Setting the record straight
It was almost straight out of an episode from Callan’s Kicks: Count Shatter simply disappears in a puff of smoke; the suddenness of his departure in keeping with his mysterious ways.
The former minister of justice &will not be easily forgotten. His personality flaws have been expertly dissected elsewhere. The man’s extraordinary legislative record, however, also deserves careful examination.
Alan Shatter was a committed reformer, who was truly committed to a shake-up of the system. The circumstances appeared to be propitious. He had the ear of the taoiseach in cabinet, while Labour also backed his reforming agenda, most of which is contained in the Programme for Government and some of which was pressed on the country by the troika.
However, promising new laws is one thing — securing their enactment in a sustainable form is quite another. In particular, the country’s laws on personal insolvency and bankruptcy had remained largely unaltered for decades, despite commitments from successive administrations.
The economic meltdown brought things to a head, but delivery has required detailed work and the thing about Alan Shatter was that he pushed for delivery on a multiplicity of fronts.
The man worked like a demon and had to be persuaded not to contact senior legal colleagues at 6am for updates on files.
In this respect, he was similar to Paul Gallagher SC, the former attorney general and a famous workhorse.
Gallagher found himself in the capacity of a legal firefighter entering a burning building. Shatter was the guy in charge of building a new legal edifice on the ruins.
No doubt, some of his legislation will, itself, have to be built upon and occasionally unpicked.
On occasions, key proposals became bogged down by opposition from entrenched interests, posing, it has to be said, legitimate questions.
The key legislative pillars of the Shatter regime were the Personal Insolvency Act, signed into law in December 2012, and the Legal Services Regulation Bill, still winding its way through the Houses of the Oireachtas more than two years after its publication.
The edifice remains to be fully constructed, in other words.
If the overhaul of the country’s indebtedness regime is of vital import to the functioning of the economy and the wider society, then the overhaul of the legal professions is the reform closest to the heart of the former minister.
The Legal Services Bill, at least initially, provoked a storm of protest from the Law Society and the Bar Council. The establishment of a new outside body to regulate the professions was seen as threatening the independence of the legal profession as a whole. It would also impose much higher regulatory costs on practitioners, it was claimed.
A number of top international bar associations were lined up in support of the Law Society in its opposition to the measure. The bill’s original proposals have been watered down following intensive discussions and lobbying.
Mr Shatter’s proposal in the bill — that multi-disciplinary partnerships, involving different professionals, be sanctioned — led to concerns about conflicts of interest.
This idea already looked to be headed for the long grass, even prior to his departure. Few in professional practice will mourn the passing of this idea.
Some reformers maintain, however, that so-called MDPs could have allowed hard-pressed smaller professional practices to join forces commercially, so as to better compete against the Dublin big battalions.
MDPs may be gone, but Mr Shatter’s successor, Frances Fitzgerald, will almost certainly press ahead with the establishment of the new State regulatory authority, which will deal with complaints brought against solicitors.
The excesses of the boom extended to the legal profession, leaving many problems in their wake. The new body could end up with quite a large case load.
Most accept that the Personal Injuries Assessment Board has proved to be a success since its establishment a decade ago: The runaway personal injuries compo train has been halted, though some claimants have lost out, perhaps unfairly, in terms of compensation awards
The Legal Services Bill also provides for greater openness in the area of legal costs. A new legal costs office assumes the functions of the taxing master.
David Barniville of the Bar Council has accepted the new system on costs will be more transparent.
The details of Shatter’s new insolvency regime are well known at this stage. Concerns have been raised that low earners could miss out on the benefits of the new debt settlement regime, a view aired by Flac’s Paul Joyce. The bankruptcy period has been reduced, but some lawyers — those promoting UK alternatives — insist that Irish bankruptcies remain too costly.
However, Mr Shatter consistently supported the idea of cost reduction as is evident in other, less well-known, but important pieces of legislation passed into law under his remit.
He had been shepherding through a key piece of legislation: The Fines (Payment & Recovery) Bill, aimed at sharply reducing the number being sent to prison for nonpayment of fines. A key innovation is the introduction of attachment of earnings for unpaid fines.
Employers will be required to deduct fines from earnings. Community service will also be made an integral part of the fines recovery system. Fines are to be set at an affordable level. This should begin to address the problem presented when financial penalties are imposed on people without means to pay.
There are also plans in place to enact a new Criminal Justice (Criminal Sanctions) Bill, aimed at promoting restorative justice for victims. The Government opposed a private members’ bill on restorative justice, put forward by Waterford TD John Halligan, on the basis that while it provided for the payment of medical expenses, it made no provision for the victims’ pain and suffering, or loss of earnings.
Mr Shatter stressed the importance of ending the system where offers of compensation could be used as a means of securing lighter sentences from judges, even where victims were not in agreement.
He also set out to overhaul the courts system, recognising that it was simply ceasing to function in parts, with litigants left with delays running into several years. This will be remembered as his third key reform besides those on insolvency, and legal regulation.
These reforms include the establishment of a new Court of Appeal with the aim of reducing the burden on the Supreme Court, and the introduction of specialist family courts.
In a recent speech, Bar Council chairman David Nolan SC recalled the words of Mr Justice Astbury, a 19th century jurist: “Reform? reform? Aren’t things bad enough already?”
According to Mr Nolan, however, “the reality is that the court system is broken. The delays in the courts, at the highest level, are unacceptable.”
However, the legal establishment has gagged on some of Mr Shatter’s ideas. He favoured the appointment of outsiders, such as academics, to the bench — an idea that is anathema to those who believe that extensive experience of legal practice is a prerequisite for sound judgeship.
Some of Shatter’s changes have been less controversial. He sought to move family law cases away from the High Court to reduce the cost burden on the parties, and the crazy system under which all family cases were held in camera, with decisions not being available for consultation by practitioners has been ended. Lawyers can access such decisions on condition that personal confidentiality is respected.
The former minister’s relationship with the judiciary could be best described as ‘feisty’. Senior judges, including Supreme Court judge Adrian Hardiman, and the head of the Commercial Court, Judge Peter Kelly, expressed open criticism. The judiciary established their own representative body. The Chief Justice, Susan Denham, had to step in to calm matters.
Shatter was a reformer who ultimately lost office because of a reluctance to accept the word of whistleblowers seeking an overhaul of practices in An Garda Síochána — a strange end to an extraordinary career.
It will now be up to Ms Fitzgerald to clean up the many legislative loose ends, while embarking on a delicate dual process of overhaul and calming of the waters at the Department of Justice, and at An Garda Síochána.
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