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GAZETTE
JANUARY/FEBRUARY 1978
Solicitors' Apprentices' Debating Society of Ireland
Inaugural Meeting, Friday 27 th January, 1978.
Inaugural Address on "Patronage and the Law"
delivered by
Michael D. Murphy, B.C.L., Auditor, 1977/78.
The 94th Inaugural Meeting of the Society was held in
Blackball Place on Friday, 27th January, 1978, at 8 p.m.
In the absence of the President abroad, Mrs. Moya
Quinlan, Junior Vice-President, presided. The minutes of
the previous Meeting were then read with the customary
humour and irrelevancies.
The Vice-President then presented the following
awards for the 93rd Session:—
Oratory -
Incorporated Law Society's Gold Medal:
Cliona O'Tuama; Society's Silver Medal: Declan
Sherlock.
Legal Debate
- President's God Medal: Cliona
O'Tuama; Society's Silver Medal: Declan Sherlock.
Impromptu Speeches
- Vice-President's Gold Medal:
Maria Durand; Society's Silver Medal: Niall King and
Declan Sherlock.
Irish Debate -
Society's Parchment: David Clayton.
First Year Speeches
- Society's Silver Medal: Not
awarded.
Replica of Auditorial Insignia -
Ciaran A. O'Mara,
B.C.L.
Mrs. Quinlan then called on the Auditor, Mr. Michael
D. Murphy, B.C.L., to deliver his Inaugural Address on
Patronage and the Law.
"PATRONAGE AND THE LAW"
The Irish Judiciary and legal profession are jealous of
their independence which has been hard won from the
Executive over several centuries.
However this same independence of mind and action is
threatened by a practice which seemingly has the support
of the vast majority of the Judiciary and the legal
profession.
The existence of patronage and its close relationship
with the legal system is an issue deserving of far wider
discussion and debate than it enjoys at the moment. For
the purpose of this paper it is intended to discuss the
position under two headings. Firstly, the area of judicial
appointments, which is clearly the major area of
controversy. Secondly, the area of the distribution of State
Briefs amongst barristers, an area which has lately seen
interesting developments. The appointment of Judges in
this country is, under the Constitution, the duty of the
President; but under Article 13.9 of the Constitution this
function is exercisable only on the advice of the
Government. In effect therefore, it is the Government that
appoints the Judiciary.
It is a fundamental constitutional principle of a
democracy such as ours that there should be separate
powers; that is, that the three branches of Government —
the Executive, Parliament, and the Judiciary should be
separate and independent. Where there is a failure to
separate these three branches of Government from one
another, especially the Judiciary from the other two
branches of Government, then one has all the ingredients
necessary for the restriction of democracy.
It is important, therefore, that the Judiciary and the
people who work the courts system, namely solicitors and
barristers, should remain free from excessive control and
interference from the Executive.
Writing of the position in England, Mr. Justice Megarry
observed that "the system of appointment to judicial office
in England is about as English as it could be; theoretically it
is open to great abuse, but in practice it works extremely
well". Mr. Justice Megarry's remarks are equally
applicable to Ireland, except insofar as the danger of abuse
is even greater here.
A former Lord Chancellor, Lord Gardiner has said that
"it is of considerable importance that a method of
appointment which has proved so satisfactory should not
be altered". The question for discussion therefore, is
whether we should keep a system which has worked well
despite the dangers inherent in it, or whether we ought to
adopt some other system which may have its own defects
and few of the advantages of the present system.
Under the present system few are appointed to the
Judiciary who have not at some time before their
appointment been associated with, if not actively involved
in the political party then in Government. Nevertheless I do
not wish to be understood as suggesting that any member
of the present Judiciary acts or has acted in any way other
than a member of the Judiciary ought to act. This
disclaimer brings to mind what one cynic in the Law
Library is reported to have said some years ago: "there are
no bad Judges, there have been bad Judges, and there will
be bad Judges, but there are no bad Judges".
The procedure for appointment to the Judiciary in
England is not in all respects identical to ours. There, the
members of the Law Lords and the Court of Appeal are
appointed by the Queen on the advice of the Prime
Minister. The ordinary High Court Judges are appointed
by the Queen on the advice of the Lord Chancellor. The
Lord Chancellor is an anomolous office. He is a political
creature and a Member of the Cabinet, and may sit in the
House of Lords as a Judge. However, the Lord
Chancellor's Department, under the supervision of the
Permanent Secretary, maintains records of potential
candidates for the High Court and for the lower Judicial
Officers. This is a function which apparently is not carried
out in Ireland, both because appointments are generally
party political and also because there is no exact
corresponding office here to that of the Lord Chancellor in
England.
While generally speaking judicial appointments in
England at the present day are made on the sole basis of
merit, this was not always the case. In particular, Lord
Halsbury, several times Lord Chancellor at the end of the
last century was believed to have appointed to the bench,
"too many men whose only claim seemed to be faithful
party service in the House of Commons". This practice
received unfavourable reaction, and it is said that when
Lord Halsbury recommended Lord Lindlay to be the
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