275 / 294
recommended in our Eleventh Interim Report at para-
graph 48, were first adopted.
(20) We also appreciate the force of the submissions
in support of the existing restriction. It is probable
that, in the initial period at least, the grant of full right
of audience to solicitors will give rise to many of the
difficulties envisaged in those submissions. We feel, how-
ever, that in all the circumstances this risk would be
justified to enable actual experience of the system to be
gained so that a final decision on its continuation may
be based on that experience.
METHOD OF EXTENSION OF
RIGHTS OF AUDIENCE
(21) If it is thought desirable to make an"y change
in the law as to the rights of audience on foot of our
recommendations, it would seem that, apart from direct
intervention by the judges of the High Court and the
Supreme Court, there are two possible ways to affect
such a change :
(a) by statute, or
(b) by rule of court.
(22) It is our view that, apart from the contentions
touched upon in paragraph 24 hereof, the latter method
is the more suitable one for dealing with the matter in
question. It is difficult at this stage to evaluate the
repercussions on both branches of the profession of the
change envisaged and it may be desirable to effect some
further change in the light of experience after a trial
period of a few years. For instance, it might at some
future juncture be thought desirable to allow a discre-
tion to be vested in judges to indicate that the right of
audience in designated topics might be restricted to
barristers only or even to certain members of the Bar
only. In the event of some such change being desirable,
it would be easier to effect it by amending rules of
court. The introduction of an amending rule is the
quicker and more flexible way of effecting a change. It
is often difficult to find parliamentary time for such a
topic where it is desired to make the change by statute,
whereas an alteration in rules of court is primarily a
matter for the relevant Rules Committee. It should be
appreciated also, of course, that in making rules of
court, the Minister for Justice exercises a function in
that the amending or repealing rules come into force
only if the Minister concurs in their making—see
Courts of Justice Act, 1936, sections 68, 70 and 72.
(23) It is our view that, in general, matters of court
procedure should be left to be regulated by rules of
court and for many years this has generally been the
practice. The recommendations to alter the present
practice in regard to rights of audience in the courts
does not require the amendment of any existing statute
but a change in what is entirely a procedural matter.
(24) We do not wish to express any opinion on the
question as to what extent the Oireachtas may validly
legislate for matters dealing with court procedure
which, hitherto at least, have been within the control
of the judiciary in the administration of justice in the
Courts established under the Constitution. The full
implications of the judicial power of government re-
ferred to in Article 6 of the Constitution and of the
independence of the courts referred to in Article 34
have yet to be elaborated by decisions of the High
Court and of the Supreme Court.
(25) If a right of audience in all courts is to be
granted to solicitors, it should be done by a rule made
by the Superior Courts Rules Committee. This Com-
mittee is set up under Act of the Oireachtas and is
composed of members of the Judiciary and of the Bar
and of the siolicitor's profession and, as any rule it makes
requires the assent of the Minister for Justice, it thereby
directly and indirectly embraces the three organs of
government referred to in Article 6 of the Constitution
and represents the branches of the legal profession
affected.
RECOMMENDATIONS
(26) We recommend :
(1) That a right of audience as an advocate be granted
to solicitors in all proceedings in all courts includ-
ing the High Court and the Supreme Court;
(2) That a right of audience as an advocate be re-
stricted generally in all courts to barristers and
solicitors subject to the judge's discretion to
authorise a party in a particular case, for special
reason, to be represented by someone other than a
barrister or solicitor;
(3) That if the change recommended is to be effected
it should be by means of a rule of court made by
the Superior Courts Rules Committee.
Signed : Brian Walsh,
Chairman,
John Kenny, J. C.
Conroy, Cathal Ó Floinn (
subject to reservation),
Dermot P. Shaw, B. P. McCormack, C. S.
Andrews, Juan N. Greene, K. P. O'Reilly-Hyland,
R. J. Law.
8th March, 1971
J. K. Waldron,
Secretary.
RESERVATION BY CATHAL Ó FLOINN
(1) I agree with the majority of my colleagues in
recommending that the right of audience as an advocate
be granted to solicitors in all courts including the High
Court and the Supreme Court. I am, however, unable
to agree with them in regard to the method of extension
of the right which they recommend.
(2) It seems to me to be indefensible that one branch
of the legal profession should have a monopoly of the
right of audience in the higher courts. I am convinced
that the extension of the right should contribute
significantly to a lowering in the overall cost of litiga-
tion. I cannot accept the argument that the extension
of the right of audience in the High Court and the
Supreme Court will necessarily lower the standard of
advocacy to the detriment of the public interest. I
would not agree with my colleagues in their view (ex-
pressed in paragraph 22 of the Majority Report) that
it may be desirable to effect some further change by way
of restriction of the solicitor's right of audience in the
light of experience after a trial period of a few years.
(3) For the above-mentioned reasons, while I appre-
ciate that (as mentioned in paragraph 23 of the
Majority Report) any change in the existing position
would be a change in a procedural matter only and
would not require the amendment of any existing
statute, it is my view that a change of this nature in
such an important matter concerning the administration
of justice should be effected by statute and not by rule
of court.
(4) Accordingly, while I agree with my colleagues
who have signed the Majority Report in their recom-
mendations in paragraph 26 at (1) and (2), I recom-
mend that the extension of the present right of audience
as an advocate should be effected by statutory provision.
8th March, 1971
Cathal Ó Floinn
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