Sunday 19 January 2020

Legal chiefs unanimously condemn Shatter's regulation Bill

There are fears that a regulation authority would be influenced by government, writes Emer O'Kelly

Emer O'Kelly

Why does the Minister for Justice, Alan Shatter, himself a solicitor, seem to be so unusually isolated in his promotion of the Legal Services Bill 2011? The minister was not available during the week to talk to the Sunday Independent, even briefly, but I was referred to his various statements on the matter, one of them an article which appeared under his byline in the Irish Times a few weeks ago.

The article discussed the proposed Legal Services Regulatory Authority which the minister's Bill proposes establishing because he believes self-regulation in the legal profession has not worked. He is certainly not alone in the belief, as evidenced by how often disgruntled members of the public who feel hard done by claim to have been badly served, only to have their complaints assessed as unjustified. That reaction is undoubtedly human, but it does not necessarily prove that the legal disciplinary process is faulty or over-lenient.

Mr Shatter believes that the Legal Services Regulatory Authority will have what he calls "structural independence". And on paper, it sounds correct, because its governance will "invest in its pluralistic, expert membership totalling 11 people appointed by the government [my italics] and including two each nominated by the Law Society [the solicitors' professional body] and the Bar Council [the barristers' professional body]; a legal costs accountant; and an officer of the Minister for Justice and Equality, [again my italics]. It must have a lay majority and a lay chairperson." Those are the terms as laid out by the minister.

Last Monday there was an international seminar in Dublin on legal independence. It was organised by the Law Society in response to Mr Shatter's Bill (published in October). The list of speakers was almost overwhelmingly impressive: the Director of the International Bar Association (IBA), the President of the American Bar Association, and the incoming President of the Council of Bar and Law Societies of Europe.

Their speeches, as reported, were unanimous in their outright condemnation of Mr Shatter's proposed Bill. It would, they said, threaten the independence of the legal profession and put it effectively under government control.

Dr Mark Ellis of the IBA called it one of the most extensive and far-reaching attempts in the world by an executive to control the legal profession. The only other countries, he said, to have similar measures in place were the likes of China, Gambia, and Vietnam. Marcella Prunbauer-Glaser of the Council of European Bar and Law Societies called it an "unprecedented encroachment on the independence of the Bar", and said the proposals contravened United Nations basic principles, a rather serious charge.

And the Irish contributions represented a totality of approach between solicitors and barristers which is by no means automatic. The former Chief Justice Mr Ronan Keane pointed out that "it is not enough to say that a regulatory body is independent: you must ensure that (it is) by the method of appointment, the level of remuneration, and the method of dismissal". This was by no means the case here, he intimated.

That is echoed by Paul O'Higgins, SC, Chair of the Bar Council of Ireland, who points out that seven of the proposed membership of 11 of the minister's proposed regulatory authority will effectively be nominees of the minister of the day. One of them will actually be the minister's representative.

And he suggests that there must always be a fear in such a case that far from being an independent body, such an authority would make itself subject to the wishes of the minister. And in human terms also, Mr O'Higgins points out, the members of such a body being dependent on the minister for their remuneration might be accused of avoiding decisions which would offend or displease the minister.

In answer to a question concerning the perception of excessive fees being charged by lawyers, Paul O'Higgins replied that the profession was more than happy to implement checks and balances of regulation as suggested by the Competition Authority in 2006, and the Bar Council had had exhaustive consultation with the Competition Authority in order to reach agreement on an acceptable and workable system of regulations, while the minister's proposals had been introduced without consultation.

Ken Murphy, Director General of the Law Society, is equally emphatic on the threat to independence, and states specifically that the solicitors' body not merely agrees with the Bar Council, but may feel even more strongly that independence from political control is being threatened. Their concern, he says, is that the proposed regulatory authority will effectively be a glove puppet of the Minister for Justice. Such a situation, he says, would represent a major downgrading of our democracy to the level of countries like Iran which do not have the protection of the rule of law.

Mr Shatter has claimed that lawyers will "continue to be free to exercise their independent professional judgment in the service of their clients". Indeed, he has stressed, a record of professional independence is a criterion for promotion to the status of Senior Counsel, "which will be open to solicitors and barristers".

Many lawyers suspect this provision lies at the heart of the Shatter bill. As long ago as 2001, when Mr Shatter was in political opposition and working as a family law solicitor, he approached the Bar Council to ask if he could "lead" junior counsel in court. (Currently, solicitors cannot plead on behalf of their clients in the senior courts.) This was seen by the then Chair of the Council as Mr Shatter seeking to be recognised as a "silk" (a Senior Counsel) without having Bar qualifications. Mr Shatter was reportedly furious, and called the Chairman's (the late Rory Brady) letter a "distorted interpretation".

A year later, he tried in the Dail to have the Solicitor's Amendment Bill incorporate a clause which would remove any doubt that solicitors and barristers could jointly present cases in court. This attempt failed, but as recently as last week, the Bar Council said that plans to allow solicitors to "take silk" without qualifying for the Bar or working as Junior Counsel were "a matter for government".

But they are unlikely to accept other provisions as easily, seeing them as they are viewed by Bill Robinson, President of the American Bar Association: "What is at stake here for the people of Ireland is constitutional democracy. The public should be warned against allowing one man to anoint himself with virtually exclusive authority over the legal profession." And that's an outsider talking.

Sunday Independent

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