The Gazette 1978

JANUARY/FEBRUARY 1978

GAZETTE

Taoiseach would set up an investigation into the conduct of his Attorney-General, except in very exceptional circumstances. It is clear however, that the amount paid in State Fees to Counsel in 1976 as compared to 1974 and 1975 has shown a marked swing away from party hacks, towards conscientious barristers of all parties. To what extent the figures refer to work done for die D.P.P. or the Attorney- General is not clear from the figures made available in reply to questions in the Dail. I would suggest that some more formalised complaints procedure on allegations of unfair treatment of barristers be set up with provisions for a mandatory independent investigation in certain circumstances. I would also suggest that separate figures be published of the legal fees paid to Counsel by the D.P.P. and by the Attorney- General. In conclusion, I don't consider that I have all or even some of the answers to the questions that patronage raises; but if I have at least succeeded in initiating a general debate on the subject I shall be more then delighted. In any event patronage in the Law is a practice which it is in the interests of the legal system and the legal profession as a whole to lay to rest. It is an old tree which has produced some fruit in its time, but let us now cut it down, lest it should fall and do serious damage. The Hon. Mr. Justice T. A. Finlay, President of the High Court, then proposed the Resolution "That the best thanks of the Society be given to the Auditor for his Address, and that it be published at the expense of the Incorporated Law Society". The President said that on the whole the present system of appointment had worked well. He did not hesitate to state that he belonged to the category erf Judges who had previously taken an active part in politics and he was of opinion that to have done so had been a worthwhile task. He reminded the audience that most Judges spend their time as Judges of facts and not of law, and that was why it was an essential quality for judicial appointment to be a practising lawyer. He thought that the present method of appointment had not interfered unduly with judicial independence, and that it was for the Government of the day to take the ultimate responsibility for judicial appointments. The President then said: Indapendance of judiciary dapandf on adequate staff and accommodation "There is, in my opinion, at present a much greater and more real threat to the independence of the Judiciary than the right of the Cabinet to appoint its members, a right which, in general, has been well and responsibly exercised. The Constitutional independence of the Judiciary means that it is free to administer the law through the Courts. For it to administer law through the Courts it is not only necessary, as most people concentrate on, that it should be free from any form of interference by either the Legislature or the Executive in its decision making process but it is also necessary and essential:— (1) That it is sufficient in number to administer the law which it is required to administer; (2) That it is serviced with sufficient and appropriately skilled and qualified officers to make possible the process of its decision making and to make effective the result of its decisions and (3) That there is provided for it sufficient and 21

appears from the Act that the Government may not appoint a person to be Director of Public Prosecutions unless he was selected by the committee. If the person or persons first selected by the committee is not acceptable to the Government they may ask the committee to select further candidates for die position. The Government must then either appoint one of this second group of candidates or if they are unacceptable, then one of the first group. It is submitted that such a procedure as this for the appointment of our Judiciary would not be inappropriate. It is clear that the appointment of the present D.P.P. was not a political one, and that it was a good appointment, and no intelligent or objective observer could suggest otherwise. As to the composition of the Corrimittee on Judicial appointments, I would suggest that it should comprise the two senior members of the judiciary — the Chief Justice and the President of the High Court; Two representatives of the Bar — one a Senior Counsel and the other a junior; Two representatives of the Incorporated Law Society of Ireland; the Attorney General; and the President of the Court in which the vacancy exists or should the vacancy relate to the Presidency of a Court or the Supreme Court or the High Court, the senior Judge of that Court. I am aware that these proposals are open to criticism and I expect that one such criticism would be that the Bar Council and Law Society elections would become political battles. In answer to this it should be said that the Law Library is already thoroughly politicised and the solicitors profession is not far behind. In any event if certain office holders represented these bodies on the committee perhaps this difficulty could be overcome. I now turn to look at the question of patronage and distribution of State work amongst barristers. It is no secret that this was formerly one of the great scandals of the legal profession. Politicians while in opposition criticised the position but in power they practised it. One T.D. noted for his colourful style of speech has said that "Many mohair suits were bought, holidays in Morocco arranged and Rolls Royces put in custom built garages on the strength of money which was paid over by the State" to barristers for State briefs. In 1976 the amount paid by the State to barristers in respect of State and Departmental briefs came to £255,503.00. Young barristers have always found it difficult to start their career at the Bar, but this difficulty used to be compounded by the necessity of becoming embroiled in party politics or else forego a share in lucrative State work. The position has now been altered somewhat as Section 7 of the Prosecution of Offences Act, 1974 provides that the D.P.P. and the Attorney General shall distribute State work fairly and equitably among barristers who have indicated their willingness to act, subject to their suitability in a given case, and to the public interest. In case of complaints a consultation shall take place between the Bar Council Representative and either the Attorney General or the D.P.P. or both. Further the Taoiseach may provide by regulations for the investigation of allegations by barristers of non- compliance with the Section. It is difficult to say how much of this is just pious hogwash, but it is clear that a D.P.P. has no great incentive to be unfair. While, of course, it is unlikely, the incentive to an Attorney General exists to reward party faithful, who may unwittingly have a less objective view of what is "fair and equitable". It is unlikely also that a