Michael McDowell (Independent) | Oireachtas source

I am looking at the wrong document. Yes, I have it now. The Bill's definition is that " “law officer” means a person employed in the service of the State where a condition for the employment of the person was that he or she was a practising barrister or a practising solicitor". Paragraph (b) of amendment No. 7, however, means that if a person did two years' service - for example with the Director of Public Prosecutions Office for Northern Ireland - in a position for which he or she had to be a practising barrister or solicitor - then that person would thereafter never be capable of being a member of the Irish judicial appointments commission, no matter for how long. This is not a 15-year limit; it is forever and ever and the person could never carry out that function. One must ask why this is being done. Why would a young woman who did two years' service in the office of the Attorney General of Northern Ireland, for which the status of practising barrister was required at the time of appointment, be forever disqualified from being appointed to a position in the Republic of Ireland, no matter what she had done in the intervening period? I cannot understand why this is necessary. I do not understand why we are being asked to do that. That is paragraph (b).

Paragraphs (c) and (d) of amendment No. 7 state the person "is not, and in the relevant period specified in subsection (2)for the purposes of this paragraph, was not, a practising barrister or a practising solicitor [...] in a jurisdiction outside the State in accordance with the law of that jurisdiction;”. Again, it is a solicitor or barrister who is to be disqualified. Does this apply to notaries or advocates in France or Germany, or is it purely common law jurisdictions such as Canada, Australia and New Zealand? It may not apply to America as they have a unified profession of attorney. I do not understand this amendment.

Consider the first line of paragraph (d): " [...] has never held or occupied, an office or position in a place outside the State equivalent to an office or position referred to in paragraph (a) or (b)". There is an equivalence matter here, whereby the amendment would disqualify a person who is a magistrate in France, for example, which is an equivalence of judicial function. With the disqualification for persons acting as barristers or solicitors in a foreign jurisdiction it is only barristers and solicitors that the Bill is concerned with. I believe this to be completely irrational. An American attorney would not be excluded but a barrister in the Channel Islands would be. A Northern Ireland barrister is caught by this provision, whereas an American attorney is not. For the life of me I cannot see how this makes sense. I cannot see how such a provision could have been drafted. It is badly drafted.

If one was to try to knock out legal professionals across the world it should have said "has never been a barrister or solicitor or held or occupied an equivalent position anywhere else in the world", but the Minister has not done that. This is a simple flaw with the drafting. The Fine Gael Party came in here and prevented us from looking at this again on Committee Stage. They came in here and said "No" and objected. They said it was all wrong to recommit it. They voted down a motion to recommit this amendment. Now there is another dog's dinner being put into the law, whereby an American attorney can be appointed, a French notaireor advocate can be appointed, or an equivalent anywhere in Europe can be appointed to the judicial appointments commission but anybody whose name is barrister or solicitor cannot, because these are common law descriptions of divided professions. That is a major and embarrassing mistake to have put into legislation. It is inexplicable and indefensible. It should not be waived through this House. The Minister should withdraw the amendment because it simply does not make sense. Very little depends on this amendment and if the Minister withdraws this amendment the Bill will not be hugely changed. The disqualification of some people outside the State from being appointed to the commission is wholly unnecessary, wholly irrational and wholly indefensible because it distinguishes between a person who is described as a "solicitor" or a "barrister" in England, and a person who might be a professional anywhere in the EU, the United States of America, or anywhere else in large portions of the common law world where the profession of barristers and solicitors have been amalgamated into attorneys or equivalents.

It is a mystery to me as to why this proposal was made. I want to examine it again, if I may. Was there a danger that a foreign judge - or a retired judge from a foreign jurisdiction - would be appointed to this commission?The Government, suddenly in its wisdom, when it framed these amendments decided we could not possibly have a retired judge from a foreign jurisdiction appointed to this commission. What is wrong with that? What is wrong, for instance, with having a retired judge from Northern Ireland function on this commission? Is that person supposed to be part of a cronyist cabal of practising lawyers who would tend to dominate the whole system to the detriment of the common good? It simply does not make sense. There is absolutely no reason a solicitor or barrister from all the professions practising law throughout the world should be selected for exclusion unless, and this is what I am wondering, this is aimed at Northern Ireland. I think it must be aimed at Northern Ireland. That is the most likely place from where somebody, if this amendment was not passed, would become a member of the judicial appointments commission.

If someone from Northern Ireland was or continued to reside north of the Border and had retired from practice 12 years ago, how could it possibly be inappropriate that such a person to be considered a lay person if he or she had never practised in a court in the Republic? How could that possibly offend Deputy Ross's view of the legal insider concept? It could not. Therefore, I am strongly of the view that this paragraph (d) which came from nowhere, was never discussed as far as I can recall on Second or Committee Stages in this House or the other House is the product of a hyperactive imagination. Someone saw some loophole whereby somebody with a legal qualification in Northern Ireland might be considered a lay person and quickly put together an amendment, used the term "barrister" or "solicitor", notwithstanding the fact that it does not apply to advocates, notaries and all the other descriptions, abogadosand all the rest of it in Spain and the like, and simply said they did not want it to happen. It reeks of an anti-Northern Ireland prejudice. If the purpose of this lay-non-lay distinction is to exclude people who have practised in the Irish courts, this amendment goes far further than that and has no rational connection with it.