Ivana Bacik (Independent) | Oireachtas source

I thank the Minister for his response to the points raised by Senators Norris, McDowell and me on section 36 and its disapplication to the section 44 appointments. I also thank him for stating that he will come back on Report Stage with more definitive arrangements for those three most senior appointments. That is very welcome, as is his clarification that there will be a separate process from appointments to other judicial offices.

However, that separate process would not preclude an obligation for further training or continuing professional development. I take his point that under section 36(1)(d) to which I referred it is clear that it is the Chief Justice or the President of the relevant court who would require an appointee to undergo a course or courses of training or education. They are different in that respect to other judges because they direct that the courses be taken. However, that does not mean that they should not also have some obligation for continuing professional development.

Sections 44(10) and (11) relate directly to this point on section 36 and its disapplication to the section 44 positions. Subsections (10) and (11) refer to "eligible person" and "eligible member" qualified for appointment to the judicial office concerned, that is, one of the three top positions, by virtue of sections 5 or 45A of the Act of 1961.

Looking at those sections of the 1961 Act, I am unclear whether practising barristers, solicitors or, indeed, once this Bill is passed, if it ever is, legal academics would be eligible or whether "eligible persons" refers solely to those who already hold judicial office. Senator McDowell reminds me that a practising barrister was appointed directly as President of the High Court. I note the Minister is agreeing with me. There is currently provision for such appointment and that will not change under the provisions of the Bill. However, I am unclear how that will link with the existing provisions in the 1961 Act because section 36 refers to barristers, solicitors and legal academics but not to persons already holding judicial office who seek promotion.

Should there be an equivalent provision for serving judges who are seeking appointment at a more senior level? One might not wish to refer to such appointment as a promotion, so I will refer to it as seeking another judicial appointment. Does any provision of the Bill require certain standards or levels of competence and probity and so on for such judges or will the commission only be concerned with criteria such as those set out in section 36 when considering applications for judicial appointment by a barrister, solicitor or legal academic?

If judges who seek promotion or further appointment are not to be subject to the same sort of conditions, what are the criteria for appointment to further judicial office for judges? It is a fundamental point for the new regime which the Bill anticipates if a significant section of appointments will not be subject to the same criteria as the appointments of practising barristers, solicitors or legal academics. This is a bigger issue about section 36. It is not just about how it links to sections 34(1) and 44. More fundamentally, as it only relates to barristers, solicitors and legal academics, is there any equivalent provision in the Bill for those who are currently judges and seek appointment to further office through the commission procedure? There may be such provision which I have missed. However, if there is not, that is an anomaly or internal inconsistency within a Bill which is supposed to bring forward a more streamlined and consistent set of procedures for judicial appointment.