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Wednesday, February 24, 2016

A Government addicted to legal advice


The Government’s habit reached its denouement in efforts to reform the profession
For decades, the legal profession has been in the crosshairs of external critics of the Irish economy.



Every couple of years the Paris-based Organisation for Economic Co-operation and Development (OECD) would review the Irish economy and conclude that the lack of competition in the provision of legal services was one of the things holding us back.
Likewise the International Monetary Fund. 
In its periodic reviews of the Irish economy, the Washington-based body would call for the end of archaic practices it held responsible for keeping the cost of litigation high and making business uncompetitive.

Their views were routinely echoed by our own Competitiveness Council, a legacy of social partnership that labours all year to produce a decent report that the government of the day duly bins.
Thus, when we collapsed into the arms of the Troika in 2010, the IMF saw its chance and managed to slip a commitment to reform the legal system into the conditions attached to the bailout.
They must have thought they would finally get their way, not least because the incoming government appointed Alan Shatter as minister for justice. Something of a rarity, he was a practicing solicitor who seemed genuinely committed to reform of his profession.

Hegemony of lawyers
Five years later, the Legal Services Act finally made its way on to the statute books. It was hardly a cause for celebration in either Paris or Washington. But it was undoubtedly the source of much satisfaction in Blackhall Place and Henrietta Street, the respective homes of the Law Society and the Bar Council which retained much of their hegemony.
How these two self-policing organisations managed to fight off a reforming minister with the backing of the IMF, the European Central Bank and the European Commission is something of an untold story.
It says much about how much the Troika really cared about reforming the legal profession; not so much it seems.
It t also demonstrates how deeply the Government is addicted to legal advice and the downside of its habit.

At this stage it is routine for a Government Minister, department or agency to cite legal advice as the reason for taking some course of action or other.
Usually it is cover for not doing something it didn’t much fancy doing in the first place. Recent examples include: the refusal of the Health Service Executive to tell the family of a woman with severe intellectual disabilities of its concerns about a risk to her of sexual abuse at a foster home; the watering-down of the banking inquiry report; inaction over school inequality; and letting the Central Bank breach the Government pay limits.

This obsession with legal advice ignores a rather obvious fact – it is just advice.
It would seem pretty self-evident that an adversarial legal system such as ours takes as a given that there are at least two opposing points of view - and sets of legal advice - on any issue and one of them is wrong .
Instead the Government – and indeed many businesses – tend to treat legal advice as tantamount to a court judgement. More often than not an expedient course of action is supported by the advice in question.

This has an obvious corrosive effect on government and fosters a culture that focuses on legal backside-covering rather than doing what may be politically fraught but correct none the less.
Legal advice has been elevated to a role in the process of government it does not deserve as a consequence.
This less-than-healthy dynamic seems to have reached some sort of denouement in the recent machinations over the Legal Services Bill, as revealed by Arthur Beesley in this paper .
Documents released under the Freedom of Information Act show that the proposed Bill was given to the Bar Council for review and, in effect, agreement before it was presented to the Cabinet, never mind the Oireachtas.

Fear of the law
Implicit from the documentation obtained by Beesley was the real fear on the behalf of the Government of a constitutional challenge to the Bill.
It verges on the absurd that a government cannot bring about reforms of the legal profession – that are advocated by just about every objective observer – because they are afraid that they will be sued by the lawyers who are materially affected.
What else would they expect lawyers to do about measures that could potentially hit their pockets?

But no doubt the Government has some legal advice to back up the decision to roll over.
John McManus