Inspired by this (tongue firmly in cheek), as I prepare to retire after 26 years as director general, I reflect here on the political and personal working relationships I have had with no fewer than nine successive Ministers for Justice.
Naturally, the Law Society seeks to have a positive working relationship with every individual minister and department of Government and, cumulatively, with the Government as a whole, as well as with the Opposition. However, centre stage for the solicitors’ profession is the Department of Justice and, at its head, the minister of the day responsible for that key portfolio.
The Society’s presidents change annually. Accordingly, it is the director general who maintains continuity over the years with both the public servants in the Department of Justice and the minister. The contact is regular, and the relationship is extremely important.
Of the nine Ministers for Justice in my time as director general, five have been from Fine Gael, three from Fianna Fáil, and one from the Progressive Democrats.
Both at my commencement as director general in 1995 and at my impending conclusion in 2021, the Ministers for Justice have been women. In addition, both Nora Owen in 1995 and the incumbent Helen McEntee have had the same political party affiliation, namely Fine Gael. The third and only other woman to have served as Minister for Justice in this period was Frances Fitzgerald, also of Fine Gael.
Only two Ministers for Justice served full five-year Government terms during the period under review – John O’Donoghue (1997-2002) and Michael McDowell (2002-2007).
Four justice ministers over the last 26 years were solicitors: John O’Donoghue, Dermot Ahern, Alan Shatter and Charlie Flanagan. Two – Michael McDowell and the late Brian Lenihan – were barristers.
Is there an advantage for the Law Society, as many solicitors instinctively expect, in the Minister for Justice being a solicitor? The answer to that is both ‘yes’ and ‘no’. It is ‘yes’ to the extent that the complexity of a legal-practice issue may be more readily understood by the minister if he or she is a solicitor (or, equally, a barrister).
However, for all Ministers for Justice, in my experience of dealing with them, very properly the public interest invariably comes first – far ahead of the interest of the profession. Accordingly, the key to successful lobbying is to align the two interests in their minds through evidence and argument. Reliance on the core values of the legal profession, values such as independence, access to justice, and the rule of law, are fundamental to such a process.
There is a very large number of bills every year on which the Society is invited to make submissions. Most of the engagement is in writing, and is as much to do with issues of detailed drafting as it is on policy matters.
Nor is all of the contact initiated on the Society’s side. Ireland being so small, and people knowing each other as we do, it was a not infrequent occurrence for me to look at my phone screen and see that the minister was calling personally.
My counterparts as CEOs of bars and law societies in other jurisdictions, particularly larger ones, were often amazed when I would mention the ease with which I could make direct contact with a justice minister, or the minister with me.
The official visit
In addition to correspondence and other communication, every year or so I would organise a meeting with the minister – held either in the department or in the minister’s office in Leinster House – to go through an agenda of items in relation to which the Society wished to communicate its views. Officials would be present at these meetings.
In addition, and far more frequently, the minister and the Law Society Director General would be in attendance at events in the course of the working day, or after it, often with large numbers present.
These would be events to do with law-and-justice activities and would frequently provide an opportunity for a quiet tête-à-tête with the minister on some pressing matter of the day. At such public events, I would be very far from the only individual seeking a moment or two with the ministerial ear.
In addition, the minister would invariably be a guest in Blackhall Place at the Society’s annual dinner and, probably also in the course of a year, at other events hosted by the Society.
However, all these opportunities to seek to inform and, perhaps, influence the Minister for Justice are valueless unless there is a relationship with the minister based on mutual respect and trust. Anything confidential said by a minister to me on such occasions over the years never was, and never will be, disclosed by me.
A real partnership
My relationship with each of the nine successive ministers was always slightly different, based on the personalities and political attitudes of the individual ministers. I had known almost all of them personally before they became ministers.
Indeed, some I had known personally for decades before they had even entered politics. A well-informed understanding of the political world in which they operated, of the pressures and influences to which they were susceptible, was essential.
Although the politics of their Government, political party and department are always powerful influences, there is invariably a significant extent to which the personal views of the minister can be decisive in shaping policy. Law Society representations can shape policy, too. From dozens of potential examples, I will pick just two to illustrate my point.
In relation to a historic issue of status for the solicitors’ profession – that of eligibility for judicial appointments – when I became director general, only the District Court was open to a solicitor who wished to apply for a career on the bench.
Draft legislation had been introduced by Minister Nora Owen to provide for the eligibility of solicitors to become judges of the Circuit Court although, to the disappointment of the Law Society, to no court higher than that.
As that bill was approaching Committee Stage, I spoke personally with every member of the Joint Oireachtas Committee on Justice, arguing that the centuries-old monopoly of the Bar on senior judicial appointments was a relic of history that operated contrary to the public interest.
Three future Ministers for Justice, all solicitors, who were members of that committee, were vigorously supportive – namely John O’Donoghue, Alan Shatter and Charlie Flanagan (who was the chair of the committee).
As a political compromise, Nora Owen agreed to establish a working group to report to Government on the issue. Geraldine Clarke, Ernest Cantillon and I served on the working group that recommended to Government that solicitors with litigation experience should be eligible for appointment to the bench at every level of the courts system.
That recommendation was turned into draft legislation by her successor, John O’Donoghue, and enacted as the Courts and Court Officers Act 2002. The historic first appointment of a solicitor to the High Court Bench, that of the impeccably qualified Michael Peart, who would prove to be one of the outstanding judges of his generation, was made later in 2002 by the then new minister, Michael McDowell.
Bed of nails
The single most complex and controversial piece of legislation directly affecting the solicitors’ profession during the last 26 years was the bill subsequently enacted as the Legal Services Regulation Act 2015. Alan Shatter was the minister who published the bill in 2011, without any prior consultation in relation to its contents, and to the dismay of the solicitors’ profession.
On the day the bill was published, I expressed the Society’s deep concerns about the undermining of the independence of the profession on RTÉ’s Six One News. I insisted that for the legal profession to be independent of Government control was an essential prerequisite for an independent judiciary, access to justice, and the rule of law.
A campaign by the Law Society followed, unprecedented before or since, as the profession fought to protect its independence in the public interest. The campaign was successful. I never believed that the minister who introduced the bill intended it to threaten the independence of the profession and, indeed, he denied it had that potential.
Nevertheless, in the face of expressions of deep concern, both nationally and internationally, Mr Shatter amended the bill fundamentally to remove that threat.
In addition, in response to my lobbying on behalf of the Society, he agreed in principle that the bill should be amended to create the possibility of solicitors’ firms forming limited liability partnerships (LLPs).
Many hundreds of improvements to the bill, including in relation to LLPs, were made by his successor Frances Fitzgerald. The commencement order for solicitors’ firms to become LLPs (of which approximately one-third of all partnerships have now availed) was signed by her successor as Minister for Justice, Charlie Flanagan.
Helen McEntee was appointed in late June 2020. My first and only business meeting with her was regrettably, but of necessity, by Zoom. While the pandemic persists, my successor as director general may find it more difficult to establish their own personal relationship with the Minister for Justice.
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