Perhaps I might preface my remarks by saying that in the past, having had considerable experience of the judicial system and having no immediate or present interest in the matter, my comments might be taken as impartial. The essential reason for the appointment of barristers to the higher courts goes much deeper than merely a reservation to the particular branch of the profession. One has only to look at the essential difference between barristers and solicitors to see what is involved. In our legal system, there are in the first instance, solicitors, who are lawyers, who have a good basic legal training and who are mainly the administrative organ of the profession. They are competent to deal as general practitioners with ordinary routine criminal and certain civil cases. However, their main preoccupation is the organisation of legal work, dealing with the mechanics of legal work, the preparation of cases for court, the briefing of the expert consultants whom they bring in to plead for them. That is the rôle of the solicitor. It is an extremely important rôle from the points of view of the client, the State and the system.
It should be clearly understood that the rôle of solicitor is a rôle in itself. The rôle of the barrister—and the layman sometimes confuses this—is a different thing. The role of the barrister is to be, as the old phrase goes, "learned in the law". He is a specialist in law. He is a specialist in pleading and in being a legal adviser. His essential usefulness and his essential rôle in the system is in being just that, the advocate and the adviser, the dispassionate adviser who is briefed by the solicitor and who is saved all the administrative work which is done by the solicitor. The team of the barrister and solicitor together constitute the instrument, the means by which a client can defend and assert his legal rights in court or elsewhere. It is essential to grasp that difference, that the barrister is a specialist, a specialist adviser, a specialist in advocacy while the solicitor is a general practitioner who has a most important role in organising cases, the administrative and business side, and so forth.
Let us take that background and apply it to the question of judicial appointments. The work of the district court is largely concerned with criminal cases of a routine nature, criminal cases which are not on indictment, and with a limited type of civil jurisdiction. The solicitor, within his knowledge and competence, is completely capable of dealing with that type of case and very often does not require and does not brief counsel for the work involved there. Therefore it is very fit and proper that no distinction should be made between the solicitor and the barrister in regard to eligibility for appointment to be a judge of that court, that is, to be a district justice. The actual position is that both are equally eligible and that the authorities when making appointments have regard to personal suitability, and all the rest of it, for the job but take the qualification of being either a barrister or a solicitor to be sufficient without reference to the branch of the profession to which they belong. That is so for the district court.
The situation is totally different for the circuit court and the higher courts. In the case of the circuit court the criminal jurisdiction is wider and the civil jurisdiction is wider. The court is competent to deal with a large range of legal matters and in fact it is the usual practice for solicitors to brief barristers on behalf of their clients and to have the cases conducted in that court by barristers. That is done because in that court the cases that arise have such implications in law and require such standards of preparation and advocacy that a barrister, a specialist, is needed.
Reverse that and put yourself in the position of the judge sitting on the bench in the circuit court. Matters of law, particularly in modern times, if any degree of certainty is to be achieved in regard to them, require a great deal of specialised study which can be done only by a barrister. A busy solicitor, apart from the fact that he could not do his work and keep up with that specialist end of it, would not be in a position to make up individual cases no matter how well he was prepared. Therefore, having regard to what is going on in the courts, it is not only reasonable but compellable that the judge sitting on the bench should be competent to deal with that case in the first instance, even if there is an appeal.
I shall not elaborate on that argument any further. I think that anyone who reflects on it will see that points of common law, statute law and equity in the circuit court raise extremely difficult matters of law. If there is not to be an automatic appeal to a higher court, the judge trying the case must have competence to deal with the matter. In those circumstances, one sees why it has been the universal practice to appoint a barrister to that court rather than a solicitor. It is not a question of a closed shop. It is not a question of preference for one branch of the profession over another.
It is a question of technical competence. If that technical competence is not in the court of first instance, it can mean only one of two things. If the technical competence is not there, it can only mean inefficiency, perhaps, wrong decisions or else an appeal mechanism that will involve almost impossible delays and costs as a matter of course. So much for the circuit court.
Let us consider the High Court and the Supreme Court. It is quite clear that the projection of that argument indicates, quite apart from the consideration of the closed shop, that they are technical appointments for barristers under our present system. I have tried to explain the matter on this basis because sometimes, I think, laymen are under a misapprehension as to what is involved and the importance from the layman's point of view of having competent judges in the courts and properly conditioned judges.
Experience is another thing that comes into play here. For the higher courts such as the High Court, the Supreme Court and the Circuit Court, a practising barrister is the condition for appointment, a practising barrister of sufficient number of years standing. In fact, the people appointed to these posts have gained a terrific amount of experience in just the matters they will be called to decide. It is really only the barrister in his experience in the court who can in the nature of things and in the actual working out of them acquire the experience. It is the practising barrister who is actually dealing with these matters by pleading them and who, when he becomes a judge, will have to decide on these matters. No amount of theoretical consideration can compensate for the experience so gleaned and the knowledge that is so acquired in the specialisation which goes with that branch of the profession.
I have spoken somewhat at length but I think it is no harm to say these things. I stood up to say them because I have no longer, shall I say, any particular interest in the matter. Thus, perhaps, I can say them more freely than other members of the House who would know what the situation is.
I should like to conclude these few remarks with this. What I have said is in regard to the present system. There are other possibilities. You can have laymen judges with technical advisers and all that. I am not widening the field to that. I am taking the present system where judges are appointed. Judges have to be not only human beings in the broad sense but have to be experts as well. I think that, in the nature of things, this must be reserved to the barrister.