The Gazette 1995

GAZETTE

NOVEMBER 1995

Case Report

Alison Bloomer and Others v The Law Society of Ireland, Ireland and the Attorney General - 1994 No. 5680P High Court [Brief summary of judgment of Laffoy J delivered on 22nd day of September, 1995] The plaintiffs comprised 35 law students of the Queens University, Belfast (QUB). They sought various declarations against the Law Society, Ireland and the Attorney General seeking like recognition and exemption from the Society's Final Examination - First Part (FE-1) as was afforded to law graduates of the National University of Ireland, the University of Dublin and the University of Limerick. The plaintiffs also sought damages (including aggravated and/or exemplary damages) for conspiracy and/or breach of duty and on several other grounds. Among the Court's conclusions on questions of fact were the following: • The law taught for the QUB LL.B. degree was the law of Northern Ireland and the dégree reflects an inferior state of the knowledge of the law of the Republic of Ireland than a law degree from a university established in the State. • The Society does not teach substantive law in its courses. • As conceded by Counsel for the plaintiffs during the hearing, the Society would be justified in requiring a law graduate of QUB to take and pass Constitutional Law in the FE-1. • The Society's Education Committee had decided to reject the plaintiffs' application because they were of the opinion that its course content was not in the law of this jurisdiction and for no other reason. • The evidence did not establish any conspiracy, malice or improper motive on the part of the Society. • By contrast with the Institute of Professional Legal Studies in Northern Ireland, which operates an annual numerical quota, the Society operates an open policy in relation to admission. • The Society's concern about numbers relates to the capacity of its educational

infrastructure to cope rather than any policy or motivation to restrict access to the profession of solicitor. The Court accepted the Society's contention that there was only one real issue in the proceedings, namely, whether Regulation 15 was valid. Regulation 15 of the Society's 1991 Education Regulations created a system of exemptions for law graduates of universities in the State from the FE-1 (the Society's entrance examination). • Contrary to what was contended by the plaintiffs, neither Articles 48, 49, 52, 59 or 60 of the EEC Treaty were relevant to the case. • Article 6 of the EEC Treaty, which prohibits both direct and indirect discrimination on the grounds of nationality, was relevant. • Regulation 15 was liable to operate mainly to the detriment of nationals of another Member State of the Community. • A broad view of the function of the Society must be taken showing that there are two routes to qualification as a solicitor in this jurisdiction. The first route involved passing the FE-1 or being exempted from it by a law degree followed by the completion of an apprenticeship and the Blackhall Place another Member State and transferring as a qualified lawyer under Council Directive No. 89/48/EEC (known as 'the Mutual Recognition of Higher Education Diplomas Directive'). training course. The second route involved qualifying as a lawyer in • When the Society implemented that Directive in 1991 it was expedient to absolve solicitors who qualified in Northern Ireland or in England and Wales from testing in their knowledge of Irish law to ensure that the hundreds of Irish solicitors then working in England and Wales could benefit from a reciprocal approach. The Court's key findings on matters of law were as follows:- European Community law issues

• As a result, the Society applied a difference in treatment to a QUB LL.B. graduate and a Northern Ireland solicitor even though both would probably have an inferior state of knowledge of the law of this jurisdiction than, say, a law graduate of UCD. • This difference of treatment could not be objectively justified and, having regard to the evidence, total denial of exemptions from FE-1 to law graduates of QUB, as applied by Regulation 15, indirectly contravenes the prohibition on discrimination on the grounds of nationality in Article 6 of the EEC Treaty, exceeded the powers of the Society under the relevant section of the Solicitors Acts and was invalid. • The Court held that none of the several grounds argued by the plaintiffs constituted an additional ground of invalidity based on the Irish Constitution. Consequences of Invalidity of Regulation 15 • Based on several High Court and Supreme Court authorities the Court held that its function in such circumstances was strictly limited to declaring the relevant provision invalid. The Court could not re-write the provision. Whether or not it should be replaced was entirely a matter for the Law Society. • The effect of the invalidity of Regulation 15 was that no provision now existed for exempting any person from the FE-1. • There was no evidence that any of the plaintiffs had suffered any loss or damage. • All the reliefs claimed being refused, the plaintiffs' claim was dismissed with costs awarded to the Society, Ireland and the Attorney General. As the plaintiffs have appealed this judgment to the Supreme Court, with a provisional hearing date of 12 Dec., 1995, it would not be proper for the Gazette to comment on it at this time. • 261 Irish Constitutional Law