Barry Ward (Fine Gael) | Oireachtas source

I am sorry that I was late. I was actually in court and it took a little bit of time to get across the city. I was listening in the car on the way over and I have been following what is being discussed.

I want to raise a couple of issues. I will start with the last point in respect of diversity. I was delighted to hear what Ms McNally said on behalf of the Bar because I was a little bit involved when I was in the council of King's Inns and we set up the Denham fellowship. There are two things about that. First, both the Law Society and the Bar Council would cut off their left arm to have more diversity, and they are doing everything they can to achieve it. The reality is that, if we compare the legal professions to others like medicine or engineering, the skills or qualifications are not as transferable internationally, so it is much more difficult to attract people in from internationally than it is in other professions. If someone is building a bridge in Galway or in Santiago de Chile, it is the same skill set and the only thing different is the language. It is much harder to introduce diversity into the legal professions because they are very national-specific. That diversity is coming as Ireland itself becomes more diverse, and the populations of the two professions are reflecting that, but it takes time for those people to come up through the system. We cannot have somebody who is a newly qualified solicitor or newly qualified barrister occupying a judicial position. We all know that is not going to work as there is formation and experience involved. It is important to recognise that both professions are working very hard to increase diversity and, in the lower ranks of the professions, the results are clear to see.

The other group that is very strong on diversity is governments. I agree with what the Vice Chairman said earlier about the importance of, if not political input into judicial appointments, democratic input into judicial appointments. As other speakers have said, the reality is we are appointing a person for his or her working life, often for 20 or more years, although probably not often enough, and I agree with what Senator McDowell said about the changes in the benching regimes having locked many people out of judicial office in real terms. Nonetheless, governments are the will of the people in terms of judicial appointments. When appointing a person into a branch of government for a long time, where they are largely unimpeachable - or if not quite unimpeachable, we know they are largely untouchable by the other branches of government - it is very important we have some democratic influence in that decision-making process. The way that happens is through the political process and through appointment by the Government as another branch of government.

I absolutely understand what the academics in particular have said about this and the misgivings they might have. However, I would be concerned about the narrative that is abroad that, in some respects, all judges are political cronies. I know academics are not suggesting this but some politicians are suggesting it. There is a concern that people only get appointed to judicial office if they are involved in a political party. Of course, as the academics or anybody who has looked at this will know, there is a raft of very senior judicial figures who have never been involved. Mr. Justice Peter Kelly is the obvious example of a man who always eschewed any kind of politics and became one of the highest judicial officers in the State in recent years. It is important to challenge that narrative and to remind people just how many people are appointed to judicial office by party-political Governments but who have no involvement either in party politics or in the parties who are in power. It is a very important thing to say.

On that point, I want to agree with the Vice Chairman in respect of the proposals in this Bill. I do not agree with the academic position that we should again reduce the discretion with which the Government should operate, that is very important.

There is a point I would like to put to the professions. I accept the solicitors' profession is more diverse and I believe the reason for that is that it is a more stable profession. To become a solicitor is to become an employee, in the first instance, and to have one's way through the Law Society paid for by the employer and to enter into employment, ideally, after qualifying as a solicitor. The role of a barrister is akin to a person who is self-employed from the word go.

I do not come from a legal background. I always joke that the last lawyer in my family was Daniel O'Connell, and I can assure people he had no influence on any work I ever got but he is there somewhere in the background. I am the first person in my family to go to university and I became a barrister. I worked full-time when I was in King’s Inns for three years. I put myself through and then I went down to the Bar, having worked for two years and having built up, I suppose, a fund to help me through my first years. However, one is a self-employed person. In the same way that it is difficult to set up a business and there is risk associated with it, that is true of the Bar. For that reason, there is necessarily greater diversity in the solicitors’ profession.

However, when it comes to the judicial role, and Senator Martin touched on this, it is important to acknowledge the reality that not all lawyers are courtroom lawyers. I have many friends in big commercial firms who have never been inside a courtroom, except when they were in the Law Society or whatever it was. This is what I want to ask the professional bodies. I do not agree with the notion that a person who is a highly qualified, highly specialised, highly expert lawyer would necessarily be a good judge if that person does not have the litigation experience that is necessary. Some of the most expert lawyers in the State do not go to court because they are experts in their field and maybe there is not a litigation side to it, or maybe it does not pay them to go to court, or whatever it might be. I wonder if account is to be taken of the fact judges are an extension of that litigation role and they must have experience of that litigation role to function properly. We have seen, in all courts, judges who may have less experience in that regard struggling, certainly in the initial years, when they are appointed to judicial office. I wonder if the professions have a view on whether that, therefore, reflects what Ms Keane was saying on the disparity between the number of barristers and the number of solicitors appointed as judges. Does it account for that? Is it reasonable? Is it something they think needs to change or do they think that where we are at the moment is the right balance? What should we be doing to change it?