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The Independent Bar of Northern Ireland – Past and Present1

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The Independent Bar of Northern Ireland – Past and Present1 The independent Bar of Northern Ireland – Past and Present1 Sir Anthony Hart It is a pleasure and a privilege to have been invited to speak to the Wales & Chester Circuit about the Northern Ireland Bar. It was suggested that I might say something about the nature of practice in Northern Ireland, but before doing so I would like to say a little about the history of the Northern Ireland Bar because that has had a great bearing on the way we operate. I say ‘we’ because I was called to the Northern Ireland Bar in September 1969, and although I was called to the Bar by Gray’s Inn in 1975, practised exclusively in Northern Ireland before I became a county court judge in 1985. So for the greater part of my professional life my experience has been of observing the Northern Ireland Bar in action as a practitioner and as a judge. Northern Ireland is the smallest part of the United Kingdom, covering 5,356 square miles with a population of 1.682 million, compared to Wales which covers an area of 8,030 square miles and a population of just under 3.1 million people.2 The Northern Ireland Bar is the smallest, and notionally the youngest, of the three independent Bars that form part of the legal system of the United Kingdom. Although it came into existence as a separate Bar in October 1921 when the provisions of the Government of Ireland Act of 1920 relating to the judicial system of the new Northern Ireland came into force, it sprang from the pre-partition Irish Bar, and to the present day reflects some of the unique characteristics of the Irish Bar as it was before 1921. I feel it is therefore appropriate to give a brief history of the Irish Bar 1 An address to the Wales & Chester Circuit in Cardiff, 22 June, 2017. 2 The figures for the geographical areas of Northern Ireland and Wales have been taken from www.worldatlas.com. The population figures have been taken from www.nisra.gov.uk/publications and www.gov.wales/statistics, in both cases from the mid-year estimates for 2015. 1 before 1921 to explain some of the unusual features of the Northern Ireland Bar when viewed from this side of the Irish Sea. Sadly there are many gaps in the legal history of Ireland because comparatively few records have survived, due initially to the carelessness with which records were stored, and subsequently to the loss of most of those that did survive when the Public Record Office of Ireland was destroyed in the Irish Civil War in 1922. We know that the Irish Bar can trace its roots back to the earliest days of the Common Law in Ireland. What has been aptly described as the ‘first adventure of the common law’3 came about as a consequence of the arrival in Ireland in August 1170 of Richard de Clare, earl of Pembroke, better known as Strongbow, whose lands were situated around Chepstow in what was then Monmouthshire and is now Gwent. In October 1171 Strongbow was followed by Henry II, and these events laid the foundations of the establishment of English power in Ireland, although it was not until the final years of the reign of Elizabeth I that the Crown had complete control over the entire island. Between 1290 and 1320 the forerunners of the professional advocates of today were appearing on behalf of clients in royal and local courts throughout those parts of Ireland that were under royal control in what was then termed ‘The lordship of Ireland’.4 By then the profession had split into two branches, pleaders and attorneys, and the pleaders would, on occasion, travel to appear before the royal and other courts at many different locations. Some at least of those who practised law in the lordship during the next three centuries received training in London,5 indeed the first person known to be a student of the common law in either England or Ireland was one Robert St Michael of Ireland who was given permission in 3 W.J. Johnston, ‘The first adventure of the Common Law’, LQR xxxvi (1920), 11. 4 P. Brand, ‘The early history of the legal profession of the lordship of Ireland, 1250-1350’ in D. Hogan and W.N. Osborough (eds.), Brehon, serjeants and attorneys: studies in the history of the Irish Legal profession, Dublin, 1990), pp 37-41. 5 See A.R. Hart, A history of the Bar and Inn of Court of Northern Ireland, (Belfast, 2013), Ch. 1 for a discussion of this topic. 2 1287 to stay at Westminster ‘for the purpose of learning in the Bench’6, that is studying in court. In 1541 Henry VIII decreed that henceforth Ireland was to be regarded as a kingdom and not a mere lordship, and that year saw the foundation of King’s Inns, the Irish inn of court. Although King’s Inns was responsible for admitting both barristers and attorneys to practise, this did not result in King’s Inns educating students for the Irish Bar, because in 1542 the Irish parliament enacted a statute that stipulated that any person who wished to act as a pleader in any of the ‘King’s four principal courts’ (i.e. chancery, king’s bench, common pleas and exchequer) had to have resided and studied at one of the inns of court in London, and this requirement remained in force until 1885.7 Until the Government of Ireland Act 1920 Ireland had its own parliament, with the exception of the period between the Act of Union of 1800 and the Government of Ireland Act, although even during that period Ireland remained a separate jurisdiction with its own courts and legal profession. Our Judicature Act of 1877 remodelled the Irish superior courts in the same way as happened in England and Wales in 1875, with the result that in Ireland in 1921 there was a high court with King’s Bench and Chancery divisions, and a court of appeal with a right of appeal to the judicial committee of the House of Lords. Indeed, in 1921 two of the five lords of appeal in ordinary had been members of the Irish Bar, Lord Atkinson and Lord Carson of Duncairn, the latter having made his name at the Irish Bar and as solicitor general for Ireland, before moving to practise at the English Bar when he became one of the leading advocates of the day, and a leading political figure in both Ireland and England. 6 Brand, ‘The legal profession of Ireland’, p. 25. 7 The text of the statute is discussed in detail in C. Kenny, King’s Inns and the Kingdom of Ireland: the ‘Irish Inn of Court, 1541-1800 (Dublin, 1992), pp 41-46. 3 As well as the high court, there were also assize courts which went on circuit twice a year exercising both criminal and civil jurisdictions. One significant difference between our respective jurisdictions relates to appeals from the county court. In Ireland these lay to the assize judge and took the form of a complete rehearing before a high court judge, and that remains the position today. Although the concept of a rehearing when both sides can call new witnesses if they wish may seem illogical, it is cheap, speedy and works well in practice. It also survives in the Republic of Ireland. An appeal from the county court (or from the high court judge on appeal) on a point of law by way of a case stated in Northern Ireland also lies to the Court of Appeal in Northern Ireland. Below these superior courts there were county courts exercising a civil jurisdiction, and courts of quarter sessions exercising a criminal jurisdiction, although, unlike the general practice in England and Wales, the county court judges in Ireland presided over both courts.8 The courts of petty sessions were presided over by salaried resident magistrates, most, but not all, of whom were legally qualified by 1921. Justices of the peace still sat in petty sessions on occasion, but less frequently than their counterparts in England and Wales. With the exception of land law, by 1921 Irish law was in large measure identical to English law, whether it took the form of statutes passed by the pre- 1800 Irish parliament, or by the United Kingdom parliament between 1800 and 1921. Irish courts applied the English common law and rarely departed from decisions of their English counterparts. By the time of the Act of Union of 1800, the Irish Bar had been long established, and occupied a position of great importance in the political and social life of the country. It has been estimated that of the 300 members of the Irish House of Commons at the time of the Act of Union, 67 were barristers, of whom 42 were in active practice,9 and many of the leading 8 Hart, A history of the Bar and Inn of Court of Northern Ireland, pp 77, 228, 260, 272 and 446. 9 G.C. Bolton, The passing of the Irish Act of Union: a study in parliamentary politics, (Oxford, 1966), pp 80- 81. 4 political figures in the Irish Commons were barristers.10 The Irish lord chancellor, John Mitford, the first Lord Redesdale, an English lawyer who came to Ireland to fill the post of lord chancellor of Ireland,11 wrote in 1805 that ‘There is no body in Ireland which has so much influence in public opinion as the bar’.12 During the nineteenth century the Irish Bar grew in size to almost 700 by 1850, although numbers shrank to about 427 or so by the end of the century.
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