Legal system 'could be like China's'

hullaballoo

Interesting article here in the Irish Times today.

CAROL COULTER, Legal Affairs Editor wrote:

The Irish legal system will be comparable to that of countries like China, Gambia or Vietnam if the Legal Services Regulation Bill is passed unchanged, according to the director of the International Bar Association (IBA), the international representative body for lawyers.

The IBA was prepared to consider convening a high-profile fact-finding mission to come to Ireland and examine whether the legal profession was under attack, Dr Mark Ellis told The Irish Times.

He is in Dublin along with the president of the American Bar Association (ABA), Bill Robinson, and the incoming president of the Council of Bars and Law Societies of Europe, Marcella Prunbauer-Glaser, to speak at a seminar on the independence of the legal profession this afternoon.

All three warned that this will be severely compromised if the proposed Bill, published in October, is enacted as it stands. This will place Ireland outside the norms of developed democratic states, they told The Irish Times.

Dr Ellis described the Bill as one of the most extensive and far-reaching attempts in the world by the executive to control the legal profession. “There is very little light between the Government and the profession,” he said.

“The IBA tends to focus its attention on developing countries. In my 11 years in the IBA I never remember something like this coming from a democratic and developed country. Lawyers must function without external interference. This is indispensable to the administration of justice and the rule of law.”

He pointed to Article 24 of the UN’s Basic Principles on the Role of Lawyers, which states lawyers should be entitled to form self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. Under the proposed Bill these functions would be taken over by a body dominated by Government nominees, he said.

“The IBA is holding its international meeting here in October next,” he said. “It would be unfortunate if we were bringing this major event to a country that was struggling with the independence of the profession.”

Ms Prunbauer-Glaser said the CCBE was deeply concerned about the “unprecedented encroachment on the independence of the bar” and had prepared a position paper on the Bill that it was submitting for discussion. It had also asked the EU Commissioner for Justice, Viviane Reding, to raise the matter with Commissioner Rehn, who is responsible for the EU’s input into Ireland’s bailout, she said, and Commissioner Reding had agreed to write to him.

The proposals not only contravened the UN’s Basic Principles, but also the Council of Europe’s recommendations on the freedom of lawyers and a resolution of the European Parliament on the legal profession, which reaffirmed the importance of its independence.

“This is important, not because of lawyers, but because of clients and society in general,” she said. “There are judgments of the European Court of Justice and the European Court of Human Rights stating that the independence of the legal profession is correlated to the independence of the judiciary.”

“What is really at stake here for the people of Ireland is constitutional democracy,” Mr Robinson said. “The public should be warned against allowing one man to anoint himself with virtually exclusive authority over the legal profession. History has taught us that the independence of the legal profession is the key to an independent judiciary which is the key to freedom.

“What this Bill will do is compromise the fiduciary relationship between the lawyer and his or her client.”

Mr Robinson attended the Global Economic Forum in Dublin last October and said he saw there the importance of foreign investment for the revitalisation of the economy. “Ultimately this will have a chilling effect on economic development,” he said. “It is hard to imagine investors being pleased to invest in a country where they are unable to get independent counsel, legal representation that only owes fiduciary responsibility to the corporation in any dispute that may arise with the State.”

The ABA would continue to monitor the situation and would be available to provide comment on the Bill. “Freedom is at stake and we can do no less,” he said.

Ms Prunbauer-Glaser pointed out that local, European and global voices were expressing the same concerns about a unique situation for a democratic country.

It looks like the Legal Services Bill is becoming an issue for lawyers on an international scale now, but the reality is that our Minister will probably steel himself and issue the usual propaganda statement about how we're protecting our own interests.


It may be that some legal-minded TDs will eventually recognise the issues here but, I have to say, I fear it's unlikely.

Manach

Even being from an IT background (which is thankfully fairly free from Government oversight), to me this Bill does seem to yank away a foundation of Irish common law tradition. That members of a fairly independent body can represent the citizen against the State. Given the lack of regard the current minister showed to constitutional doctrine during the recent referenda, it does seem a trend is emerging.

FreudianSlippers

Ellis was the most interesting person there. The rest of it was boring at best - I saw a good few people nodding off and I'd say 50% left at the interval.

Why can't we get interesting discussion on what we should be doing to reform instead of the same stonewall approach that is being taken at present.

dats_right

FreudianSlippers wrote: »

Why can't we get interesting discussion on what we should be doing to reform instead of the same stonewall approach that is being taken at present.

I think, in fairness, the Law Society accepts that there are many worthwhile reforms contained in the Bill, which they support. That is not the issue. The interference with the independence of the profession is by far and away the single biggest issue here.

With all due respect to Shatter, in his short time at the helm he has already proven himself totally incapable. He arrogantly tried to force a referendum down people's throats that would have seriously undermined the principle of the separation of powers. Now he wants to do away with all normal democratic norms and give himself total control of the legal profession. He wants to align our regulatory regime with the likes of China, Gambia and Vietnam. According to the president of the International Bar Association such a regime would be unprecedented in a western democracy.

Don't even get me started on the irony of Shatter lecturing the profession about transparency in relation to legal costs. It's not that I don't agree with that because I fully support that aspect of the Bill, anyone who is in the profession will know what I mean here.

FreudianSlippers

dats_right wrote: »

I think, in fairness, the Law Society accepts that there are many worthwhile reforms contained in the Bill, which they support. That is not the issue. The interference with the independence of the profession is by far and away the single biggest issue here.

With all due respect to Shatter, in his short time at the helm he has already proven himself totally incapable. He arrogantly tried to force a referendum down people's throats that would have seriously undermined the principle of the separation of powers. Now he wants to do away with all normal democratic norms and give himself total control of the legal profession. He wants to align our regulatory regime with the likes of China, Gambia and Vietnam. According to the president of the International Bar Association such a regime would be unprecedented in a western democracy.

Don't even get me started on the irony of Shatter lecturing the profession about transparency in relation to legal costs. It's not that I don't agree with that because I fully support that aspect of the Bill, anyone who is in the profession will know what I mean here.

Don't get me wrong, I whole heartedly agree that there are some legitimately good reforms in the Bill (although they are vastly outweighed by the nonsense). But did we need 6 people to get up and say the same thing?

Dr Ellis would have been fine for that IMO. I would have liked to have seen 5 other people get up and say "here's why Shatter is right about x but it should be approached in y way".
I hear the independent referral bar praised by the bar council on a daily basis, but never really heard someone explain the merits or disadvantages of it in comparison to other systems (chambers in the UK or a "fused" profession in the US; I say "fused" as there are still trial attorneys and non-trial attorneys as a distinction and there would/could be here too).

No system is perfect, but hearing over and over that ours only needs minor changes makes me slightly suspicious sometimes.
I'm certainly not saying that I think we need big changes or that Shatter's changes are appropriate - but perhaps this could begin a dialogue. We may end up deciding nothing needs to change, but in all sectors, shouldn't we at least reason it out and consider reform while we have the opportunity?