The Gazette 1985

INCORPORATED LAW SOCIETY OF IRELAND

GAZETTE

Vol. No. 79 No. 2

March 1985

An Unfortunate Gloss

HE National Economic and Social Council (NESC)

has a most distinguished membership representative

of many facets of Irish industrial and commercial life. It

has produced a number of studies on various topics over

the years which have been highly acclaimed. It commis-

sioned Dr. David Rottman to carry out a study of the

Irish criminal justice system which is impressive in its

detail and which requires Serious consideration by all

those who are concerned with the policy and performance

of that system.

It is unfortunate, therefore, that when the NESC

decided to publish Dr. Rottman's fine study it chose to

add an introduction, parts of which suggest that there is a

wide gap between the level of knowledge of the subject

shown by Dr. Rottman and that shown by the author of

the introduction. Paragraphs 27 and 28 of the introduc-

tion do no credit to the NESC. It is simply untrue to say in

paragraph 27 that "the division of the legal profession

into barristers and solicitors is a characteristic which

Ireland shares with Britain and which differentiates both

countries from almost all the rest of the English speaking

world". Apart from the fact that there are substantial

portions of the English speaking world which still adhere

to the traditional separation of the two branches of the

legal profession it is curious that comparison in this

paragraph is confined to the English speaking world while

in paragraph 28, referred to in more detail below, the

comparison is to "most European countries". There are

many areas of the non-English speaking world outside the

Common Law tradition where there are divisions of the

legal profession into branches which might have made the

comparison a little less satisfactory from the author's

point of view.

The suggestion in paragraph 27 that "the restrictive

barriers to entry to the legal profession enable that

profession to exercise near monopoly powers, including

high charges and minimal competition" is so misleading as

to be unworthy of the NESC. It is little above the level of

"pub talk". Entry to the solicitors' profession is based on

academic achievement, any "monopoly" that exists has

been conferred by the Oireachtas and solicitors' charges

have since 1881 been subject to statutory control.

In paragraph 28 the statement that "Ireland shares with

Britain the procedure by which judges are appointed

mainly from the stock of barristers" ignores the fact that

Ireland shares this procedure with the entire of the

Common Law world. The author proceeds to contrast

this with "most European countries where aspiring judges

choose the judicial profession early on in their careers" —

one of the few factually correct statements in the two

paragraphs. What the author clearly does not understand

is that it is the fact that judges are appointed from the

practising profession and that promotion within the

judiciary is unusual which helps to ensure the indepen-

dence which our judiciary has always exercised. The most

common criticism of the Continental system of judicial

appointments is that lower and intermediate judges are

dependent on the Government for their promotion and

accordingly are unlikely to be as independent in their

consideration of issues which involve the executive or the

administration. It is widely believed that this factor has

been the principal cause of judicial systems becoming

subservient to strong executives as has happened in many

totalitarian states.

The fact that these comments apparently obtained the

support of both the Social Policy Committee of the NESC

and the NESC itself suggests that the NESC and its Social

Policy Committee should give more serious consideration

to the factual basis for its comments. It is a great pity that

such uninformed comment can be added to what is

otherwise a useful and thought provoking report.

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