Ivana Bacik (Independent) | Oireachtas source

If I may respond to the Minister, I hear what he is saying about section 44. We have discussed that. Leaving it aside, I have raised a more fundamental concern about section 36. It does not apply to serving judges seeking promotion. The Minister has indicated that my reading is correct and that it does not apply. It clearly only applies to barristers, solicitors or legal academics seeking appointment. That is fine but I do not see why we cannot have some equivalent criteria set out for the commission to observe when considering applications from serving judges. Indeed it is of concern that there is not something equivalent. I accept that serving judges could be dealt with in a separate provision. I listened carefully to the Minister as he said that he presumes somebody who has served as a judge will have shown competence in that office, but where in the Bill is it set out that the commission must have regard to the level of competence and probity in a person's tenure as a judge?

On another serious issue, where in the Bill is there a requirement for serving judges to give an undertaking that they will engage in continuing professional development training or education as required? It would be an anomaly to exclude serving judges from the requirement set out in section 36(1)(d), which applies to anyone else. Any practitioner, however long-standing, and any legal academic, however senior, must give an undertaking in writing to take a course or courses of training or education. That is absolutely proper and appropriate.

I authored a report on the legal process in respect of victims of rape with two colleagues back in the late 1990s. It identified many issues in our rape and sex offence trial process which are only coming to light and being discussed now. We recommended, and others have since recommended likewise, that many of these issues should be addressed through judicial training. If a serving judge of the District or Circuit Court is appointed as a judge of the High Court, he or she will therefore preside over rape trials as a Central Criminal Court judge. He or she may never have sat as a judge in a rape trial. One should expect that such a person would be required to undertake whatever courses of training, education, or both as might be required in respect of the conduct of such trials or, indeed, in respect of any other area of trial procedure of which he or she might not have had previous experience.

It is of concern that there is no provision to guide the commission in considering applications from serving judges that is similar or equivalent to those criteria set out in section 36 which must be satisfied in order for the commission to recommend the names of practising barristers, solicitors or legal academics for appointment. It seems to be an inconsistency and it is of concern. I acknowledge that if a person has served as a judge, one might presume he or she has the same level of competence or probity but that is not really good enough when the Bill is supposed to be setting out a whole new streamlined and consistent regime for appointments. Why should serving judges be exempt from the requirement to give an undertaking in respect of continuing professional development in particular? That is perhaps as serious, if not more serious, than the lack of any criteria to guide the commission in considering serving judges for appointment.

I do not want to go on any further. The fundamental issue I have with section 36 is that there is nothing equivalent relating to the appointment of serving judges. As I have said, I am leaving aside the point about section 44, of which the Minister has indicated he is aware and with which he will deal. This is about the appointment of persons currently serving as judges to judicial offices that are not the three topmost posts set out in section 44. It could, however, be any other judicial office in which a vacancy has arisen and which the commission is considering.