The Gazette 1992

GAZETTE

SEPTEMBER 1992

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Why are 80% of Lawyers Excluded From Judicial Appointment?

At the end of July I staged a press conference to publicise details of a submission to the Minister for Justice, Padraig Flynn, TD, in which the Law Society called for a change in the law to make solicitors eligible to be appointed as judges in the higher courts. Our submission also argues that it is important that solicitors should be eligible to compete for all posts in the Government service for which a legal qualification is required. appointment to judicial office in the higher courts means in effect that about 80% of all practising lawyers, irrespective of individual merit, their academic qualifications, experience, or standing as lawyers, are ineligible for consideration. If the Government changed the law it would have available to it a much wider range of candidates from which the choice of judges could be made. Such a change would be beneficial and would ensure that the ablest persons would be appointed as judges. In our submission we say the exclusion of solicitors from I think it is unacceptable that appointment as a judge in the Circuit Court, High Court and Supreme Court should nowadays be the preserve of only one branch of the legal profession, namely, the bar. Why should experience as an advocate be a prerequisite for eligibility for appointment as a judge? There are many other desirable qualities to be sought in suitable candidates. Experience has shown that the best advocates do not necessarily make the best judges and, correspondingly, that some of the most able judges in the past did not have distinguished careers as advocates. The candidate's knowledge of the law, his or her standing as a lawyer, independence of mind, judgement and decisiveness

as well as the perceived ability to "chair" and administer his/her court are among the qualities that are more desirable than experience as an advocate. Other personal qualities are also important such as patience, courtesy and, of course, compassion. The appointment of solicitors to judicial office in the higher courts is essential if the Government is serious about bringing about change in the legal profession and, in particular, encouraging solicitors to exercise their existing right of audience in the higher courts. While solicitors are entitled to appear as advocates in the Circuit Court, High Court and Supreme Court, the general practice still within the profession is to brief barristers in these courts. The difficulty is that many solicitors feel inhibited from exercising their rights of audience at present because of the fact that the judiciary in the higher Commission acknowledged this difficulty in its report (paragraph 17.9) and put their view as follows: "We believe that the presence of former solicitors as judges would encourage more solicitors to engage in advocacy, since they may well be partly inhibited from exercising their rights of audience at the moment because all judges are former barristers, and the possibility of judicial appointment for solicitor- advocates also might encourage more Court appearances by solicitors." If the Government is serious about trying to erode the present rigid lines of demarcation between solicitors and barristers and ultimately to bring to an end any restrictive practices that may exist within the legal profession, it must do what it can to eliminate barriers and divisions that contribute to the demarcation that exists. The early appointment of a number of solicitors to the Circuit and High courts are invariably former barristers. The Fair Trade

Court would have a powerful impact on the momentum for change throughout the entire legal system. All that is required is a relatively simple legislative change. The Minister has an ideal opportunity to do so this Autumn when he publishes a new Court and Court Officers Bill. I hope that he will make his intentions known before then, by clearly signalling that he accepts our arguments. It is "The early appointment of a number of solicitors to the Circuit and High Court would have a powerful impact on the momentum for change . . . " heartening to note that the Minister of State at the Department of Justice, Willie O'Dea TD, has publicly accepted, in principle, the merits of our arguments. I have also received letters indicating support from Oireachtas members of Fine Gael, Labour, Progressive Democrats and Democratic Left. I want to thank my predecessor, Donal Binchy, who chaired the sub- committee on judical appointments and who did a great deal of the preparatory work on the submission. I also want to thank Alan Shatter TD, Max Abrahamson, Frank O'Donnell, Andy Smyth, John Fish and Ray Monahan who attended the press conference and spoke tellingly of their experience of advocating in the higher courts, of acting as arbitrators and serving on tribunals such as the Criminal Injuries Compensation Tribunal and the Garda Siochana Complaints Board.

Adrian P. Bourke President

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