I love EU!

The EU and International Affairs Committee operates as a vital 'horizon scanner' to catch EU directives early in their life-cycle – and intervenes when problems are foreseen. Mary Hallissey reports

The Law Society EU and International Affairs Committee is primarily an outward-facing unit, interacting extensively with representative bodies across Europe.

It comprises approximately 16 members, meeting each month in a hybrid format, and with members that include former Law Society presidents, Council members, and other key participants. Each meeting results in a report that is circulated to the Law Society's Council.

All committee members are multilingual, and all serve for multiple years to retain their deep institutional knowledge and maintain long-term international relationships, particularly with continental bar associations, the IBA, and the Council of Bars and Law Societies of Europe (CCBE).

There are also representatives from key State bodies: the Chief State Solicitor's Office, Attorney General's Office (Anthony Joyce), and ComReg Commissioner Niamh Hodnett.

The committee has three senior counsel, including Cormac Little, who also represents Ireland on the CCBE. It also keeps 'boots on the ground', with member Bernard O'Connor SC located permanently in Brussels to monitor real-time EU developments.

The committee also maintains the dedicated substantive section 'Eurlegal' for the Gazette, contributing articles and case notes to the journal of record.

Chair Richard Kelly, who speaks French, and vice-chair Duncan Grehan, who speaks both German and French, note that roughly 70% of Irish law comprises the direct implementation or transposition of EU law. Ireland legislates 'around the edges', but mostly implements EU law, they agree.

Interventions

The committee operates as a vital 'horizon scanner' to catch EU directives early in their two-to-four-year 'drafting-to-implementation' life-cycle, and intervenes where necessary if problems are foreseen. Yearly, members meet their counterparts from the Belgian, French, German, and Spanish Bars to exchange information.

"People remain on the committee because they are enthusiastic about the work and international law," says Richard. "It takes so long to build those relationships and we don't want to lose that experience."

Ireland frequently struggles with late transposition of complex EU directives due to political prioritisation and workload constraints. This country currently faces 47 active breaches/infringements of European law (listed on the Government website) due to failure to transpose directives on time, Richard and Duncan add.

A February deadline to transpose EU laws regarding the preservation and admission of cross-border electronic evidence for cybercrime worldwide was missed, they say.

Duncan Grehan is chair of the subcommittee that has been assisting the Department of Justice with this transposition.

He points out that Ireland is also the only EU country that has not yet ratified the Budapest Convention on Cybercrime 2004, and the only one that hasn't sent a representative to the European Public Prosecution Office. Ratification will require approval of both Houses of the Oireachtas.

"These types of things are on our agenda to monitor, and then the Law Society's Council makes the decisions, because we are a committee within the Law Society," Richard says. "What we do is report up – we can make suggestions.

"We also offer our services to Government departments, if they seek meetings with us. The more of that the better, rather than reports gathering dust on a shelf."

Harmonising laws

Duncan adds: "We are very focused on items that are relevant to the solicitors' profession and the work that they do, whether company law or the recognition of cross-border wills, for instance.

"We try to look at matters from an outside-of-Ireland viewpoint – to try and help harmonise our laws with those of our trading partners across Europe. There can be nuances in Irish law, for instance, that might not be recognised or understood at EU level."

The committee's workload includes monitoring heavily worded EU mandates that place strict responsibilities on lawyers to report suspicious transactions and vet client-asset provenance, in compliance with anti-money-laundering law.

Regarding proposed EU legislation requiring solicitors to report "aggressive tax planning" (which must be balanced precariously against client confidentiality duties), Richard comments: "A rule that says solicitors have to report tax evasion doesn't sound like the hill you should die on but, actually, it is important because it is eroding the ability to provide independent, privileged, legal advice."

Telling a client that certain disclosures will necessitate a report to Revenue is tricky for any lawyer, the pair says. "How do you determine what is, or is not, borderline?" asks Richard. "I think it actually fell away because the commission didn't actually have the confidence to legislate in that area."

Dual roles

These are the kinds of matters on which the committee can help find a solution, even more so because many of them have dual roles on several committees. For instance, Duncan is also on the Alternative Dispute Resolution Committee.

Where the committee spots a problematic incoming proposal, they can feed that into the Government. For instance, electronic evidence preservation will require a united front and harmonised laws across 27 jurisdictions.

Nowadays, laundering money may be simpler because of cryptocurrency and electronic banking, Duncan points out. "The fact that the EU is now regulating crypto coins shows that there is now acceptance of the reality of electronic finance," he says.

A primary mandate of the committee is promoting Ireland as a premier jurisdiction for common-law dispute resolution and legal conferences, a role accelerated by Brexit. "It's educating the profession in Ireland about things that are relevant at an EU level and trying to educate the profession abroad about Ireland and the common law," Duncan says.

Post-Brexit, European lawyers favour Ireland for short placements, because it is the primary English-speaking common-law jurisdiction in the EU without work-visa barriers.

The committee holds an annual roundtable meeting in Brussels with permanent representatives from other European bar associations to scan for upcoming legislative changes.

It also runs an active trainee exchange programme with the Paris Bar. Duncan himself has hosted over 150 German legal interns, for three-month periods, over his 40 years in practice.

EU presidency

To coincide with Ireland's presidency of the EU, the committee will organise an event on EU law, open to all, including senior judiciary.

Richard, who is an Ogier financial services partner, points out that the committee has members who work in immigration, in the Central Bank, and in a wide variety of other fields.

There is a marketing aspect to the committee's work, Richard agrees. It has worked closely with the Ireland for Law lobby group, always with a focus on showcasing the relevance of Irish law for other European jurisdictions.

"We offer Irish law solutions wherever they are needed," says Duncan. "It's a beautiful island, and it's got good business hubs and networks. And 15 of the biggest platform companies are based here now. Ireland's economy has escalated over the last ten to 15 years, and that makes it more attractive for lawyers from other countries."

The presence of international corporations makes matters, such as competition and finance regulation, hugely important and in high demand, Duncan points out.

"It's incredible how, over 45 years, the whole profile of Ireland as an economy and as a legal infrastructure has so dramatically changed," Duncan comments.

Young blood

Both agree that Ireland needs a lot more young lawyers with language skills. They note the decline in the number of young Irish people getting jobs in the European institutions, in part because application is a long, drawn-out process.

"There are very good, well-paid jobs competing, so the European roles are not as attractive as they once were," comments Richard.

Duncan adds that feedback suggests that Ireland is not as well represented at senior levels as in the past, with the pipeline drying up somewhat. That could be changed if the Irish State were to financially sponsor Irish-lawyer interns at the start of their potential careers in the EU public service, Duncan suggests.

"It's about making sure that we are kept fully informed and continue to contribute to what's going on at commission level, and that there are enough voices representing Ireland in the room," he concludes.

Mary Hallissey is a journalist at the Law Society Gazette.