The three-judge court dismissed an appeal by the minister against a High Court decision that he could resume practice, but said the question of his entitlement to be placed on the legal aid list for barristers “remains to be further considered and decided by the minister”.
Ms Justice Mary Finlay Geoghegan, on behalf of the appeals court, allowed the minister’s appeal in relation to declarations from the High Court that the refusal had been unreasonable and an interference with his constitutional right to earn a livelihood.
Mr White, aged 71, a former judge at the High Court and Central Criminal Court, claimed he needed to return to practice for, among other reasons, economic necessity because his €78,000 pension was not enough to meet his family’s needs.
In the High Court last July, Mr Justice Max Barrett ruled that Mr White could be included on the state-funded panel for criminal legal aid work without being subject to Bar Council regulation.
The minister had argued that the Criminal Justice (Legal Aid) Act 1962, and regulations made under that act in 1965, meant barristers seeking to be added to the legal aid panel must be regulated by the Bar Council.
Her refusal to include Mr White, who had an extensive criminal defence practice before being appointed a judge, was based on a Bar Council rule perceived as restraining judges resuming practice in courts lower than where they had presided, said the High Court.
Mr Justice Barrett found there is no legal requirement for a barrister to be regulated by the Bar Council before they can be included on the panel.
The minister’s refusal breached Mr White’s constitutional rights to work and earn a livelihood, found Mr Justice Barrett.
The case against the Bar Council was dismissed in the High Court and it was not a party in the appeal taken by the minister.
In relation to the High Court’s finding on Mr White’s constitutional right to earn a livelihood, Mr Justice Finlay Geoghegan said the trial judge was in error in concluding that the challenged decision could be considered as an interference with his right to earn a livelihood as protected by Article 40.3 of the Constitution.