Vol. 524 No. 6
2 Mr. Shatter asked the Taoiseach the reason the positions of third and fourth legal assistants in the Office of the Attorney General, as advertised on 21 July 2000, confined applications to barristers only; and if positions in the Attorney General's office will be advertised as available to both solicitors and legal academics. [19212/00]
3 Mr. Quinn asked the Taoiseach the reason public advertisements for legal assistants in the Office of the Attorney General excluded solicitors; if his attention has been drawn to the concerns expressed by the Law Society regarding this; and if he will make a statement on the matter. [19839/00]
I propose to take Questions Nos. 2 and 3 together.
I am aware of the Law Society's view on this matter. The issue must be considered bearing in mind that the legal profession in the State has organised itself into two separate and distinct branches with a well-established division of work.
The Attorney General is the adviser to the Government in matters of law and legal opinion. The Office of the Attorney General employs barristers who act as legal assistants and solicitors who act as solicitors in the Office of the Chief State Solicitor. The barrister and solicitor roles in the office and the separate and mutually exclusive career structures reflect the different and special skills of each profession. Barristers and solicitors have a full career structure and the opportunity to advance their careers in their respective offices and, with the exception of one post, solicitors in the Office of the Chief State Solicitor have all grades equivalent to those of the legal assistants.
The Office of the Attorney General also employs parliamentary counsel – parliamentary drafters – who may be barristers or solicitors. Drafting is a law specialism and drafters are recruited separately and have a separate career structure within the office.
The role of the legal assistant is to provide specialist legal advice, including on all constitutional issues and matters of considerable public importance, and to direct the conduct of litigation in which the State is involved. As such the role of a legal assistant in the Office of the Attorney General which is the primary law office of the State is fundamentally different from, say, the more limited role of a legal adviser in a Department whose work relates specifically to departmental matters. Neither is the work of a legal assistant the same as the work ordinarily done by solicitors, including by the solicitors in the Office of the Chief State Solicitor. This specialist legal advice as well as the experience of actual conduct of litigation and of the courts are key requirements for the positions and are found in the type of advisory and advocacy work and the experience of those who practise at the Bar.
It is the case that there may be overlaps in some aspects of the roles and skills of a barrister and solicitor. This does not take away from the fact that there are areas of work which are more properly and better performed by solicitors on the one hand and other areas where the tasks are better and more properly performed by barristers on the other. Typically, the skills and experience needed in the position of legal assistant in the Office of the Attorney General are to be found in the barristers' profession.
The State has quite reasonably and properly decided to organise the provision of its legal services in this way without discriminating or prejudicing the career prospects of either profession.
Will the Taoiseach acknowledge that when it comes to appointing people to legal positions in the Attorney General's office, it is in the public interest that there is a broad group of people from whom new members of that office can be selected? Will he also acknowledge that since 1971, it has been open to members of the solicitors' profession, along with members of the barristers' profession, to act as advocates before the superior courts, that is, the High Court and the Supreme Court?
Is the Taoiseach aware that solicitors who specialise in a broad range of different areas of law frequently prepare opinions on issues of legal controversy no different that of barristers? Will he acknowledge that the rules now applicable to the selection of staff in the Attorney General's office reflect the approach of a bygone age and are no longer in the public interest?
As I said in my reply, the legal profession in the State has, as Deputy Shatter correctly said, over the years organised itself into two separate and distinct branches with a well established division of work.
I did not say that.
It has followed that down through the years. The Bar allows familiarity with not just the formal rules by which the courts operate but the informal understanding and practices which are part of every legal system.
Barristers coming to the Attorney General's office have practised at the Bar and have a particular understanding of litigation and how judges are likely to treat particular issues. They also have a special knowledge of the skills, strengths and weaknesses of practitioners at the Bar. I cannot stress enough that the Bar continues to provide highly qualified candidates with experience of the actual conduct of litigation, the courts and judges. That is the sort of advice the Attorney General requires of legal assistants, barristers, who work with him. That has been the division down through the years and it works well for solicitors. I do not think it works against them in any way.
I am talking about the public interest and not the interest of solicitors or barristers.
I think the public interest is best served by the expertise that is there. That is the view which has been held by all the people who have operated this system down through the years.
That is what the Attorney General might call—
I remind Deputies again that interventions of that nature are not recorded.
All Attorney Generals have done so and it has worked very well.
For the record – this is important for anyone who might think solicitors are, in some way, discriminated against by the State – the Office of the Chief State Solicitor has 91 professional solicitors and no barrister is eligible for appointment. There is the network of State solicitors, 32 professional solicitors, and no barrister is eligible for appointment to it. The Office of the Parliamentary Counsel has 11 solicitors and barristers and both professions are eligible for appointment. The Attorney General's office has 21 legal assistants, barristers, who act as counsel to that office and have, by tradition, been recruited for their practice at the Bar. The figures speak for themselves. That is the system which has been followed down through the years to the advantage of solicitors. Some 80% of the legal posts are confined to solicitors and barristers have no way into them.
Is the Taoiseach aware that the secretary of the Law Society wrote to the Attorney General on 8 September of this year? Would he agree that the action taken by the Attorney General is in conflict with the principles underlying the strategic management initiative and the principle of equality of treatment of solicitors and barristers in respect of appointments to certain courts where the demarcation line between solicitors and barristers was removed by a previous Administration? Having regard to the considerable difficulty the Civil Service is having attracting professional staff to various posts across Departments, does he not regard this action by the Attorney General, who is a barrister, as tantamount to, in effect, running a closed shop?
If he was running a closed shop, it would be for solicitors but I do not think that is what is happening.
The advertisement was discriminatory when it said solicitors were not eligible to apply.
All of the other ones work the other way. The present recruitment policies are justified and fair. They do not amount to unfair or unreasonable discrimination. I do not think that is the case.
Does the Taoiseach agree that there has been a trend in many professions for people to move from one professional area to another, that firms, in general, are providing a combination of services rather than specialist services and that that is the trend in the commercial world? What is the Taoiseach's view on moving towards a unification of the legal profession to one profession? Does he agree that there should be uniform rules if we are to continue with two professions where people could move from profession to the other with no more onerous rules applying for a movement in one direction than would apply to a movement in the opposite direction? Does he agree that equity should be introduced if we are not to go all the way and have a unified profession?
Does the Taoiseach agree that whether we have a unified profession or two professions of law is not a matter to which the Government should be indifferent, that it is not a matter that can be left to the professions themselves because there is a public interest in having the maximum efficiency in the provision of legal advice and assistance for citizens, that the Government has a pre-eminent role in that matter and that it is not simply a matter for the two professions?
Some of those points are reasonable. I, as Deputy Bruton has done before me, and others involved in the professions have read back over the arguments. It seems they have not moved much over the years. Looking back over the arguments, as a member of neither profession, and at what has happened in the accountancy profession, which I would know best, there seems to be a case one could put forward if they unified on how things could move. Otherwise, one will still come back to the same argument about who does things best. I have looked at the correspondence which does not seem to have changed too much – maybe 1970 is too far back – in recent decades. If the case was balanced on the basis of a unified profession, it would make a good deal of sense. I do not mean to be disrespectful, but every profession has the right to argue one way or the other. If what I am about to say is unfair, I apologise in advance, but it seems to be a case of "what I have I hold and what you have I want". Such an approach will not resolve the argument. If both sections of this excellent profession were to move towards a unified profession, the position could be very different and the flexibilities mentioned by Deputy Bruton would be in place. Having read through the correspondence on this matter, I did not see one syllable to indicate that is a likely position as of now.
Does the Taoiseach agree the message being sent by the Attorney General's office regarding this restrictive practice, which excludes 80% of the legal profession from even being considered for these two posts, is contrary to every message about flexibility and adaptability, to the removal of demarcation lines and everything else that seems to have great application when one is talking to aircraft maintenance technicians in Aer Lingus but is immune in terms of people who wear wigs going about part of their daily work?
The Taoiseach did not fully answer my first question. In view of the shortage of professional staff throughout the Civil Service at national and local level, does the Taoiseach agree that flexibility is required and that a person who purports to be the president or tentative president of the radical party has an obligation to demonstrate flexibility and even some radicalism in the way in which he runs his office? Has the Taoiseach seen fit to consult the Attorney General on this matter and to reconsider it?
No is the answer to that question. Having read extensively through the record in this regard not only for the term of the current Attorney General or previous Attorneys General, it is evident that there is consistency regarding this matter. Deputy Bruton made a fair point that if the legal professions were to come together for the purposes of regulation those issues could be dealt with. Apart from what several Attorneys General have said, from my reading of the file it is clear that it is their belief in terms of best practice they have continued to recruit fairly from the two professions on the basis of specialisation, as they have set down. As it happens solicitors are winning out at a rate of 80% to 20%. I do not think the case is made for the opposite position.
If one group is being excluded, it amounts to discrimination.
If Deputy Quinn is to make a balanced argument, does he agree the Attorney General would be wrong if, every time he applied for the recruitment of posts, he barred the other profession? Does the Deputy agree that would be also discriminatory?
No.
I call Deputy Flanagan.
The Deputy has declined to say that.
Will the Taoiseach not agree—
The Deputy, in a most biased way, has made one side of the argument. The Deputy must be consistent in his argument. Deputy Bruton put forward a fair suggestion that if there was a united profession, we could move forward on the basis of flexibility and I have agreed that could be the case, but the Deputy has taken one side of the argument. He is saying that the people who—
I have called Deputy Flanagan.
If I may finish this point, Deputy Quinn is saying that the profession that wins 80% of the places is discriminated against. That is an extraordinary point to make. I do not understand that argument.
A Cheann Comhairle—
I will return to the Deputy if time permits. I call Deputy Flanagan.
While I am reluctant to interrupt the Taoiseach while he is offering information to the House, I put it to him that his reply to the original question merely contained a presentation of facts and figures. Has he a view on this issue? Has the Government taken a decision on the matter, or is he confirming to the House that the type of advertising from the Attorney General's office represents good practice according to the Government?
That is precisely the position.
As we are talking about appointments to the Attorney General's office, I ask the Taoiseach if it is now a requirement for applicants for posts there to display tendencies of incipient megalomania, if not rampant megalomania, and an ability to write pithy, pertinent passages of purple prose in a Maoist idiom to describe the smaller party in government. Are those now the required attributes?
That is not relevant to these questions.
There is room for only one of those in the Attorney General's office.
Will the Taoiseach clarify the number of individuals in the Attorney General's office directly involved in the drafting of legislation? The Taoiseach mentioned 11 parliamentary draftsmen, some of whom come from the solicitors' profession and some of whom come from the barristers' profession. How many come from the solicitors' profession and how many come from the barristers' profession?
Will the Taoiseach explain how the Government has made a policy decision to introduce a Courts and Court Officers Bill to extend eligibility to solicitors to be appointed directly to the High Court and Supreme Court at a time when the Attorney General's office does not regard people qualified and practising as solicitors as fit to prepare legal opinions or to be involved directly in other work involving that office? Will the Taoiseach acknowledge that for far too long the Attorney General's office has been the private preserve of the Bar Library and could he tell the House whether the reluctance of that office to extend judicial eligibility to solicitors to the superior courts is the reason for the long delay in publishing that legislation?
The Deputy is correct regarding that legislation and the line taken by the Minister for Justice, Equality and Law Reform. As I do not have the breakdown regarding the 11 parliamentary draftsmen, I will ask my office to submit that information to the Deputy.
With regard to these positions, this is a long-standing practice, but like many long-standing practices I am sure it could be changed. The file indicates this practice has been reviewed six or seven times, but successive Attorneys General have taken the view consistently that for reasons of specialisation this practice works well for them. I do not believe it is discriminatory because if it were the current balance would not exist. Successive Attorneys General have given their considered views on this matter, and not all their views are similar. They have given considered and lengthy points of view and the letters are on record, as the letters have gone to and fro between the professions. Rather than have someone here in ten years' time discussing this matter, if it is a source of annoyance to the Law Society, as it seems to be, it should examine Deputy Bruton's suggestion, with which I would find some favour.
I do not agree with the Taoiseach's use of the words "for reasons of specialisation". Does he agree that at a time when the law profession has developed many specialisations across the spectrum from barristers to solicitors and there is a desirability that the State would have access to the best qualified people to assist it in its difficult and complex task, it is contradictory to exclude a priori 80% of potential applicants on the basis that they started their professional life as solicitors? Does the Taoiseach intend to ensure that this discriminatory practice will not be persisted with in the future in the interests of the modernisation of this State?
Do architects allow engineers into their profession?
Yes, they do. Will the Taoiseach agree that with regard to most other areas while the necessary qualification is specified in advertisements—
One has only to read some recent correspondence about the President's house.
they state "or equivalent" and it is up to the applicant to demonstrate that he or she has the equivalent qualification, but in this instance by virtue of the way in which the advertisement was made, a person who is not a barrister could not attempt to demonstrate he or she had the necessary skills? The Minister has assisted me in making the point.
One need only read the recent correspondence about the President's house.
I repeat I examined this issue and I do not think this practice is discriminatory.
Deputy Shatter asked a question about the parliamentary counsel. The full complement of the counsel is 14. When the number was increased from 11 to 14 some time ago, there were six solicitors, seven barristers and one vacancy.
Does the Taoiseach know that Ivan Illich said that all professions are a conspiracy against the public? Is he aware that Adam Smith, someone much beloved of the Attorney General, said that when people in the same trade—
The Deputy is giving more information than is needed.
Sometimes that is helpful.
The purpose of Question Time is to seek information.
If the Chair would let me finish my question—
Deputy Bruton will find that the Attorney General is enamoured of La Cicciolina, who is a member of the Radical Party.
—and has many assets. Adam Smith said that when people in a trade gathered to discuss that trade it was invariably at the expense of the public at large. Rather than agreeing passively with me, the Taoiseach should be taking a lead to work towards unification of the legal profession, where people can move from one specialisation to another based on their knowledge and competence rather than maintaining artificial divisions which often imprison people in an area they should not be in but which they chose at an early age.
These points have been made to both professions. I regularly meet the leaders of both professions, as do other Members, and I make those points. This is not something we are thinking about for the first time. It has been a long debate.
Nothing has happened.
People have set out their positions and feel that the specialisation within the professions is of value. That is an issue, though it does not mean that people must stay like that forever. If there is a way the professions could change their systems and become more flexible, that would be welcome, but I do not think there are grounds for believing this works against the public. That issue has not been made by any of the people involved in this debate.
Naturally. They are involved in the conspiracy.
