The restriction on the right to silence introduced in 1998 was a sinister development, creating a conflict of interest by requiring a garda to explain specialised legislation to a suspect, Mr Patrick MacEntee SC told the Burren Law School.
The sub-section to Section 5 of the Offences Against the State (Amendment) Act, which made "huge inroads on the right to silence", describes how the suspect must be told in "ordinary" language by a garda that an inference of guilt may be later taken from his silence.
It was "an extraordinary admission" by the State, Mr MacEntee said. "It is saying that it is not written in ordinary language. It is written, therefore, in extraordinary language, but there is no guidance given as to what that language is except that it is not ordinary."
But a garda was required to translate the provision from specialised, extraordinary language into ordinary language "for the benefit of the prisoner". It was a turning of the law on its head. The person who traditionally advised a prisoner was his solicitor.
Mr MacEntee said he did not know what the section meant but presumably he would if he pored over it for long enough. "Is it any part of the function or is it, indeed, within the area of expertise of a guard to explain the law to anyone?" he asked. It was a radical change and a radical empowerment of a garda's obligations. "If we take that side by side with the fact that there is huge resistance to recording or tele-recording of police interviews, now we get a shift like this."
The distinction between ordinary and extraordinary language was meaningless and devoid of content. "One of the things I would like to do is offer a prize to a cross-section of guards to put that section into ordinary language, a competition worthy of Myles na Gopaleen," Mr MacEntee said.
Describing social welfare law, he said it had to be asked what interest was being served by the use of opaque language. "It is probably a disease in our democracy, a disease in our administration that finds it convenient not to have the transparency that is desirable."
He wondered if the man standing at the labour exchange counter found his dignity was being upheld when trying to work out what his entitlements were. He added that it was important that the discussion which had been initiated by the Law Reform Commission on the issue should be wide-ranging. "It is the duty of everyone in a position to do so, to take its invitation to discussion seriously."
Mr Kieran McGrath, editor of Irish Social Worker, said that while there had been improvements, there was a culture that wanted people to be kept in ignorance to limit the State's financial burden.
The focus had now switched to asylum-seekers where one heard about the deserving and non-deserving. The Minister for Finance, Mr McCreevy, talked about the poverty lobby and was using the same language as if the State was still poverty-stricken.
The school, which took "The Language of Law - An Obstacle to Justice" as its theme, was held in Ballyvaughan, Co Clare, at the weekend.