I have gone away from accountants; I am dealing with solicitor under the word "agent". In this Bill, and the income tax code, the person is suitably described by the word "agent". Incidentally, in counsel's opinion, it is the same word that is usually used in giving agent directions. There is no doubt that agent includes solicitor. This section goes further in what I have described objectively as a very pernicious intrusion on the constitutional safeguards that our legal system provides for the individual as against Big Brother, the State, in particular. This is not new, and I am not talking about the Revenue Commissioners only.
Let us take criminal jurisdiction going back to Magna Carta, and enshrined in the Articles of our Constitution, Article 38. On the criminal side, I do not think no matter what we passed in this House, we would be able to breach that. If it was a criminal matter I would be willing to bet that our Supreme Court, on appeal, would maintain the rights of the individual, as it did in the case of Padraig Haughey reported in 1970, reports which may be in the news shortly, would hold that a solicitor was absolutely privileged, as also would be the barrister briefed by that solicitor on behalf of that client.
We are now dealing with a code of law that is coming perilously near, in its provisions, criminal provisions. Points of constitutionality may well arise.
Maybe enough rope is being given in this House to hang the whole lot on a constitutional point. This section goes further than its predecessors. There is no use telling me that the Income Tax Acts did this. The Income Tax Acts are as bad and there is provision in the Income Tax Act, 1967, section 176, which is equally objectionable, and my strictures apply to that also.
There is a difference between section 176 of the Income Tax Act, 1967, and this Bill. Precedent here is admitted but this goes further than the precedent established because section 176 makes every person who in whatever capacity is in receipt of any money et cetera shall, whenever required to do so by notice, prepare and deliver within the period mentioned in such notice a list in the prescribed form, signed by him, containing the particulars as set out. This captures solicitors, and that is what I am objecting to. I strongly object to that on the grounds of the confidentiality that exists between solicitor and client and that the individual with the complexity of our present law is entitled to have free, confidential advice and to consult and be in a position to find out what the law is and what his rights are without embarrassment by Big Brother, the State, in whatever department it may be, the police in a police state or anywhere else.
Section 176 captures solicitors and that is objectionable, but it can be said for section 176—objectionable and indefensible as it is, and the beginning of the slippery slope—it specifies certain things. This section captures solicitors as an accountable person in subsection (2) by the use of the word "agent", and in subsection (5) states that any accountable person—that must be taken as meaning any solicitor in the context—in possession of information relevant to the taxable wealth of an assessable person shall disclose to the Commissioners, or such other officer as the Commissioners may appoint, such information within their possession or power as they may require in writing for the ascertainment of liability or collection of tax and shall make such disclosure within a time not less than 30 days. The important thing is, "such information within their possession or power as they may require in writing".
Section 176 of the Income Tax Act, 1967, at least specifies what that information is. The section states, "any information", unqualified or general.
If we pass this section in its present form, notwithstanding and not controverting the precedents that are there —I say the Minister has gone further than the precedents—then any solicitor will be required, if this Act stands up in the Supreme Court, to disclose all that transpires between a client who consults him on the matters raised in this Bill. Is that a desirable situation? Does it not, in the first instance, mean that before one can consult a solicitor one has to consider what the risk is of talking to the solicitor at all? Furthermore, it is of interest if there is a criminal matter.
I am saying these things not in stricture of the Minister; it is a free expression of an opinion by a Member who seeks to have a point taken into account in our passing of this legislation. Nothing more. It is not to be taken as a stricture on anybody. The penalties are coming very near criminal liability. Unexpected things can happen and we should not rely too much on the English decided cases. The 1921 Tribunals Act and the 1970 Act are a good example as to what can happen when one has a written Constitution such as we have.
It behoves us to ask, "are we within the proper limits"? If there was anything savouring of criminality in this an embarrassing situation could arise for the Revenue Commissioners and cost to the State. I have not said all that for the sake of launching a delayed tirade against the Income Tax Acts and the building up of all this information-seeking legislation much of which I concede is necessary. Indeed, I have a great deal of sympathy with the problems of the Revenue Commissioners, and, perhaps I should say in all fairness, in the implementation of the legislation such as it is they have been entirely and eminently reasonable and understanding. That does not get away from my point; we are making law here. That is why I emphasise that it is not to be taken as a stricture on anybody.
The fact that it has been benignly and reasonably administered to date does not obviate the objection in principle and the dangers of running into a constitutional impasse here. The Minister, when he is considering the amendment on subsection (5), should take this point into account. If possible, he should limit the amount of information he is concerned with and take into account the possibility that a solicitor might be acting criminally on this. I want to give this possible interpretation as a guise here; I do not think it would be upheld but it could be embarrassing if there was any attempt to rely on it and lead into trouble.
If a solicitor were acting for two different interests, two different assessable persons, and in that sense accountable for both, and if in one case he was acting in a criminal capacity and the other had a relationship to it, then, as the wording of that section stands, it could be invoked to cross without Deputy Colley's amendment.
It is an unlikely point to succeed but we have a Constitution. The Supreme Court has been very strong on its right to decide judicial matters. It is, therefore, desirable that if the the Minister is looking at that subsection in regard to solicitors that some qualification should be put on the information required from a solicitor. The Minister will understand that I am talking purely about the solicitor and client relationship.
I greatly regret that this was breached in the Income Tax Acts. I concede, firstly that, and, secondly, it can be pleaded that it has given no difficulty to date and the Revenue Commissioners have been more than reasonable in it. That I also concede. Further it may be argued that a certain amount of benign co-operation has resulted in good relations to the benefit of the client, and I am certain in certain cases that would be so. All these points I concede, but nevertheless there is the principle of the interference to that extent of the confidential solicitor-client relationship which is so important in the modern world against Big Brother, the State, in whatever form. I am not applying that term to the Revenue Commissioners; I am applying it to the modern State as a whole.
I ask the Minister to consider all that in relation to subsection (5) and the amendment he promised Deputy Colley he would consider.