‘Don’t fence me in’

Brexit appears to be an update of Partition, with the elapse of (almost) a century. The Irish Times, on 8 April 2019, quoted the Society’s director general Ken Murphy stating that ‘Brexit refugees’ – comprising solicitors from England and Wales – now number 2,770 on the Roll in Ireland, representing 14% of the entire number of solicitors.

Their hope in doing so is to preserve their entitlement to practise law in the EU following Britain’s exit. Murphy continued: “But, of course, they are not here – less than 250 UK solicitors have practising certificates.”

The Law Society has experience and knowledge arising from partition, and of reciprocity in the admission of solicitors to the Roll.

The Incorporated Law Society of Ireland, as it was then, was implacably opposed to the Partition of Ireland in 1921, with the consequent fracturing of the unity of the legal professions on the island, which dated from 1607. The Council meeting of the Law Society on 5 October 1921 recorded the creation of the new jurisdictions, with effect from 1 October 1921, by virtue of the Government of Ireland Act 1920.

In addition, the Council received the proposed charter for the ‘Northern Law Society’ and was requested to comment. Following consideration at three further Council meetings, and a chiding letter from the under-secretary for Ireland, the Council replied on 30 November 1921: “This Council do not desire to offer any specific comments in reference to the charter read.”

The Council meeting on 7 December 1921 noted the letter from the secretary dated 5 December to the honorary secretary of the Northern Law Society – “the Northern members to come to Dublin, to confer on future governance of [the] profession, or Dublin would go to Belfast”. A recurring theme that emerged at this meeting was “the reciprocity of admission to profession between England and Ireland”.

The Council also considered a motion congratulating the plenipotentiaries of the Irish Republic, who had signed the articles of agreement for a treaty between Britain and Ireland the previous evening in London. The Council received a reply from the Northern Law Society on 14 December 1921: “Owing to what occurred since the invitation had been written, they thought such a meeting might be postponed for the present.” 

Edge

Ireland was on edge in December 1921. The truce, which commenced on 11 July 1921, remained in the balance – Sinn Féin divided by pro and anti-Treaty groups, the new state of ‘Northern Ireland’ de jure and de facto in existence.

The Irish Law Times and Solicitors Journal on 21 January 1922 reported that “the principal event of the week was the passing of what has been so long known in Ireland as ‘Castle Government’, and the Provisional Government took over Dublin Castle”.

The Council meeting on 5 April 1922 discussed reciprocity of admission between the solicitors’ professions in England and Ireland. The Council continued close contact with the Incorporated Law Society of Northern Ireland, receiving their charter for comment (which was declined). The charter issued on 10 July 1922.

Draft bill

On 4 October 1922, the Council noted “the Incorporated Law Society of Northern Ireland to hold examinations, which Dublin currently holds, and the draft bill which the Northern Parliament will introduce”.

The Provisional Government drafted the Constitution of the Irish Free State in accordance with the terms of the Treaty, against the backdrop of civil war and the abstentionist policy of the anti-Treaty Sinn Féin, led by Eamonn De Valera. The new state came into being on 6 December 1922.

One consequence concerned the Law Society: on 17 January 1923, the “question of advisability to have the Colonial Solicitors Act 1900 applied to the Free State of Ireland referred to the privileges committee”.

On 14 February 1923, the Council recommended steps to be taken to apply the Colonial Solicitors Act to Ireland. The Council enlisted Gerald Fitzgibbon TD, KC (later judge of the Supreme Court) to introduce the Solicitors (Ireland) Act 1898 Amendment Bill 1923, as a private member’s bill in the Dáil.

Its purpose was to provide for the admission of English solicitors and Scottish law agents without examination or service. Mr Fitzgibbon was brief in proposing its merits: “It has been explained to the Dáil twice within a week, and I do not wish to inflict any more oratory on you.”

Thomas Esmonde, in the Senate, said: “The operative clause is in section (b) that appears to introduce reciprocity between the English and Scotch solicitors. I suppose the more solicitors we can have, the better. At all events, we are now going to have solicitors from all parts of the late United Kingdom, and I have no doubt it will add to the efficiency of our legal practice and also to the amusement of some of our courts.”

On 11 April 1923, the secretary reported to the Council meeting that the Solicitors Ireland Act 1898 Amendment Act 1923 on 29 March 1923 had received the English king’s assent. The influence and reach of the Law Society is shown by the enactment of this act.

It is number 10 of 1923, and number 11 in the canon of the acts of the Oireachtas (only the Constitution of the Irish Free State (Saorstát Eireann) Act was passed in 1922). It was enacted to secure solicitors’ economic opportunities.

Relations

Not “all parts of the late United Kingdom” were included: there was no reciprocity for solicitors from Northern Ireland, despite the close relations. It may have been considered unnecessary, as solicitors admitted prior to 1 October 1921 were entitled to practise in both jurisdictions.

There does not appear to have been consideration as to the position with the elapse of time. On 29 March 1923, the Rules Committee was directed to prepare for the application of the Colonial Solicitors Act to the Free State.

During the same month of March 1923, the civil war still continued: 32 anti-Treaty and five pro-Treaty men were killed in Kerry; six in Wexford (three from each side); in Donegal, four anti-Treaty and one pro-Treaty – 48 men in total. There were more pressing issues than the recognition of mutual professional qualifications.

The Council meeting on 30 May 1923 received a letter from English Law Society: “If the Colonial Solicitors Act 1900 be applied as between England and the Irish Free State, that solicitors of the latter seeking admission in England should pass an examination in trust accounts and the Final Examination of the English Law Society.”

The secretary reported to the Council on 11 July 1923 that he had seen the attorney general in relation to the proposed order in Council applying the Colonial Solicitors Act to the Free State.

He also reported the lodgement of the application with the Minister for Home Affairs. He wrote a reminder on 28 September 1923 to the minister, as he had not received a reply, nor did he receive one until 25 June 1924, when “Mr Kennedy late AG wrote that a legal question had been raised – that the Colonial Solicitors Act could not be made applicable to the Irish Free State until the courts had been in being for three years.”

Hope

Hope of progress was indicated at the meeting on 9 July 1924, when the secretary reported on his meeting with the attorney general John O’Byrne, who had read the secretary a despatch from the British Colonial Office that the British Government, on the passing of an act of the Oireachtas under section 3 of the 1922 act, would (subject to consultation with the English and Scottish Societies) seek an order in Council applying the Colonial Solicitors Act. The hope was unfounded.

On 11 February 1925, the Council directed the secretary to write to the attorney seeking a reply to his letter of 5 July 1924.

At the meeting that followed, on 25 February 1925, the attorney general replied: “He would convey to the executive council the request of the Society – and inform the Society when any decision is come to.” The meeting on the 15 July 1925 received the reply from the attorney general “that the question of taking steps” to apply the Colonial Solicitors Act had been postponed.

Reply

It was ordered that the secretary reply, informing the attorney general of the statement in the British House of Commons that legislation was awaited from the Irish Free State. One year later, on 15 July 1926, the president, in response to a query as to whether anything had been done recently, replied: “No steps in that direction had recently been taken.”

The Council was persistent. On 2 February 1928, the secretary wrote to the Minister for Justice, seeking the application of the Colonial Solicitors Acts to the Irish Free State. The minister replied on 23 February 1928: “The matter would have the minister’s attention.”

Fatal words! The provisions of the 1923 act were never commenced. The act was repealed by section 2 of the Solicitors (Amendment) Act 1947.

Archive

The application of the Colonial Solicitors Act to the Irish Free State passes from the archive. Daire Hogan, solicitor and historian, continues the narrative. The provision in the 1923 act for reciprocal admission between the jurisdictions was not put by the Free State Government to the British Government, as the former did not agree with the proposal and would not take it up with the British Government.

He also states that the English Law Society was opposed, though was not formally consulted, due to non-submission of the proposal.

The Gazette, in December 1932, reported on the half-yearly meeting: “Mr Joyce drew attention to the largeness of the number seeking admission to the profession and suggested steps should be taken to lessen the number.”

The rationale of the Law Society was to provide opportunities to Free State solicitors in territories in the British Empire, which pertained prior to independence.

There was, however, a ‘backstop’. Section 35 of the Finance Act 1929 provided that Northern solicitors were exempt from stamp duty in both jurisdictions, provided reciprocity was provided to Free State solicitors, which followed.

This was extended to admission to the Roll (subject to conditions) by section 23 of the Solicitors (Amendment) Act 1960 to holders of “corresponding certificates”, defined as those issued by the Incorporated Law Society of Northern Ireland – a case of Irish exceptionalism, honouring the historic unity of the profession.

Former colony

Brexit will effect fundamental change in the legal relationship between Britain and the EU, and between Britain and Ireland. Ireland – a former colony, a dominion member of the empire, and with a common head of state until 1937 – was unable to secure mutual recognition of the professional qualification of solicitor with England and Wales until 1973, upon accession to the EEC – a period of 50 years.

Northern Ireland may benefit from the shared legal inheritance. After all, the Solicitors’ Benevolent Association has operated on an all-island basis since its foundation in 1863.

‘Mainland Britain’ starts without those advantages.A