Michael McDowell (Independent) | Oireachtas source

No, a lawyer. I cannot imagine that a lawyer would seek appointment to the District Court Bench and, within two years, say he or she is in the wrong court and should be in the High Court. A person so philosophically and professionally confused about where his or her forte in law lay would need a great deal of counselling.

If one applies to be a District Court judge, one is applying for a particular form of judicial office. It is an office in which one will exercise local and limited jurisdiction, largely of a summary kind although some complex cases in the family law sector, in particular, are heard and disposed of in the District Court nowadays. I do not accept for one minute, however, that the qualities that would make someone a good District Court judge would make him or her a good High Court judge. I am not saying one could not have those qualities, but if someone opts to be on the District Court, he or she is making an application to the Government for appointment which is based on the proposition that he or she is expressing a preference to be appointed as a judge of the District Court. As we know, a District Court judge is eligible to be promoted to be a Circuit Court judge, who in turn is eligible to be appointed to be a High Court judge.What this measure is supposed to do is provide for a leapfrog exercise from the District Court to the High Court and I cannot conceive in what circumstances that would be done. It is not a matter of snobbery or anything else; it is a matter of plain common sense. It is extremely unlikely and questionable whether it would be appropriate for such a person after two years in the District Court to say I have had enough of this I am going to apply to be appointed to the High Court. I cannot imagine a reasonable person pursuing that career path. However, I can well imagine a judge of the District Court saying he or she would like to be a member of the Circuit Court and serving some time as a member of that court, conducting trials on indictment, jury trials, and being successful in so doing, functioning on a different level from that of the District Court. Eventually he or she would be entitled to say he or she done several years on the Bench of the Circuit Court and has conducted complicated trials, and if there is to be an appointment to the High Court, particularly on the criminal side or whatever, his or her experience now makes him or her eligible and suitable for that position. That could very easily happen but I cannot see any circumstance in which a District Court judge would want to leapfrog directly from the District Court to the High Court because their years of experience in the District Court would not prepare them for practice in the High Court. They would be cut off from the kind of law which is practised in the High Court to a large extent and would be doing different duties as judges.

I should say also, and it is a prejudice of mine, that I do not believe in too much promotional movement of judges from one court to the other as a defined career path. I do not believe that the way to become Chief Justice is to start off as a District Court judge. That is not correct because it would seriously compromise the independence of the Judiciary if one was effectively to start in the District Court, be promoted to the Circuit Court, have the ambition of going to the High Court, the Court of Appeal and on to the Supreme Court. That is an unnatural progression and is not readily amenable to notions of judicial independence because people would accuse judges of looking over their shoulder on such a promotional career path in respect of the judgments they gave.

Will the Minister explain something that I cannot follow in the text of the Bill? A 'legal academic" suddenly appears in section 45A to be inserted by this amendment. It is defined in subsection (4) as:

a permanent member of the academic staff of an educational establishment who—(a) teaches one or more subjects in the field of law, or

(b) carries out, or supervises the carrying out, of research in one or more such subjects,whether or not in conjunction with the carrying on by him or her of administrative duties relevant to that teaching, research or supervision.

A person could, for instance, be teaching business law in a university as a member of permanent staff, or some other form of law, medical law, in the faculty of medicine or whatever, or else could be researching those topics. That is the definition of a legal academic, whether or not the person is also carrying on "administrative duties relevant to that teaching, research or supervision".

Subsection (5) states:

In the case of a person who—(a) is the head of a faculty immediately before the appointment referred to in subsection (1), the requirements of that subsection and subsection (2) shall be deemed to be satisfied if, within the period of 12 months before the person's becoming the head of that faculty, he or she was either a legal academic of not less than 12 years’ standing (2 of which years shall have been continuous) or the head of another faculty of not less than 4 years' standing (2 of which years shall have been continuous), or

(b) was the head of a faculty at a time other than immediately before the appointment referred to in subsection (1), any period served by him or her as the head of a faculty shall, for the purposes of that subsection and subsection (2), be deemed to be a period served by him or her as a legal academic.

The word "faculty" does not seem to be defined at all and I do not see where the phrase "head of faculty" is coming from or what exactly it means because, for instance, educational establishment is defined as a university to which the 1997 Act applies or the Honorable Society of King's Inns or the Law Society of Ireland. Are there faculties in the Law Society of Ireland and the King's Inns? I am not aware that there are. We are presumably talking about university faculties. I find it difficult to understand why a special provision is being made for somebody who used to be a lecturer or researcher but has gone on to greater things, to be the administrator of a faculty of other people who do that work but who does not do it him or herself. I have deep concerns about that. I do not know why precisely these special provisions are being made for the head of a faculty as distinct from a legal academic. Perhaps somebody would explain that to me. There are faculties in universities. In University College Dublin, UCD, where I am an adjunct professor, believe it or not, the law school is not a faculty. It is located in the faculty of arts. It has some other name now.