Michael McDowell (Independent) | Oireachtas source

I will not dismiss the District Court and say it would not be of much use there but I cannot imagine why somebody who has all of this experience as a legal academic would want to spend time dealing with cases such as people having no lights on their bicycles and no television licence. We have to ask what is going on in this section. It is one thing to say we should have some port of entry into the Judiciary at a senior level for people who are serious jurists and have gone the academic route, having been a practitioner. That is the philosophy of the section as it stands. If is another thing to say we will provide that the District Court can be the place where senior legal academics get to spend the rest of their lives. What are we doing? It is Alice in Wonderland stuff. Who, having spent 12 years as a legal academic and having been a practitioner for four years before that, well into their career would suddenly want to revert from being a jurist to being a District Court summary judge? It escapes me completely. I am against the principle of doing this.

The late Professor John Kelly was appointed Attorney General and was one of our foremost constitutional lawyers, with the fifth edition of his book due to be posthumously launched on Thursday evening. It is one of the major textbooks of Irish constitutional jurisprudence and the authoritative work on the Constitution. I am content that someone such as him would be eligible to be appointed to a position of High Court judge. His collaborator, Professor Gerard Hogan, became a practitioner and a judge thereafter and is now in Luxembourg as advocate general in the European Court of Justice. Another collaborator, Professor Gerry Whyte, is at Trinity College Dublin. I do not doubt they are people who should be capable of having a port of entry into the senior Judiciary and I have no problem with that. I am not commenting personally on them but refer to people of their standing. I have a major problem with scrambling up the idea of legal academics on one hand and the District Court on the other turning things on their head and saying that legal academics as jurists should somehow be eligible to be made District Court judges. I do not see the logic of it. It is hard to defend in any realistic scenario that any of these people would want to do that.

The Minister's intended amendment of section 45A(1) the Courts (Supplemental Provisions) Act 1961, set out in section 33(4), states:

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

Senator Bacik's amendment effectively knocks the Circuit Court and District Court out of it, which makes sense. The Minister's amendment to the 1961 Act suggests:

Without prejudice to subsection (5), a person of such standing shall have been employed as a legal academic for a continuous period of not less than 2 years immediately before such appointment.

They have to have been a legal academic for two years. It then states:

Subsection (1) shall only apply to a legal academic—

(a) who, at the time of the appointment referred to in that subsection, is a barrister or a solicitor, and

(b) who has practised as a barrister or solicitor for a continuous period of at least 4 years,

and subsequent subsections of this section, in so far as they relate to a person who is referred to in them as a ‘head of a faculty’ or ‘head of another faculty’, shall not be construed as enabling such a person to be the subject of such an appointment unless the person—

The appointment referred to is as a legal academic.