21 / 264
GAZETTE
JANUARY/FEBRUARY 1978
appears from the Act that the Government may not
appoint a person to be Director of Public Prosecutions
unless he was selected by the committee. If the person or
persons first selected by the committee is not acceptable
to the Government they may ask the committee to select
further candidates for die position. The Government must
then either appoint one of this second group of candidates
or if they are unacceptable, then one of the first group.
It is submitted that such a procedure as this for the
appointment of our Judiciary would not be inappropriate.
It is clear that the appointment of the present D.P.P. was
not a political one, and that it was a good appointment,
and no intelligent or objective observer could suggest
otherwise.
As to the composition of the Corrimittee on Judicial
appointments, I would suggest that it should comprise the
two senior members of the judiciary — the Chief Justice
and the President of the High Court; Two representatives
of the Bar — one a Senior Counsel and the other a junior;
Two representatives of the Incorporated Law Society of
Ireland; the Attorney General; and the President of the
Court in which the vacancy exists or should the vacancy
relate to the Presidency of a Court or the Supreme Court
or the High Court, the senior Judge of that Court.
I am aware that these proposals are open to criticism
and I expect that one such criticism would be that the Bar
Council and Law Society elections would become
political battles. In answer to this it should be said that the
Law Library is already thoroughly politicised and the
solicitors profession is not far behind. In any event if
certain office holders represented these bodies on the
committee perhaps this difficulty could be overcome.
I now turn to look at the question of patronage and
distribution of State work amongst barristers.
It is no secret that this was formerly one of the great
scandals of the legal profession. Politicians while in
opposition criticised the position but in power they
practised it. One T.D. noted for his colourful style of
speech has said that "Many mohair suits were bought,
holidays in Morocco arranged and Rolls Royces put in
custom built garages on the strength of money which was
paid over by the State" to barristers for State briefs.
In 1976 the amount paid by the State to barristers in
respect of State and Departmental briefs came to
£255,503.00.
Young barristers have always found it difficult to start
their career at the Bar, but this difficulty used to be
compounded by the necessity of becoming embroiled in
party politics or else forego a share in lucrative State
work.
The position has now been altered somewhat as Section
7 of the Prosecution of Offences Act, 1974 provides that
the D.P.P. and the Attorney General shall distribute State
work fairly and equitably among barristers who have
indicated their willingness to act, subject to their
suitability in a given case, and to the public interest.
In case of complaints a consultation shall take place
between the Bar Council Representative and either the
Attorney General or the D.P.P. or both.
Further the Taoiseach may provide by regulations for
the investigation of allegations by barristers of non-
compliance with the Section.
It is difficult to say how much of this is just pious
hogwash, but it is clear that a D.P.P. has no great
incentive to be unfair. While, of course, it is unlikely, the
incentive to an Attorney General exists to reward party
faithful, who may unwittingly have a less objective view
of what is "fair and equitable". It is unlikely also that a
Taoiseach would set up an investigation into the conduct
of his Attorney-General, except in very exceptional
circumstances.
It is clear however, that the amount paid in State Fees
to Counsel in 1976 as compared to 1974 and 1975 has
shown a marked swing away from party hacks, towards
conscientious barristers of all parties. To what extent the
figures refer to work done for die D.P.P. or the Attorney-
General is not clear from the figures made available in
reply to questions in the Dail.
I would suggest that some more formalised complaints
procedure on allegations of unfair treatment of barristers
be set up with provisions for a mandatory independent
investigation in certain circumstances. I would also
suggest that separate figures be published of the legal fees
paid to Counsel by the D.P.P. and by the Attorney-
General.
In conclusion, I don't consider that I have all or even
some of the answers to the questions that patronage
raises; but if I have at least succeeded in initiating a
general debate on the subject I shall be more then
delighted.
In any event patronage in the Law is a practice which
it is in the interests of the legal system and the legal
profession as a whole to lay to rest. It is an old tree which
has produced some fruit in its time, but let us now cut it
down, lest it should fall and do serious damage.
The Hon. Mr. Justice T. A. Finlay, President of the
High Court, then proposed the Resolution "That the best
thanks of the Society be given to the Auditor for his
Address, and that it be published at the expense of the
Incorporated Law Society".
The President said that on the whole the present system
of appointment had worked well. He did not hesitate to
state that he belonged to the category erf Judges who had
previously taken an active part in politics and he was of
opinion that to have done so had been a worthwhile task.
He reminded the audience that most Judges spend their
time as Judges of facts and not of law, and that was why
it was an essential quality for judicial appointment to be a
practising lawyer. He thought that the present method of
appointment had not interfered unduly with judicial
independence, and that it was for the Government of the
day to take the ultimate responsibility for judicial
appointments. The President then said:
Indapendance of judiciary dapandf on
adequate staff and accommodation
"There is, in my opinion, at present a much greater and
more real threat to the independence of the Judiciary than
the right of the Cabinet to appoint its members, a right
which, in general, has been well and responsibly
exercised.
The Constitutional independence of the Judiciary
means that it is free to administer the law through the
Courts. For it to administer law through the Courts it is
not only necessary, as most people concentrate on, that it
should be free from any form of interference by either the
Legislature or the Executive in its decision making
process but it is also necessary and essential:—
(1) That it is sufficient in number to administer the law
which it is required to administer;
(2) That it is serviced with sufficient and appropriately
skilled and qualified officers to make possible the process
of its decision making and to make effective the result of
its decisions and
(3) That there is provided for it sufficient and
21