Dodgy lawyers should not be left to tender mercies of Law Society

IT can happen that the most cruel encounter in your life could be a brush with the law.

There are hundreds, if not thousands, of people in Ireland who have gone to the law for justice, and ended up being destroyed. It is especially true in family law cases, and in cases involving the division of property, that the scars can last forever. And these are the civil cases.

We have no way of knowing in Ireland how many miscarriages of justice there have been in the criminal courts, but it is not unreasonable to believe they happen. And when they do in either the criminal or civil code it can be because of a judge who doesn't care, or a lawyer who doesn't care. It could even be because of dishonest or corrupt lawyers.

Of course, it can be for a host of other reasons as well. Justice is not necessarily in the eye of the beholder. We can feel betrayed by our lawyer simply because we lost. But there is no reason why we should assume that all lawyers live up to the highest standards of their profession.

That might sound shocking. Yet we have had ample evidence in the past few years to show that corruption, dishonesty and worse characteristics are possible among politicians, bankers, priests, lobbyists and other professions.

Why should we take on trust that lawyers are beyond corruption? A week or so ago, an organisation called the Victims of the Legal Profession marched on the Dáil, calling for an independent ombudsman who would have the power to hold the legal profession to account.

There is a tradition in Ireland, of course, that respects the independence of the courts. We have written it into our Constitution. But there is no good reason why the legal profession should hide behind that. There is no reason why the legal profession should be above accountability.

The Law Society, of course, would argue that there is a high degree of accountability already. There are all sorts of structures through which complaints can be processed. Most of the structures are staffed and run by members of the legal profession. Generally speaking the first act they take when they receive a complaint, prior to any investigation, is to refer it to the solicitor complained of. They won't, however, investigate complaints (such as negligence) where in their opinion legal action is a more appropriate remedy. The Law Society won't give people legal advice or representation in handling their complaints.

In other words, the system is pretty stacked. It is long past time that citizens had recourse to an independent source of advice, help and representation. What possible argument can there be against an ombudsman? We already know how an ombudsman works, because every citizen of Ireland who feels they have been badly done by in their dealings with public administration can go to his office.

And here's the strange thing. In Ireland, the Office of the Ombudsman has no real power. But it has very significant moral authority. That authority derives, in the main, from three sources. First, accessibility. The office is open to everyone who has a complaint. There is no charge, no difficult form to fill in, no statutory inhibition. Second, independence. The ombudsman is appointed by the President on the recommendation of both Houses of the Oireachtas. He reports to the Oireachtas and no-one else. And he reports in public. There is no hiding.

And third, the personality of the ombudsman has been very important. The first ombudsman, who established the office, was a journalist renowned for tough-minded independence. Michael Mills set up the office to be as independent as he was. His successor, Kevin Murphy, was at first heavily criticised because he came from within the system, but the independence of the office has proved to be just as important to him.

The ombudsman is trusted. He wields no executive power, and can issue no binding edicts.

The biggest threat he can issue against a public body is the threat of publication of a special report to the Dáil. He has done so on a number of occasions over the years, and the effect is usually spectacular.

However, there is one area where he can issue findings that are binding and conclusive. This is where he is wearing his other hat, as Ireland's information commissioner.

In that role, he is charged with reviewing all the decisions of public bodies where a citizen has asked him to examine the refusal of a public body to comply with a request made under the Freedom of Information Act.

Under the act, he is also charged with "fostering an attitude of openness among public bodies by the encouragement of the voluntary publication of information above and beyond the minimum requirements of the Act."

And he does that. Anyone going to the office of the information commissioner knows that they will get a fair hearing, without charge, and a determination that is also scrupulously fair. The presumption of the office is towards disclosure, and they will always need to be persuaded that there are good reasons for not disclosing information. Speaking at a conference on the FOI last October, the commissioner said that he wanted to "stress that FOI has fundamentally and radically altered the nature of the relationship between the public service and the public. In a broader sense, by making government more transparent and more accountable, FOI has also affected significantly the environment in which government operates in Ireland."

That, of course, was for the better. It is important to recognise that the FOI was about the public's right to know. From the outset, the act sets out to provide that access to information is to be given "to the greatest extent possible consistent with the public interest and the right to privacy."

And the information commissioner has always, in his deliberations, stressed the importance of the public interest.

Our Government clearly hates that. In the past few days I have heard the three most senior members of the Government curtly dismiss any element of FOI that is inconsistent with their concept of Government efficiency. Taoiseach, Tánaiste and Finance have all been positively contemptuous of the act, the Tánaiste in particular pretending that it was only something the media cared about, and that the citizens couldn't really be bothered.

So this week and next the Government will attempt to ram through its changes to the FOI, first in the Seanad and then in the Dáil. Unless there is a major change of heart, no opposition will be brooked. The strategy will be the same as the one that applies to the economy screw them now, and they'll have forgotten in a few years.

We must never forget. The course on which this Government has begun is a process of cutting down accountability. They know that everywhere you look (and the legal profession is just one example) Ireland would benefit from more, not less, accountability. But they don't care. The slippery slope they're on is one where the public interest takes second place to party, sectional and personal interest.

There could hardly be a more dangerous road to be travelling.