Michael McDowell (Independent) | Oireachtas source

When we reported progress last night we were in the process of discussing amendments Nos. 7 to 12, inclusive. I was speaking in particular about amendment No. 7 and I want to reiterate a few points I made, not at great length. Amendment No. 7 is effectively to substitute a new definition of the term "lay person" by adding a paragraph (d) to the existing definition. This paragraph (d) adds to the list of the people who are to be considered lay persons. They are persons who do not hold or occupy, and have 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). These are offices or positions equivalent to the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer. As the Leas-Chathaoirleach pointed out to me, the term "law officer" was inserted in the original text of the Bill as meaning "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".

The proposed paragraph (d) in amendment No. 7 also states that a lay person "is not, and in the relevant period specified in subsection (2)for the purposes of this paragraph, was not a solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction". In addition to people who are or have been judges in a foreign jurisdiction of some kind or another, or who are or have been law officers equivalent to the category mentioned in paragraph (b), a further group of people is to be excluded, namely, those who, for the purposes of the relevant period in subsection (2), which is 15 years at the moment, have been a solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction.

I have pointed out that the phrase "solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction" is a very unfortunate piece of drafting because effectively it means the law of whatever jurisdiction to which this is supposed to apply has a category of people who equate to solicitors or barristers. As we know, we could possibly say that an advocate in Scotland might or might not be interpreted to be a barrister for the purposes of that clause but when we come to France or Germany, or many of the other member states of the European Union, the distinction between solicitors and barristers is not mirrored in the way purported by this particular section. In fact, what is being said here is that if somebody came to Ireland and remained here for 12 years after having practised in England as a barrister or, let us be charitable to the draftsman, an advocate in France if a purposive interpretation was put on this rather than a literal one, that person would be disqualified from being considered a lay person for the purposes of Irish law.

The value or otherwise of this new paragraph (d) must be judged by what it achieves over the original text the Minister seeks to amend. Effectively it is saying a further category of persons disqualified from being on the commission is being created to exclude people who, within 15 years, had been a practising lawyer in another jurisdiction anywhere in the world. Then we have to ask ourselves why should such a person be deemed unworthy to serve on the Irish judicial appointments commission. At the moment, for instance, the Minister appoints three persons to the Judicial Appointments Advisory Board and none of these exclusions apply. The Minister could, for instance, decide it would be a good idea to have an English judge, a Northern Irish judge, a Scottish judge or whatever, to be a member of the Judicial Appointments Advisory Board just to bring a different perspective and perhaps a common law perspective from a different jurisdiction with a view to improving the spread of ideas on the question of who should or should not be recommended for judicial office to be appointed by the Government by advising the President to do so.

I do not know why it is considered the case that a retired English judge should never in any circumstance serve on the Irish judicial appointments commission. Why would the Minister say that? What logic would there be that no such person could ever serve? He or she would not be eligible to serve under any of the other provisions of the Bill, as drafted. Somebody who within the past 15 years has experience of a foreign jurisdiction as a practitioner is likewise somebody whom the Minister wants to exclude from ever being appointed to this commission. The only Irish practitioners of law that will be on the commission will be a nominee of the Bar Council and a nominee of the Law Society. The Minister is taking steps to ensure anybody who had any equivalent experience will never be capable of being added on because he or she would have to be a lay person. Such people are permanently prohibited from being appointed.

This being the Minister's own proposal, I do not understand why exactly he wishes to extend this area of disqualification. Does he think that a future Government might try to circumvent - I do not know what - a policy of having a lay majority by having somebody with foreign experience of a legal system or actual experience of practising in a foreign jurisdiction at some stage in the distant past, perhaps 12, 13 or 14 years ago? Does he think this will improve the commission? I have to say I cannot understand why this change is being made. To be honest, it never occurred to me that anybody had in contemplation the making of such an appointment but to prohibit it required a degree of ingenuity and determination that I cannot really follow.I cannot understand why a retired High Court judge from Northern Ireland should not be capable of sitting on our judicial appointments commission at all in any circumstance whatsoever. That person is, by some mark of Cain, excluded as wholly unsuitable and a person who may never serve on our commission. There is no logic to this.