LEGAL OPINION:I shall come back to the topic raised in the headline; it is better to lead the reader gradually to such a radical idea.
Until the industrial revolution, there was next-to-no mobile middle class and, consequently, little or nothing in the way of conveyancing. Solicitors were largely barristers’ gofers. Yet the reality is that, at least since the second World War, entrants to the legal professions have usually been educated together through university law degrees and thereafter by practical training courses, of which the solicitors’ has often been superior.
As to the practice of the two professions, it is true that a higher proportion of solicitors are generalists than is the case with barristers. But given that solicitors in practice outnumber barristers by about four to one, that still leaves solicitors with the lion’s share of specialised experience in major fields.
Yet tradition died so hard that until surprisingly recently, solicitors were excluded, by law, from being judges, save in the District Court. Then in 1995, the law was changed to allow their appointment to the Circuit Court. As drafted, this would have extended to the superior courts; but this provision was removed from the draft bill following what a Department of Justice official described to me as “a display of pyrotechnics from the Bar which was only wondrous to behold”.
Instead, only indirect appointment was permitted so that a solicitor could be appointed to the superior courts after being a member of the circuit court for four years. Since 2002, a solicitor may go straight to either of the superior courts, provided that they have personally practised in those courts.
Certain points are relevant to the conditions hemming in the appointment of solicitors. One is that the very top layer do not usually go regularly to court: they leave that to their assistants, while remaining in their office, advising major clients. Secondly, because of various reforms, the intricacies of court procedure and the need for recent experience of them have been reduced.
One step away from this curious legal apartheid was taken last month with the appointment of the first solicitors as legal advisers in the attorney general’s office. This happened rather late in the day, considering that the British legal civil service has been employing persons admitted as Irish solicitors or barristers for decades.
So why not the attorney general, him or herself? In the first place, article 30 of the Constitution states that the attorney shall be “the adviser of the Government in matters of law and legal opinion”, which is an interesting formulation, not least for what it does not say.
Article 26, dealing with the reference to the Supreme Court of Bills whose constitutionality is questionable, states that such Bills are to be defended “by or on behalf of the attorney”. The practical point here is that for many decades attorneys have usually been too busy giving their wisdom to Governments behind the scenes to act as an advocate.
So, if the big difference between solicitors and barristers is that the mindset of the former is seeing around corners and keeping their clients out of difficulties and courts, is that talent not especially valuable to the government’s lawyer?
Another line of attack might be to say that the attorney is the “head of the Bar”, which presumably rules out being a solicitor. But in fact this title harks back to the time before the Bar was numerous or organised enough to have representative bodies like the Bar Council. By today it is a largely honorific position.
More important, the principle that the attorney must be the head of the Bar is only a convention, that is, an unwritten rule of practice. And, unlike laws, when the circumstances that gave rise to them have fallen away, conventions may be dropped. The notion that it was the natural order of things that the British monarch’s lawyer should be the leader of the Bar has been swept away by modern ideas about the independence of the Bar.
None of this is intended to suggest that the attorney general cannot be a barrister; only that if the Taoiseach considers that the best candidate is a solicitor, then there is no reason not to appoint him or her. Indeed in the present context, it bears noting that the first woman attorney general was not appointed until 2011.
David Gwynn Morgan is emeritus professor of law at University College Cork