Whatever it may do, the Law Society of Ireland may not levy the bailout of the SMDF on solicitors, conditional on giving the annual practising certificate. Asked why the Law Society of Ireland would not cite the legal basis for the claim that it could so, Mr. Gilhooly, the Law Society’s designated spokesman replied;
To find out what the Law Society may do in relation to PI insurance for solicitors, just read Section 26 of the Solicitors (Amendment) Act 1994;
Section 26 (1) authorises the Society to make regulations “making provision for indemnity” against losses…incurred by…solicitors…”. [A bailout of SMDF is not within this provision.]
Section 26 (2) lists some of the things the Society may provide for. [None of these things fall within the current bailout proposal.]
Section 26 (3) gives a general power to the Society to do things to facilitate the implementation of the other powers vested in the Society under the Section. (“…indemnity within the section…”). [It is not a free standing power to do what the Society wants; it must refer to some other power of the Society and facilitate the exercise of that power.] This is a typical example of what is commonly termed “sweeping up words” in legislation. Bennion on Statutory Interpretation [5th Ed., p. 255] says;
“A power to do something extends only to that thing. Its purported exercise extending to a different thing is to that extent not an exercise of the power at all: ‘the power exercised must be the power conferred’.
Section 26 (4) stipulates some of the conditions the Society may set, relating to the insurance indemnity of solicitors. [None of these things fall within the current bailout proposal.]
PS It is fully acknowledged by the Law Society that payments by SMDF to cover the liabilities of its members are discretionary. Consequently, “SMDF” and “indemnity” are mutually exclusive terms.
Think about it.
Now, re-read Section 26.