This relates to
The Bar of Ireland
The Honourable Society of the King's Inns
Mr Charlie Flanagan TD, formerly Minister for Justice and Equality under Dr Varadkar, when he was Taoiseach (See below.) ("Mr Flanagan")
Ms Carol Coulter, former Legal Affairs Editor of The Irish Times
Dr Leo Eric
Varadkar, Tanaiste (deputy Taoiseach), formerly Taoiseach
(Further to the General Election on 8 February 2020, he tendered his resignation on 21 February 2020 to President Higgins, but remained as a "caretaker" Taoiseach until 27 June 2020. The new Government is a coalition.)
Mr D of County Cork
Ms E, against whom Mr D made a complaint to The Barristers' Professional Conduct Tribunal in 2016
Lay Litigation Ireland, which has a page on “Facebook” and, in a statement signed on 1 July 2016 by Ms E, was described as “an organisation established to help lay litigants”
Mr Neil Armstrong, currently or formerly of Lay Litigation Ireland (“Mr Armstrong”), who has an entry on “LinkedIn”
Mr Patrick McCann SC (Senior Counsel), Chair of The Barristers' Professional Conduct Tribunal which, in 2018, claimed a "lack of Jurisdiction" in relation to a complaint made by Mr D against Ms E ("Mr McCann")
The following other members of that Tribunal:
Dr Aine Hyland
Ms Noirin Greene
Mr Justice Joseph Finnegan, retired judge of The Supreme Court and Chair of The Barristers' Professional Conduct Appeals Board which rejected Mr D's appeal
The following other members of that Appeals Board:
Mr Daithi O'Ceallaigh (Retired Diplomat)
Mr Niall Greene (Company Director)
Mr Grainne Clohessy SC (Senior Counsel)
Mr Eunan O'Halpin (Professor of Contemporary Irish History, TCD)
In Eire, “barristers” have, traditionally, not been statutorily defined and hence not been subject to statutory regulation. They have been defined by “The Bar of Ireland”, which is a private club, and its definition has only included members of “The Law Library”. (This is important, as explained below.) The Bar of Ireland has purported to regulate them under rules made by “The Honourable Society of the King's Inns” but this organisation (which is a relic of British rule) is also a private club, controlled by senior judges, who are not accountable to the electorate but have, traditionally, had absolute power to decide (inter alia) who could enter the profession. These organisations are subject only to the same laws as, for example, social clubs and have a long records of inviting influential guests to dinners.
Traditionally, there have been no statutory safeguards to keep criminals out of the profession.
The Barristers' Professional Conduct Tribunal and The Barristers' Professional Conduct Appeals Board are agencies of The Bar of Ireland but, as explained below, an official body, The Legal Services Regulatory Authority, which came into operation on 7 October 2019 further to the Legal Services Regulation Act 2015, now has powers to investigate complaints against people who are officially classified as barristers (and solicitors) but is unsatisfactory.
Some politicians have tried to reform the profession but, until 2011, no Government of Eire ever introduced any legislation to even define “barristers”.
From 1989 to 2011, all Governments of Eire were coalitions, mainly consisting of Fianna Fail and Progressive Democrats. The Competition Authority criticised the system in 2006 but the Government, which was a coalition of the above parties, made no attempt to reform it.
(The situation in relation to solicitors was different but, some would say, not much better. The letter, referred to below, from Mr Flanagan's Private Secretary, contains information on this.)
The failures of most nationally elected politicians in Eire, since its formation, to even attempt to control the legal system in the public interest, have been dire. For example, there are common law offences of “criticising the judiciary” and “bringing the judiciary into disrepute”, created by judges without statutory authority. (We remind readers of the archaic offence, abolished in 2013, of “scandalising the Court” in English law, referred to in our first article.)
In 2011, further to pressure from the EU and IMF, the Government, which was then a coalition of Fine Gael and Labour, published the Legal Services Bill, which contained provisions to define “barristers” (and re-define “solicitors”) and create a single independent body to deal with complaints against them but implementation was very slow and it is now evident that the new regulatory body, the LSRA, is fundamentally unsatisfactory. Articles, by Ms Carol Coulter, on the Bill and related matters, were published on p7 of The Irish Times on 5 October 2011. In connection with this, we reproduce below a letter of 3 August 2018 to Mr D from Mr Flanagan's Private Secretary.
That coalition remained in power until 2016. However, the present Tanaiste, Dr Varadkar, represented Fine Gael (and still does in the new Government) and his former Minister for Justice and Equality, Mr Flanagan, was Chair of the Parliamentary Party of Fine Gael from 2011-2014. We suggest that readers consider, from published information, whether Dr Varadkar and /or Mr Flanagan was / were likely to be partly responsible for the delay.
history of unsatisfactory “regulation” of
“barristers” has profoundly affected the judiciary.
Traditionally, all senior judges
have had to be “barristers”. Some, now, are not (even
as officially defined) but the
following is an example of one of the effects: Any judge who is a
member of the Bar of Ireland and who deals with a case which
involves misconduct by another member of it
and / or the instructing solicitor will have a conflict of
interest. The new system may remove some conflicts of interest but will
still allow a judge and a barrister, who belong to the same private
club, to be involved in a case of this type.
Mr D is in dispute with Cork County Council, in connection with planning matters. He has a huge amount of documentation on matters directly and indirectly related to the dispute but the main purpose of the remainder of this article, except the addenda, is to highlight key aspects of the way in which The Barristers' Professional Conduct Tribunal and The Barristers' Professional Conduct Appeals Board have dealt with a complaint he made in 2016 against Ms E. He visited her in April and May 2016 at the offices of Lay Litigation Ireland and his complaint was to the effect that she had failed to deal with his instructions promptly or at all.
However, a significant side issue is that Mr D claims to have paid 550 Euros for written legal advice, received none but received no refund. He claims to have 'phoned Mr Armstrong and can prove that he sent him a registered letter which was returned. He has shown us a Post Office receipt for the item, sent on 26 May 2016 and a letter in an envelope with a “Registered Post” label, bearing a matching barcode, attached. Also on the envelope is a handwritten note “Return to sender” and another Post Office label, marked “Gone Away”. The label partly obscures the address but it clearly begins thus:
Mr Neill Armstrong
Lay Litigation Ireland
(The full address of Lay Litigation Ireland is Dominic Court, 41 Dominic St Lower, Rotunda, Dublin 1.)
The letter, in which “the above” means “Ms E”, contains (inter alia) the following:
With ref to my meetings in your office with the above, in your presence, and on the 6th May 2016 in the presence of another female.
I received your text message informing me that the above had left your organisation, I recall our subsequent telephone conversations, whereby I requested the 550 Euros be paid back to me as the above had not carried out the legal work that she promised to do for me.
The above informed me that she had written to me, she had not as I explained that when I picked up my file there was no copy of any such letter in the file.
During our telephone conversations ... I requested that you obtain the notes that the above made on our initial meeting on the 1st April 2016, in your office in your presence.
Could you please inform me in writing whether or not you are a solicitor, qualified to practice?
I look forward to receiving a cheque for the reimbursement of my 550 Euros.
The items he has shown us prove, beyond reasonable doubt, that, on 26 May 2016, he sent an envelope addressed as described above and that someone in the offices of Lay Litigation Ireland decided to have it returned. Whether or not Mr Armstrong had gone away, why was it not taken into the offices and dealt with on behalf of the organisation?
Mr D has also shown us a copy of a long letter of 13 November 2016 from Ms E to the Secretary of the Barristers' Professional Conduct Tribunal. It is largely irrelevant to the purposes of this article but contains the following:
“I am a qualified Barrister and was called to the Bar in 2012 and joined the Law Library. I am no longer a member of the Law Library. I worked on a free lance basis with Lay Litigation Ireland ... At no point did I ever accept any payment directly from a client of Lay Litigation Ireland without handing the payment to Lay Litigation Ireland. Every cent that was handed in went directly to Neil Armstrong in Lay Litigation Ireland ... I never had any input into what a Lay Litigation Ireland Client was charged .... As I was the only person in the office with a legal qualification I would frequently meet with Lay Litigations clients at their first meeting as I was able to put an overview of the situation together ... At no point was Mr XXXXXX (Mr D) told I was giving him advice... He (Mr D) did pay Lay Litigation cash. This price was agreed between himself and Mr Armstrong ... On more than one occasion he (Mr D) alleged that he did not receive letters from me.”
is likely to dispute the statements “I am a qualified Barrister”,
“He did pay Lay Litigation cash” and “On more than one occasion
he alleged that he did not receive letters from me” but we are not
satisfied beyond reasonable doubt that any other assertion in the
preceding paragraph is true or false. In particular, Mr D disagrees
with the assertions “At no point was Mr XXXXXX told I was giving
him advice” and “This price was agreed between himself and Mr
Armstrong”. As regards the former, it is implausible that Mr D
would have paid money without having been promised some worthwhile
service for it and, furthermore, it conflicts with a finding in the
first paragraph of the Decision of the Appeals Board, a redacted
version of which is reproduced below. As regards the latter, he
claims to have paid Ms E the 550 Euros, at her request, when alone
with her in the office. He has shown us a copy of a letter of 7 May
2016, addressed to her at Lay Litigation Ireland. It contains the
following “Please ... send me a receipt for the 550 Euros that I
paid to you on our initial meeting.” He claims not to have
received a reply, or even a receipt, but (as mentioned above), to
have received a text message from Mr Armstrong, stating that she had
left. (The first paragraph of the Decision of the Appeals Board
contains a finding that he received such a text message.)
Mr D made a complaint against Ms E, to The Barristers' Professional Conduct Tribunal, as explained above. Its Decision, redacted only to conceal the identities of Mr D and Ms E, was as follows:
The Barristers' Professional Conduct Tribunal, after due consideration of the Code of Conduct of the Bar Council of Ireland, the Disciplinary Code, the Constitution of the General Council of the Bar of Ireland*, the General Rules of the Honourable Society of the King's Inns, the Rules of Membership of the Law Library has concluded that it does not have jurisdiction to proceed with hearing the complaint brought by Mr XXXXX XXXXXX against Ms XXXXX XXXXXXXXXX.
Ms XXXXXXXXXX was not a member of the Law Library at the time of the matters complained of from 1st April 2016 to end 2016. She ceased to be a member of the Law Library on 28th April 2014 having only been a member since October 2012. She has not been a member of the Law Library since then and was thus not a member at the commencement of Mr XXXXXX's complaint or at the time of the Tribunal's hearings. There was no exceptional circumstance which would otherwise provide jurisdiction for the Tribunal.
By reason of lack of Jurisdiction, the Complaint is rejected.
may find the Tribunal's explanation strange but there is something
very important to which Mr D has drawn our attention, namely a
document, online, headed “Conduct Tribunal", dated 22nd April 2013 https://www.lawlibrary.ie/
author was the Chair of the Tribunal, Mr McCann.
WE KID YOU NOT.
Mr D appealed to The Barristers' Professional Conduct Appeals Board. His written submission to it (dated 3 March 2018), sent by Registered Post, stated his grounds of appeal thus:
"IN THE INTEREST OF NATURAL JUSTICE AND PROTECTION OF THE PUBLIC"
and contained the following:
"I was astonished when my attention was drawn to an article written by a Patrick McCann SC Conduct Tribunal dated 22nd April 2013"
accompanied by paragraphs which referred to the case of Mr Rodriguez.
The Appeal Board's Decision^, redacted only to conceal the identities of Mr D and Ms E, is reproduced below.
(It is headed “Private and Confidential” but we have no reason to conceal the redacted version from the public.)
WE KID YOU NOT.
^The definition “A Barrister means ...” , on p2 of the Appeal Board's Decision, was evidently produced in or after 2015 and supersedes the previous definition but not in any way which affects the validity of Section 5.2 of Mr Mc Cann's article dated 22nd April 2013.
21 FEBRUARY 2020
On 24 October 2014, Mr Flanagan published a proposal to replace the Prohibition of Incitement to Hatred Act 1989 by an Act which would create powers to prosecute people for “hate speech”. He did not give full details but allowed a consultation period, which ended on 13 December 2019. Some people evidently fear that a new Act on this theme may be misused to stifle valid criticisms of politicians etc. There is an online petition against the proposal, at
proprietor, Mr Appleby, comments as follows:
Further to the recent General Election, the political situation is complex and I cannot confidently predict that a draft Bill relating to “hate speech” will, or will not, be published soon. However, I have been in contact with the Irish Council for Civil Liberties (ICCL) and they have expressed an intention to scrutinise the Government's proposals in due course.
Prior to the General Election, I commented to them as follows:
It would be very difficult, if not impossible, to draft a law to ban hateful comments without stifling legitimate freedom of expression. Any such law, if it could exist, would be long and complicated and this, in itself, would deter many people from publishing material in the public interest. It would also cause job creation for solicitors and barristers.
The Prohibition of Incitement to Hatred Act 1989 is unsatisfactory but Mr Flanagan could make matters far worse.
freedom of expression generally, I have never tried to fully specify,
in terms of legislation, the limits which should exist. Perhaps that
is something your organisation should attempt. I suggest that it
should never be a criminal offence to publish a fact one can prove,
unless it invades someone's privacy for no valid reason, or is likely
to assist someone to commit a serious crime (which would include
attack by a foreign power, in breach of international law), that the
onus should be on the prosecution to prove beyond reasonable doubt
that one of these exceptions applies and that anyone charged with
illegal publication of anything should be entitled to a trial
have the following further comments and shall today send the ICCL an
e-mail to draw attention to them:
Civil liberties are fragile. A law against “hate speech”, open to excessively wide interpretations, could put the Republic onto a very slippery slope. It could help a crooked and / or misguided government, aided by a few “independent” judges, police chiefs and other public officials, to conceal abuses of power.
is already possible to be prosecuted for publishing a well-founded
allegation that a judge has abused power. (A judge has the
same right as, for example, a plumber, to sue for defamation but, for
no valid reason, judges have extra protection against criticism.)
The European Court of Human Rights acts slowly but, even if it were to act quickly, it would not be very effective against a crooked and / or misguided government supported by cronies in key posts in the legal system etc. It could not remove a government.
should learn important lessons from history. Hitler, aided by
cronies, gained and kept dictatorial power largely by stifling
legitimate freedom of expression.
For years, he concealed, from most Germans, evidence that he
was having people gassed. Furthermore, as far as I know, he had been
elected by people who were
typically no less wise than voters in other democracies and he was no
more devious or callous than thousands of elected people in power
today. He had some silly opinions but that was unremarkable.
Billions of people today have silly opinions of various types and
ones similar to some of his are not uncommon. Someone, perhaps
different, but, overall, no better than Hitler could take control of
any democracy. To minimise the risk, it is important to defend
legitimate freedom of expression.
THE PUBLIC SHOULD ACT QUICKLY TO PREVENT THE INTRODUCTION OF FURTHER HARMFUL RESTRICTIONS ON FREEDOM OF EXPRESSION.
20 MARCH 2020
INTERESTING FACTS ABOUT MR FLANAGAN, HIS DEPARTMENT AND THE LSRA
order to introduce the new complaints mechanism under Part 6 of the
Legal Services Regulation Act 2015 was signed by Mr Flanagan on 7
On 30 October 2019, Mr D sent a complaint to the LSRA, calling for Mr McCann to be struck off for misconduct. It stated “He dishonestly made a decision which he knew to be wrong” and referred, of course, to the document headed “Conduct Tribunal”, published online by Mr McCann. There is enough information above to enable readers to properly decide whether Mr D's complaint was valid.
in a letter of 31 December 2019 to Mr D, Mr Brian Doherty, Chief
Executive Officer of the LSRA, stated “... the 2015 Act intends
that the LSRA deal with complaints against barristers only where the
conduct complained of occurred following the commencement of Part 6
of the Act” but the Act contains nothing to this effect.
(The Act contains other time limits but none relevant to this case.)
the same letter, Mr Doherty stated “ ... prior to the commencement
of the Act, no statutory definition of misconduct existed for
barristers.” He added “The LSRA cannot under law retrospectively
apply a statutory definition of misconduct for barristers that was
not in place at the time of the alleged conduct” and quoted Article
15.5 of the Constitution, thus:
Oireachtas shall not declare acts to be infringements of the law
which were not so at the date of their commission.”
Article 15.5 of the Constitution did not justify the failure of the LSRA to investigate Mr D's complaint. The alleged behaviour of Mr McCann was unlawful in 2018. It constituted, at least, incitement to obtain money by deception. (It was also a matter for the police. This may be the subject of another article on this website but does not undermine our criticism of the LSRA.)
Doherty's letter also contained the following paragraphs, which were
unflattering to himself and Mr Flanagan. They showed that Mr
Flanagan had been careless but, more importantly, that, through his
Department, he had misused his position to influence the LSRA, which
had a duty to be independent of the Government. (Mr Cleary's
letter of 3 August 2108, reproduced above, stated “ ...
the Authority ... is independent in the exercise of its functions
...” and “... it will of course, be open to the Legal
Regulatory Authority to determine if a complaint or a legal
practitioner to whom that complaint may relate, falls within its new
am of the view that the 2015 Act could be clearer in relation to this
issue, however, we have liaised with the Department of Justice and
Equality who have firmly expressed the view that the 2015 Act was not
intended to provide the LSRA with the remit to investigate complaints
relating to barristers in relation to acts or omissions which
occurred prior to the commencement of the relevant sections of the
2015 Act and that the LSRA has no remit to investigate allegations of
Department are considering whether a legislative amendment is
required in order to clarify the issue.”
LSRA should have decided, on the basis of the law, however unclear it
may have been, without influence from any external individual or
organisation, how to deal with Mr D's complaint. The situation is
essentially the same as if the Court had been advised, by a
politician, to dismiss a criminal case. The LSRA was entitled to
comment on the Act but not to request or be influenced by any comment from
Mr Doherty's letter contained no criticism of the Department's interference.
THE LSRA IS NOT INDEPENDENT OF MR FLANAGAN.
should have been obvious to Mr Flanagan, on 3 August 2018, that Mr D
would make a complaint, against Mr McCann, to the LSRA, shortly after
the introduction of the new complaints mechanism.
THE LETTER OF THAT DATE SENT ON MR FLANAGAN'S BEHALF WAS ECONOMICAL WITH THE TRUTH. HE MUST HAVE ANTICIPATED THAT THE LSRA WOULD NOT INVESTIGATE THE COMPLAINT.
the following is the redacted text of a letter from the LSRA to Mr D, in a more suitable typeface:
12 November 2019
Re: Correspondence with Legal Services Regulatory Authority
acknowledge receipt of your correspondence dated 30 October 2019 and
note your complaint in respect of Patrick McCann SC.
the conduct of the barrister that is the subject of the complaint
occurred prior to the 7 October 2019 the investigation of that
complaint rests with the Barristers Professional Conduct Tribunal. I
confirm that I have forwarded your complaint to the Tribunal for its
Complaints and Resolutions Officer
* Again, we have no reason to conceal the redacted version from the public.
have been many developments in relation to Mr D's case and the wider
political situation. We hope to publish more details in due course.
to the General Election on 8 February 2020, a coalition was
eventually formed. On 27 June 2020, Dr Varadkar became Tanaiste
(deputy Taoiseach) and Mr Flanagan ceased to be “Minister for
Justice and Equality” but remained a TD.
The LSRA has, for no valid reason, still not investigated Mr D's complaint against Mr McCann. (With reference to Article 15.5 of the Constitution (quoted above), even if Mr McCann's alleged behaviour had been lawful in 2018, the LSRA would have no valid excuse now for failure to investigate Mr D's complaint and publish its findings without declaring any of Mr McCann's acts to be “infringements of the law”.)
Cleary's statement (quoted above) “... it
will of course, be open to the Legal Services Regulatory Authority to
determine if a complaint or a legal practitioner to whom that
complaint may relate, falls within its new statutory remit”, has an
implication far wider than any which directly affects Mr D, namely
that the Act does not
impose any duty on the LSRA to investigate any complaint at all. Mr Cleary and Mr Flanagan must have known this in August 2018. The
new Government has not published any proposed legislation to rectify
this dire situation.
Mr Flanagan has still not publicly apologised for his improper interference (through his Department) with the LSRA.
Neither he nor any representative of the new Government has publicly objected to the behaviour of the Tribunal, the Appeals Board or the LSRA.
We draw attention to an article published in The Irish Times on 18 December 2019, headed “'Superstar' barristers get most State legal work”.
Appleby comments as follows:
rational, properly informed person would have confidence in the new
Government. Not only should it have published proposed legislation
to rectify the fundamentally defective Act, it should have removed
the LSRA officials (including, of course, Mr Doherty) who were
improperly influenced by Mr Flanagan.
article in The Irish Times is good but should be considered in
conjunction with the above facts. In view of the long history of
inadequate regulation of barristers and solicitors, there are
probably dishonest politicians who have dishonest cronies in one or
both professions, still not independently regulated. (On 18 December
2019, the LSRA had only been operating for just over 10 weeks, hence
I am not surprised that the article contains no comment on its
performance.) Even if the LSRA is now acting properly in relation to
complaints of misconduct committed from 7 October 2019 onwards (and I
doubt that it is), there may be many members of The Bar of Ireland
who have committed misconduct but been allowed to evade complaints on
the basis of the excuse given by the Tribunal in relation to Ms E.
doubt that the previous Government was, or that the present one is,
determined to choose barristers or solicitors in the public interest
to work for the State.
who needs a solicitor and / or barrister should, in my opinion, try
to obtain recommendations from friends, neighbours and local business
acquaintances. People who run small businesses often use solicitors
or barristers in connection with conveyancing, insurance, contracts,
planning applications etc. A good solicitor or barrister who
specialises in work of a particular type may be able to recommend
another who specialises in work of a different type.
I take this opportunity to comment on the statement in the
Addendum of 20 March 2020 “The alleged behaviour of Mr McCann was
unlawful in 2018”, the wording of Mr D's complaint against him and
McCann was Chair of the Tribunal which, in effect, decided never
to consider a complaint
against anyone who was not a member of the Law Library at the
relevant time(s). When the Tribunal issued its Decision, it, in
effect, informed Ms E and others that they could commit misconduct
of any kind, including criminal offences, without being
subject to any action by the Tribunal, remain members of The Bar of
Ireland and continue to describe themselves as “barristers”.
that Decision, the
Tribunal incited Ms E and others to commit criminal offences.
complaint against Mr McCann was “He dishonestly made a decision
which he knew to be wrong.” The Tribunal's Decision was a
collective one but he must have made at least one decision of
some kind in relation to it.
is not very plausible that he could, in the public interest, have
raised a well-intentioned objection to the collective Decision but
still, more than two and a half years later and despite Mr D's
complaint against him (and the information about him on this
website), not published a statement that he did so.
he knew that the collective Decision was wrong but supported it, the
fact that he had decided to support it implied not only that Mr D's
allegation was true but also that he (Mr McCann) committed an offence
of incitement. However, even if, knowing it to be wrong, he only
enabled it to be issued without having commented on it at all, the
fact that he had decided to act as he did had essentially the same
should understand that the statement “The alleged behaviour of Mr
McCann was unlawful in 2018” was based on the law,
whereas the complaint “He dishonestly made a decision which he knew
to be wrong” was an alleged fact.
My comments are not intended to convince anyone that it was true.
It is possible to decide, beyond reasonable doubt, whether it was,
without any knowledge of
the law, on the basis
of the above facts and the relevant parts of the online document
headed “Conduct Tribunal”.
would be fascinating to question the other members of the Tribunal.