Ex-AG says legal Bill would undermine profession

Mon, Jan 16, 2012, 00:00

THE PROPOSED Legal Services Regulation Bill will make the legal profession “subject to indirect supervision and control by the Minister for Justice”, according to former attorney general John Rogers. He had asked why the Government had adopted a policy “to vest such extraordinary controlling power in the Minister for Justice.”

Mr Rogers made his remarks to a meeting of the Duleek branch of the Labour Party, of which he is a member, last week. “The policy of this Bill is to completely undermine the independence of the legal profession from the government of the day,” he said.

Separately, the organisation representing lawyers in Europe, the CCBE, has written to the Minister for Justice and the Taoiseach asking them to review the provisions of the Bill in the light of established European principles on the independence of the legal profession.

“At present the CCBE considers the Bill to constitute a grave threat to the independence of the legal professions in Ireland and consequently a threat to the rule of law,” it said.

Mr Rogers said the majority of the 11 members of the proposed Legal Services Regulatory would be appointed by the Government and the chief executive officer of the authority would be appointed by the Minister for Justice.

This contrasted with the Medical Practitioners Act 2007, where the chief officer of the Medical Council was appointed by the Medical Council, he said.

While the 25 members of the council were appointed by the Minister for Health and Children, he added, most of the appointees were nominated by nominating bodies, such as the Royal College of Surgeons, the Royal Irish Academy, the Health Service Executive and the Health Information and Quality Authority.

He added that if the Bill was enacted, a legal practitioner could be “inspected” at the instigation of the Minister for Justice.

“Already there has been a very significant departure from convention in the appointment of the same person as Minister for Justice and Minister for Defence. In western democracies the responsibility for these departments is vested in separate persons so as to ensure proper accountability for the exercise of police and military powers. This is particularly so, as in the case of this State, where the Army is regularly relied on in aid of the civil power.

“Why is it government policy to vest more and more powers in the one Minister?,” Mr Rogers asked. “Do the exigencies of the security of the State require it? Why is the Oireachtas being asked in the present circumstances to vest these far-reaching powers in relation to the legal profession in the same person that this Government has already vested with responsibilities and authority in a clear departure from convention?”

In its letter, the CCBE said the Bill “contains provisions involving an encroachment on the independence of the legal professions in Ireland which have not been adopted” in any other EU jurisdiction.

“The proposed Legal Services Regulatory Authority to be established under the Bill will have unacceptable control over both professions under the Bill,” its president, Marcella Prunbauer-Glaser, said. “It will control all aspects of professional practice, including training, entry and discipline.

“The CCBE, therefore, calls upon the Irish Minister for Justice and Defence to revise the provisions concerned in order to reflect the principles ensuring the independence of the legal professions enshrined in both European Union and international law and in the CCBE’s charter of core principles of the European legal profession and the code of conduct for European lawyers,” she said.

The Irish Council for Civil Liberties has also expressed reservations about the Bill. In an advisory document, it noted advantages in the independent regulation of lawyers and judges.

However, it recommended that the Bill be amended to ensure that the appointment of personnel to the regulatory authority be carried out by an independent body and that the control of the functions of the authority be expressly confined to the authority, without ministerial influence.