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Sunday 18 February 2018

Barristers 'reluctant to become judges due to poor pay'

Bar Council chairman David Barniville SC tells Legal Affairs Editor Shane Phelan why salary cuts will affect the quality of our judicial system

David Barniville, chairman of the Bar Council. Photo: Frank McGrath
David Barniville, chairman of the Bar Council. Photo: Frank McGrath
Shane Phelan

Shane Phelan

The chairman of the Bar Council believes many senior barristers at the very top of their profession are not applying to become judges due to cuts in pay and pension changes.

David Barniville SC also expressed fears that a series of cuts to fees was driving barristers away from practising criminal law and warned that a fall-off in the quality of prosecution and defence work is a potential consequence of this.

And he said the "theory that everyone is earning big bucks" is "debunked" when you look at the earnings of younger barristers - some of whom are earning just €67.40 a day in the District Court.

Speaking to the Irish Independent, he outlined how moving towards a restoration of pre-recession pay and conditions was very much on the mind of the profession.

"We want to have our feet under the table when everybody is seeking to have cuts reversed. We don't want to be forgotten in that context," he said.

In this regard, the council, which represents the 2,200 barristers who are members of the Law Library, has already made a submission seeking a review of barrister fees paid by the Director of Public Prosecutions.

With around half of the work coming into the bar, both criminal and civil, originating in some way from State bodies, it is undoubted that many felt the pinch of fee cuts ranging from 28pc to 50pc following the economic crash.

Some barristers who were overexposed ended up in "very, very severe financial difficulties" and some were "wiped out", said Mr Barniville.

While the notion of increasing fees now that the economy is showing signs of improvement may not be politically palatable, the clamour from within the Law Library for at least a partial reversal of cuts is unlikely to abate any time soon. Indeed, Mr Barniville rejects the notion that fees paid in the past were overly high.

And he argues that the cuts in judicial pay and barrister fees have had significant implications. In the case of the judiciary, High Court judges appointed prior to 2012 saw their pay cut by 30pc to €186,973. High Court judges appointed after that date are paid €168,481.

Changes to pension rules also mean that judges must now sit on the bench for 20 years instead of 15 to get their full judicial pension.

"By and large we have excellent judges in our courts at all levels, particularly in our superior courts. They do a fine job and are very highly respected around the world," said Mr Barniville.

"But we would have noticed over the last five, six or seven years that people at the very top of the profession have not been applying or being appointed and that is, I think, for a couple of reasons.

"Firstly, the effect on pay and pension.

"Secondly, the politicisation of the judiciary around the 2011/12 period where you had the judicial pay referendum and you had a fairly uncomfortable relationship between the judiciary and the then [justice] minister in the Government.

"I think people who might have considered applying would have been put off by the job being quite politicised in that way and being treated as a political football."

Mr Barniville also argues that the pension changes, introduced "in a sleight of hand" in 2012, are a significant deterrent.

"The compulsory retirement age is 70, so that means that if you are to be entitled to a full judicial pension, you would have to serve 20 years, which means you would have to be appointed before you were 50," he said.

"That was a really significant change, which wasn't, as far as I am aware, debated at all. It was stuck in as an appendix.

"The ideal age for appointing a judge, somebody who has built up years of experience in practice whether as a solicitor or as a barrister, is mid-50s."

Mr Barniville said the council isn't naïve enough to think that the cuts to barristers' fees could be reversed in one fell swoop.

"A small recognition, I think, is what you would want at the outset," he said.

A particular concern for the Bar Council is the impact on criminal prosecutions, with many barristers feeling that the work simply doesn't pay anymore.

While the top five or 10 established criminal barristers are used a lot by the State, lower down the scale things can be a struggle.

Some barristers doing cases at District Court level can end up earning as little as €25.40 where a case is remanded and €67.40 for a fully contested trial that lasts a full day.

Mr Barniville said the slowdown in litigation work and reduced fees has made things particularly difficult for young barristers starting out.

The Bar Council wants to implement initiatives that will encourage young barristers to stay in the profession following a surge in numbers leaving the Law Library in recent years. Some 141 barristers left in the 2014/2015 legal year, while 150 and 152 left in 2013 and 2012.

Irish Independent

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