Updates on Irish and Northern Irish Law (Darius Whelan, School of Law, University College Cork)
Wednesday, December 20, 2006
Moriarty Tribunal Report
Sample News Story:
Haughey severely criticised by Moriarty
19 December 2006 22:45
The first report of the Moriarty Tribunal has said payments received by the former Taoiseach, Charles Haughey, during his political career devalued the quality of a modern democracy.
It said the late Mr Haughey lived a life vastly beyond the scale of what he earned as a public representative.
The tribunal also said the present Taoiseach, Bertie Ahern, did not have any knowledge that funds were being used inappropriately by Mr Haughey.
In relation to the co-signing of cheques of the Fianna Fáil party leader's allowance account, the tribunal has said it is satisfied that Mr Ahern, who co-signed cheques of the account, had no reason to believe that the account was operated otherwise than for a proper purpose.
But it concludes that the practice of pre-signing cheques by Mr Ahern undoubtedly facilitated the misuse of the account by Mr Haughey.
The tribunal says this was a practice which has to be viewed as both inappropriate and imprudent, having regard to the nature of the account, the skills and the experience then possessed by Mr Ahern, and the absence of any internal or external audit of the account.
Brian Lenihan fund
In relation to fundraising for the late Brian Lenihan, the tribunal says that it gets 'no satisfaction' to find that Mr Haughey deliberately sought to raise funds in addition to what he knew or must have known was required to meet the cost of Mr Lenihan's treatment, and that he ultimately applied part of those funds for his own use.
The report goes on to say that no other conclusion can be reached on this matter by the tribunal in light of the evidence heard.
The tribunal found that Mr Haughey personally misappropriated one particular donation of £20,000 for Mr Lenihan's benefit and took a series of steps to conceal his actions.
In relation to the Lenihan donations the tribunal established that up to £265,000 may have been collected for that purpose and of those funds no more than £70,000 was applied in meeting the costs and expenses of Mr Lenihan's medical treatment in the US.
The tribunal says it is satisfied that a sizeable portion of the excess funds collected was misappropriated by Mr Haughey for his own personal use.
The tribunal report found that throughout the period 1979-1996 Mr Haughey lived a life and incurred expenses vastly beyond a scale of public service entitlements.
During that period his sole apparent income was used for the purpose of bill paying. After 1979 his borrowings receded and sums were derived primarily from clandestine donations, including funds intended for the medical expenses of Mr Lenihan.
Several portions of Mr Haughey's testimony are viewed as unacceptable and are rejected.
No information whatsoever relating to funds received was at any stage volunteered by or on behalf of Mr Haughey.
The tribunal has said it cannot accept his testimony that he knew nothing of his financial arrangements. Evidence that he never heard of the Cayman Islands before the tribunal is unbelievable given his meetings with Mr Des Traynor who was a regular visitor to the islands.
Evidence given by Mr Haughey to justify the acceptance of personal donations is rejected.
Aggregate funds available to Mr Haughey in the period 1979 to 1996 totalled over £9.1m - that figure excluded income or pensions or income from Abbeville.
The tribunal concludes payments were secretive, opaque, and frequently involved off-shore vehicles.
The tribunal says it identified five further payments made by businessman Ben Dunne to Mr Haughey over and above the payments identified by the McCracken Tribunal.
The Moriarty report says that, apart from the final payment of £20,000 which was lodged directly to an account in Mr Haughey's name, all of the payments were routed in the most elaborate and complex manner.
It also concludes that Mr Dunne was a courteous witness. However, the tribunal cannot accept submissions and medical reports furnished on his behalf.
Mr Justice Moriarty has said that he hopes to publish his second and final report - into payments to Independent TD and former Government Minister Michael Lowry - early next year.
LRC Consultation Paper on Multi-Unit Developments
From LRC website:
"The Law Reform Commission’s Consultation Paper on Multi-Unit Developments has been launched by the Tanaiste and Minister for Justice, Equality & Law Reform, Michael McDowell TD. This Consultation Paper on Multi-Unit Developments deals with the law relating to apartments and other residential multi-unit developments. The Consultation Paper forms part of the Commission’s research work under its Second Programme of Law Reform 2000-2007. It also comes against a wider background of the general debate on the need for the regulation of the multi-unit development sector, which includes the publication of reports by the National Consumer Agency and the Auctioneer/Estate Agency Review Group in recent times.
"One of the striking features of housing in Ireland in the past decade is the huge rise in the number of residential multi-unit developments. The ownership structures of these developments are markedly different from more ‘traditional housing’; in multi-unit developments, the unit owners collectively comprise the membership of a management company which owns the structure of the development as a whole. An estimated 500,000 people now live in apartment blocks and similar developments, the design of which necessarily requires a high degree of interdependence between residents. The growth of the multi-unit development sector has not, however, been accompanied by corresponding progress in the law surrounding such developments. The Commission has proposed a number of provisional recommendations in relation to the sector.
Press Release: http://tinyurl.com/y5kbt2
Full report: http://tinyurl.com/yysbl6
LRC Report on Vulnerable Adults and the Law
Monday, 18 December 2006: The Law Reform Commission’s Report on Vulnerable Adults and the Law will be formally launched by the Minister for Health and Children, Mary Harney TD, this evening.
Background to Report
This Report forms part of the Commission’s Second Programme of Law Reform 2000-2007, which deals with ‘Vulnerable Adults and the Law’ under two related headings: the law and older people; and the law concerning adults whose ability to make decisions may be limited, for example, through intellectual disability, dementia or an acquired brain injury (such as in a car crash). The Report brings together these two areas and builds on two Consultation Papers published by the Commission, a Consultation Paper on Law and the Elderly (2003) and a Consultation Paper on Vulnerable Adults and the Law: Capacity (2005). The Report contains the Commission’s final recommendations on these areas and includes a draft Scheme of a Bill to implement them.
Main elements of the Report
The Report is divided into two parts. The first part recommends the enactment of a new mental capacity law to create clear rules on when a person has the legal competence (capacity) to make a wide range of decisions, including making contracts such as buying groceries at a shop, transferring ownership in land or making healthcare decisions. The second part recommends that the current Wards of Court system should be replaced by a new Guardianship system.
Empowerment and protection
In the Report, the Commission aims to promote the empowerment of vulnerable adults, while also recognising that some protections are still needed. In terms of empowerment, the Commission recommends that the proposed law should include a clear presumption that all people over 18 should be presumed to have mental capacity. The Commission also recommends that a modern “functional” approach to legal capacity should be put in place. The functional approach means assessing a person’s decision-making ability in relation to a particular decision at the time the decision is made.
Protection: equity release schemes
But the Commission also recognises that vulnerable adults may still need protection against abuse. For example, the Commission has recommended that all types of equity release schemes – many of which are aimed at older people – should come under IFSRA, the Financial Regulator. Some equity release schemes have been designed so that they are not financial products, so that IFSRA cannot currently regulate these types of schemes.
Healthcare decisions and informal authority to act
The Commission also makes specific recommendations in the healthcare context. At present, many routine health care treatments – such as dental treatment – are carried out for adults who have limited or no capacity on the basis of "consent forms" signed by a relative. These consent forms have no legal standing, and technically they could be regarded as assaults. The Commission recommends that this should be dealt with by stating in the proposed law that such routine treatments are lawful if they are clearly in the person’s best interests: this is called an informal authority to act. The Commission also recommends that the Minister for Health and Children could appoint a Working Group on Capacity to Make Healthcare Decisions to formulate a code of practice for healthcare professionals. The code of practice would provide guidelines on assessing a person’s capacity to make a healthcare decision and on the situations where treatment can be carried out under the proposed informal authority to act.
Enduring powers of attorney
The Enduring Powers of Attorney Act 1996 allows a person who currently has mental capacity to appoint someone (such as a spouse or partner) to make decisions on their behalf: the power of attorney only comes into force when the person loses capacity, for example, through dementia. The 1996 Act is currently limited to financial matters only. The Commission recommends that the 1996 Act should be extended to include minor health care and treatment decisions.
Guardianship system to replace Wards of Court The current institutional framework for protecting people with limited (or no) mental capacity – the High Court Wards of Court system - is also in need of reform. The Wards of Court system is governed mainly by the
Lunacy Regulation (Ireland) Act 1871, which states that a person can only be made a Ward of Court if they are a deemed to be a 'lunatic, idiot or person of unsound mind.' As well as using objectionable and outdated language, the Wards of Court system uses an "all-or-nothing"
approach to capacity: if the person is made a Ward of Court, they lose control over all aspects of their financial and personal life. The Commission recommends that this system should be replaced by a new decision-making structure, called Guardianship. This would involve the creation of Guardianship Board, which would make decisions about whether a person does or does not have continuing capacity to make key decisions about themselves. This could include deciding that a Personal Guardian should manage a limited aspect of the person’s financial affairs, but not necessarily everything. The Commission also recommends establishing a new independent Public Guardian.
The new Guardianship system
The Guardianship Board would be a three person full-time multi-disciplinary Board (along the lines of the Garda Síochána Ombudsman Commission), chaired by a High Court judge. The Board could make Guardianship Orders and Intervention Orders. Where a Guardianship Order is made, a Personal Guardian could be appointed over the property, financial affairs and welfare of a person who lacks capacity, whether in a limited way or more generally. An Intervention Order would be made for a specific purpose (such as ordering a once-off service), where a Guardianship Order would not be required. The Commission also recommends the establishment of the Office of Public Guardian, which would have a supervisory role over personal guardians and those acting under enduring powers of attorney. The Public Guardian would also have the power to develop and publish suitable codes of practice and have an educational role in this area, acting in cooperation with other bodies, including the National Disability Authority and the Health Service Executive.
Full text of report:
Statute Law Database - UK
This includes Northern Ireland Statutes
E.g. Disability Discrimination (Northern Ireland) Order 2006
An important feature of the database is that it includes many amendments to older legsialtion within the text.
For example, if you look at article 5 of the
Treatment of Offenders (Northern Ireland) Order 1976,
the version you'll see is the version as amended by subsequent legislation passed in 1978 and 1989.
The amendments are clearly noted in the footnotes and highlighted in the body of the text.
The electronic Irish Statute Book (www.irishstatutebook.ie) doesn't currently include this facility but it may come in a future version.
At least the electronic Chronological Tables, which include references to amendments up to 2004, are available:
Extract from a Help File:
"Types of Legislation on the UK's Statute Law Database (SLD):
"SLD is the official revised edition of the statute book for the UK in electronic form. When we use the term "statute book" in the context of SLD, we mean, broadly speaking, primary legislation of a public general nature.
"Most types of primary legislation made in the UK are held on SLD in revised form. Other primary legislation and secondary legislation from 1991 onwards is held on SLD only in unrevised ('as enacted') form.
"For pre-1991 legislation held and revised on SLD, the earliest version is the revised text as it stood at 1 February 1991 (the basedate). Legislation wholly repealed before the basedate is not carried.
"SLD has now incorporated the revised primary legislation of Northern Ireland previously published in The Northern Ireland Statutes Revised and its supplements. As the historical versioning of the Northern Ireland statutes will date only from 1 January 2006 (the Northern Ireland basedate), the unrevised ("as enacted") versions of these statutes enacted from 1991 to the end of 2005 will continue to be retained on SLD.
"We are still in the process of loading the unrevised legislation mentioned above onto the new SLD system. For information about the progress of this exercise, see New Legislation.
"Details of the legislation held on SLD are as follows:
Primary Legislation (Revised)
Primary Legislation (Unrevised)
Secondary Legislation "
Friday, December 15, 2006
Same-Sex Marriage High Court Case
Zappone and Gilligan v Revenue Commssioners
High Court, Dunne J., 14 December 2006
PDF version on Irish Times site: www.ireland.com/newspaper/special/2006/lesbianmarriageruling/index.pdf
Word Version on KALCase site:
In summary, on the constitutional ground, Dunne J. said that marriage meant marriage between a man and a woman, citing cases such as Murray v Ireland  I.R. 532 (see Zappone case, pp. 120 on).
On the European Convention on Human Rights ground, Dunne J. relied heavily on
Wilkinson v Kitzinger  EWHC 2022 (Fam)
(see Zappone case pp.130 on)
Sample News Story from RTE News Website:
Lesbian couple lose marriage recognition case
14 December 2006 22:00
A lesbian couple have lost their attempt in the High Court to have their Canadian marriage recognised in Ireland. Dr Katherine Zappone, a public policy consultant, and Dr Ann Louise Gilligan, an academic, were married in Canada in 2003. They argued that the failure to recognise their marriage breached their rights under the Irish Constitution, the European Convention on Human Rights, and the European Charter of fundamental freedom.
But today in the High Court Ms Justice Elizabeth Dunne rejected their argument. She said she could not agree with their argument that marriage under the Irish Constitution includes same-sex marriage. She also said that the position in the Constitution on marriage was not incompatible with the European Convention on Human Rights.
Dr Gilligan said she and her partner were grateful for the way their case had been handled.
Labour proposes civil union recognition
Meanwhile, the Labour Party has tabled a bill that would allow for the recognition of civil unions. The bill seeks to create a legal relationship equivalent to marriage for same-sex couples. According to Labour spokesman Brendan Howlin, the proposal does not contravene the Constitutional provision protecting the institution of marriage.
Audio and Video
News At One: Donncha O'Connell,
Dean of the Faculty of Law at NUI Galway, says that it was a comprehensive
judgement against the women
News At One: Dr Katherine Zappone,
who married Dr Ann Louise Gilligan in Canada in 2003, comments on the ruling not
to allow the Irish State recognise their marriage
One News: Bethan Kilfoil reports
from the High Court on the rejection of a lesbian couple's landmark legal
attempt to have their Canadian marriage recognised in Ireland
Nine News: Bethan Kilfoil reports
on the decision by the High Court not to allow the state recognise the marriage
of Dr Katherine Zappone and Dr Ann Louise Gilligan
Six One News: Bethan Kilfoil
reports on the decision by the High Court not to allow the state recognise the
marriage of Dr Katherine Zappone and Dr Ann Louise Gilligan
Thursday, December 14, 2006
Competition Authority Report on Legal Professions 2006
The full report is available at
Sample News Story:
Law Society's Preliminary Response (transcript of Morning Ireland interview with Ken Murphy):
Bar Council Response:
Monday, November 13, 2006
Adoption Case in Supreme Court
(This links to the judgment of Murray C.J. There are links at the the top of the page to the other judgments.)
[Update 20 November 2006:
The case is now also available on BAILII at
Sample News Story from RTE website:
Birth parents get custody of 'Baby Ann
13 November 2006 20:03
The Supreme Court has ruled that a two-year-old girl must be returned to the custody of her birth parents.
'Baby Ann' was offered up for adoption by her parents who were at the time unmarried. They later married and during the adoption process withdrew their consent to adoption.
The High Court had earlier ruled that the baby must remain in the custody of her would-be adoptive parents.
However, she will now be returned to her birth parents after the Supreme Court decides on a transfer process.
The interests of the child dictate that the matter must be dealt with as soon as possible, according to Chief Justice Murray's judgment.
The Supreme Court is likely to consider the custodial transfer next week at the latest.
The co-ordinator of the Irish Foster Care Association, Pat Whelan, said the child at the centre of this case will have formed bonds with the foster carers and breaking those bonds could do untold damage. Speaking on RTÉ Radio's News At One, she said she feels the child is the loser in the case today.
Tuesday, November 07, 2006
Balance in the Criminal Law Review Group
Request for Submissions
Following a speech made in Limerick on 20 October 2006 on rebalancing criminal justice, the Tánaiste and Minister for Justice, Equality and Law Reform, Michael McDowell, T.D. has set up a review group entitled the Balance in the Criminal Law Review Group to consider the following issues
- the right to silence
- allowing character evidence of an accused
- the exclusionary rule of evidence
- requiring the accused to outline the nature of his defence before or at the commencement of a trial
- re-opening new evidence
- nullifying an acquittal where there is evidence of jury or witness tampering
- "with prejudice" appeals in the case of wrongful acquittal
- extending alibi evidence rules to other analogous situations
- allowing submissions by the prosecution before sentencing
- modifying the rule in relation to hearsay evidence
The Review Group will be chaired by Dr. Gerard Hogan, S.C., Law School, Trinity College, Dublin. The Tánaiste has asked the Review Group to report back by 1 March 2007. A copy of the Tánaiste's speech and details of the membership of the Review Group and its full terms of reference are available on the website of the Department of Justice, Equality and Law Reform at http://www.justice.ie.
In order to assist the group in its deliberations,written submissions on the main issues set out in the terms of reference are invited from interested parties and bodies and from members of the general public. Submissions should be made in writing only to
Balance in the Criminal Law Review Group,
Department of Justice, Equality and Law Reform,
Floor 3 Montague Court,
Written submissions may be also made electronically to firstname.lastname@example.org.
The closing date for receipt of submissions is 5.30 p.m. Friday 5 January 2007.
Because of the tight deadline for submission of the Report of the Review Group, viz. 1 March 2007, it should be noted that the deadline for written submissions must be strictly observed and the Review Group will not be in a position to extend the closing date for submissions.
Tuesday, October 10, 2006
Appointment of Family Law Reporter
Courts Service Website - www.courts.ie
Date: 5 October 2006
Appointment of Family Law Reporter
Four Courts Dublin Thursday October 5th 2006: The Courts Service appoints a family law reporter to record and produce reports on family law proceedings for distribution to the media and the public.
The Courts Service has appointed a family law recorder on a one year pilot basis. The project will record and create reports of family law proceedings for the first time; will gather, assess and present meaningful statistics on family law matters before the courts; and will assemble and distribute information regarding the family law process and courts. Following public advertisements, proposals for provision of the service went through an evaluation process.
The Family Law Reporter
The evaluation committee recommended that Dr. Carol Coulter be awarded thec ontract. Dr. Coulter has now accepted the contract and will commence the pilot project in mid-October. Dr Coulter - BA (Mod) TCD, PhD, TCD and Dip Legal Studies, DIT - has worked for the past 20 years for The Irish Times and has worked as its Legal Affairs Correspondent for the last seven years, writing extensively on family law matters. In 2001 she was awarded the Law Society's Justice Media Award in print journalism for writing on family law, and in 1990 she won National Media Award for campaigning journalism for her coverage of the Birmingham Six and Guildford Four miscarriages of justice. She has also written a number of books and essays on cultural and social issues, and edited the Undercurrents Series of pamphlets on current issues for Cork University Press. She is married and has one son.D r. Coulter will work exclusively with the Courts Service and will be on leave of absence from her duties as Legal Affairs Correspondent with The Irish Times.
Background to Project
In 2000 the Courts Service decided to implement a pilot project to provide information for judges, legal practitioners, researchers, the media and the public on family law proceedings. Legal advice at the time strongly suggested that without enabling legislation the service should not proceed with the project. Enabling legislation has been enacted by way of the Civil Liability and Courts Act 2004. This Act allows for the reporting and the dissemination of information on family law proceedings subject to very strict conditions to protect the identity of individuals involved in family law litigation. The Courts Service, following a recommendation from the Family Law Court Development Committee, decided to recommence the pilot project -reportings ervice on a pilot basis for a 12 month initial period.
The Work of the Family Law Reporter
The pilot project will concentrate on identifying how information on thework of the Family Law Courts can be best disseminated to the Judiciary, the wider legal community, the media and the general public. This will involve:
- reporting significant judgments and decisions of the High, Circuit and District Family Law Courts.
- the compilation of statistical information relating to the work of theFamily Law Courts.
- the drafting and distribution of family law information for publication for use to inform the general public.
Welcoming the appointment of the Family Law Reporter the Chief Executive Officer of the Courts Service Mr. P.J. Fitzpatrick said, "this appointment is very welcome not only because it will aid the Courts Service inf ulfilling our mandate of providing information on the courts system to the public, but it will also open up a much debated area of the work of the courts through balanced reporting - whilst maintaining the privacy of those involved in Family Law Proceedings".
"I welcome Carol Coulter to the position, as she is an experienced legal affairs reporter and a person who has shown the balance and work ethic needed for such a position to develop and deliver the information on the area of family law, so much sought by the media and the public".
Adoption Case full text now available
The full title is as follows:
In Re "Ann", an Infant: N. v. H.S.E., G. and An Bord Uchtala
 IEHC 278
High Court, MacMenamin J., 15 September 2006
A reminder of news coverage:
Landmark ruling gives custody to adopters
High Court turns down adoption application
Couple lose daughter in tug-of-love ruling
Monday, September 25, 2006
New Irish Law Update available
There are two subsections in this issue:
1) IRLII Cases now Classifed by Subject
See this post.
2) Forthcoming Events
See the listings at www.irishlaw.org/events/
IRLII Cases now Classified by Subject
All judgments added to the IRLII index of cases since July 2005 are now allocated to subject areas and assigned with keywords. This enables users to quickly scan through recent cases for issues that interest them and researchers can instantly view cases which relate to any given subject area. The project director, Professor John Mee, hopes that this initiative will result in easier accessibility of decided cases in Ireland and a greater understanding of legal issues generally.
The IRLII index of cases is accessible at http://www.index.irlii.org.
A RSS feed of recent cases is also available at http://www.ucc.ie/law/irlii/rss/irliiindex.xml.
Sunday, September 17, 2006
Recent Adoption Case
In Re "Ann", an Infant: N. v. H.S.E., G. and An Bord Uchtala,
High Court, MacMenamin J., 15 September 2006:
Sample news coverage:
Landmark ruling gives custody to adopters
High Court turns down adoption application
Couple lose daughter in tug-of-love ruling
There's nothing yet on the official courts service website:
Maybe a proper version will appear there in the next few days.
[Update added 10 October 2006: The full judgment is now available at
Monday, September 04, 2006
Dean Lyons report
Here's the Press Release:
1 September 2006
Minister McDowell publishes Dean Lyons Case Report
The Minister for Justice, Equality and Law Reform, Mr Michael McDowell, T.D., today published the Report of the Commission of Investigation into the Dean Lyons case. The Commission was established by Government Order on 7 February 2006 and its sole member was Mr George Birmingham SC.
For the first time the Report offers a thorough independent analysis of the facts surrounding the false confession made by Dean Lyons based on the evidence of all relevant witnesses. It concludes that there was no deliberate attempt made to undermine the rights of Dean Lyons. Instead, inappropriate leading questions were inadvertently asked of him by interviewing Gardai - a failure which in turn equipped him with the information to maintain a credible (albeit false) confession. He maintained this position for over a month - not alone to Gardai but also to a wide variety of other persons including his legal advisers.
With the benefit of independent experts, the Report concludes that Dean Lyon's confessions were attributable to prior existing vulnerabilities within his personality which were compounded by his heroin addiction. The Report states that some of those same Gardai who interviewed him openly expressed scepticism as to his credibility at case conferences but these doubts were never conveyed to the DPP as they should have been prior to the latter's initial decision to direct charges.
In the Commission's view, the Garda written records of some of the interviews with Dean Lyons were incomplete, potentially misleading and could have led to a miscarriage of justice.
Finally, the decision of the original investigation team, three months after their original recommendation, to recommend to the DPP that the existing charge of murder against Dean Lyons should proceed and that an additional charge should be laid in respect of the second fatality is described by the Commission as "difficult to understand and even harder to justify". This comment was made in the light of the fact that at the time Assistant Commissioner McHugh was in the process of conducting an analysis of the various admissions on behalf of the Commissioner - an analysis which ultimately contributed to the DPP's decision to drop the charges.
Publishing the Report Minister McDowell said, "I hope this Report will be of some comfort to those whose lives have been so deeply afflicted by this tragedy - in particular the family of Dean Lyons and the families of the murder victims.
I am sending a copy of the Report to the Garda Commissioner for his consideration. I am also sending a copy to the Expert Group which I established in the light of concerns arising from the Dean Lyons case. The Group will be reporting to me, I expect before the end of the year, on the adequacy of Garda training, protocols, regulations and procedures, in assessing the fitness of persons to be interviewed and on the recording of any bona fide reservations of an individual member of a Garda investigation team as to the truthfulness or accuracy of self - incriminating statements. I have already stated publicly that I will publish their report."
The Report is the first of its kind to be published following the establishment of a new style Commission of Investigation - a system which was intended to enhance in a significant way the State's ability to conduct formal independent inquiries in a cost effective and timely manner. The Commission's work was completed in less than six months at a cost of less than €1 million.
"I am pleased to note that the provisions of the Commissions of Investigation Act 2004 which I availed of in this case have ensured a timely and cost effective investigation without in any way compromising or encroaching on its proper conduct. I am indebted to Mr Birmingham and his legal and administrative personnel for the thorough manner in which they performed this most difficult and sensitive of tasks", the Minister said.
The Report is available on the Department's website, www.justice.ie.
1 September 2006
Note for Editors
The Expert Group comprises ex Asst Commissioner Tony Hickey, Mr Charles Smith ex Director of the Central Mental Hospital, Mr David Gormally of the DPP's Office and Ms Vera Kelly, Principal Officer, Dept of Arts, Culture and the Gaeltacht.
Sunday, August 27, 2006
Report of Inspector of Prisons 2005
The report of the Inspector of Prisons, Dermot Kinlen, for 2005 is available at http://www.justice.ie/en/JELR/4thAnnRpt.pdf/Files/4thAnnRpt.pdf
Extract from pages 28-32:
"10. Establishment of an independent Inspector of Prisons.
"The Government has told the CPT in Strasbourg three times and in its Programme for Government it repeated, that it would make statutory provision for an independent prisons Inspector. I was told that I would be made statutory and that I would contribute to the draft Bill. I have asked in all my three annual reports published that the Government do as it promised. Now it emerges that the Minister has ‘other priorities’. This is outrageous and practically unbelievable.
In my reports I have submitted several drafts of Bills. Some Bills need only be about two to three sections, which could be added to one of the Minister’s many Bills. The Opposition in western Australia pushed through a strong Act giving their Inspector great independence. In fact it makes it a criminal offence to obstruct the independent Inspector. West Australia, England, Scotland and Northern Ireland all have statutory Inspectors. In Spain there are full-time judges independently and continuously visiting prisons as well as a strong inspectorate. A famous Minister for Justice, with much the same background as the current Minister, said, “prisoners have no rights.” That ethos seems to be omni present. The Minister has purported to alter unilaterally my contract by prison rules. I have made it clear that it is totally inappropriate to deal with the Inspector’s office by prison rules. The Inspector had reasonable expectation, (as had Strasbourg (CPT) and the people of Ireland had from the Programme for Government) that the Inspector would be independent and statutory. At the moment the Inspector is neither. He has made it clear that he does not accept the so called rules. They are not binding on the Inspector. He is not a party to them. He will not comply with them. He is determined to be totally independent. (Since writing this paragraph I have been informed by a senior Civil Servant that the section dealing with prisons inspectorate has been removed from the proposed new Prison Rules.) However the purported rules are still on the department's internet.
"In the Irish Times 14th January, 2006 there is a long article by Conor Lally about the new Garda Ombudsman Commission which should begin operating next year. Three persons were appointed and the three people will be formalised to their positions by the Oireachtas before formal approval by the President. "The commission's independent status meant it would decide on all aspects of its own work. It would decide on staffing levels, how it was to investigate complaints and it would be responsible for the hiring of staff and selecting of permanent office. Mr. Joe Costello, TD, Labour spokesman on Justice said, 'It was incredible that nearly a full year had been set aside preparing the ombudsman commission.' Fine Gael's justice spokesman Mr. Jim O’Keeffee, TD, said, 'he was surprised and disappointed by the delay. It requires a full explanation from the Minister for Justice.' The ombudsman commission will have the power to conduct its own investigations. On the 24th April 2006 the 4th anniversary of his appointment the Minister had the gal to write confirming it was part of his legislative plans to make the Inspectorate statutory but even now no date is given.
"The promised Inspector of prisons has been there since it was first mooted by Dr. Whitaker over twenty years ago. It is quite clear that the Minister, the Government and the Department had no intention of establishing a statutory inspectorate. If public opinion forced them so to do, then they would do their best to ensure that the Inspector does not have the powers to fulfil the requirements of the office. Not merely are they denying human rights to prisoners and prison staff, they are also breaking their own law. Human Rights Commission has expressed concern as has the Commissioner of Freedom for Information about the way their respective briefs are being handled. In Northern Ireland there is an ombudsman dealing with prisoners complaints. There is none in the Republic. There is also an Inspector who has a huge remit with ten inspectors, which includes the three prisons in Northern Ireland and gets assistance from the English Inspector and her team when they do a prison inspection. There are supposed to be similar sanctions in Northern Ireland and in the Republic. The North of Ireland has an ombudsman for prisoners and has totally independent inspectors covering a great deal of territory, not just prisons. However, in the Republic neither of these offices do exist nor is there a will for them to exist. It seems at first look that there may well be a case of denying human rights and also there may be a breach of the Belfast Agreement.
"Why are things so good in Northern Ireland and why is everything so retrograde in the Republic? Surely, we should have inspectors who are more independent investigating everything like my counterpart in Belfast. Surely, the Belfast Agreement should be honoured by the Irish Government. It is with great sadness I am writing this report. I think it is fair to ask, what are the Minister and his Department hiding? Of what are they afraid? Actually, I believe they have nothing to fear if they were only transparent, efficient and open. I urge the Minister,
- to implement the promises made and establish the inspectorate as totally independent or else abolish it since it is only a facade;
- the Government must decide whether to follow the English and American tradition of building more and more prisons, or follow the Nordic countries who have alternatives to prison run in competition with prisons.
- The probation service should be totally independent of the prison service and in competition with it;
- get a business consultant to report on the continuous growth of the Prison Service structures and the Justice’s Department staff. Is the taxpayer getting value for money? What about the Government’s policy of controlling bureaucracy. It was law since 2002 that Civil Service staffing levels be capped but it is now a rather sick and expensive joke?
- provide rehabilitation for prisoners and close down St. Patrick’s immediately as recommended over twenty years ago in the Whitaker Report. Set up an ombudsman for prisoners and an independent prisons inspectorate using statutes applicable to Northern Ireland at least.
"The present attitude is frightening and fascist."
[Edit April 2008 - For those researching reports of the Inspector of Prisons note that the reports are available as follows:
Fifth Annual Report of the Inspector of Prisons for the Year 2006-2007
Fourth Annual Report of the Inspector of Prisons 2005-2006
Third Annual Report by the Inspector of Prisons for the Year 2004-2005
Second Annual Report by the Inspector of Prisons for the Year 2003-2004
First Annual Report by the Inspector of Prisons for the Year 2002-2003
See also the listings at
Thursday, August 24, 2006
Details of Consumer Bill annouced
New protections for consumers and overhaul of structures marks biggest reform in 30 years Micheál Martin, TD, Minister for Enterprise, Trade & Employment
Thursday 24 August 2006
False Claims about Goods or Services
It is a misleading commercial practice under the Directive to give information that is false or in any way deceptive about a good or service where this affects consumer decisions. Though the matter has not been tested in the courts, it is generally accepted that false or misleading claims about property other than rental accommodation are not covered by existing Irish legislation. The new legislation will cover false or deceptive claims about houses or other property. It will also provide that misleading omissions as well as actions can be unfair commercial practices where these affect consumer decisions - again this is a provision not expressly found in current legislation.
[The Directive refers to the Unfair Commercial Practices Directive (UCPD), Directive 2005/29/EC -http://ec.europa.eu/consumers/cons_int/safe_shop/fair_bus_pract/index_en.htm]
Tuesday, July 25, 2006
Environmental Law PhD Scholarship at UCC
The Faculty of Law, University College Cork has been awarded funding under the Environmental Protection Agency's Doctoral Scholarship Scheme 2006 to recruit a postgraduate research student to undertake research on 'Identification of an Appropriate Legislative Regime for the Remediation of Contaminated Land in Ireland'. This studentship will cover tuition fees for a three year period, during which the student will be expected to complete a programme of research leading to the award of Ph.D. It will also provide a bursary of €17,750 per annum and some funding to cover academic travel. Candidates must have a primary degree in law and will preferably have a postgraduate degree in law and / or experience of applied legal research. Experience of Environmental Law, particularly as applied to historical land contamination, land transactions, waste management law or regimes of civil liability for environmental damage, would be a distinct advantage.
Applications, to include a covering letter indicating your areas of research interest, list of publications, relevant experience, a full CV and details of at least two academic referees, should be sent to:
Mr. Owen McIntyre,
Department of Law,
University College Cork,
Tel: +353 21 4902090
Fax: + 353 21 4270690
The closing date for applications is Friday, 1st September, 2006.
Tuesday, June 27, 2006
EU Artists Resale Right (or "Droit de Suite") Directive
Minister Michael Ahern Announces the Signing of Regulations Implementing the EU Artists Resale Right (or "Droit de Suite") Directive
Michael Ahern T.D., Minister for Trade and Commerce at the Department of Enterprise, Trade and Employment has announced the signing of Regulations transposing into Irish Law EU Directive 2001/84/EC on the resale rights of authors of original works of art. The Regulations, entitled the European Communities (Artists Resale Right) Regulations, S.I. No. 312 of 2006, came into effect on 13 June 2006.
The Regulations provide for a new right in Irish law entitling artists to payment where their art works are resold through the art trade. MinisterAhern said "The new Regulations mean that artists will share in the commercial success of their work and will be entitled to payments of up to €12,500 when individual works created by them are later resold."
"The intention had been to implement this EU Directive through an Act of theOireachtas. However, following consultation between my department and the Department of Arts, Sports and Tourism as well the Attorney General's Office, I have decided that, rather than wait for all of the more complex matters to be addressed in their entirety, a more immediate two-stage approach to this transpositon should be adopted.
"I am now taking those interim steps which are open to me in the present Regulations. The intention is to revisit some aspects, such as the exemption threshold value for eligible works and the duration of the right, in the proposed Bill. While the minimum art value threshold is being set at €3,000, for now, it is intended that this will be lowered in the primary legislation. The Directive raises some other optional issues and these can only be addressed in the proposed Bill also."
These Regulations under the European Communities Act 1972 on the mandatory provisions of the Directive will be followed, as soon as possible, with proposals on the optional and discretionary elements of the Directive being put before the Houses in the proposed Intellectual Property (Miscellaneous Provisions) Bill. The essential benefit of this is to allow for the immediate transposition of the Directive essentials."
Concluding, Minister Ahern said that he was pleased to see his Department working closely in this field with the Department of Arts Sport and Tourism. "It has been the long stated objective of Minister O'Donoghue to maximise the benefit of Artists Resale Right to Irish artists and their families."
Note for Editors
Often also called "Droit de Suite", Artists Resale Right Schemes have operated in many European countries since the 1920's. After World War II the number of states providing artists droit de suite increased steadily. By the early 1990's, most EU member states had had operational schemes in place. There were, however, considerable differences in the way the right was operated in the various countries. A few countries, like Ireland, did not have schemes.
Following detailed discussions a unanimous compromise was agreed in late2 001. Transposition of the Directive was set for January 2006 for living artists. Member States were allowed a derogation for deceased artists delaying implementation until January 2010.
Across the EU, the effect of the Directive is intended therefore both to introduce the right where it does not exist and make all of the MemberStates implementations broadly similar.
The main issues which the new Regulations provide for include:-
* artists right to benefit from the resale of his/her work (Regulation 3),
* right being non-transferrable or saleable (Regulation 4),
* minimum art value threshold set, for now, at €3,000 (net of tax) (Regulation 5),
* benefit being confined, for now, to EU & EEA nationals (Regulation 6),
* establishment of a liability on the seller to pay the royalty (Regulation 7)
* artists right to information on sales (Regulation 8),
* royalty rates and bands for calculating amounts due (Regulation 9), and
* duration of resale right set, for now, at the artist's lifetime (Regulation 10)
As well as revisiting the arrangement in Regulations 5, 6 and 10, the upcoming Intellectual Property (Miscellaneous Provisions) Bill will also deal with a number of other aspects in the EU Directive including:-
* Joint liability for payment of the royalty (Article 1.3),
* reciprocation of resale rights with third countries (Article 7),
* period or 'term of protection'(Articles 6.1 and 8.2), and
* timing arrangements for any increased term of protection (Article 8.3),
The Regulations are available at
The Directive is linked from
For queries/further information on Artists Resale Right
Department of Enterprise, Trade and Employment
Social Partnership Agreement 2006-2015
Towards 2016, Ten-Year Framework Social Partnership Agreement 2006-2015
Labour Relations Commission Annual Report 2005
Record Referral Levels to LRC
* The Labour Relations Commission today announced that it had received a record number of referrals to its services in 2005. The Commission, at the launch of its Annual Report for 2005, confirmed that the number of referrals to its Rights Commissioner Service, which included complaints of Unfair Dismissal and allegations of breaches of the 'Organisation of Working Time', 'Fixed Term Work' and 'Payment of Wages' Acts among others, had increased by 18% over the 2004 level.
* The Commission attributed the increase in referrals to an increasing awareness among those in employment, and particularly migrant workers, of the body of employment rights available in Ireland and a genuine confidence in the capacity of the Commission to deal effectively with complaints. The Commission also believes that the impact of the increasingly wide jurisdiction of Rights Commissioners, now extending to 19 separate pieces of Legislation, is now being felt.
* "The Commission has invested significantly in awareness raising throughout 2005 and the effects of our work and the work of the Employment Rights Division of the Department of Enterprise, Trade and Employment are plainly evident in the referral figures now being recorded by the Commission" said Mr Maurice Cashell, Chairman of the LRC.
* The Commission also confirmed that referrals to its Conciliation and Advisory Services had increased by 14% and 18% respectively in 2005. Gross activity for the year included 2,809 Rights Commissioners hearings, 2,054 Conciliation meetings and 145 Advisory Projects.
* "The essential work of the LRC is the effective delivery of service on a daily basis to employers, employees and their representatives throughout the Country" said Mr Cashell, " and while the Commission must, and does, have the capacity to deal with high profile disputes like the Irish Ferries dispute, the core value to Irish employments of the work of the LRC is the thousands of interventions taking place each year - ranging from rights determination to dispute resolution to advice on good practice".
* The Commission's Annual Report also confirmed that in 2005 it had dealt effectively with referrals under the pay provisions of the Sustaining Progress Agreement (115 cases) as well as the new legislation on Voluntary Dispute Resolution in cases where Union Recognition arrangements are not in place (149 cases).
* Commenting on the excellent track record of the parties to industrial disputes in Ireland in terms of finding resolution through dialogue and the use of robust procedures, the Chairman said " The priority for the Commission now is to support the parties to Irish employment relationships by working hard to identify problems at the earliest possible moment, advising and assisting the development of strong in-house procedures in companies and working to ensure that the Commission's services remain flexible and relevant to the needs of Irish employments."
* Mr Cashell commented that evidence of the commitment of the Commission to these priorities included the launch of a new Workplace Mediation Service at the latter end of 2005. "This Service is targeted at relationship based disputes in employment and is a direct response by the Commission to the perception of a need in Irish employments today" said Mr Cashell.
Full text of Annual Report 2005:
Saturday, June 24, 2006
Consultation on Plans for Restatement of Legislation
TAOISEACH ANNOUNCES PUBLIC CONSULTATION ON PLANS FOR RESTATEMENT OF LEGISLATION
The Taoiseach recently announced a two-month long public consultation process on the programme to restate existing legislation. The Statute Law Restatement Programme will make legislation more user-friendly and accessible by updating existing Acts to incorporate all changes made by subsequent Acts or Statutory Instruments into one easy to read format. Restatements do not alter the effect of the law in any way.
Speaking at the recent Public Affairs Ireland Conference in Dublin, the Taoiseach said that this process of consultation would be central in selecting which laws should be considered first for restatement. "Government needs to be alert to our changing environment, and that often means updating existing legislation. However, in some cases it has been necessary to amend Acts several times, usually over a number of years and in a variety of ways. This can make it difficult for both lawyers and members of the public to keep abreast of the current provisions of particular legislation. One way to make these laws more accessible is to issue consolidated or "restated" texts, which incorporate every change into one readable and easy to use format.
"Of course, many of our laws have been amended and revised since they came into force, and the Government will need to decide which laws have the greatest impact on citizens and business and, so should be approved for restatement first. Before we make that decision, we are looking for the views of the public, legal practitioners and any other interested party as to which laws they consider are most suitable for restatement."
The Law Reform Commission will conduct the Statute Law Restatement Project, under the guidance of a steering group comprising of representatives of the Department of the Taoiseach, the Office of the Attorney General, the Law Reform Commission and key Government Departments.
Submissions are now invited from any interested party as to which Acts should be considered for restatement and may be sent to the address below by 31 July 2006 in writing to:
Restatement, Law Reform Commission, 35-39 Shelbourne Road, Ballsbridge, Dublin 4.
By email: email@example.com
By telephone: (01) 637 7600 By fax: (01)637 7601
Wednesday, June 07, 2006
More on Unlawful Carnal Knowledge
'Mr A back in jail as President signs new sex crimes Bill'
[The Supreme Court has not yet issued the full text of its reasoning in the A case.]
The C.C. case is now also available on BAILII:
C.C. v Ireland  IESC 33 - http://www.bailii.org/ie/cases/IESC/2006/S33.html
The new Criminal Law (Sexual Offences) Act is not yet available on the web.
For earlier versions see
Wednesday, May 24, 2006
Unlawful Carnal Knowledge in Supreme Court
The title of the case is C.C. v Ireland  IESC 33.
The Criminal Law Amendment Act 1935 is available at
Sample News Stories concerning the case:
Tuesday, April 25, 2006
LRC Consultation Paper on Duress and Necessity
Consultation Paper on Duress and Necessity
Tuesday, 25th April 2006: The Law Reform Commission's Consultation Paper on Duress and Necessity will be formally launched by the Hon Mr Justice John L. Murray, Chief Justice. This Consultation Paper on Duress and Necessity is part of a series on defences to criminal charges, one of the topics identified for examination under the Commission’s Second Programme of Law Reform 2000-2007. The first of these Papers, the Consultation Paper on Homicide: The Plea of Provocation, was published in 2003 and a third, a Consultation Paper on Legitimate Defence, is forthcoming. The legislative proposals contained in these Papers are being published against the background of the establishment of an Advisory Committee on the Codification of the Criminal Law under the Criminal Justice Bill 2004; the pleas of duress and necessity are exclusively judge-made law, and have not, as yet, been reduced to statutory form. [http://www.lawreform.ie//Duress%20and%20Necessity%20CP9.pdf]
Overview of Defences of Duress and Necessity
The defences of duress and necessity apply where an individual is constrained or coerced into committing a crime by reason of serious threats (duress) or dire circumstances (necessity). In many cases the defences are discussed in relation to homicide, but they also apply to other offences, ranging from receiving stolen property to unlawful possession of firearms. In duress, the defendant is faced with threats of death or serious harm (‘do this or else’), unless he or she commits a crime. For example, in the leading Irish case on duress, People v Whelan (1933) the defendant was charged with receiving stolen money. He admitted that he had accepted the money but said that he had done so under duress from another man, who had been armed with a revolver. The jury found that he had been under threats of “immediate death or serious personal violence” and the defence of duress was accepted.
In situations of necessity, the defendant faces a serious threat arising from a circumstantial or non-human source (unlike duress, there is no element of ‘do this or else’). The sinking of the ferry the Herald of Free Enterprise at Zeebrugge in 1987 provides a good example. As the ferry was sinking a man on the ship pushed another man to his death because he was frozen with fear and blocking the escape route for several others. Although the Director of Public Prosecutions decided not to proffer charges against him, most commentators consider that the defence of necessity should apply in situations of this kind.
Detailed provisional recommendations in the Consultation Paper On the defence of duress, the Commission provisionally recommends that its current limitations should remain. These include that:
the threat must be of death or serious harm;
the target of the threats need not necessarily be a relative or close friend of the accused;
the accused’s resistance must have been overcome, and this resistance must be that of the ordinary person, with the characteristics of the accused person;
the accused should have tried to seek official protection before taking the action that they did;
if the accused subjected themselves to the risk of threats, for example, by joining a criminal gang, they will not be allowed to avail of the defence.
Although the defence does not apply to murder, the Commission provisionally recommends that it should be allowed as a partial defence, which would reduce the charge from murder to manslaughter. Moreover, while acknowledging that the plea might be made available as a partial defence to those offences, the Commission accepts that a coherent case can also be made for treating duress as a complete defence where the accused’s actions can be justified on the grounds that the person chose the lesser of two evils, and invites submissions on this matter.
On the defence of necessity, the Commission provisionally recommends that it should be retained in its current form so that it would apply in certain exceptional circumstances where a person is faced with a constrained choice regarding his or her actions, the constraint arising from extraneous circumstances, and where the person, in choosing the course of action taken, breaks the law. As with duress, the Commission accepts that a coherent case can also be made for treating necessity as a complete defence where the accused’s actions can be justified on the grounds of lesser evils, and invites submissions on this matter.
Submissions on the provisional recommendations contained in this Consultation Paper are welcome by 30th September 2006.
Making a Submission : http://www.lawreform.ie/submissions/submission.htm
Tuesday, April 04, 2006
Employment Appeals Tribunal website
It contains annual reports, claim forms, etc., but not the decisions of thetribunal. Those are still circulated by monthly e-mail in PDF to interested parties (contact the tribunal to be added to the mailing list.)
The press release regarding the launch of the website is at http://www.entemp.ie/press/2006/20060403.htm
Update in 2012:
The EAT website now includes the decisions of the Tribunal.
(Decisions have been available for some years).
Thursday, February 16, 2006
The full message is available at
Sat.18 Feb.'06: Society of Legal Scholars (SLS) Ireland Seminar - Trinity College, Dublin http://www.tcd.ie/Law/SLSSeminar.html
Fri.24 Feb.'06: Crimes Against Humanitarian Law: International Trials in Perspective - Trinity College Dublin
Wed.8 Mar.'06: The Criminalisation of Children and Young People - Institute of Criminology, UCD, Dublin
Mon.20 Mar.'06: Making constitutional and human rights relevant in practice: Working with the Irish Constitution and the European Convention on Human Rights - Law Society Seminar, Blackhall Place, Dublin
Sat.25 Mar.'06: Judicial Review - Bar Council Conference, Dublin http://www.lawlibrary.ie/viewdoc.asp?DocID=574
Wed.29 Mar.'06: "No Turning Back: New Labour and the Politics of Law and Order" - Queen's University Belfast
Fri.31 Mar.'06: Co-Ownership Agreements - Tipperary (Law Society Seminar) http://www.irishlaw.org/events/lawsoc05-06.shtml
Thu.-Fri.6-7 Apr.'06: 6-7 April 2006: 21st British and Irish Law, Education and Technology (BILETA) Annual Conference: Globalisation and Harmonisation in Technology Law, Malta http://events.um.edu.mt/bileta2006/
Fri.-Sun. 7-9 Apr.'06: Law in a Changing Ireland: Annual Conference of Irish Association of Law Teachers - Cork
Thu.27 Apr.'06: Law and the Environment 2006: Fourth Annual Conference for Environmental Professionals - Faculty of Law, UCC, Cork http://www.ucc.ie/en/lawsite/eventsandnews/events/
Thu.27 Apr.'06: Fisheries in Ireland: Lessons from North America - Current Issues in Environmental Law Seminar Series, University of Limerick http://www.ul.ie/envirocom/Noticeboard.htm
Tue.9 May '06: Law Society Annual Family Conference, Dublin http://www.irishlaw.org/events/lawsoc05-06.shtml
Tue.23 May '06: Practical Aspects of Trade Mark Law and Litigation, Law Society Seminar, Blackhall Place, Dublin
Thu.1 Jun.'06: Change in Criminal Justice Policy and Practice in Ireland - Faculty of Law, UCC, Cork
Thu.29 Jun.-Sat.1 Jul.'06: Social Justice in Practice - Association for Legal and Social Philosophy Conference - UCD, Dublin http://www.ucd.ie/alsp2006/
For the full message see
Wednesday, January 11, 2006
Reform of Legal Costs announced
The Minister for Justice, Equality and Law Reform, Mr. Michael McDowell T.D., has announced that the Government have accepted the recommendations of the Legal Costs Working Group and that he will now take the necessary steps to implement them. He also announced plans for the establishment of a Legal Services Ombudsman.
Legal Costs Reform
The Legal Costs Working Group, which was chaired by Mr. Paul Haran, the former Secretary General of the Department of Enterprise, Trade and Employment, was established by the Minister in 2004 to look at ways of reducing civil legal costs. Speaking this evening before contributing to a debate in the Trinity College Historical Society on the motion "That regulation of the legal profession should be reformed", the Minister said "I intend to empower the consumer of legal services - the client - and give him or her the information they need to make informed choices. I intend to transform the way in which legal costs are determined and, where legal costs are disputed, how costs are to be assessed. I very much appreciate the painstaking work done by Paul Haran and his Group. The recommendations are wide-ranging and represent significant change in the manner in which legal costs are determined and assessed.
The recommendations span the operational, policy and legislative areas and it is clear that a great deal of preliminary work will be required before the new systems can be put in place. I am therefore pleased that the noted accountant and businessman, Mr. Desmond Miller FCA, has agreed to chair a team to work out an implementation plan and timescale."
The report recommends that costs guidelines should be based on an assessment of the amount and nature of work required to be done in a case. The "work done" principle is central to the Report's recommendations. Recovery of costs for "work agreed to be done but not done" will end. This will be achieved by the replacement of the existing taxation of costs system (by the "taxing masters") with a new regime which would comprise the establishment of:
a legal costs regulatory body to formulate recoverable cost guidelines based on an assessment of the amount of work reasonably required to be done in typical cases;
a written assessment process, based on the recoverable cost guidelines prescribed by the regulatory body, to be carried out by a Legal Costs Assessment Office where legal bills are disputed;
and an oral appeals process conducted by an Appeals Adjudicator.
The Group recommends that the solicitor's instructions fee be broken down into its component parts. A similar approach should also be adopted in relation to the counsel's brief fee. All fees should be itemised and it must be clear to the client what they are being charged, why they are being charged and the basis upon which they are being charged. Given the recommendation that costs should primarily be recoverable by reference to work done, the Group considers the almost universal practice whereby Junior Counsel is paid two thirds the rate of Senior Counsel is unacceptable and unfair given its arbitrary nature.
The Minister said it was also his intention to radically strengthen the law in relation to the charging of percentage deductions from awards by solicitors and barristers. "Once the new costs arrangements have been put inplace and have bedded into the legal system, the market for civil legal services will become more predictable, consistent and transparent to consumers. This transparency will also make it easier for consumers to recognise competitive prices for the services they require and facilitate access to the State's system of justice" he said.
Legal Services Ombudsman
The Minister also confirmed the Government have approved his plans to establish a Legal Services Ombudsman to strengthen the mechanisms for dealing with complaints against solicitors and barristers. The Ombudsman will oversee the handling by the Law Society and Bar Council of three classes of complaint against solicitors and barristers, namely -inadequate services, excessive fees and misconduct.
The Ombudsman's key functions will be:
to provide a forum of appeal for clients of solicitors and barristers who are dissatisfied with the outcome of a complaint made to the Law Society orBar Council;
an overseeing role by examining a selection of complaints files each year taken on a random basis;
monitoring access to the professions and reporting to the Minister and the Oireachtas on the adequacy of numbers admitted annually to each profession.
The Legal Services Ombudsman will effectively subsume the Law Society's existing office of Independent Adjudicator and carry out the same functions in respect of both solicitors and barristers. Provision for the Legal Services Ombudsman will be included in a Civil Law(Miscellaneous Provisions) Bill which is currently being drafted and is likely to be published in the spring with a view to enactment before the end of this year.
The Minister said that "Replacement of the Law Society's Adjudicator with a Legal Services Ombudsman will enhance transparency and accessibility and introduce proper accountability to the system. There is a clear public interest in ensuring a high level of confidence in how the professions regulate their affairs and the Ombudsman will contribute to this."
10 January 2006.
Notes for Editors
Existing Complaints information
In 2004 there were 1,103 admissible complaints to the Law Society of which 547 alleged misconduct, 481 alleged inadequate professional services and 75 related to alleged overcharging. Out of 730 completed complaints cases in 2004, 61 were upheld. The Independent Adjudicator reviewed 79 cases in 2004 at the request of complainants and also reviewed a randomly selected sample of a further 40 cases. There are over 6,700 practising solicitors at present. The average number of annual complaints received by the Bar Council is approximately 25. There are 1,540 practising barristers.
Biographical Note on Mr. Desmond Miller, F.C.A. Desmond Miller is a chartered accountant and a former partner in KPMG. He is a past President of the Dublin Chamber of Commerce and the Chambers of Commerce of Ireland. He is currently Chairman and Director of several public and private companies and is Chairman of the Waterford Institute ofTechnology Foundation.
The Report of the Legal Costs Working Group is available at
http://www.justice.ie Choose: Publications > Courts Policy
Alternatively, try http://tinyurl.com/9tfm8