The Gazette 1972

mittee is set up under Act of the Oireachtas and is composed of members of the Judiciary and of the Bar and of the siolicitor's profession and, as any rule it makes requires the assent of the Minister for Justice, it thereby directly and indirectly embraces the three organs of government referred to in Article 6 of the Constitution and represents the branches of the legal profession affected. RECOMMENDATIONS (26) We recommend : (1) That a right of audience as an advocate be granted to solicitors in all proceedings in all courts includ- ing the High Court and the Supreme Court; (2) That a right of audience as an advocate be re- stricted generally in all courts to barristers and solicitors subject to the judge's discretion to authorise a party in a particular case, for special reason, to be represented by someone other than a barrister or solicitor; (3) That if the change recommended is to be effected it should be by means of a rule of court made by the Superior Courts Rules Committee. Signed : Brian Walsh, Chairman, John Kenny, J. C. Conroy, Cathal Ó Floinn ( subject to reservation), Dermot P. Shaw, B. P. McCormack, C. S. Andrews, Juan N. Greene, K. P. O'Reilly-Hyland, R. J. Law. 8th March, 1971 J. K. Waldron, Secretary. RESERVATION BY CATHAL Ó FLOINN (1) I agree with the majority of my colleagues in recommending that the right of audience as an advocate be granted to solicitors in all courts including the High Court and the Supreme Court. I am, however, unable to agree with them in regard to the method of extension of the right which they recommend. (2) It seems to me to be indefensible that one branch of the legal profession should have a monopoly of the right of audience in the higher courts. I am convinced that the extension of the right should contribute significantly to a lowering in the overall cost of litiga- tion. I cannot accept the argument that the extension of the right of audience in the High Court and the Supreme Court will necessarily lower the standard of advocacy to the detriment of the public interest. I would not agree with my colleagues in their view (ex- pressed in paragraph 22 of the Majority Report) that it may be desirable to effect some further change by way of restriction of the solicitor's right of audience in the light of experience after a trial period of a few years. (3) For the above-mentioned reasons, while I appre- ciate that (as mentioned in paragraph 23 of the Majority Report) any change in the existing position would be a change in a procedural matter only and would not require the amendment of any existing statute, it is my view that a change of this nature in such an important matter concerning the administration of justice should be effected by statute and not by rule of court. (4) Accordingly, while I agree with my colleagues who have signed the Majority Report in their recom- mendations in paragraph 26 at (1) and (2), I recom- mend that the extension of the present right of audience as an advocate should be effected by statutory provision. 8th March, 1971 Cathal Ó Floinn - 2 7 9

recommended in our Eleventh Interim Report at para- graph 48, were first adopted. (20) We also appreciate the force of the submissions in support of the existing restriction. It is probable that, in the initial period at least, the grant of full right of audience to solicitors will give rise to many of the difficulties envisaged in those submissions. We feel, how- ever, that in all the circumstances this risk would be justified to enable actual experience of the system to be gained so that a final decision on its continuation may be based on that experience. METHOD OF EXTENSION OF RIGHTS OF AUDIENCE (21) If it is thought desirable to make an"y change in the law as to the rights of audience on foot of our recommendations, it would seem that, apart from direct intervention by the judges of the High Court and the Supreme Court, there are two possible ways to affect such a change : (a) by statute, or (b) by rule of court. (22) It is our view that, apart from the contentions touched upon in paragraph 24 hereof, the latter method is the more suitable one for dealing with the matter in question. It is difficult at this stage to evaluate the repercussions on both branches of the profession of the change envisaged and it may be desirable to effect some further change in the light of experience after a trial period of a few years. For instance, it might at some future juncture be thought desirable to allow a discre- tion to be vested in judges to indicate that the right of audience in designated topics might be restricted to barristers only or even to certain members of the Bar only. In the event of some such change being desirable, it would be easier to effect it by amending rules of court. The introduction of an amending rule is the quicker and more flexible way of effecting a change. It is often difficult to find parliamentary time for such a topic where it is desired to make the change by statute, whereas an alteration in rules of court is primarily a matter for the relevant Rules Committee. It should be appreciated also, of course, that in making rules of court, the Minister for Justice exercises a function in that the amending or repealing rules come into force only if the Minister concurs in their making—see Courts of Justice Act, 1936, sections 68, 70 and 72. (23) It is our view that, in general, matters of court procedure should be left to be regulated by rules of court and for many years this has generally been the practice. The recommendations to alter the present practice in regard to rights of audience in the courts does not require the amendment of any existing statute but a change in what is entirely a procedural matter. (24) We do not wish to express any opinion on the question as to what extent the Oireachtas may validly legislate for matters dealing with court procedure which, hitherto at least, have been within the control of the judiciary in the administration of justice in the Courts established under the Constitution. The full implications of the judicial power of government re- ferred to in Article 6 of the Constitution and of the independence of the courts referred to in Article 34 have yet to be elaborated by decisions of the High Court and of the Supreme Court. (25) If a right of audience in all courts is to be granted to solicitors, it should be done by a rule made by the Superior Courts Rules Committee. This Com-