The Gazette 1985

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. No. 79 No. 2 March 1985

An Unfortunate Gloss

T HE National Economic and Social Council (NESC) has a most distinguished membership representative of many facets of Irish industrial and commercial life. It has produced a number of studies on various topics over the years which have been highly acclaimed. It commis- sioned Dr. David Rottman to carry out a study of the Irish criminal justice system which is impressive in its detail and which requires Serious consideration by all those who are concerned with the policy and performance of that system. It is unfortunate, therefore, that when the NESC decided to publish Dr. Rottman's fine study it chose to add an introduction, parts of which suggest that there is a wide gap between the level of knowledge of the subject shown by Dr. Rottman and that shown by the author of the introduction. Paragraphs 27 and 28 of the introduc- tion do no credit to the NESC. It is simply untrue to say in paragraph 27 that "the division of the legal profession into barristers and solicitors is a characteristic which Ireland shares with Britain and which differentiates both countries from almost all the rest of the English speaking world". Apart from the fact that there are substantial portions of the English speaking world which still adhere to the traditional separation of the two branches of the legal profession it is curious that comparison in this paragraph is confined to the English speaking world while in paragraph 28, referred to in more detail below, the comparison is to "most European countries". There are many areas of the non-English speaking world outside the Common Law tradition where there are divisions of the legal profession into branches which might have made the comparison a little less satisfactory from the author's point of view. The suggestion in paragraph 27 that "the restrictive barriers to entry to the legal profession enable that profession to exercise near monopoly powers, including

high charges and minimal competition" is so misleading as to be unworthy of the NESC. It is little above the level of "pub talk". Entry to the solicitors' profession is based on academic achievement, any "monopoly" that exists has been conferred by the Oireachtas and solicitors' charges have since 1881 been subject to statutory control. In paragraph 28 the statement that "Ireland shares with Britain the procedure by which judges are appointed mainly from the stock of barristers" ignores the fact that Ireland shares this procedure with the entire of the Common Law world. The author proceeds to contrast this with "most European countries where aspiring judges choose the judicial profession early on in their careers" — one of the few factually correct statements in the two paragraphs. What the author clearly does not understand is that it is the fact that judges are appointed from the practising profession and that promotion within the judiciary is unusual which helps to ensure the indepen- dence which our judiciary has always exercised. The most common criticism of the Continental system of judicial appointments is that lower and intermediate judges are dependent on the Government for their promotion and accordingly are unlikely to be as independent in their consideration of issues which involve the executive or the administration. It is widely believed that this factor has been the principal cause of judicial systems becoming subservient to strong executives as has happened in many totalitarian states. The fact that these comments apparently obtained the support of both the Social Policy Committee of the NESC and the NESC itself suggests that the NESC and its Social Policy Committee should give more serious consideration to the factual basis for its comments. It is a great pity that such uninformed comment can be added to what is otherwise a useful and thought provoking report. •

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