The Gazette 1978

JANUARY/FEBRUARY 1978

GAZETTE

Solicitors' Apprentices' Debating Society of Ireland Inaugural Meeting, Friday 27 th January, 1978. Inaugural Address on "Patronage and the Law" delivered by Michael D. Murphy, B.C.L., Auditor, 1977/78.

branches of Government, then one has all the ingredients necessary for the restriction of democracy. It is important, therefore, that the Judiciary and the people who work the courts system, namely solicitors and barristers, should remain free from excessive control and interference from the Executive. Writing of the position in England, Mr. Justice Megarry observed that "the system of appointment to judicial office in England is about as English as it could be; theoretically it is open to great abuse, but in practice it works extremely well". Mr. Justice Megarry's remarks are equally applicable to Ireland, except insofar as the danger of abuse is even greater here. A former Lord Chancellor, Lord Gardiner has said that "it is of considerable importance that a method of appointment which has proved so satisfactory should not be altered". The question for discussion therefore, is whether we should keep a system which has worked well despite the dangers inherent in it, or whether we ought to adopt some other system which may have its own defects and few of the advantages of the present system. Under the present system few are appointed to the Judiciary who have not at some time before their appointment been associated with, if not actively involved in the political party then in Government. Nevertheless I do not wish to be understood as suggesting that any member of the present Judiciary acts or has acted in any way other than a member of the Judiciary ought to act. This disclaimer brings to mind what one cynic in the Law Library is reported to have said some years ago: "there are no bad Judges, there have been bad Judges, and there will be bad Judges, but there are no bad Judges". The procedure for appointment to the Judiciary in England is not in all respects identical to ours. There, the members of the Law Lords and the Court of Appeal are appointed by the Queen on the advice of the Prime Minister. The ordinary High Court Judges are appointed by the Queen on the advice of the Lord Chancellor. The Lord Chancellor is an anomolous office. He is a political creature and a Member of the Cabinet, and may sit in the House of Lords as a Judge. However, the Lord Chancellor's Department, under the supervision of the Permanent Secretary, maintains records of potential candidates for the High Court and for the lower Judicial Officers. This is a function which apparently is not carried out in Ireland, both because appointments are generally party political and also because there is no exact corresponding office here to that of the Lord Chancellor in England. While generally speaking judicial appointments in England at the present day are made on the sole basis of merit, this was not always the case. In particular, Lord Halsbury, several times Lord Chancellor at the end of the last century was believed to have appointed to the bench, "too many men whose only claim seemed to be faithful party service in the House of Commons". This practice received unfavourable reaction, and it is said that when Lord Halsbury recommended Lord Lindlay to be the 19

The 94th Inaugural Meeting of the Society was held in Blackball Place on Friday, 27th January, 1978, at 8 p.m. In the absence of the President abroad, Mrs. Moya Quinlan, Junior Vice-President, presided. The minutes of the previous Meeting were then read with the customary humour and irrelevancies. The Vice-President then presented the following awards for the 93rd Session:— Oratory - Incorporated Law Society's Gold Medal: Cliona O'Tuama; Society's Silver Medal: Declan Sherlock. Legal Debate - President's God Medal: Cliona O'Tuama; Society's Silver Medal: Declan Sherlock. Impromptu Speeches - Vice-President's Gold Medal: Maria Durand; Society's Silver Medal: Niall King and Declan Sherlock. Irish Debate - Society's Parchment: David Clayton. First Year Speeches - Society's Silver Medal: Not awarded. Replica of Auditorial Insignia - Ciaran A. O'Mara, B.C.L. Mrs. Quinlan then called on the Auditor, Mr. Michael D. Murphy, B.C.L., to deliver his Inaugural Address on Patronage and the Law. "PATRONAGE AND THE LAW" The Irish Judiciary and legal profession are jealous of their independence which has been hard won from the Executive over several centuries. However this same independence of mind and action is threatened by a practice which seemingly has the support of the vast majority of the Judiciary and the legal profession. The existence of patronage and its close relationship with the legal system is an issue deserving of far wider discussion and debate than it enjoys at the moment. For the purpose of this paper it is intended to discuss the position under two headings. Firstly, the area of judicial appointments, which is clearly the major area of controversy. Secondly, the area of the distribution of State Briefs amongst barristers, an area which has lately seen interesting developments. The appointment of Judges in this country is, under the Constitution, the duty of the President; but under Article 13.9 of the Constitution this function is exercisable only on the advice of the Government. In effect therefore, it is the Government that appoints the Judiciary. It is a fundamental constitutional principle of a democracy such as ours that there should be separate powers; that is, that the three branches of Government — the Executive, Parliament, and the Judiciary should be separate and independent. Where there is a failure to separate these three branches of Government from one another, especially the Judiciary from the other two