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		[2006] 3 Web JCLI

Introduction
Legal Education

Under The Brehon Law System
The Medieval Period
The Common Law System in Ireland

The Seventeenth - Nineteenth Centuries

The Twentieth Century
The Modern Era

Bloomer & ors v The Law Society & ors
Abrahamson & ors v the Law Society& ors
Fair Trade Commission Report
Report of the Competition Authority

Conclusions

Bibliography

Introduction

Ireland, now a common law country, once operated under a Celtic legal system which dated back beyond the Christian era and was operative up to the beginning of the seventeenth century.  Lawyers under this brehon law system, committing all laws to memory (mostly in poetic verse), spent up to twenty-one years perfecting their knowledge of the law before being deemed fit to put that knowledge to practical use.  For four hundred years after the twelfth century Anglo-Norman invasion, two separate legal systems and laws co-existed in Ireland: the English common law system within the administrative area around Dublin (the Pale) and the Gaelic system of brehon laws in the rest of the country.  With the complete displacement of the brehon law system in the early seventeenth century, all legal education came under the mantle of the prevailing English common law system.  Nowadays, having achieved once again an independent sovereign status, Ireland has come in for sustained criticism for operating a system of education for its lawyers which is at odds with that of other common law countries and with its own obligations arising from membership of the European Union.  This essay attempts to highlight a few of the more notable of Ireland’s legal education practices over the past two thousand years, with particular emphasis on modern problems, and suggests that Ireland’s current situation requires immediate and drastic reform.

Legal Education

Under The Brehon Law System

Our knowledge of ancient Ireland’s legal education system comes from manuscript sources compiled during the time that Ireland was governed by the brehon laws.  The earliest surviving written records date from the ninth century, although it is accepted that the laws they contain were practiced for centuries before that.  Legal education in early Christian Ireland catered for, and was a reflection of, Gaelic society, which, according to the Irish scholar D A Binchy, was

“tribal, rural, hierarchical and familiar (using the term in its oldest sense to mean a society in which the family, not the individual, is the unit) - a complete contrast to unitary, urbanised, egalitarian and individualist society of our time” (see Manning 2004, p 1).

Writing in the nineteenth century, when a renewed interest in the ancient manuscripts was being rekindled in Ireland, Laurence Ginnell informs us that by the first century AD, some two centuries before Christianity came to Ireland, there were three classes of high ranking professional men engaged in the pursuits that had been the sole domain of the druid class up until then: the druids, the bards and the brehons.  Of these, the brehons (judges) were engaged in the study of law for up to twenty one years.  Poets also studied law, they being responsible for committing the laws to memory and, in later years, committing them to written form.  According to Ginnell, entry to the legal profession was open to anyone but, in reality, it was a hereditary profession. As high status professionals, brehons and other lawyers were entitled to own private land by virtue of their calling.  Ginnell explains that the only way this otherwise communal land could be kept within the lawyer’s immediate family, on his death, was to have a son qualified in the same profession.  It was also easier and more economical to train a son in the same profession as his father than in a different profession.  In addition, every great family had its own precious family history manuscript book, the safeguarding and updating of which would be guaranteed by having a lawyer in the family.  Despite this ease of access to the legal profession by hereditary right, success was dependent solely on ability and many risks were attached to the office of brehon, such as being held liable for damages for delivering unfair or faulty judgments.

As to the training involved, a unified study course was in use for brehons and other ranks of lawyers viz. ollamhs, advocates and law agents.  Ollamhs were professors and teachers of law, who studied for an additional twelve years, and were tested by public examination. Both ollamhs and brehons had to take primary degrees in poetry. Most kings employed, or maintained, a brehon, who was invited by parties to a dispute to adjudicate upon their legal problem.  Having chosen the brehon, both sides were bound by his decision, which was decided in a manner more akin to arbitration.  The losing party knew that if he failed to accept the judgment, he would be disgraced and the penalty would be increased.  There were no court officials to execute the court’s judgment, but the clan had its own system of punishments for errant clan members, which included removal of property and other rights, banishment and even death.

The early Irish law texts, manuscripts produced by legal educators and reproduced by their students in the law schools of the time, were used by judges and lawyers in the practice of law.  New transcribers added glosses and commentaries to their copies of the original writings, such as references to other works, quotations from other manuscripts, translations of obsolete terms or their own personal comments, working their additions in between the lines of the original text or squeezing them into the margins of the vellum pages.

As to sources of law, the most important of the law texts is the Senchas Már (Great Tradition) which provides a history of the changes to, and codification of, the brehon laws in the fifth century, during the time of St Patrick.  The latter, along with the High King and other major figures, oversaw an audit of all extant Irish laws and abolished all those not in keeping with the teachings of Christ.  The Senchas Már, by way of question and answer, informs us of the source, and method of preservation, of ancient Irish law: “What has preserved the tradition of the men of Ireland?” asks the text, to which the answer is given,

“The joint memory of the ancients, transmission from ear to ear, the chanting of poets, its being augmented by the law of Scripture, its being founded on the law of nature” (see Breathnach 1990, p 5).

Another law text, the Uraicecht Becc (Small Primer) explains the difference between different ranks of judges.  In the lower kingdoms there are three: those who give judgments relating to craftsmen; those who give judgments relating to the laity and to poets; and those who give three judgments i.e. relating to the laity, the poets and the church.  In the higher kingdoms, we are told, a judge could expect payment and privileges for himself and his retinue, which would include two law students.

As well as judges, the brehon legal system employed advocates, again divided into three categories: a fettering advocate (dealing with legal matters without recourse to the courts); a court advocate (who could take a case to court and plead it there); and an advocate whom judgment encounters (who could take over a court case and settle it without the need for a judge to be involved).  The text says of him, “This man is nearly of too high a status to be distrained, for he will overcome [anything which is] a disadvantage to him”  (see Breathnach 1990, p 12).  The status of an advocate derived from the status of the person for whom he acted, while the status of a judge derived from that of the king or monastery that maintained him.

As previously stated, Irish society, before the invasion of the Norman English, was based on tribal societies, each with their own overlord or king.  Although in theory there was a hierarchy of kingship, with a high king of Ireland, based at Tara, in practice this potentially unifying structure was less than effective.  Ireland’s economy was land-based. Her political, social and military structures were localised and clan-based.  There was no central political, military or economic structure.  

The regional kings, although involved in the legal system to the extent that they nominally presided over the courts of justice, were not responsible for the compilation, teaching, administration or enforcement of the law.  The law was enforced by the system of honour within the clans, and by distraint, sureties and even hostage-taking. The law’s compilation, teaching and administration were controlled by the poets, the lawyers and the druid class, who regularly met on an all-Ireland basis, thereby ensuring a unitary legal system. With the coming of Christianity, the Church’s influence, with its monasteries engaged in the safeguarding and copying of the ancient law manuscripts, ensured the continuation of the unitary nature of the legal system, despite the fact that, even then, other social structures were still mainly localised.  While other countries, imperial ones with well developed State structures, explored, conquered and colonised peoples in various parts of the word, Ireland’s voyagers and emissaries were content to travel abroad for the more benevolent purpose of spreading enlightenment and faith.  These ‘saints and scholars’ were responsible for keeping safe and alive the intellectual treasures and ideas that were lost to Europe during the Dark Ages, and for bringing them back to the continent, and beyond, some centuries later.

In his major work on the early Irish legal system, Fergus Kelly informs us that after St Patrick in the fifth century, up to the Norman invasion of the twelfth century, law schools in Ireland were based mainly in monastic settlements and many judges were also ecclesiastical men (see Kelly 1998).  St Columcille was a case in point: a man of royal blood, he trained as a poet, philosopher and monk.  His ecclesiastical training took place at Moville, Co. Donegal, under the teacher Finian, a master of scriptural knowledge.  But he was also a student of Gemman, “a bard of Leinster, master of the ancient ways” (see Bamford 1981, p 179). In 545 AD, when fully qualified, Columcille went to Derry to found a monastery there, following this by travelling the length and breadth of Ireland, preaching and teaching, and reputedly founding some three hundred churches. 

Columcille was an expert transcriber of manuscripts and, when he learned that Finian of Moville had recently returned from Italy with a rare and precious manuscript, he immediately travelled to see it.  Finian refused Columcille’s request to make a copy of the book, stating that he would only allow it to be read.  Acting surreptitiously, Columcille made a secret copy.  Finian, on finding out, demanded the copy to be returned to him, as his property.  Columcille refused.  The matter went to court, at which judgment was given by the King of Meath, ‘To every cow its calf, to every book its copy’  - and so the first case of copyright law in Ireland, and indeed the world, was established. 

There is a sequel to the story: when Columcille refused to comply with the judgment, war broke out between his followers and those of his opponents.  After a bloody battle, in which his forces were responsible for the deaths of 3,000 men, Colmcille was forced into exile and, repentant, he swore never to set foot on Irish soil again. With a small band of monks, he left Ireland and sailed to Iona in western Scotland, where he is better remembered today as St Columba.  There he established a new monastic settlement and, with his followers, introduced Celtic Christianity to Scotland and, later, to Lindisfarne in northern England.  So it may be said that the Celtic church in Britain was founded on the refusal of an Irish monk to obey an Irish court judgment delivered under brehon law.

From this story of Columcille we saw that the king was responsible for the judgment of the court.   Fergus Kelly explains that major courts were set up as large open air assemblies, at which the judges sat in a central location, surrounded by clusters of other leading participants.  Thus, in the back court sat the king, a bishop, and a chief poet.

“Our text illustrates the involvement of both judge and king in the judicial process. The judgment is arrived at and expounded by a judge or judges . . . But it is clear that the king - and the other dignitaries of the back court - also exercise some function in relation to judgment . . . It would seem, therefore, that the judgment is promulgated by the king or other dignitary, or at least that it is announced in his presence and with his approval, and consequently supported by his power and prestige” (see Kelly 1986, p 80).

Another reputed Irish judgment involving a king, and a future king, was that concerning Cormac Mac Art in the third century.  Of him it has been said,

“of all the ancient kings of Ireland, Cormac, who reigned in the third century, is unquestionably considered greatest by the poets, the seanachies, and the chroniclers” (see MacManus 1921, p 45).

The sagas relate that Cormac had been exiled since childhood in the west of Ireland. His cousin, Lugaid, who had killed Cormac’s father, Art, in battle, ruled as high king at the royal seat at Tara. As a young man Cormac returned to Tara, disguising himself as a shepherd tending the flocks of a widow woman. One day, one of the sheep broke into the queen’s gardens and ate her growing vegetables, whereupon the queen demanded justice by bringing a case against the widow to the court. King Lugaid, in his judgment, ordered that the sheep be forfeited and given to the queen as compensation.

At this, Cormac, who was attending the court, spoke up and accused the king of giving a false and unjust judgment. He said the queen had only lost a few vegetables, but the widow’s punishment would be the loss of her livelihood. The king asked, contemptuously, what Cormac’s judgment would have been instead, to which Cormac replied,

“My award would be that the wool of the sheep should pay for the vegetables the sheep has eaten - because both the wool and the green things will grow again, and both parties [will] have forgotten their hurt” (see MacManus 1921, p 46).

The wisdom of Cormac’s judgment astounded all assembled, who burst into applause, but it also aroused the king’s suspicion as to the shepherd boy’s real identity, aware as he was that such wisdom could only come from a king. And so Cormac had to flee into exile once more. Eventually, after Lugaid was killed, Cormac himself became High King, whereby he

“exceeded all his predecessors in magnificence, munificence, wisdom, and learning, as also in military achievements. His palace was most superbly adorned and richly furnished, and his numerous family proclaim his majesty and munificence; the books he published, and the schools he endowed at Temair (Tara) bear unquestionable testimony of his learning. There were three schools instituted, in the first the most eminent professors of the art of war were engaged, in the second, history was taught, and in the third, jurisprudence was professed” (see MacManus 1921, p 48).

This story illustrates the requirement that judges, even kings, should give wise and fair judgments - and indirectly how unfortunate consequences can befall those who do not.  It also illustrates the importance and love of learning that the Irish were to become renowned for, as well as the existence of a law school under the patronage of the High King at Tara.

The Medieval Period

After the Anglo-Norman invasion of 1169, Irish law schools were no longer the preserve of the monasteries and instead were fostered by a small number of legal families, of which the MacEgans were the most prominent. During the next few centuries, whatever about the subsequent demise of the use of Latin, law students and transcribers retained a good knowledge of old Irish, as evidenced by the glosses and commentaries on the old manuscript texts. There appears to have been little in the way of newly promulgated laws, ensuring that the transcribers and glossators were not unduly distorting their translations with modern meanings. 

Catherine Simms claims that from the twelfth century Irish students were travelling to Europe to study civil law, canon law and medicine. Interestingly, not all Irish wanted to see the brehon system retained at that time. In 1280, a delegation of Irish bishops apparently offered to give King Edward I the sum of ten thousand marks if he would introduce English common law to the whole of Ireland, 

“In order to put an end to the evil law and the disaffection which is in the land of Ireland concerning the Irish tongue, to maintain the law of God and to serve our Lord and king and his heirs loyally for ever . . . in order to have the common law which the English have in use for Ireland and to be treated as such Englishmen are treated, alive or dead, in body and in real and personal property . . . Moreover, the aforesaid prelates guarantee . . . That they will expel from the church all the Irish who will not receive and hold this law . . . And they will interdict their lands and suspend and deprive of their benefices all chaplains who sing mass for them, except the prelates and friars preachers and minors and others who will preach to them to hold the same law” (see Simms 1990, p 67).

Although the king later stated that, “the laws which the Irish use are detestable to God and so contrary to all laws that they ought not to be called laws” (see Simms 1990, p 67), the proposal was not implemented and most Irish natives remained deprived of the right of access to the common law courts.  However, the brehon laws’ jurisdiction was not restricted solely to the native Irish until 1366, when the Anglo-Irish parliament passed the Statute of Kilkenny, banning the use and practice of brehon law among the new colonists. This intervention was deemed necessary because so many of the colonist lords were becoming hibernis ipsis hiberniores - more Irish than the Irish themselves.  

By the fourteenth century Latin scholars, who had attained university degrees on the continent, were teaching in local law schools - including the teaching of canon and civil law. Simms quotes Richard Stanihurst, speaking in 1577 of ‘the wild Irish’:

“without eyther preceptes or obseruation of congruitie, they speake Latin lyke a vulgar language, learned in their common schooles of leachcraft and lawe, whereat they begin children and hold on 16 or 20 yeres, connying by rote the Aphorismes of Hypocrates, and ciuill institutes, with a fewe other paringes of those faculties. In their schooles, they groouel vpon couches of straw, their books at their noses, themselues lye flat prostrate, & so they chaunt out with a lowd voyce their lessons by peecemeale, repeating two or three wordes 30 or 40 tymes together” (see Simms 1990, p 69).

Stanihurst distinguishes these students of canon and civil law from brehons, of whom he says,

“Other lawyers they haue lyable to certain families, which after the custome of the countrey determine & judge causes . . . The breighon (so they call this kynde of lawyer) sitteth on a banke, the lordes and gentlemen at variance round about him, and then they proceede” (see Simms 1990, p 70). 

It is clear that some brehon law scholars kept up a knowledge of canon law, despite the diminishing influence of the church: 

“The willingness to use thirteenth and fourteenth-century canon law to remodel what is sometimes thought of as the sacrosanct and immemorial corpus of traditional Irish custom (féineachas) was quite compatible with the old Irish system of ‘three judgments’, and with the assertion at the beginning of Uraichecht Becc: ‘the judgment of a lord, however, is based on them all, on maxims and precedents and scriptural citations’. According to the writers of the old Irish tracts, those pre-Christian customs of the Irish people, which had been accepted by St Patrick and handed on to later generations, were based on natural law (recht aicnid), that is, on God’s moral order as intuitively perceived by ‘just men’ before the Faith. This view is maintained in the later commentaries, crediting native Irish custom with an underlying universality which meant it could be usefully discussed and analysed in terms of the ius commune, the internationally accepted standards of civil and canon law” (see Simms 1990, p 71).

Simms also identifies a seepage of English common law into the law practiced by the brehons of the sixteenth century, as dealings in land became more and more subject to the jurisprudence of the former.

“The brehon charters of the sixteenth century are riddled with terms and concepts borrowed from common law, as ‘heirs and assigns’, ‘livery of seisin’, ‘feoffment’ and ‘reversion’. Criminal law could hardly escape the same influence. The Anglo-Irish lords of the southern and eastern counties of Ireland in the late fifteenth and early sixteenth centuries used Irish brehons to try criminal cases involving not only Irish tenants but the ‘king’s subjects’ in their areas” (see Simms 1990, p 72). 

By the end of the sixteenth century, Irish brehons were even being employed by the Crown

“to prosecute and punish by all means malefactors, rebels, vagabonds, rymors, Irish harpers, idlemen and women, and other unprofitable members” (see Simms 1990, p 75).

We can see then, that the practice of law in these intervening centuries involved English common law in the administrative heart of the country around Dublin (the Pale) and the continuing practice of brehon law in all other areas, despite the Statute of Kilkenny of 1366 banning its practice by the new colonists. Indeed leading Anglo-Norman families, such as the Butlers, the Burkes and the Barretts, employed their own brehon lawyers. In addition, Irish brehon lawyers had knowledge of, and familiarity in the practice of, English common law, and even the English administration itself, as late as 1559, was not adverse to resorting to brehon lawyers to help resolve boundary disputes. However, in the early seventeenth century, following the defeat of the Irish at the Battle of Kinsale and the flight into exile of the last remaining defiant chieftains (the Flight of the Earls, 1607), Gaelic society collapsed and, as a consequence, the brehon law schools soon ceased to exist. In 1605 James I of England proclaimed the common law throughout Ireland and sounded the death knell of the profession of the brehons.

The Common Law System in Ireland

The legal profession in medieval England, around the end of the thirteenth century, was divided into sergeants and attorneys, and this distinction also existed in Ireland, in those parts of the country governed by common law before the fall of the Gaelic order, and in the entire country afterwards. Attorneys appeared in courts, on behalf of litigants, during the period leading up to the hearing itself, when the case was listed in court and its progress monitored. If a litigant was not represented, either personally or by attorney, his case could be struck out or judgment awarded in his absence. Sergeants, on the other hand, acted as court advocates once the case had traversed through all of its procedural stages and was ready for hearing.

Brand claims of sergeants that, 

“It is probable that a good knowledge of the law and a mastery of the skills of sergeant were necessary qualifications for admission to the group but they may not have been sufficient” (see Brand 1990, p 24).  By the late 1300s entry into this more elite branch was controlled by the Crown and there is evidence to suggest that numbers were deliberately curtailed, to the benefit of the members of the profession. In England, between 1290 and 1350, approximately one hundred and fifty sergeants practiced in the Westminster courts, with at least thirty five being employed in the Dublin bench. A majority of Irish sergeants were of Anglo-Irish background and most had their residences around the Pale. Of one sergeant (Master David de Blund) who, unusually, hailed from Cork in the south of the country, Brand remarks that, “His title suggests that he may have possessed a university degree, apparently a unique qualification for a sergeant during this period in either England or Ireland” (see Brand 1990, p 34).

Most intending Irish legal practitioners had to travel to England to acquire necessary qualifications and skills, where basic lectures on the common law were being given to students by 1270s, with more advanced students being schooled in case law by the end of the century. Aspiring sergeants were also encouraged to attend at sittings of the courts, to learn their craft by observing and listening to sergeants and judges in court, and arrangements were made for them to sit in a specially designed ‘crib’ for that purpose. They are probably responsible for the Year Book reports which emerged at that time, another tool used for educational purposes. One Irishman who travelled to London for his legal education was Robert de Saint Michael of Ireland in 1287, who was gone from Ireland for a year while he undertook his apprenticeship. However, some evidence exists, such as manuals of lecture notes, that legal education was also being provided in Ireland at the time.

The appointment of attorneys had to be recorded in the plea rolls of the Bench, but there were no restrictions imposed by way of necessary legal qualifications.

“It clearly remained possible throughout this period for a litigant in either of the Benches to appoint as his attorney a friend or relative with no pretensions to any professional expertise” (see Brand 1990, p 38).

While attorneys could be disbarred, for professional misconduct, no attempt was made in Ireland (unlike in England) to restrict entry into their branch of the legal profession.

The Seventeenth - Nineteenth Centuries

For most of the eighteenth century the study and practice of law in Ireland became the almost exclusive preserve of the Anglo-Irish classes as, under the Penal Laws, Catholics (synonymous with native Irish) were not only prohibited from practicing law but were also banned from availing of other entitlements such as owning property, voting and practicing their religion. Osborough explains the differences between the principals of the lower branch of the legal profession of that era: solicitors and attorneys.  The work of solicitors included drafting documents in all of the courts (common law, equity, chancery and equity exchequer) and involved no formal training or regulation until the beginning of the eighteenth century. Licensing was introduced in 1733, by virtue of which a solicitor had to have served at least five years as an apprentice (a similar period of training applying to intending attorneys). By 1791, solicitors had to have served first as an attorney, satisfy a senior master of court registrar that he was a fit person and have a permanent residence in Dublin (see Osborough 1990). 

In 1821 the period of apprenticeship for solicitors was reduced to 3 years for students who had graduated from Oxford, Cambridge or Trinity College Dublin - extended in 1851 to cover graduates in arts and law from the new Irish University Colleges at Cork, Galway and Belfast. Students at Irish universities had their period of apprenticeship reduced from 5 to 4 years, reflecting the growing shift in attitude within the profession’s regulation in favour of those receiving university education, and a growing involvement in universities in the education of lawyers. 

Apprenticeship terms were not set out but usually involved working in a legal office and attending court to learn the skills of the profession by watching, listening and learning. Written examinations (at the intermediate and final stages of apprenticeship) were introduced in 1860 and important regulatory functions transferred from the King’s Inns to the Law Society in 1866. Under the Supreme Court of Judicature (Ireland) Act, 1877: 40 & 41 Vict, c. 57 the distinction between attorneys and solicitors was abolished. 

A judgment by Mr Justice Hayes, in a case concerning attorney privilege, offers an insight into the qualities and professionalism expected from a solicitor in 1866: 

“The good conduct of the profession, collectively and individually, is one of the most precious possessions of the public, and one of the best guarantees of public liberty and safety. It is to our attorney that we confess the inmost secrets of our heart, in confidence that they will not be betrayed; and it is from our attorney that we expect the advice which is to regulate our conduct in the most important concerns of our life. The profession of attorney is not then to be compared with other, the ordinary callings and avocations of life, and the laws which regulate the profession very clearly demonstrate that; for while other professions and businesses are allowed, in great measure, to regulate themselves, very special enactments apply to the attorney” (see Osborough 1990, p 151). 

In 1898 the education of solicitors was transferred from the Benchers of the King’s Inns to the Incorporated Law Society of Ireland, which had existed in various forms since 1773.  The Honourable Society of the King’s Inns proclaims itself to be “the oldest institution of legal education in Ireland”.  More correctly, it is the oldest surviving institution of legal education in Ireland for, as we have seen, similar institutions have existed in Ireland from before the Christian era. King’s Inns was founded in 1542, in the reign of Henry VIII. At that time, apprentice lawyers required places to stay in Dublin while they received their legal education, and so the Inns of Court were established to provide meals, accommodation and education. By 1792, following the passing of the Catholic Relief Act, Catholics were allowed to practice at the outer bar.

The Twentieth Century

After the various political events of 1916 - 1923, which saw the emergence of Ireland (or at least the major part of it) as a Free State, albeit a dominion of Great Britain, the Irish State had the opportunity to displace the common law of England along with the other imperial trappings of occupation.  Indeed this is exactly what happened for a few years.  In 1919 the first Dáil Eireann (the Irish Parliament, elected while Ireland was still under British rule) established a parallel system of courts throughout the country, thereby usurping the power and authority of the extant British ones.  The ordinary courts refused to recognise the legality of these republican courts, and vice versa.  The legal profession, however, continued to represent clients under both systems. 

The judges in the Dáil courts (covering 900 parish courts and seventy district ones) were encouraged to deliberate the cases before them on the basis of various legal authorities - viz. the ancient brehon laws, judgments from continental courts and even Roman law - but under no circumstances was the English common law to be cited, or  viewed as persuasive or binding. These republican, or Sinn Féin, courts as they were also known, operated until 1923, when they were finally abolished by the new Irish Free State government.

Once again, two mutually exclusive legal systems had been in operation, side by side, in Ireland.  Once again the English common law system prevailed. While an Irish Constitution was adopted in 1922, along with legislation governing the new Irish courts system in 1924, ensuring some constitutional differences between the respective legal systems of Ireland and England from that time onwards, nevertheless the system in Ireland continues to operate in ways very similar to England’s, and very similar to the system in operation in Ireland prior to independence.  While the revolutionary idealists of the independence movement held no truck with anything English, the Irish politicians who eventually gained political power were less anglophobic.  One of these, the President of the Executive Council in 1924, W T Cosgrave, described the administration of justice under English occupation as, “a standing monument of alien government” which had “supplanted in comparatively modern times the laws and institutions till then a part of the living national organism”.  Why then did his government revert to the English common law system?  He provides the answer: the common law, notwithstanding its alienating methods of administration, was nevertheless “a remarkable and characteristic product of the genius of that people” (see Donaldson 1957, pp. 23 – 24). 

The Modern Era

Bloomer & ors v The Law Society & ors

For the remainder of this paper the writer will concentrate on the legal education of the solicitor’s branch of the modern legal profession in Ireland, a topic which has given rise to considerable concern, criticism and litigation in recent years.  In 1995, thirty-five law students at Queen’s University, Belfast, instituted legal proceedings against the Law Society of Ireland, 

“the body entrusted by the Oireachtas [the Irish parliament] with responsibility for administering and, in certain respects, regulating the apprenticeship, vocational training and examination of persons seeking to qualify as solicitors in the State” (see Bloomer & Ors v The Law Society of Ireland & Ors [1995] 3 IR 14).

The students sued the Law Society for discriminating against them, by failing to recognise their law degrees as entitling them to the same exemption (from sitting the Society’s entrance examination) that law graduates of Irish state universities had enjoyed. The Northern Ireland students also sued the Irish state for breach of their rights under the Irish Constitution, the European Community and the European Convention on Human Rights.

Under its statutory powers (the Solicitors Acts 1954 – 94 and the Education and Training Regulations made pursuant to those Acts) the Law Society had been entitled, acting on its own behalf or in association with any other body, to provide for a preliminary examination (for non-graduates) and a final examination.  The first part of the final examination, known as the FE-1 was, in reality, an entrance examination consisting of eight subjects: constitutional law; contract law, company law, property law, tort, criminal law, equity and the law of the European Union. The Society had also been entitled to

“exempt persons from an examination in whole or in part . . . who produce satisfactory evidence that they have acquired special qualifications” (section 40 (5) of the 1954 Act, as amended by the 1994 Act). Special qualifications could include “degrees or professional qualifications of a standard and content deemed satisfactory by the Society and awarded by a University or body or institution recognised by the Society as being  appropriate . . . ” (see Bloomer & Ors v The Law Society of Ireland & Ors [1995] 3 IR 14).

The Society, in correspondence to Queen’s University in 1992, had stated that:

“I regret to say that the Incorporated Law Society of Ireland, after long consideration, finds itself unable to exempt from its Final Examination - First Part (the Entrance Examination) holders of Degrees in Law from any university or university college other than the exemptions already in being. These relate to Degrees in Law from the University of Dublin, the University of Limerick and the University Colleges at Cork, Dublin and Galway of the National University of Ireland. In every case the holder of a Law Degree from one of these universities or university colleges must have passed the subjects of the Society’s Entrance Examination in his or her Degree. Leaving aside the divergence in content coverage in the core subjects of our Entrance Examination, the Society’s Education Committee is reluctant to add to the existing pressure on places from an already over-large pool of law graduates entitled to exemption. The pool is scheduled to increase quite dramatically within the next few years” (see Bloomer & Ors v The Law Society of Ireland & Ors [1995] 3 IR 14).

The Society claimed that its policy arose out of concern that it could not accommodate increasing numbers of graduates seeking admission, and denied that it was introduced to restrict access to the profession. It pointed out that pressure from the Irish state universities, and from the Irish state itself, prompted it to introduce the exemption system in 1989. 

In 1994 the Irish Department of Justice had asked the Law Society to look again at its FE-1 regulations, to which it replied,

“As you are no doubt aware, the demand for places has increased substantially over the years and the current position is that there is a waiting list of persons qualified to enter. The Society feels that its responsibilities under the Solicitors’ Acts require it to provide education for intending solicitors within the jurisdiction and, accordingly, if it were to recognise students from outside the jurisdiction, it would be making an already difficult situation for students within the jurisdiction worse by widening the pool of applicants. . .” (see Bloomer & Ors v The Law Society of Ireland & Ors [1995] 3 IR 14).

The Department in 1995, enquiring about a promised review of the position, reminded the Society that,

“In considering this matter I could ask you to take account of the Government commitment to foster agreed new dynamic, co-operative and constructive relationships between the north and south” (see Bloomer & Ors v The Law Society of Ireland & Ors [1995] 3 IR 14). 

The Law Society’s exclusionary policy had not been reciprocated north of the border. During the course of the hearing, Professor Mary McAleese, then Pro-Vice Chancellor of Queens’ University and Director of the Institute of Professional Legal Studies in Northern Ireland (the training body for solicitors and barristers in that jurisdiction), gave evidence that graduates from Irish State universities were not discriminated against when seeking admission to the Institute’s courses, although the Institute did operate a quota system.  She also gave evidence that it was her firm opinion that the Law Society’s objections were solely about numbers, and not about standards or the different subjects taught under the Queen’s University syllabus, as the Society had later claimed.

Delivering her judgment in the High Court, Ms Justice Laffoy held that Regulation 15 of the 1991 Regulations for law graduates in Irish state universities, which gave the Society the authority to make exemptions to persons sitting the FE-1, was invalid because it contravened Article 6 of the EEC Treaty by indirectly contravening the prohibition on discrimination on the grounds of nationality. Its operation led the Society to exceed the powers granted to it under section 40 (5) (j) of the 1954 Act. However the Judge felt she could not give the students any remedy, either by way of damages or by way of altering Regulation 15 in their favour. The students’ claims against the Irish state were withdrawn. Costs were awarded against the students.

By the time the case came to the Supreme Court on appeal the following year, the Society had written to each of the students concerned and informed them that their applications for exemption from the FE-1 examination would be dealt with in accordance with Judge Laffoy’s ruling and the Society’s obligations under Article 6 of the EEC Treaty. The Society did not appeal the High Court ruling.  The students’ appeal effectively dealt only with the issue of costs in which the students were, in large part, successful. 

In October 1995, shortly after the High Court decision, the Law Society decided that under regulation 30 of the 1991 Regulations, provisions covering “exceptional circumstances”, it would no longer allow an exemption to graduates of law degrees from the Irish state universities granted on or after 22 September 1995 (the day of the High Court judgment). In December 1995 it published a press release to the effect that it was henceforth abandoning its system of exemptions from the FE-1 examination. 

Abrahamson & ors v the Law Society& ors

As a result of the Law Society’s decision, law students from Irish state universities issued High Court proceedings against the Law Society (see Abrahamson and Others v Law Society of Ireland and the Attorney General [1996] unreported, High Court, 15 July 1996). The students claimed: they had been prejudiced by the Bloomer decision without being a party to the proceedings, and without being given the opportunity to be heard; that they would, had they been a party, have appealed the decision regarding the invalidity of Regulation 15 under the EEC Treaty to the Supreme Court and/or to the European Court of Justice; that the decision was not res judicata and that it was a decision in personam only. They claimed the exemption system, which was in existence when they entered their law degree courses, should apply to them.

At the High Court hearing of their action Mr Justice McCracken dismissed all the arguments bar one:  the applicants had, he said, “a legitimate expectation that the regulations would remain in force, and that they would be able to benefit from them” (see Abrahamson and Others v Law Society of Ireland and the Attorney General [1996] unreported, High Court, 15 July 1996). However, the court pointed out that to grant the students the exemption they sought would mean implementing Regulation 15, which could not be done as it was invalid and ultra vires the powers of the Law Society. Neither did the judge feel that he could compel the Society the use the discretionary powers it had invoked in favour of the plaintiffs in the Bloomer case, under Regulation 30, in what the Society considered to be “exceptional circumstances”, because they were discretionary powers “with which the Court ought not to interfere” (see Abrahamson and Others v Law Society of Ireland and the Attorney General [1996] unreported, High Court, 15 July 1996). 

However, the judge was prepared to grant a declaration to the effect that “exceptional circumstances” within the meaning of Regulation 30 existed with regard to the Abrahamson plaintiffs and he directed the Society to consider modifying its regulations with regard to exempting the plaintiffs from the requirements of sitting the FE-1 entrance examination.

The Society did not appeal Mr Justice McCracken’s ruling and it subsequently granted an exemption to all students already enrolled in law courses of study at the State’s universities, under the “exceptional circumstances” provision of Regulation 30. Thus eight hundred students benefited from the Abrahamson decision.  Students entering law courses at the State’s universities from 1996 onwards now have to sit the FE-1 entrance examination.

Of interest in the Abrahamson judgment was the judge’s comment that,

“. . . it is clear, on the evidence, that the Society in fact had been considering doing away with the exemption scheme in any event, and no doubt it can be said that, to that extent, they rather welcomed the decision on the Bloomer case”  (see Abrahamson and Others v Law Society of Ireland and the Attorney General [1996] unreported, High Court, 15 July 1996).

Fair Trade Commission Report

Although no evidence regarding the educational desirability, or otherwise, of having an entrance examination appears to have been called in either of the students’ cases against the Law Society, an Irish government commissioned study by the Fair Trade Commission, set up in 1984 and reporting in March 1990, had expressed strong opinions on this issue in its final report on restrictive practices in the legal profession (see Fair Trade Commission Report 1990).

The Report’s findings included the following:

“The education of solicitors is entrusted to the Law Society, and the education of barristers is provided by King’s Inns, with entitlements to practice being governed also by the Bar Council. These bodies exercise effective control over the numbers entering the respective professions . . . The great danger arising from such control over entry, in the opinion of the Commission, is that the number admitted might be restricted to a level which was perceived to match the perceived requirements of the profession, and not of the public. The Commission considers that such self-protection would amount to both a restrictive practice and an abuse of a dominant position which would be seriously disadvantageous to the common good. In principle, the Commission favours freedom of entry to a profession, consistent with the maintenance of acceptable, but not excessive, standards, with the market for professional services being allowed to determine the numbers of practitioners. If there is a need to limit the number of entrants, the decision to limit should be taken, not by the professions, but by the State, or preferably by a body delegated by the State for this and other purposes” (see Fair Trade Commission Report 1990). 

While accepting that a restriction on numbers entering the vocational stage of legal education had “ not had an adverse effect on the consumers of legal services”, nevertheless “the Commission believes that a new appraisal is required of the whole system of legal education.” One of the report’s main recommendations was the fusion of a vocational course for prospective solicitors and barristers.  The Commission was also concerned about the Law Society’s entrance examination.  It commended the major changes made in 1989, especially the exemption from sitting the entrance examination for law graduates from Irish state universities, which it considered likely to lead to an increase in the number of students accepted for training (see Fair Trade Commission Report 1990). 

Within the body of the Report, the Commission goes into more detail on this issue: 

“While we understand the need for some type of procedure for regulating entry to the solicitor’s vocational stage, we must express considerable concern at the Final Examination - First Part imposed by the Law Society up to mid-1989. This consisted of an examination in either five or six legal subjects, and was claimed to represent the equivalent of a university law degree. It is a remarkable coincidence that approximately 150 persons were regarded as having passed this examination each year, whether the numbers taking the examination were around 200 or nearly 400. Combined with the statement that about 150 places were available, we are satisfied that a fairly rigid quota system was in operation . . . In addition, the entry examination was a repetition of subjects already taken successfully by law graduates, and it appears to us to be unnecessary . . . The failure rate overall, with a failure rate of apparently up to 90 per cent from some examiners in certain subjects, among candidates of whom many already possessed an honours degree in law, should have been a matter of considerable concern, both for the Law Society and for the universities. The examination seemed to have forced graduates in other subjects and non-graduates, and even law graduates, to undertake intensive courses in “crammers”, which may be educationally unsound and which cannot bestow the necessary understanding of the law” (see Fair Trade Commission Report 1990). 

The Commission described these as “serious deficiencies” in the entry procedure and recommended that all suitable candidates, with a sound basic knowledge of the law (such as a university law degree), should be accepted for entry to a unified training course in respect of both barristers and solicitors. 

Despite these strong recommendations, no changes to the Law Society’s entrance procedures took place as a result of the Commission’s report. On the contrary, following the Bloomer case, the Society resorted to a policy (which McCracken J had stated had been their inclination anyway) which the report had criticised as being “of considerable concern”, “unnecessary”, “seriously deficient” and “educationally unsound”. 

Report of the Competition Authority

In February 2005 another report, this one commissioned by the Competition Authority, came to similar conclusions. The Competition Authority is the authority set up by the Irish government to ensure that Ireland’s obligations under EU competition law are complied with. It commissioned a survey of various professions, including solicitors and barristers in the legal profession (see Competition Authority Report 2005), following a report published by the Organisation for Economic Cooperation and Development in 2001 (see OECD Report 2001), which found that competition in the professional services sector of the Irish economy, and in particular that of the solicitors’ profession, could be improved. 

The 2001 Report, in its investigation of the provision of legal services in Ireland, concluded that, 

“The control of education and entry of legal professionals should be moved from the self-governing bodies, but close ties as regards quality of entrants and content of education should be maintained” (see OECD Report 2001).  While accepting that some reforms of the profession had already been undertaken, it urged further ones in order “to remove impediments to healthy competition”. 

Linking Ireland’s recent economic boom to an expansion of the professional services sector it states,

“A significant part of the Irish economy depends upon, or consists of, professional services.  As the economy has boomed, demand for these services has experienced a corresponding expansion.  More providers are needed to meet this increased demand, and supply has come from several sources: expanding places for professional education at Irish universities and other programmes, Irish citizens going abroad for professional education, return of Irish expatriate professionals and immigration of foreign professionals.  Previous studies have called for reforms in Ireland’s professions . . . The main problems - unnecessarily restrictive conditions for entry and rules about advertising and location - are common to many professions” (see OECD report 2001). 

The Competition Authority’s investigation into the legal profession sought to identify any practices which might inhibit competition, to be evaluated against any benefit to consumers which might accrue from the practices concerned, reaching a conclusion as to the proportionality of each. Proposals for reform were produced following a consultation process with the professions involved in the study. The study investigated such practices within the legal profession as the market for legal services, the supply of legal education, business structures, dual qualifications, restrictions of advertising and the rule prohibiting direct access to barristers. It also compared Ireland’s legal professional practices with those in other common law countries around the world. 

The report identified, within the legal education sector dealing with solicitors, a monopoly situation, where the Law Society was solely responsible for admission procedures to the professional training course, and for the training course itself. All aspiring trainees had to pass an entrance examination and, if he/she did not already hold a university degree, must also pass a preliminary examination, before being allowed access to the training course. A trainee had also to secure a two-year apprenticeship with a practicing solicitor, during which period the professional training course also took place, in two stages: the first being an 8 month course, followed by in-service training, followed by another 3 months course work and a further 10 months in-service work. 

The report noted that although the Law Society was statutorily entitled to grant licenses to others to provide professional training for trainee solicitors, it has not done so and continued to be the sole provider in this sector. All trainees therefore had to attend the professional training course at the Society’s headquarters in Blackhall Place, Dublin. The report identified this situation as a monopoly with attendant dangers, such as the unnecessary raising of prices for such services in the pursuit of profit and the restriction on the number of places available to trainees from the same motive. Lack of competition, it concluded, reduced the incentive to keep costs down and was, therefore, inefficient. 

The report pointed out that monopolies are not conducive to the innovative ideas which competitors could bring to the market, such as the introduction of specialist courses and courses located outside Dublin. The Law Society’s justification of its monopoly lay, it said, in terms of consistency in standards. It would, it claimed, be happy to license other educational providers provided high standards could be maintained. It also claimed that its system was very cost effective (being a non-profit making, self-financing organisation); enjoyed economies of scale in education and training; and was well placed to access the services of hundreds of solicitors who contribute their time to the training school as teachers. But the Competition Authority rejected the Law Society’s claims regarding economies of scale and cost-effectiveness. Similarly, its status as a non-profit making body was not a convincing argument for retaining its monopoly over the supply of education for solicitors and the report was of the opinion that the supply of education at other centres around the country, away from Dublin, would reduce costs to students. 

The report also pointed out that in other jurisdictions, such as England and Wales, many third level institutions run broad courses for solicitors, unique to each institution but following standards laid down by the Law Society of England and Wales. Applications for such courses were dealt with through a centralised Applications Board and did not involve an entrance examination.  In addition, the report pointed out, the medical profession provides practical elements to its trainees, but these are provided by, and take place at, various independently run hospitals, both before and after graduation. “If this system can work for doctors, and for solicitors in other jurisdictions . . .  it can work for solicitors in Ireland” (see Competition Authority Report 2005). 

The report also identified difficulty in obtaining training contracts (apprenticeships) with practicing solicitors as a restriction on entry into the training courses and stated that the Law Society had the power to restrict the amount of time such contracts could last, but kept it at the maximum possible period of two years. Other common law countries, such as New Zealand and many Australian states, have much shorter periods. 

The report recommended the setting up of a Legal Services Commission to set standards in legal training, to which the Law Society and other legal training providers should be answerable. Its final recommendation in this area was that: “As an interim and immediate measure, the Law Society should, by 30 September 2005, issue detailed criteria pursuant to which it will license institutions to provide courses” (see Competition Authority Report 2005). 

On the subject of entrance examinations the report was equally critical.  Commenting on the existing situation, whereby all graduates were compelled to sit the Society’s entrance examination consisting of eight law subjects, most if not all of which have been covered in their primary law degrees, and that non-graduates had also to sit a preliminary examination, the report states, 

“Unnecessary examinations can both deter and prevent prospective entrants to a market. Examinations limit the number of solicitors entering the market for legal services, and therefore act as a barrier to entry . . . The requirement for law graduates to sit the Law Society’s Entrance Examination allows the Law Society to limit entry of competent students into professional education. This in turn limits entry to the market for legal services . . . It increases the costs of training solicitors by requiring law graduates to sit an examination in subjects in which they have already been examined as part of their law degree” (see Competition Authority Report 2005). 

The report criticised the rationale behind the compulsory sitting by non-graduates of a preliminary examination as disproportionate, because if they pass the entrance examination they have demonstrated a capacity to undertake the professional course. The report noted that the failure rate of the preliminary examination had been 44% - 55% over the past few years.  

In response to the Law Society’s claims that under the entrance examination system, where a pass at this level was regarded as equivalent to a university degree in arts; that it treated everyone equally; and that it ensured high standards in the legal profession, the Commission was less than impressed: 

“The fact that a person holds a degree in law from a recognised university is sufficient proof of the standard that person has achieved in his or her knowledge of the law. The function of the Law Society in respect of such a person is to assess whether he or she has the necessary knowledge and expertise to practise as a solicitor. It does this by examinations during the professional course” (see Competition Authority Report 2005). 

The report also refers to the Society’s inconsistency in its practice towards the entrance examination, pointing out that in 1989 the Society exempted law graduates from within the state from sitting the FE-1, but after the Bloomer case . . . rather than extending the exemption to the Queen’s students, the Law Society reinstated the requirement for all law graduates to pass the Entrance Examination. (see Competition Authority Report 2005). 

The Report recommended that, pending the setting up of a legal services commission, “the Law Society, as an interim measure should abolish the requirement for law graduates to pass the Entrance Examination” (see Competition Authority Report 2005). 

Conclusions

This essay has attempted to give the reader an insight into Ireland’s legal education systems, past and present, and has sought to do this by juxtaposing two apparently mutually exclusive approaches: legal history and concern with current legal issues.  It is short-sighted to think that our current systems have not been influenced by our past ones, or that current problems have not existed before.  While the writer takes that same view as that expressed by Niall Osborough, that “ . . . the story of the law on the island of Ireland is a story worth relating for its own sake” (see Osborough 1999, p vii), it is also evident that a study of our history can shed light on our current predicaments. For example, the problems we now identify as being associated with restrictions on entry into the legal profession - and warnings regarding the associated dangers of such policies - existed under the brehon law regime, existed throughout the common law medieval period and still exist today. 

Ireland, as an independent country, has a long and often illustrious pedigree in the provision of legal education.  Unfortunately, today’s provisions have been repeatedly criticised and found wanting.  As in the past, when Cormac MacArt had the temerity to stand up to an unjust and unfair judgment, Irish law students, both north and south of the border, have displayed similar courage by taking on the might of the Law Society of Ireland when they identified and experienced comparable unfair treatment and decisions.  The imposition of an unnecessary series of examinations, which is the Law Society’s FE-1 examination, has been criticised on educational, economic and equitable grounds.  Yet still the Law Society imposes this unnecessary burden on Irish law graduates, very many of whom have to sit the examinations repeatedly, at six monthly intervals, in order to gain the required pass mark in eight subjects.  As the Fair Trade Commission Report pointed, this should be a cause for concern both to the Law Society and the Irish university law schools who produced these law graduates - but it does not appear to be.  

The Law Society has not responded significantly to any of the recent national and international reports into educational training for solicitors in Ireland: the Fair Trade Commission Report of 1990, the OECD report of 2001, or the Competition Authority Report of 2005.  Do continuing generations of Irish law graduates have to contemplate issuing legal proceedings against the Law Society in order to have the most basic equitable principles, never mind educational or economic ones, recognised and established? 

The history of legal education in Ireland is also a history of the divisions between the peoples of these islands.  As we move into an era where we acknowledge, but move beyond, our mutual antagonisms and hurts, we can afford to learn about, and respect, each other’s legal systems and traditions, and adapt for ourselves those that seem to be most beneficial.  When the students of Queen’s University sought to stand up to discrimination, little did they anticipate that their successful litigation would result in a heavy burden being imposed on their southern legal colleagues in years to come.  And what chance had they to change the Law Society’s policies when even the Department of Justice, in the interests of peace and reconciliation on the island of Ireland, could not? 

One is left with the strong suspicion that the Law Society is still today, notwithstanding increases in the numbers of students it has accepted for its training courses, operating a restriction on entry into the solicitors’ profession. Its reluctance to publish meaningful statistics concerning such issues as pass rates and mean frequency of sittings prior to passes being obtained, only fuels this speculation. Perhaps when, and if, the Law Society evolves into a transparent and accountable organisation, subject to scrutiny under the provisions of the Freedom of Information Act, the answers to these, and other, problems will be found. 

Finally, space has prohibited any investigation of the legal training of barristers, which is a subject worthy of study in its own right.  Suffice it to say that the Honourable Society of the King’s Inns has, in the past few years, introduced an entrance examination, consisting of five subjects which must be passed in one sitting, before entry can be gained to its professional training course.  In Quinn v The Honourable Society of the King’s Inns  [2004] IEHC 220, a law graduate from Trinity College Dublin, who had sat the King’s Inns entrance examination and failed one subject, sought a judicial review of the decision.  She lost.  Who says we have nothing to learn from history? 

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