Minister appeals ruling allowing retired judge work as barrister

A High Court decision allowing retired judge Barry White to resume practice as a criminal defence barrister has been appealed by Minister for Justice Frances Fitzgerald.

In July, Mr Justice Max Barrett found the Minister had breached Mr White’s constitutional rights to work and earn a livelihood by refusing, in 2015, to include him on the panel of counsel for criminal defence work.

Mr White (71) retired in 2014 after 12 years as a judge, during which his salary ranged from €145,000 to €240,0000. His pension entitlements had been reduced by 38 per cent to €78,000.

He had argued in court that he needed to return to work due to economic necessity and his pension was not adequate for the needs of his family.

The former High Court judge, a father of four, had been refused entry to the defence work panel on the basis he was no longer regulated by the Bar Council. Bar Council rules do not allow retired judges to resume practice in a court equal to or lower than the one they presided over.

This would have meant Mr White could not practice in any courts below the Court of Appeal or Supreme Court.

Barristers are entitled to practice without being regulated by the Bar Council, and a small number do. But the Minister had said €60m was spent annually on the criminal legal aid system and the State was entitled to ensure those in receipt of legal aid were regulated.

Mr White could practise in the higher courts or take on work such as arbitration, but had chosen not to do so, counsel for the Minister had argued.

Mr Justice Barrett refused to quash the Bar Council rule, deeming the organisation a “private members club”, entitled to set its own rules.

But he said the Minister erred in law in deciding 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 Minister’s appeal, lodged on Monday, means there is a stay on Mr Justice Barrett’s ruling until the outcome of the hearing, the Department of Justice has said.

At the time of the ruling, the Bar Council said it welcomed Mr Justice Barrett’s explicit finding that the it did not err in law in any way.

“The Code of Conduct of The Bar of Ireland exists to ensure the high standards of professional practice and ethics at the Bar, which is founded upon public interest concerns and the proper and efficient administration of justice,” a spokeswoman said.

“There are no plans at this time to revisit the code.”

The appeal is set to be heard on October 25th.