in the face of such awesome power.

The recent publication of Senior Counsel Sean Guerin's report into allegations of garda misconduct was a timely reminder of the importance of such independence.

Mr Shatter's biggest blindspot was his failure to realise that change management can not occur without the participation of key stakeholders.

The attrition must cease: access to justice is the prize to fight for.

Irish Independent

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