WHERE’S Alan Shatter when you need him? The former minister for justice may be forgotten, but he is not gone.
These days he languishes on the Government backbenches, having resigned last year over mishandling Garda controversies.
He did, however, leave one legacy which he must have hoped would endure. In 2011, he introduced the Legal Services Regulation Bill designed to curb the power of the two arms of the legal business. While this measure was forced on the Government by the troika, Mr Shatter did show courage and tenacity in his approach.
Then he was gone, and it would now seem that his attempts at real reform have withered in his wake.
This week it emerged that the bill’s torturous route towards law has seen specific measures watered down to an extent that renders reform a joke.
A rare opportunity has been missed to drag the business kicking and screaming into the 21st century.
Reform of the legal business is long overdue. Most of the issues relate to that which any vested interests hold dearest — the colour of money.
Legal fees in this country are among the highest in the world, and act as a barrier to business in general and to the right of citizens to access justice.
Like any vested interests, lawyers have a knack for seeing the world from a unique vantage.
Just last night, introducing President Higgins at the Daniel O’Connell lecture, the president of the Bar Council, David Barniville, had this to say: “Access to justice is an integral part of human rights and we at The Bar of Ireland believe that everyone should have equal access to justice.”
Quite obviously, irony didn’t feature at the event. Purporting to stand for justice for all just as a bill is presented to Cabinet which will maintain a system which confines access to justice to the moneyed is a bit rich.
Two recent cases illustrate how crazy the cost of justice is.
This week, it was revealed that four barristers acting for the State in the Ian Bailey action received €1.21m in legal fees. The two senor counsels each pocketed €350,000.
The trial in question sat for 64 days, and involved a fair amount of work, but the fees are staggering by any standard.
In that instance, the State won the action but Mr Bailey apparently hasn’t a bob, so it falls back on the State. And that’s only the barristers’ fees.
If private solicitors are retained, their wodge often far exceeds that of their gowned kindred spirits.
Last Tuesday, the High Court awarded costs against Michelle Morrison following her failed action against neighbours over a boundary dispute. The case sat for a week before it was abandoned. The costs are estimated at heading towards €400,000.
Mrs Morrison is the estranged wife of Van Morrison, and you can be sure that nobody told her there would be days like this.
She may well be able to ship the cost, but for most citizens, it would herald financial ruin.
Mr Shatter’s bill was largely based on a report published by the Competition Authority in 2006. Since then, cabinets had sat on that report until the troika arrived and decided that somebody was having a laugh.
Two measures in particular were designed to bring fees back into the real world. One involved the setting up of a new regulatory body to take regulation out of the business. This, as economist Stephen Kinsella among others has pointed out, has now been diluted to a huge extent.
The new regulator will be set up but many of its functions as originally envisaged will be retained by the Law Society and Bar Council.
As such, a regime of self-regulation will continue.
Also, the Bar Council will not be compelled to admit to the law library barristers who do not work as sole practitioners. This has implications for bodies like the State, which is the biggest client of legal services.
If a state body could employ a barrister, it would cut down hugely on the legal fees that must be paid to sole practitioners.
Instead of forcing the Bar to accept such a concession, the bill opens the option of non-sole practitioners setting up a new trade body themselves. Good luck with that one.
The bill has been in gestation for four years, during which time, the two arms of the business went to work on it with machetes.
If Shatter was still in office, he may not have emerged from the process with his original plans intact, but nobody could have imagined that his successor Frances Fitzgerald would have capitulated to the extent that she has.
While the Law Society and Bar Council were slashing the bill, the body representing the citizen — the Competition and Consumer Protection Commission — was excluded.
The commission has noted that there was “a lack of engagement” with it during the process, in contrast to “a high level of engagement with the representative bodies of the legal profession, who have a vested interest in retaining the status quo.”
And retain it they have. The power of the legal lobby to protect its interest is unrivalled, even in a country replete with vested interests. It helps that lawyers argue for a living.
But the real power comes from the complete infiltration of the political culture by solicitors and barristers. This has ensured that anytime their pockets are threatened, all party or ideological differences are set aside to fight the good fight for the protection of fees.
The tactic most often used is to conflate a genuine lawyerly concern to advocate for citizens, with their own interest in maintaining the gravy train.
That three card trick always has, and continues, to work a treat.
An existential recession, replete with savage social injustices, was inflicted on this country. An opportunity to reform things in a grown up manner was presented, particularly by the presence of the troika.
The moneylenders didn’t tell us anything we didn’t know. A ready-made blueprint for reform was already gathering dust in Leinster House. All the troika did was provide the cover for a government to actually acquire a backbone when it came to taking on the legal business.
Yet we can now see that in one more area, a vested interest has managed to weather the recession and emerge largely intact, to the cost of the public interest.
The whole shambles leads one to nearly, but not quite, cry out: “Come back, Alan Shatter, all is forgiven.”
Michael Clifford
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