Michael McDowell (Independent) | Oireachtas source

As he is not disposed to withdrawing that phrase, I must express my disagreement with it because the position of district judge is an important constitutional office in our judicial system. The District Courts and the Circuit Courts may be courts of local and limited jurisdiction, but nobody demeans oneself by becoming a judge in any of those courts. When the Senator used the phrase "high-flying academic", he had probably had professors in mind who are unlikely to say at some stage of their career that they would give up being a professor and turn instead to being a judge in the District Court. It sounds unlikely but, as the Minister emphasised, it is purely a matter of eligibility. If someone was eligible to be a High Court judge, it seems remarkable he or she would be ineligible to be a District Court judge, but I accept the Minister's point.I am not quite clear why someone would want to do that.

In early 2002, when I occupied the position of Attorney General, and John O’Donoghue was Minister for Justice, Equality and Law Reform, legislation was passed to provide for solicitors to become judges of the High Court. At that time, the legislature specifically provided in the Act, in section 8, that "in the case of an appointment to the office of ordinary judge of the Supreme Court or of ordinary judge of the High Court, has an appropriate knowledge of the decisions, and an appropriate knowledge and appropriate experience of the practice and procedure, of the Supreme Court and the High Court". That is still the law of the land and will stand to be repealed by this statute because the JAAB provisions will be swept away. That provision was designed to ensure that while someone could be a practising barrister or solicitor, it might be the case that they might never have darkened the door of either the High Court or Supreme Court at all. In 2002, the Legislature said that if a person wished to be appointed to either of those courts, that the JAAB would have to be of the opinion that the person being recommended had an appropriate knowledge of the decisions and an appropriate experience of the practice and procedure of the Supreme Court and High Court.

We have not reached the idea of an in-house solicitor or barrister, to which Senator Bacik referred. There is no doubt that it is complicated but it would be possible for someone to be the in-house solicitor of a building society and to have never seen the Four Courts in his or her life. Under the current JAAB legislation, the board was precluded from recommending people, be they barristers or solicitors, for appointment to the High Court or the Supreme Court, as then was – the Court of Criminal Appeal did not exist then – unless they had what was provided for in law. They had to have “an appropriate knowledge of the decisions," and, therefore, they had to be learned in the case law of those courts and, second, they had to have "an appropriate knowledge and appropriate experience of the practice and procedure, of the Supreme Court and the High Court". Senators Boyhan and Craughwell and I seek to maintain this requirement in section 35, so that it would not be possible to come into those courts as a neophyte who knows little or nothing about their practice, procedure or case law. This is very important.

Senator Norris, in making a different point, laid the ground for the point that I make now. He said that a professor of law teaches law students, ergo, he should be able to do what they do. I did not study law in university but I did study King's Inns subjects in UCD which was then possible. For my arts degree in UCD, I took economics, politics, Roman law and jurisprudence. I did so as the alternative was statistics, and my mind would go blank at the sight of a square root sign. I was never happy at the sight of square root signs, cubes, sigmas and all the rest that one had to master to become proficient in the science of statistics. I, therefore, decided to take the other option, which was what remained of legal and political science that later became group 9A in the arts faculty. I was lectured in Roman law and jurisprudence, happily by the late John Maurice Kelly, who was a wonderful lecturer. At the time, another person lectured in Roman law. As Senator Norris noted, someone might teach Roman law and qualify for appointment. It does not follow that teaching Roman law as a historical subject would be an eligibility criterion for being a member of the High Court or Supreme Court.

I understand that the Minister cannot be prescriptive and say that someone must lecture in the basic core subjects, but the mere fact that someone happens to be a professor or a lecturer in a law faculty, or a commerce faculty – in UCD this became the School of Business but I do not know its name now – and lecture in some aspect of law in a university does not mean that a person is likely to be a good candidate for a promotion to the Judiciary, and currently, the JAAB cannot recommend this, for the reasons outlined in section 8 of the 2002 Act.

This brings me to what Senator Bacik said about in-house lawyers. There are many in-house lawyers, in semi-State bodies and the like, for whom I have the greatest of time, who almost act as attorneys general for the semi-State bodies. I can see it of those people. However, I can imagine the case where someone is described as an in-house lawyer who might be a lawyer to a large supermarket chain. In the case of those type of people, one must ask oneself whether a person employed in private enterprise and having no day-to-day involvement in the practice of law in the courts sense, qualifies to be a judge in the Court of Appeal or the Supreme Court.I am deeply worried about the Minister repealing the 1996 Act, insofar as it relates to the Judicial Appointments Advisory Board, and the amendments made to it in 2002 which said that one could be an in-house barrister or solicitor but must demonstrate practical experience of the superior courts before being appointed to them. That will be swept away. The requirement for practical experience will be got rid of. That is why the requirement that one has practised as a barrister or solicitor before becoming a legal academic or in conjunction with being a legal academic is important. That used to often be the case, although Senator Bacik may correct me as to whether it is as fashionable now to do a bit of both; I know that some of our most eminent judges practised and lectured at the same time.