Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I acknowledge what Senator Bacik has said. I would be interested in hearing from her on the matter in the discussion on the section or in the course of the amendments, whichever she deems most appropriate.

On the matter of amendment No. 72, which was moved last night in the absence of Senator Bacik and to which she made brief reference, the amendment seeks to delete part of the amendment to section 5 of the 1961 Act which is contained in section 33 of this Bill. I point out that the qualifications and eligibility framework laid down in the statute contain important safeguards to ensure that only appropriately-qualified persons compliant with the appropriate and relevant statutory provisions may be considered for appointment to the Bench and subsequently appointed.

The changes proposed under section 33 make two adjustments to what is the current and existing framework. First, it provides that a judge of the District Court with two years service can be eligible for appointment to the High Court. I emphasise "eligible for" because, listening to some of the debate last night, one would think it was mandatory. This is about eligibility and enabling.

Second, it provides that a legal academic of 12 years standing, with four years practice as a barrister or solicitor, will be eligible for appointment as a judge. Again, we are dealing here with enabling or eligibility factors, rather than the type of mandatory doomsday scenario to which we were feted last evening. While these are reasonably significant changes, I would not regard them as being particularly radical. Section 33 enables the commission to consider applications from persons in those categories and to make recommendations in respect of such persons as it deems appropriate and fit.

The amendment would remove from the Bill the new provision whereby a judge of the District Court who has served for not less than a period of two years will qualify for appointment as a judge of the High Court. I do not accept the amendment. I believe that to do so would be a regressive step and an unfortunate one on the basis that what we are doing is broadening the scope of eligibility rather than introducing any mandatory entitlement.

Section 33(1) amends the 1961 Act so as to address the anomalous situation whereby a judge of the District Court is precluded from being eligible for appointment to the High Court. Specifically, a new paragraph (d) to be inserted in section 5(2) of the 1961 Act will extend that eligibility for appointment to a judge of the District Court with a period of service of two years. As of now, to qualify for appointment to the High Court and, indeed, the Court of Appeal and the Supreme Court, practising barristers and solicitors of not less than 12 years standing may be eligible. Of course, Circuit Court judges of not less than two years standing are also eligible for appointment to the High Court. Practising solicitors and barristers must have practised for a continuous period of two years immediately prior to first-time appointment as a member of the Judiciary.Sitting District Court judges, however, no matter how long they have sat on the Bench, cannot even be considered as potential appointees to the High Court. Senator McDowell in many respects predicted the reasons for these amendments when he said he was not motivated by intellectual snobbery and that this was not a cause in defence of members of the Bar. We are merely adjusting what I and members of the Judiciary perceive to be an anomalous situation, that is, where sitting district justices, many of whom have long-standing service and expertise, cannot even be considered as potential appointees to the High Court.

I am reminded of a debate in the Oireachtas 20 years ago, about which I would hazard a guess Senator McDowell, then a Deputy, is on the record, if he was not then occasion engaged full time in the Four Courts. There was an active campaign by the Bar to ensure solicitors would not be eligible for membership of the High Court. That law changed many years ago and the prophets of doom were wrong. A number of former solicitors sit on the Bench of the High Court, and many of them are exemplary in the conduct of their work on the Bench.

Section 33 merely corrects an unfairness. It opens up eligibility arrangements for the appointment of district judges to the High Court. It is appropriate, even overdue, and I do not agree it should be undone by way of amendment.