Brian Cowen (Laois-Offaly, Fianna Fail)

I propose to take Questions Nos. 10 and 11 together.

Recruitment competitions for positions as advisory counsel are run by the Public Appointments Service. For the most recent competition, in June 2008, the essential requirements for candidates were to have been called to the Bar of Ireland; since qualification, to have significant experience as a barrister practising in the State; to have an ability to analyse and advise, orally and in writing, on complex legal issues; to have a good knowledge of constitutional, European and administrative law; to have advocacy and litigation skills, sound judgment and the ability to work under pressure; and to possess the requisite knowledge and capability, including the ability to communicate effectively, to discharge the duties of the position.

I am advised by the Attorney General that the approach to recruitment which has consistently been taken by successive Attorneys General reflects the need of the Attorney General's office to have available to it the broad range of skills and expertise required to enable the Attorney General to discharge his constitutional functions as adviser of the Government in matters of law and legal opinion. This recruitment approach ensures that the office avails of the particular skills and expertise offered by the two branches of the legal profession, namely solicitors and barristers. The allocation of functions within the office reflects the reality that the legal profession is divided, that the two branches of the profession perform generally different functions and that both branches of the profession offer different sets of skills and expertise reflecting different systems of education and training, both of which are required by the office.

This distinction is also mirrored in restricting to solicitors only recruitment to all legal positions in the Chief State Solicitor's office. Some 113 positions in the Chief State Solicitor's office are restricted to solicitors while only 35 positions as advisory counsel in the Attorney General's office, and the 14 advisory counsel seconded from that office to Departments are confined to barristers. Positions as Parliamentary Counsel - legal drafters - in the Attorney General's office are open to and held by barristers and solicitors.

Under Article 30 of the Constitution the Attorney General is required to advise the Government in matters of law and legal opinion. The current Attorney General and his predecessors believe that the constitutional obligation is best discharged by ensuring that the position of advisory counsel is occupied by lawyers who have been trained in and have significant practice and experience of, conducting trials in the courts. A core function of advisory counsel involves the handling of, and providing advice relating to, litigation against the State. In particular, barristers, by virtue of their professional training and experience as barristers, have specialist knowledge and skills in presenting legal arguments to the courts and assessing and advising on evidential issues relating to court proceedings, and they have empirical knowledge of the multiplicity of factors that affect the outcome of litigation.

Whereas advisory counsel also provide specialist advice on matters which may not involve, or have the potential to involve, litigation, it is a core function of every advisory counsel to advise on litigation and litigation-related issues. In addition, barristers in practice give specialised legal opinions and advice and such advisory work is also a core function of advisory counsel in the Attorney General's office. Such opinions and advice are at the request of a briefing solicitor and are sought because the solicitor recognises the special expertise of the barrister in such matters. The fact that solicitors may be appointed judges does not mean that the role of advisory counsel should be open to solicitors.

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