The High Court quashed the Minister for Justice and Equality’s refusal to add retired judge Barry White to the criminal legal aid defence counsel list, ruling that the Minister had imposed a condition the law did not require. Mr Justice Max Barrett also declared that Mr White did not need to join the Law Library to be eligible for the list.
The judgment, delivered on 22 July 2016, said the Bar Council had acted as required when it notified the Minister of Mr White’s request. The court found that regulations governing the list did not require barristers to be regulated by the Bar Council. It said the Minister’s letters of 29 May and 9 October 2015 were legally unfounded and that the refusal was ultra vires, unreasonable and contrary to law.
Mr White had retired from the High Court and wanted to resume work as a barrister, mainly in criminal defence advocacy before the Circuit Court and in appeals. The judgment said the convention that retired judges should not practise before courts of equal or lower jurisdiction was not legally binding on barristers. Mr White had given undertakings that he would not rely on his former judicial status, appear in cases he had heard or was connected with, argue cases involving his decisions, interpret his past judgments for clients, or use confidential information gained as a judge.
The court concluded that excluding Mr White from the panel interfered disproportionately with his constitutional right to earn a livelihood, given his age and specialised experience. It also found a related interference with his property rights. The judgment noted that he had not proved absolute financial necessity, but said that did not alter the conclusion.
The court declined to quash the Bar Council’s application of its conduct rule to Law Library membership. That rule applied if Mr White chose to join the Library, and the court said it would not compel the private association to admit him without adherence to its rules. The court also declined to rule on several requested declarations concerning the rule, restraint of trade and Convention rights; it rejected claims of unfair procedures and unlawful law-making. It declined damages because Mr White had not established actual loss. A costs decision was left for a later hearing.