Further to my recent post about the submissions of the Law Society on plain packaging of tobacco products to the Oireachtas Joint Committee on Health and Children, the below letter was sent yesterday by a number of solicitors to that Committee.
Fine Gael will probably have the choice of Minister for Justice & Equality and the position is expected by many to go to Alan Shatter, veteran solicitor, politician and publisher of colourful pamphlets.
He wants a legacy. He wants to change the way the country works. He wants to make a difference. And you get the feeling that if he gets his chance, three decades of frustration will be released by a deluge of legislation.
Much of this deluge may be to the benefit of solicitors. For example, traditions that tend to afford barristers a higher professional status could be done away with: “silly nonsense such as wigs and position in court is treated in contempt” by Shatter. However, given his views on solicitor advocacy and the traditions of the bar, he is surprisingly reticent to offer a definitive view on whether the professions should be amalgamated.
If we are to have modern legal services, there are a few sacred cows that need to be dealt with. The differentiation between solicitors and barristers is going to become more clouded. The question of whether it will be a piecemeal evolution or a structured evolution that is effected by agreement in legislation is an interesting issue.
He goes on to say that solicitors should be admitted to the bar, that changes to solicitors’ costs are on the way but might not be drastic and that the Law Society does a reasonably good job of regulating solicitors. He also “believes that [the] proposed Legal Services Ombudsman who will shortly be appointed may well be sufficient in terms of independent regulation”.
The elephant in the interview room was, of course, the IMF. The agreement reached between the Irish Government and the IMF for financial support requires the following structural reforms of the legal professions:
- establishment of an independent regulator;
- implementation of the Legal Costs Working Group report; and
- implementation of the Competition Authority report.
These high-level items provide little detail of what might actually be implemented, unless one assumes that the reports mentioned are implemented in full with no tailoring. Whether or not individual members of the professions agree with the proposed reforms, it is likely that all Irish lawyers would agree that reforms are necessary. As argued by Eoin O’Dell:
It is sad that our governments have not implemented these recommendations of the Legal Costs Working Group and the Competition Authority; indeed, it is doubly sad that it takes an external agency like IMF to insist that these recommendations are in fact implemented.
These reforms must be implemented before the end of 2011 but there has been little news and, as far as I am aware, no communications from the Law Society about the changes since they were announced.
Shatter offers a view on reform of the professions which is quite different than that often aired in the media.
Outside the profession, there is talk of non-solicitors doing this work without realising the complexities to be addressed, the level of training you need or the insurance implications. If you want competition, you don’t want work of lesser quality. It is too easy for politicians who are non-lawyers to talk about competition without understanding the necessity to ensure that professional work is properly done. No one has suggested to the medical profession that non-qualified doctors undertake appendectomies because the perception is that removing someone’s appendix is a relatively simple operation.
Of course, many will dismiss such sentiments as tainted by vested interest. Part of the difficulty for solicitors at present is that their views are rarely given any weight due to the public perception of the profession.
Allied to the disruption facing solicitors when the above reforms are implemented are the ongoing difficulties with solicitors’ insurance. On that topic, Shatter says:
It’s hugely important that consumers are compensated for the negligence of solicitors. Insurance must remain mandatory. The conveyancing area is where a lot of problems arose. Solicitors who were less than expert in conveyancing were charging fees that had no economic reality and short-circuited the work they were doing.
From anecdotal evidence, 2011 will be a horrific year for many solicitors with rumours that a number of successful practices will close. Given that job protection and creation is a core aim of all parties, one hopes that any regulatory changes introduced will not add to the large proportion of the profession which is already unemployed.
- Bills going through the legislative process in the Oireachtas at the time of the dissolution of the Dáil prior to a General Election will lapse.
- The new Dáil will decide which bills it intends to pursue.
- These bills will continue at the particular stage they had reached prior to the dissolution of the Dáil.
Has the Government been planting background statements and political justifications into primary legislation in the expectation of court challenges?
As “one of the recession’s worst casualties”, Ireland has had its share of disruption since 2007 and the financial turmoil since the collapse of the Celtic Tiger has led to a spate of crisis legislation.
There are two striking features of the more rushed pieces of legislation: (1) the inclusion of political commentary and (2) repeated use of the phrase “in the public interest” (which might remind some readers of Bull Island‘s Charlie McCreevy sketches).
The Minister has, in the public interest, the functions provided for under this Act because, after consulting the Governor and the Regulatory Authority, the Minister is of the opinion that—
(a) there is a serious threat to the stability of credit institutions in the State generally, or would be such a threat if those functions were not performed,
(b) the performance of those functions is necessary, in the public interest, for maintaining the stability of the financial system in the State, and
(c) the performance of those functions is necessary to remedy a serious disturbance in the economy of the State.
I haven’t been through the entire Statute Book, but had never before encountered primary legislation which explained its background in this way. One might expect this in the appropriately titled explanatory memorandum which accompanies each draft law (eg. this one). However, while an explanatory memorandum might be examined by a court when interpreting legislation, this is the exception rather than the norm.
The legislative editorialising seems to have developed somewhat by the time the National Asset Management Agency Act 2009 was drafted. Section 2 of that Act uses similar terminology which is, again, more political than legal in content but which is aimed at addressing the purpose of the legislation, rather than the context of it. The Financial Emergency Measures in the Public Interest Acts No. 1 & 2 2009 (scroll to bottom of linked pages) see the adoption of recitals, common in continental European civil law systems and familiar to Irish lawyers thanks to the regulations and directives of the European Union.
Lawyers in Ireland and the UK often wonder what the point to recitals is. The law should be confined, the thinking goes, to the four corners of primary legislative provisions and not muddied or complicated by mission statements, which may be advanced by a litigating party as, for example, giving rise to legitimate expectations. This article on the topic makes the point:
Recitals are supposed to be general statements. General statements are not something which ordinarily are recognized as giving rise to legitimate expectations. But also recitals in general (for instance, in contract law) are, well, recitals, not operative provisions and it is hard to fathom how they could give rise to positive obligations or defeat operative clauses.
Section 18(g) of the Interpretation Act 2005 is of relevance here. In general terms, it provides that marginal notes, headings and the like are to be ignored when interpreting legislation. However, the sections already referred to in recent crisis legislation are not headings and take the form of operative provisions (though they generally do not provide for any active measure).
It will be interesting to see on 1 November whether the divisional court which heard McKillen v. NAMA (a.k.a. Dellway Investment Ltd & ors v. NAMA, Ireland & the Attorney General) will consider section 2 of the NAMA Act when determining whether the circumstances outlined in that provision justify the operations of that agency [Update: it did make brief reference to section 2 at para. 4.2 & 9.55 of the judgment].
PS. The core pieces of emergency legislation are:
- Credit Institutions (Financial Support) Act 2008
- Anglo Irish Bank Corporation Act 2009
- Financial Emergency Measures in the Public Interest Act 2009
- Investment of the National Pensions Reserve Fund and Miscellaneous Provisions Act 2009
- National Asset Management Agency Act 2009
- Financial Emergency Measures in the Public Interest (No. 2) Act 2009
- Euro Area Loan Facility Act 2010
- European Financial Stability Facility Act 2010
The announcement by the Minister for Justice that he intends to transfer the operation of the criminal legal aid system to the Legal Aid Board might seem like it makes sense, but is likely to result in delays and possibly higher costs.
Currently, the Legal Aid Board administers the civil legal aid scheme and deals almost exclusively with family law matters. It meets clients and assesses their means. Often the Board handles the client’s case itself from one of its law centres. In some cases, the Board refers the client to a private solicitor and issues a certificate to cover costs (with the Board paying the solicitor’s fees according to set rates). Due to increased demands on the system (as noted by the Minister himself), it appears to be increasingly common for the Board to refer clients to private solicitors.
The criminal legal aid scheme is administered by the Courts Service, with an application being made to the judge who first deals with an accused person. The assessment of means is done by the judge and can often be far less formal than that applied by the Board. For example, if the judge is told that the accused is not working and has no significant assets, (s)he may issue a certificate immediately to cover the costs of the defence. (There is no connection between the State funded legal aid schemes and the volunteer-led Free Legal Advice Centres.)
Having the two systems in operation may seem an unnecessary duplication, but there are differences in the demands made of each. Generally, criminal cases will move faster and involve more urgency. The Minister says the change is aimed at cutting costs and improving efficiency, so it is interesting to read the reaction of Frank Brady, director of legal aid at the LAB:
“There is no expertise and very little knowledge of criminal legal aid [in the Legal Aid Board]. The two systems are fundamentally different, and the board will face a difficult learning curve. Nevertheless, the board would welcome the opportunity to play a lead role in the future development of the criminal legal aid service.”
In the long run, streamlining the two schemes might make sense, but this story does not engender optimism. Rather, it appears we are faced with a rash decision to be rushed through the Oireachtas, followed by a period of disruption and delay.
Enda Kenny has caused quite a stir with his announcement that Fine Gael would, in government, hold a referendum within one year of entering office to abolish the Seanad, the upper house of Ireland’s national parliament.
The motivation for this announcement would appear to be a desire to recapture some media momentum from the Labour party, but it makes for an odd policy issue to focus on in an important speech. There are many areas of the Constitution which various lobby groups have pointed to as needing reform (such as childrens’ rights, abortion, women, religion, blasphemy, the requirement to hold referenda for European Union treaties), but each is far more complex and controversial. It would be more useful to see Fine Gael propose a more comprehensive approach to constitutional reform which might include a series of referenda or a ‘super-referendum’. Holding a single-issue referendum on the Seanad seems wasteful in itself, given that the stated aim of the measure is to save money.
Considering the position of the Seanad in the Constitution and the wide scope for reform without constitutional amendment, it is strange that Fine Gael have taken this approach. Unfortunately, the makeup of panels and the university elector system cannot be changed, but much else can.
One quick and easy reform would be to abolish the salary paid to senators and cap expenses at around €20,000. A large swathe of the Seanad is populated by politicians who failed to get elected to the Dáil or who are building a profile for an eventual Dáil run. Most of the rest occupy it as a part-time role. If the position carried no salary the Seanad would still be filled, without difficulty. There is also an honorific element to a Seanad seat which negates the need for a salary.
Immediate cost-savings could be realised and a longer programme of Oireachtas reform could then be developed – perhaps involving the Seanad in European affairs to a greater degree. Too often sectors of Irish society object to European Union legislation at the point of implementation, rather than at the point of debate. The Lisbon Treaty provides for a greater role for national parliaments in the development of EU law and the Seanad could fulfil a useful role in Ireland’s engagement with the EU.
Finally, while much is made of the political nature of many appointments to the Seanad, we should not turn our noses up at the potential to directly appoint parliamentarians. These can represent sections of society who are too geographically or politically scattered to elect one of their own to the Dáil, or individuals who voice opinions that should be heard but would never gain a Dáil seat. The Seanad also provides the opportunity to a Government to bring external expertise to the cabinet table, as happens one a more wide scale basis in some countries (the US being the most prominent example). Up to two government ministers can be drawn from the Seanad (though a senator cannot be taoiseach, tánasite or minister for finance) and with two Seanad seats currently unfilled, this theoretically allows for the government to nominate, for example, a businessperson, economist or academic to the Seanad and then bring them into the government.
These possibilities could, of course, be incorporated into a unicameral Oireachtas, but for now Fine Gael seem content to propose the abolition of the Seanad and the reduction in the number of TDs without proposing a more nuanced vision of how the Oireachtas should function.