The Gazette 1992

GAZETTE

SEPTEMBER 1992

1 W T Removing Barriers to Judicial Appointment 1 N V E P 0

main reasons for this practice. The first is to assist with the work of the courts. The other is to give possible candidates for full-time appointment the experience of sitting judicially and an opportunity to establish their suitability. The practice, in our view, has much to commend it on both counts. There is no doubt that additional manpower is often needed to deal with exceptionally heavy workloads in particular areas and such appointments could greatly speed up the hearing of cases and reduce delays. It has also much to commend it in the matter of assessing the suitability of candidates for full-time appointments. If solicitors are to be made eligible for judicial appointments in the higher courts, a mechanism will have to be found to enable the most able and most deserving candidates to be appointed. At present, the choice is entirely in the hands of the executive and we are not aware that there is any sifting or consultation process. We believe that, when solicitors become eligible, there should be some formal consultation process with the Law Society to ensure that the most able and most suitable candidates are identified. Indeed, a reform of the law along the lines we have suggested raises the broader issue of the method of selecting and appointing candidates to be judges. In England, the Law Society published a discussion paper on judicial appointments in March, 1991 in which they suggested the establishment of a Judicial Appointments Commission to advise the Lord Chancellor on appointments. We do not necessarily say that the case for such a commission in this jurisdication has been made out but we consider that the issues involved should be examined and that, perhaps, the Law Reform Commission is the appropriate body to be asked to undertake such a task. • 249

In July, 1992 the Law Society presented a submission to the

The widening of the pool from which candidates for judicial office can be chosen will, in our view, be entirely beneficial. It will, moreover, send a clear signal that the Government are serious about changing the legal system and that they wish to see old barriers, which have contributed so much to the maintenance of rigid lines of demarcation between solicitors and barristers, removed. Such a change, provided it is accompanied at an early date by a number of appointments, will, we believe, encourage solicitors to exercise their existing rights of audience more widely. The submission made by the Law Society to the Government sets out the main arguments for making solicitors eligible for high judicial office. One additional and important point can be made. Many solicitors in this country act as arbitrators in the private settlement of legal disputes. These disputes are often concerned with complex transactions in the commercial field involving serious legal issues and often involve property rights running to millions of pounds. Frequently solicitors sit on their own to determine these issues; sometimes they sit as part of an international team or panel. In doing so, they must, of course, act judicially. We need hardly say that we believe it is indefensible that experienced lawyers of the calibre needed to sit in arbitrations of this kind should be excluded from consideration for appointment as judges in the Circuit and higher courts in this country. Another aspect of this matter that should be looked at by the Government is the practice of making appointments initially on a part-time and temporary basis as happens in England and Wales and Northern Ireland. There are two

Minister for Justice calling on him to amend the law to make solicitors eligible for appointment as judges in the Circuit and Superior Courts. Elsewhere in this issue, (page 251) the President of the Law Society, in a personal message to the profession, sets out the substance of the submission made to the Minister. A reform of this kind is long overdue. It is now over 20 years since the Government gave solicitors a right of audience in all the courts (Courts Act, 1971, section 17). In that respect, Ireland was considerably ahead of the other jurisdictions in these islands who have only recently introduced changes which will allow solicitors to gain rights of audience and to act as advocates in the higher courts. However, in the matter of eligibility for judicial office, the other jurisdictions are someway ahead of us. In England and Wales, Scotland and Northern Ireland, solicitors can be appointed to the bench at Circuit Court level and, in recent years, many such appointments have been made. They are also eligible at the level of the High Court. It is now about two years since the Fair Trade Commission added its voice to those who had previously suggested that the law should be changed so that solicitors could be appointed to the bench in the higher courts here. The Government have not, so far, acted. We understand that a new Court and Court Officers Bill is at an advanced stage of preparation and this will provide a suitable legislative vehicle to the Government to enable this change to be made. We think it is time that the Minister, in responding to the Law Society's submission, should say publicly that he intends to make this change and that it will be done in the forthcoming Court and Court Officers Bill.