Ivana Bacik (Independent) | Oireachtas source

In the interest of time, I will. These are important points but they were raised with me subsequent to the Bill commencing Committee Stage. Therefore, I could not table amendments on the matter for Committee Stage.

The issue raised appears to involve a somewhat technical oversight, but with potentially serious consequences. It concerns the relationship between this Bill and the Legal Services Regulation Act 2015, which precedes this Bill. The serious consequence is that there may be discrimination against practising barristers currently employed as in-house lawyers because the legislation may treat them differently and put them at something of a disadvantage by comparison with solicitors doing exactly the same work in-house.

Let me explain why the issue arises. The expression "practising barrister" in the legislation that governs eligibility for judicial appointment — principally the Courts and Court Officers Act 1961, referred to in section 33, and also the Legal Services Regulation Act — is not defined and is not aligned with the new definition of "practising barrister" contained in the 2015 Act. As a result — the point has been made to me and I am still working through it — barristers employed as lawyers in an in-house capacity may not be regarded as being in practice for the purpose of eligibility for judicial appointment while solicitors working side by side with them may be eligible to apply provided they retain their certificates of practice.

I have canvassed a number of in-house lawyers on this. It is certainly a matter of real concern to many. It is a serious issue, particularly for many women who in order to achieve a work–life balance or for another reason left the Bar, in particular, because it is more precarious and involves more self-employment, to practice law in-house or in the State sector. The view that they should be eligible to apply for a judicial appointment is very much welcomed. That is one reform that is very welcome in the Bill.

Let me examine the technical point. Section 2 of the Legal Services Regulation Act has a broad definition of "practising barrister". I believe that section has been commenced, with the role of practising barrister now established under the Legal Services Regulation Act. This means barristers practising in-house will be legally recognised as practising their profession. That should deal with the point but it seems the section 2 definition is applicable only for the purposes of the 2015 Act.

I seek clarification on whether that definition can apply within this Bill given that it seems to be the Courts (Supplemental Provisions) Act 1961, as amended, that sets out the eligibility criteria for judicial appointment. The 1961 Act does not define "practising barrister" as an expression. In a 1981 case, Walshe v. Murphy, Irish Reports. Vol. 275, the Supreme Court held that a practising barrister is a person who has been called to the Bar and offers himself or herself at hazard to take work. It does not include a barrister employed in-house. That is clearly superseded by the 2015 Act. Unless, however, this Bill specifically adopts the new definition of "practising barrister"-----