Retired High Court judge Barry White can return to practise as a criminal defence barrister, the High Court has ruled after finding a Ministerial decision stopping him doing so breached his right to earn a livelihood.
Mr White (71), a father of four, argued that he needs to work because his €78,000 annual pension was not “adequate” for his family’s needs but was being unlawfully prevented doing so by decisions of the Bar Council and Minister for Justice.
He retired in 2014 after 12 years as a judge during which his salary ranged from some €145,000 to 240,0000. His pension entitlements, the court heard, had been reduced by some 38 per cent to €78,000.
The Bar Council disputed his claims, including of economic necessity, saying that he received a €250,000 lump sum on retirement, had inherited an estimated €1m from his late mother’s estate and his wife is working.
While finding Mr White had not proven that claim of economic necessity, Mr Justice Max Barrett found that the Minister breached his constitutional rights to work and earn a livelihood by refusing in 2015 to include him on the panel of counsel for criminal defence work.
The Minister erred in law in deciding that Mr White must be regulated by the Bar Council before he can return to his specialised line of practice before the Circuit Court and beyond, the judge said.
While Mr White was not entitled to damages because he had now shown he had suffered loss due to not being placed on the panel, it was clear his principal ambition was to resume practise which he could now do, he added
The Minister, not the Bar Council, erred in law in how she dealt with Mr White’s bid to be placed on the panel, he ruled.
Judge Barrett refused to quash a Bar Council rule which Mr White claimed sought to restrain himn practising in courts lower than where he was a judge. He said that the Bar is a private members club entitled to set its own rules. While the rule may come to be seen as “anachronistic”, as a result of this judgment, there was no legal requirement that the rules of a private members club “cannot be, or remain, anachronistic”.
When Mr White notified the Bar Council that he wished to be placed on the panel it notified the Minister of his wish as required by law, the judge said. The Minister then erred in law in deciding that a barrister’s name could only be added to the panel if subject to regulation by the Bar Council, whose code of conduct included the disputed rule.
There was no legal requirement for a barrister to be regulated by the Bar Council and the Minister appeared to disregard that barristers who are not members of the Council are regulated via judicial supervision and the Kings Inns Benchers Disciplinary Committee, the judge said.
He agreed with a 1988 article by constitutional law expert Dr Gerard Hogan (now a Court of Appeal Judge) stating that the Bar Council rule was a “convention” or “tradition”, not a rule of law.
That convention was based on a decision of the then chief justice in the 1930 O’Connor case which permitted a former judge resume practise as a solicitor but stated there was “good and powerful” reason why judges, after throwing off their “sacred office”, should not compete for the “feed business of the court” where they might perhaps challenge their own decisions.
Being a judge was undoubtedly a responsible job and a privilege to hold but was ultimately “just a job”, Judge Barrett said. The notion it was a “sacred office” dedicated to some religious purpose was “fanciful”.
The “rather disdainful” reference to ex-judges having to compete for “feed business of the court” was “imbued with antediluvian pretensions of judicial superiority” with “no place in our modern republic of equals”.
Neither the High Court nor Mr White were bound by the O’Connor decision, he held.
Mr White has undertaken not to challenge his own judicial decisions after his return to practise and the court did not accept claims, because of his previous position, he would “tend to overbear” lower courts. In this “less deferential” age, he should expect no quarter by counsel or court upon his return to practice.
The Minister’s refusal to sanction his inclusion on the panel was bad in law, unreasonable and disproportionate and breached his constitutional rights to work and earn a livelihood, he held.
While the Minister argued Mr White could earn a livelihood from work other than his specialist area of criminal legal aid, the notion he could retrain himself in his 70s for a new line of work was “a theoretical possibility but a practical nonsense”.
