The Court of Appeal has quashed the Minister for Justice’s refusal to include retired High Court judge Barry White on the list of counsel eligible for payment under the criminal legal aid scheme. It held that the 1965 regulations did not allow the Minister to reject a notification solely because the barrister was not regulated by the Bar Council.
The appeal concerned two ministerial letters, dated 29 May and 9 October 2015, refusing to add White to the list. The Minister’s stated position was that a barrister could be added only if subject to Bar Council regulation. The High Court quashed that decision and made declarations about the legal requirements and the effects of the refusal. The Minister appealed those orders.
White had been called to the Bar in 1967 and became a High Court judge in 2002. After retiring in September 2014, he sought to return to practice, but the Bar Council refused to waive a conduct rule restricting retired judges from practising in courts of equal or lesser jurisdiction. He then sought inclusion on the legal aid list without Law Library membership. The Bar Council notified the Minister of his willingness to act, while stating that it did not regulate him.
The Court of Appeal interpreted “counsel” in the governing legislation as a practising barrister: someone holding himself out as available to conduct a criminal defence. It said the Bar Council must satisfy itself that a person is a practising barrister, but the regulations did not limit eligible counsel to barristers regulated by the Council. The Council was required to notify the Minister when it received a qualifying expression of willingness to act.
The court dismissed the Minister’s appeal against the order quashing the refusal and related declarations that the Minister had acted outside her powers and that the law did not require membership of the Law Library or subjection to Bar Council regulation for eligibility. It allowed the appeal against declarations that the decision was unreasonable and disproportionately interfered with White’s constitutional rights, and set those declarations aside.
The court did not decide whether White was a practising barrister when he applied, whether he was bound by the Bar’s conduct code, or whether the rule restricting retired judges was lawful. It also did not determine what entries should ultimately appear on the list. The Minister must further consider and decide White’s entitlement to be placed on it.