Michael McDowell (Independent) | Oireachtas source

Exactly. A new section will be inserted stating: "A person who is for the time being a legal academic of not less than 12 years' standing shall be qualified for appointment as a judge of the Supreme Court, the Court of Appeal, the High Court, the Circuit Court or the District Court, but this is subject to subsections (2), (3) and (5)." It goes on to provide that a legal academic must have been a barrister or solicitor at some stage of his or her career and to have: "practised as a barrister or solicitor for a continuous period of at least 4 years."

To put that in context, this effectively means that legal academics who have been a barrister or a solicitor for four years and practised as such will be eligible to be appointed if they have 12 years standing as a legal academic in addition to that. That is a lengthy period as the Senator will appreciate.

My first comment on this section and the amendments that have been tabled, if I may do so before we come back to the other amendments that Senator Norris has not mentioned at a later stage, is that I have the gravest of reservations about the first amendment to section 33(1). It provides that: "A judge of the District Court who has served as such a judge for a period of not less than 2 years shall be qualified for appointment as a judge of the High Court." I cannot understand the circumstances in which somebody who was appointed to the District Court Bench, after two years would be an appropriate person to be appointed as a judge of the High Court by reason of having served on the Bench for two years.

We have to ask ourselves what possible circumstance could lead somebody to make such an application, and from now on people will be applying for all of these positions. If, say a barrister of ten or 12 years standing, is eligible and wants to be on the District Court Bench, why would he or she then say after two years that they want to a judge at the High Court and apply for same? I find that to be a remarkable proposition and I will go even further. It seems to me that nobody ends up on the District Court Bench except by their own voluntary choice and if somebody wants to be a judge in a summary court, I cannot imagine why, after two years serving in that position, they would suddenly say that it was a big mistake and that they should have applied to be a High Court judge. I also cannot see how two years of practise on the District Court Bench would transform one from somebody who was not eligible to be a High Court judge to be somebody who is eligible to be a High Court judge. I know that it would put one on the same basis as a barrister or a solicitor who has 12 years in practice anyway but they are not just a practising barrister of 12 years standing, they are somebody who has asked the Government to put them on the District Court Bench, has applied for that position and had a commission ask if they are a suitable person to be a District Court judge. Two years after that decision is made, that person is supposed to then say that they have changed their mind and they want to be a High Court judge.

I hope that members of the District Court Bench will not take this the wrong way but, by any standard, the work of a District Court judge and a High Court judge are dramatically different types of work. A District Court judge will get the odd complicated case but, most frequently, it is a court of summary jurisdiction and the judge is expected, and obliged, to be the kind of person who would spend a morning dealing with television licence defaulters, drink-drivers or minor assaults and to get through a list of ten to 20 cases and deal with remands and all of the rest of it. That would not be untypical. There are many good qualities required of a District Court judge, namely a capacity for hard work, speed and quick decision-making.The idea that a District Court judge will say, "I want to think about that", or, "I want to reserve my decision on the application being made and I will come back with a written judgment in two or three weeks", is simply not how the District Court functions. Any District Court judge who operated that way, and listened to lengthy submissions like a High Court judge, would find that his or her court would disintegrate.

Second, a District Court judge might write a lengthy judgment once a year and many District Court judges would get through two or three years without ever writing a lengthy judgment of more than a page or a paragraph. However, we are asked by the Government in this section to suddenly deem such people, by reason of the fact they have done two years in the District Court, to be eligible for appointment to the High Court. Bearing in mind, as the Minister has agreed, that this legislation acknowledges the Government is not bound by the JAC's process or recommendations at all and can make its own decisions, what we are actually doing is saying that a judge of the District Court, that is, somebody who has been appointed to the District Court, could at the say-so of the Government be appointed a High Court judge two years after their appointment.

I wonder in what circumstances that could happen. In what circumstances could somebody who has done two years on the District Court suddenly be transported to the High Court and asked to do a radically different job involving listening to complex cases such as Commercial Court cases, patent cases and constitutional cases? In what circumstances would somebody who applied to be a District Court judge suddenly either credibly want to be put on the High Court or credibly apply to the District Court two years earlier than applying to be a member of the High Court? I cannot see any circumstances in which that would happen, nor can I see how, in the life of the average District Court judge, anything could happen in regard to such a person to suddenly bump her or him up to the top of the queue as somebody who could be appointed to the High Court.

I will go one stage further. It is a big mistake and there is no justification for this, except some notion of trying to achieve equality among all judges, when they are not all equal, their job specification is not equal and the criteria for appointment are not the same. I know, as the Minister knows, that when one is considering appointing somebody under the present system to the District Court, one does not ask oneself for one minute, "Is this person suitable for appointment to the High Court?" It would be utterly artificial and wrong to think that a Government, in appointing somebody to the District Court, would say, "By the way, after two years this person is going to be eligible to be appointed to the High Court", or that we should take into account that eligibility in deciding whether they are suitable for the District Court. I do not accept that at all.

This is not some kind of legal snobbery, intellectual snobbery or intellectual contempt for the summary jurisdiction. It is simply saying that the two functions are radically different. On the one hand, we have somebody who is going to be expected to produce world-class judgments of a reserved kind, with judicial researchers, as a High Court appointee, and, on the other, we have somebody who is appointed to the District Court Bench to carry out a radically different type of function, which is dealing with public order offences and driving offences - 20 in the morning and ten in the afternoon - and to preside over sittings where 50 or 100 people are found guilty of having no television licence. To say that one thing compares with the other is, I am afraid, fundamentally untrue and nonsensical.

I do not say it is impossible that somebody on the District Court could be a High Court judge manquéwho somehow got distracted into applying for the wrong court. However, I find it so unlikely and so fanciful that this would be a career path that I ask myself why we are being asked to bring it into law. It is illogical. On occasion during the debate, the Minister has accused me of coming up with extreme cases. However, who in the name of heaven would apply to be on the District Court Bench and two years later say, "I really think that now, after two years in the District Court, I should be appointed to the High Court"? What kind of person would do that? Yet, that is what we are legislating for here. It is bizarre.

I do not know whether an English district judge - it used to be the resident magistrate - after two years becomes eligible to be a high court judge in England but I very much doubt it, although I stand to be corrected, and if I am wrong, I am wrong; I do not study English legislation on this carefully as a night-time occupation at home. However, I would be surprised if two years service as a district judge in England suddenly made people eligible to be appointed to the high court in the English system.

We do not have to ape the English. However, we have to have a common law system which has the respect of not merely the Irish people but also the international community in terms of commercial investments, human rights protection standards and the like. If it is the case that this Bill envisages the commission asking itself, when it puts somebody onto the District Court, whether in two years time this person could also be eligible for the High Court, then I am deeply worried about the quality implications for the reputation of the Judiciary. Almost every practitioner has asked himself or herself the question, "Would I like to be a judge?", although it is probably more solicitors than barristers in respect of some judicial positions. Generally, there is no doubt that nearly every solicitor who has a practice has at some stage or another queried themselves, "Would I like to be a judge? Would I like to retire from my practice as a solicitor and apply to be a judge?" However, for somebody who was considering applying to be made a judge of the District Court, be he or she a barrister or solicitor, there could not be in their mind a state of confusion or the thought, "By the way, after two years I will have a crack at being a High Court judge." That is fanciful in the extreme and indefensible.That is one provision of the section which is discrete and there needs to be much examination of why this has been done. The remainder of the section deals with an entirely different matter - the legal academics. Many lawyers are wrongly suspicious of the idea of making provision for a legal academic to be appointed a judge of the superior courts. I do not know what most people's reservation would be. I have no problem in principle with a professor of law being made a judge. I especially have no problem with the idea of a professor of law who has practised as a legal practitioner prior to his or her appointment being appointed to a position in the superior courts. If we go to the amendment which Senator Norris has moved-----