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GAZETTE
1 W
1 N
SEPTEMBER 1992
V E
P 0
T
Removing Barriers to
Judicial Appointment
In July, 1992 the Law Society
presented a submission to the
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.
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
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.
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