Question concerning the Min. for Justice and the AG

morbo

I can’t find any information on this in the books, or on the web, but my question is this; can the Attorney General, or the Minister for Justice, Equality and Law Reform, ever practice as a barrister if they leave their position? What about any other member of the Dáil or the Seanad? Can they?

I know a judge cannot go back and practice as a barrister as they may have to challenge a ruling they themselves have made, but I cannot find anything concerning the AG or the Minister for Justice, etc. I mean, they would be challenging legislation they had drafted and enacted. I would think they cannot practice as a barrister.

Also, on a lesser note, can President McAleese go back to being a barrister? My guess on the President would be yes, as the President really doesn’t have much to do with legislation – apart from Article 26 references – in the grand scheme of things.

One final thing, can any of the above mentioned parties practice as a solicitor if they leave their positions?

johnnyskeleton

morbo wrote:

[paraphrase]Can:

1. the Att Gen,
2. the Minister for Justice
3. a Member of the Dáil or the Seanad
4. a Judge
5. the President

ever practice as

A. a barrister,
B. a solicitor

if they leave their position?

Why? Are there any difficulties?

A. If they are qualified as a barrister and comply with the rules then:
1. yes
2. yes
3. yes (and can be both at the same time)
4. yes, but only in courts of higher jurisdiction than he practised in; SC judges as a matter of logic therefore can not appear on behalf of clients
5. possibly, I don't think it crops up very often, I would say, on a whim, mmm... probably not

B. If they are qualified as a solicitor and comply with the rules then:
1. yes
2. yes
3. yes
4. yes
5. mmm...probably

There is no professional bar to holding political office and being a member of the law library, however, the usual rules about conflict of interest apply, so obviously the Minister would not be involved in EAWs, immigration etc. The Att Gen would not be involved in appeals from the HC to the SC where he was involved in the HC action. Judges obviously would not represent anyone who came before them in a lower court or if there was another conflict of interest. I think it is similar with solicitors, except that a judge who becomes/returns to being a solicitor may appear in a court of equal or lesser jurisdiction than he practised in (as far as I know). I don't know what the situation is on this point for a person who is a solicitor who becomes a judge who then becomes a barrister.

Just a minor clarification but the Minister for Justice and the Attorney General do not enact legislation - the Oireachtas and the President do.

morbo

This is taken from an English report on judges returning to practice (http://www.barcouncil.org.uk/assets/documents/ReturntoPracticebyFormerSalariedJudges.doc).

“In Re the Solicitors Act and Sir James O’Connor [1930] I.R. 623 Kennedy C.J. sitting in the Irish Supreme Court, noted that Sir Francis Pemberton, formerly Chief Justice of the King’s Bench, was twice removed from judicial office and returned to the Bar. He was said to carry great weight with the jury as he was supposed to be still laying down the law with judicial authority. The same Judge also noted that there was no similar case since the Act of Settlement secured fixity of tenure and remuneration to Judges, and concluded that this was attributable to a “common understanding” that “the practice and profession of the law is abandoned for ever by the person appointed”. Though he allowed the readmission as a solicitor of the former Judge in that case, the reasons were special: following the Irish revolution, the former Judge’s office and the Courts in which he sat were abolished. Further, a period of 5 years had elapsed since retirement.”

Kennedy CJ ruling was this:

“There is good and powerful reason in support of such a rule. For it is beyond doubt that if a man should step down from the privileged position of the Bench and throw off what is a sacred office to engage in the rough-and-tumble of litigious contest, and compete with the practitioners for the feed business of the court, perhaps challenge the decisions which he pronounced, or even fail to support them in argument, he will shake the authority of the judicial limb of government, and mar the prestige and dignity of the courts of justice upon which the whole structure of the State must always lean. Moreover, a new way of scandal and corruption would be opened up to any who would pursue it. In the interests of justice, Sir James O’Connor should not exercise the personal right of audience in the courts. He would still be regarded as laying down the law with judicial authority, and he would tend to overbear inferior courts, while it would be a scandal were he to explain his own judgments for the purpose of advancing a client’s case.”

He was allowed to act as a solicitor, but never again as a barrister. And it seems that the only reason he was allowed to return to practice as a solicitor was because of the revolution. Had there never been a revolution, I don’t think he would have been allowed too. Have there been any more recent cases that dealt with this matter?

I didn’t mean that the AG and the Min. for Justice enact legislation, but the AG drafts it, and the Minister has as part of the Dáil enacts it. So wouldn’t it be true that the AG could go before a judge as a barrister and tell the judge that his/her interpretation of the legislation was wrong, because they had been the ones that drafted it and had meant for it to be interpreted in a different way?

I suppose I understand how the TD’s and Senators can practice despite them being the ones that enact the legislation as THE Dáil or THE Seanad, given the whole difference between public and private personas, and that they are merely acting as the people that voted for them wish, not for personal reasons. (Whether or not that’s how it works in practice is open to debate though! )

johnnyskeleton

morbo wrote:

This is taken from an English report on judges returning to practice (http://www.barcouncil.org.uk/assets/documents/ReturntoPracticebyFormerSalariedJudges.doc).

...

He was allowed to act as a solicitor, but never again as a barrister. And it seems that the only reason he was allowed to return to practice as a solicitor was because of the revolution. Had there never been a revolution, I don’t think he would have been allowed too. Have there been any more recent cases that dealt with this matter?

Notwitstanding that the quotes used by the England & Wales Bar Council are obiter dicta, the fact that the case is from the 1930s (which, apart from changes in society, was a decision of the former supreme court on an older solicitors act) if you read the case you will see that the Applicant was not prohibited from practising at the bar, but rather that, at p.631, "Such a long-continued abstention almost asserts a common understanding underlying these appointments, that, with security of tenure and fixed and adequate remuneration and pension, the practice of the profession of the law is abandoned for ever by the person appointed." He was not prohibited from returning to the bar, it was only noted obiter dicta that there was almost a custom that judges with tenure do not return to practice.

But to refute your argument more fully, I will quote from the current Irish Bar Council Code of Conduct which states at para. 5.21

Bar Council of Ireland Code of Conduct wrote:

5.21 Judges of the Irish Courts, following retirement or resignation, who return to the Bar may not practice in a court of equal or lesser jurisdiction than the court of which they were a judge.

morbo wrote:

I didn’t mean that the AG and the Min. for Justice enact legislation, but the AG drafts it, and the Minister has as part of the Dáil enacts it. So wouldn’t it be true that the AG could go before a judge as a barrister and tell the judge that his/her interpretation of the legislation was wrong, because they had been the ones that drafted it and had meant for it to be interpreted in a different way?

The Att. Gen. is the government's legal advisor, and part of that function is to draft bills which the government can then introduce. The office does not draft all bills, because many are private members bills. In addition, amendments will be drafted by many parties, not all of which will have gone through the Att. Gen's office. But, most importantly, there is a massive difference between a bill and an act, so the Att. Gen. who drafts a bill which becomes an Act would, in my view, be no more the author of that Act than the barrister who argues successfully in court that the law needs to be changed in that area.

There is a principle of statutory interpretation that no one person enacts the legislation , but the Oireachtas does it on behalf of the people. Therefore, no matter what was intended by any member of the Oireachtas (even the member who proposed the legislation) or by the civil servant who drafted the legislation, the courts will interpret the legislation:
a) literally,
b) in line with the constitution, and
c) where there is an ambiguity/clerical error, the court may look at what the legislature as a whole, intended. In this regard, the court will use logic to infer what was intended; the words of an Att. Gen/Minister/TD/Seanador will not be persuasive.

A former Att. Gen. could go before a court and tell that court that it's interpretation is wrong, but many barristers do that anyway, whether they are a former Att. Gen. or not. A former Att. Gen's interpretation of legislation will be no more persuasive than a barrister of equal skill and eloquence. To show a court that it's interpretation is wrong they must make a convincing argument on legal, logical and constitutional principles. If a former Att. Gen. came into court and said something like "Even though the act says X, I meant to say Y, so therefore the law is Y" he wouldn't convince anyone.

morbo

Thank you. That’s really cleared it up for me.

UrbanFox

Don't forget Harry Whelehan S.C. , sometime ( and short time ) President of the High Court and the hoops he had to go through to be allowed back into practice at the Bar ?

johnnyskeleton

UrbanFox wrote:

Don't forget Harry Whelehan S.C. , sometime ( and short time ) President of the High Court and the hoops he had to go through to be allowed back into practice at the Bar ?

I don't know the details about Harry Whelehan, but I would imagine that problems would arise not from his return to the bar, but in relation to his rights of audience being limited to the supreme court.

By the by, in re:the original post, wasn't Harry Whelehan an Attorney General for a while?

Jo King

In addition to Harry Whelehan there are a number of former AGs at the bar. E.g.
Dermot Gleeson, John Rogers,Eoghan Fitzsimons and Colm Condon. The Chief Justice is also a former Attorney General. The reason given for Judges not practicing in courts of equal or lesser jurisdiction is that there may be times that they would find themselves arguing against their own decisions.