THE BAR Council of Ireland is committed to its role in the provision of a modern, effective legal system that ensures the fairest possible administration of justice. Discussion of how our legal system should be run is not only legitimate but important, as in every democratic society. Legal systems can atrophy unless they are subject to critical review.
However, this review should take place in the context of facts. In this respect, the recent article (“Legal system provides no guarantee of justice”; Opinion and Analysis, August 22nd) written by the former board member of the International Monetary Fund, Michael Casey, fails totally. Rather, he portrays such a distorted picture of the legal system that the impact of any of the reforms he suggests is rendered largely meaningless.
The “typical case” to which he refers bears about as much resemblance to the real one as the average ferry trip to Holyhead bears to the Poseidon Adventure.
The reality is that the bar is an expert profession whose members have diverse skills. Each barrister, through years of studying and professional experience, has developed their own particular expertise. Many barristers specialise in very complex legal disciplines. The Bar Council requires all its members to continually update and refine their skills. It is difficult to explain complicated issues of law and of fact to a judge in public and this is made more difficult by the fact that often people’s reputations, financial security, families and even liberty are at stake.
Of course, a solicitor may also act as an advocate and will often do the entire case without a barrister. More often in the higher courts, however, a solicitor will select a specialist barrister to advise in relation to a specific case. This enables a client to have the benefit of an expert referral lawyer who has concentrated their entire career on gaining the expertise the client now requires.
In such cases, the solicitor, who is also a highly qualified lawyer, is free to concentrate on the non-advocacy elements of the case. The solicitor has a detailed knowledge of the Irish legal landscape and is in a position to select the correct barrister. It is an everyday reality for all barristers – and an automatic guarantee of quality for the public – that a barrister must perform to an extremely high standard or risk not getting repeat business.
Unlike most other professions, the barrister’s work is done in public. It is rigorously criticised by the opposing lawyers, by judges and, of course, by the press, which is present to scrutinise the entire process.
None of this can lead to the “guarantee of justice” whose absence is lamented by Casey. The legal profession (and the legal system in general) is no more immune from the possibility of error, or worse, than any other, be it medical, engineering, whatever. Even economists have been rumoured to make mistakes in recent years. The best that can be hoped for is that the system minimises injustices, inefficiencies and unnecessary costs which damage the public interest.
Of course things go wrong and, when they do, systems exist to correct them. It is notable that the only specific case mentioned by Casey was one in which a fee was reduced by a large amount by the taxation system. Likewise, contrary to the article’s suggestion, neither the Bar Council nor the Law Society deals with complaints against barristers or solicitors. This is done by independent disciplinary bodies.
It is also a misunderstanding to suggest that the legal vacations are a “holiday”. They generally help to ensure that lawyers, litigants and witnesses will all be available at the same time and help to get cases on when scheduled. In fact the courts sit extensively in vacation and much essential non-court work is done. As a barrister, there is no such thing as a paid holiday.
In Casey’s favour, he points out delays caused by inefficiencies in the courts system that the Bar Council and the Courts Service are addressing and on which the Bar Council has made numerous submissions.
The Bar Council remains committed to providing the best possible service to consumers while simultaneously protecting the integrity of the legal system.
At a time when we are engaging in serious reform of many of our public institutions, including our legal system, when legal costs and fees are coming down in line with the economy, and when there is a need for real and substantial debate about how proposed reforms can improve justice in Ireland, there is a need for mature debate.
It is fundamentally important that this debate takes place on the basis of facts accurately stated rather than ill-informed comment.
Paul O’Higgins SC is chairman of the Bar Council