The Judicial Appointments Advisory Board identifies and informs the Government of the suitability of persons for appointment to judicial office. Judges are appointed by the President on the advice of the Government. The judiciary are independent and are subject only to the Constitution and the law. In accordance with the Constitution, the number of judges is fixed from time to time by legislation.
The Supreme Court comprises of the Chief Justice, who presides over the Court, and seven ordinary judges titled ‘Judge of the Supreme Court’. The President of the High Court is also an ex officio member of the Supreme Court. The High Court comprises of the President of the High Court who is responsible for the general organisation of the High Court’s work and ordinary judges titled ‘Judge of the High Court’. The Chief Justice and the President of the Circuit Court are also ex officio members of the High Court. The number of High Court Judges is fixed by legislation from time to time. At present there are to be not more than 28 (plus one extra when the President of the Law Reform Commission is a High Court Judge). The Circuit Court comprises the President of the Circuit Court and ordinary judges titled ‘Judge of the Circuit Court’. The President of the District Court is also an ex officio member of the Circuit Court. The District Court comprises the President of the District Court and other judges titled ‘Judge of the District Court’. The Constitution provides that the Government shall not reduce the remuneration of judges while they are in office. Salaries of judges are fixed by legislation enacted from time to time. The present legislation is the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act, 2001.
Judges are appointed from the legal professions of qualified solicitors or barristers with certain years of practising experience (not research). For the District Court, Section 29(2) of the Courts (Supplemental Provisions) Act 1961 provides that a person who is a practising barrister or solicitor of not less than ten years’ standing is qualified for appointment as a judge of the District Court. Section 30 of the Courts and Courts Officers Act 1995 provides that a solicitor or barrister of ten years’ standing is qualified for appointment as a judge of the Circuit Court. The Courts and Courts Officers Act 2002 provides that a person who is a practising barrister or solicitor of not less than 12 years’ standing is qualified for appointment to the High or Supreme Court. As stated earlier, the judiciary are independent in that they are only subject to the Constitution and the law and on taking office make the following declaration under Article 34.5.1 of the Constitution:
“In the presence of almighty God I do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.”
Under the Constitution, Judges of the High Court and Supreme Court can only be removed from office for stated misbehaviour or incapacity after resolutions have been passed through both houses of the Oireachtas (Irish for Parliament). The Courts of Justice Act 1924 and Courts of Justice (District Court) Act 1946 provide similar statutory provisions for judges of the Circuit and District Courts.
The Attorney General is “the adviser of the Government in matters of law and legal opinion” as provided by Article 30 of the Constitution. The Attorney General is appointed by the President on the nomination of the Taoiseach (Irish for Prime Minister) and is obliged to retire from office when the Taoiseach does. The Attorney General is generally a practising barrister and a Senior Counsel. There is no rule requiring the Attorney General to cease their private practice but this has been the case in recent years.
As the government’s legal adviser, the Attorney General scrutinises all draft legislation that the Government intend to put before both the Oireachtas (houses of Parliament) in order to get passed into law. The Attorney General also advises the government on international matters such as the ratification of international agreements. Another function of the Attorney General is to represent the public in the assertion of public rights. This is done by initiating or opposing legal proceedings. Although appointed by the Taoiseach, the Attorney General is independent of the Government. In terms of the Constitution, the Attorney General is always the main defendant where the constitutionality of legislation is challenged.
Before 1976, all serious criminal offences were prosecuted in the name of the Attorney General. The Constitution provides that this function can be carried out by another person authorised in law to act for that purpose. The office of the Director of Public Prosecutions was thus created by Section 2 of the Prosecution of Offences Act 1974 which came into effect in 1976 - the idea being to have an officer, independent of political connections to discharge these functions. The Director is appointed by the Government but is a civil servant so the Director does not resign when a government falls, unlike the Attorney General. This ensures continuity in the prosecution of offences. The 1974 Act also provides that the Director of Public Prosecutions is to be independent in the performance of their duties. The Director may be removed from their position by the Government, but this is only after a report has been conducted on their health or conduct by a committee comprising the Chief Justice, a judge of the High Court and the Attorney General.
The Director of Public Prosecutions (DPP) therefore makes the decision whether a person should be charged with a serious criminal offence and what the charge should be. All offences are taken in the name of the DPP but most of the less serious crimes can be prosecuted by the Gardaí (Irish for police) without sending a file to the DPP. In these cases, the DPP has the right to advise the Gardaí on how to deal with the case. Although the DPP has taken over the Attorney General’s role in the prosecution of cases, the Attorney General retains it in relation to cases of an international nature such as extradition.
Clerks of the Court are responsible for the general administration of the courts. The present courts were set up by the Courts (Establishment and Constitution) Act, 1961 pursuant to Article 34 of the Constitution. The Constitution outline the structure of the Courts as comprising a Court of final appeal (the Supreme Court) and Courts of first instance which shall include a High Court with full jurisdiction in criminal and civil matters and Courts of limited jurisdiction (the Circuit and District Court) organised on a regional basis.
Clerks of the Court are employed by the Courts Service. This is an independent corporate body that came into existence in November 1999 and was established by the Government under the Courts Service Act, 1998. The establishment of this body was recommended by the Working Group on a Courts Commission and represents unfinished business from the foundation of the State as no provision had been made for the judiciary or courts to have an independent administrative structure.
The Courts Service has five mandates:
The Courts Service is accountable to the Minister for Justice, Equality and Law Reform and, through the Minister, to the Government. It is also accountable to a public accounts committee attached to the Oireachtas (the Irish parliament) in relation to monies spent and value for money provisions. The Chief Executive Officer is the accounting officer and will appear before the said Committee as required. The Courts Service will account to the public through the publication of an annual report.
The Board of the Courts Service consists of a Chairperson and 16 members whose functions are to consider and determine policy and oversee the implementation of that policy by the Chief Executive. The Chief Executive’s functions are laid down by the Courts Service Act, 1998 and he or she is required to “manage and control generally the staff, administration and business of the Service, including the functions of County Registrars insofar as such functions relate to a function of the Service, and to perform such other functions as may be determined by legislation or by the Board”.
Most of the funding for the Courts Service is provided by the State although some revenue is generated through fees paid on court documents. There are approximately 1000 staff members at present. The Board of the Courts Service appoint such number of persons as staff, determine the grades of staff and the numbers of staff in each grade as approved by the Minister for Justice, Equality and Law Reform with the consent of the Minister for Finance.
The management of the staff structure is the Chief Executive, a Director of Operations for the Supreme and High Courts, a Director of Operations for the Circuit and District Courts and four support Directors – Human Resources, Finance, Estates & Buildings and Corporate Services. The Offices of the Supreme Court consist of the Office of the Supreme Court and the Office of the Court of Criminal Appeal. The Offices of the High Court consist of the Central Office, Office of the Accountant of the Courts of Justice, Office of Wards of Court, Office of the General Solicitor for Minors and Wards of Court, Office of the Taxing Master, Probate Office, Examiners Office and Office of the Official Assignee in Bankruptcy. There are 26 Circuit Court Offices around the country that deal with matters in relation to civil, criminal, family law and jury service. Each county has a County Registrar in charge of the work of the office. There are 44 District Court Offices throughout the country dealing with civil, criminal and family law matters as well as the Small Claims procedures.
Each county in Ireland has a Sheriff who is a civil servant and part of their responsibility is to take and sell goods in order to discharge a debt after a court judgment has been obtained. Sheriffs are appointed under the Court Officers Act 1945 and Section 12(5) of the Act limits the appointment of the position to persons who are barristers or solicitors who have practised for five years or to those who have acted for not less than five years as managing clerk or principal assistant to an under-sheriff or sheriff. Section 12(6)(g) of the Act states that the conditions of employment of every Sheriff subject to foregoing sections of the Act are determined from time to time by the Minister for Finance after consultation with the Minister for Justice.
Other methods that are used to collect debts on foot of court judgments are the instalment order process where a judge decides the amount of weekly or monthly payments a debtor can make after assessing their means, a garnishee order where money owed from a third party to a debtor is directed to be used to satisfy a debt, receivership where a debtor’s goods are sold to satisfy a debt, a judgment mortgage which is registered against a debtor’s property and prohibits dealings with that property until the relevant debt is discharged (the creditor can also take the further step of having the property sold to satisfy the debt), the winding up of limited companies by the Court and declaring a debtor bankrupt.
The Law Society of Ireland has control over the education of students who want to become solicitors and has disciplinary powers over qualified solicitors. To become a solicitor, it is necessary to serve a period of apprenticeship for three years and complete courses of study organised by the Law Society of Ireland. To be admitted to the courses of study, it is necessary to have a university degree or its equivalent or be a barrister or equivalent – this is known as the Preliminary Examination requirement. On meeting these requirements, it is necessary to complete the Society’s Final Examination, which is divided into sections known as the FE-1, FE-2 and FE-3. The FE-1 examination consists of eight core subjects: Company Law, Constitutional Law, Contract Law, Criminal Law, Equity, European Community Law, the Law of Real Property and Tort Law. The later sections are courses of a vocational nature. The FE-2 is known as the professional course and consists of 14 weeks of intensive lectures followed by examination and 18 months in-house training as part of the apprenticeship of a student. The FE-3 Course or Advanced Course consists of seven weeks of intensive lectures followed by examination. Once this section is completed and competency has been demonstrated in the Irish language, a person is entitled to be admitted to the roll of solicitors.
Every qualified solicitor is subject to the disciplinary powers of the Law Society. Under the Solicitors Acts 1954 to 1994, the Disciplinary Tribunal of the Law Society is empowered to investigate allegations of misconduct such as the misappropriation of monies and the matter can be referred to the President of the High Court. The President has the power to suspend a solicitor from practice and to lift the suspension. The Disciplinary Tribunal has the power to require repayments of funds to clients if they find a solicitor has overcharged.
Statutory Instrument 732 of 2003, the European Communities (Lawyers’ Establishment) Regulations 2003, provides that member state lawyers who wish to pursue the professional activities of a barrister or solicitor shall apply to the Bar Council or Law Society for registration to do so. The application is considered and if accepted a registration certificate is issued. An appeal from a refusal of the Bar Council or Law Society lies with the High Court.
The Honorable Society of King’s Inns provides post-graduate legal training, leading to the award of the degree of barrister-at-law, for those who wish to practice at the Bar as the profession is collectively known. The King’s Inns operates as a voluntary society under the control of the Benchers of the Honorable Society of King’s Inns who are members of the judiciary and senior barristers. Entrance to the degree course is by means of an entrance examination for graduates of the King’s Inns Diploma in Legal Studies or law graduates. The length of the Diploma in Legal Studies course was and remains two years but the Barrister-at Law Course, which was for two years, is from October 2004 to become a more intensive one year course. In addition to completing the course of studies prescribed, students of the King’s Inns must demonstrate their competency in the Irish language and attend ten dinings for each of the two years of the barrister-at-law course. On successful completion of the degree course, students are called to the Bar in the Supreme Court by the Chief Justice and the barristers called sign the roll of members of the Bar after the ceremony. However, there are further requirements before they can engage in paid legal work.
Barristers must be members of the Law Library in order to practice. The Law Library provides a place to work from and access to legal texts and materials in return for an annual fee. Before becoming a member of the Law Library, a barrister has to select a master - an established barrister with at least five years’ experience. While under the master’s guidance, which is generally for a year, the newly qualified barrister is known as a devil. The master introduces the devil to the practical work of a barrister and will usually ask the devil to assist with the drafting of court pleadings, legal research and to attend court on their behalf.
The General Council of the Bar of Ireland, which is a non-statutory body, oversees the conduct of barristers. The Council is elected annually by members of the Bar and issues a Professional Code of Conduct, which is amended from time to time by members of the Bar. This Code of Conduct lays down what is required of barristers.
Allegations of breaches of the Code of Conduct are investigated by the Professional Practices Committee of the Bar Council, which includes non-members of the Bar. The Committee has the power to issue fines and admonishments and to suspend or exclude a member from the Law Library. Appeals from their decisions can be made to the Appeals Board, which includes a Circuit Court judge and also includes a lay member.
A barrister was traditionally required to receive instructions from a solicitor and direct access to barristers was prohibited. This practice was examined by the Fair Trade Commission who in its 1990 report recommended that the blanket ban on direct access was a restrictive practice and should be deleted from the Code of Conduct. The Commission did accept that in certain cases the continued involvement of a solicitor was desirable. The Commission recommended that there should be no statutory or other rules requiring the physical attendance of a solicitor in court to instruct a barrister. These recommendations have not been implemented in full but a number of amendments were made to the Code of Conduct to allow direct access from certain Approved Professional Bodies.
Barristers are either junior or senior counsel. The tradition is for members of the Bar to practice as junior counsel for a number of years before considering whether to become senior counsel. It is not a matter of automatic promotion, and some junior counsel will choose never to apply. In general, most barristers consider becoming senior counsel after 15 years’ practice. Those who wish to become senior counsel apply to the Attorney General for approval but the actual appointment is made by the Government on the advice of the Attorney General who also liaises with the Chief Justice, the President of the High Court and the Chairman of the Bar Council.
In general, junior counsel draft and prepare pleadings and conduct some court cases, generally in the lower courts but not exclusively so. A senior counsel’s functions would include scrutinising draft pleadings prepared by junior counsel and conducting the more difficult cases in the High and Supreme Court.
Notaries Public are appointed by the Chief Justice sitting in open court. Applications are made by petition showing the residence and occupation of the Petitioner, the number of Notaries Public in the district, the population of the district and the circumstances showing the necessity for a Notary Public and/or how a vacancy has occurred. The Petition must be verified by affidavit of the Petitioner in which is exhibited a certificate of fitness generally signed by six local solicitors and six leaders of the local business community. The petition is brought before the Chief Justice by Notice of Motion which is served through the Supreme Court Office on the Registrar of the Faculty of Notaries Public in Ireland , The Secretary of the Law Society and all Notaries Public practising in the applicant’s counties and adjoining counties.
The general practice is to appoint Solicitors only as Notaries Public. When a person, who is not a Solicitor, applies to be a Notary Public, the Law Society will require that an undertaking be given by the Petitioner to the Chief Justice not to engage in conveyancing or in legal work usually performed by a solicitor. For all petitioners to be appointed a Notary Public, they must first pass an exam set by the Faculty of Notaries Public in Ireland .
Queries on the current remuneration of the Attorney General, Director of Public Prosecutions, Clerks of the Court and Sheriffs can be
Barristers are self-employed and their earnings vary greatly.
Solicitors can be self-employed by owning their own practices or employees and their earnings vary greatly as well.
Notaries charge a fee per document notarised. There is no legislation governing the fee charged but notaries generally charge on the basis of time, travel and the amount a professional would be expected to charge for a service.Top
Last update: 15-02-2005