Michael McDowell (Independent) | Oireachtas source

I echo what Senator Bacik has said. I know the Minister may be suspicious of this but this is an effort to be constructive and to have the legislation make sense. If we had said, prior to the Chairman's ruling a few moments ago, that this was something that had to be considered in conjunction with amendment Nos. 51 and 52, the Minister would have noted that there is a subtle difference. Amendments Nos. 51 and 52 define the term "practising barrister" for the purpose of being appointed a judge but only for that purpose, whereas the term "practising barrister" is also used in the definition term to exclude people from the category of laypersons, which is not covered in the ministerial amendments. Senator Bacik is correct in that in the case of State (Walshe) v.Murphy, which concerned the validity of a public servant's appointment as a district judge when the public servant in question was not in practice at the time or was not in any substantial way in practice as a barrister at the time of his appointment, the decision laid down what the term "practising barrister" means in law. In that context, the term "practising barrister" in law was what the Supreme Court held it to be. Senator Bacik's amendment has the effect of introducing throughout the entire Bill, including in the definition of a layperson which we have been dealing with, a clear indication of who is or is not a practising barrister.

There was a time when whether one was a practising barrister largely meant but did not exclusively mean whether one was a member of the Law Library subject to the disciplinary rules of the Bar Council. The new Legal Services Regulation Act introduces a different category of people who have nothing to do with the Bar Council and who may not be members of the Law Library and who are subject to professional regulation by the King’s Inns. Some of them may practise in partnership with solicitors, while some of them may practise on their own and carry out functions which are effectively legal advisory in nature and do not involve them appearing in court at the Bar. That is the point that Senator Bacik was making so eloquently. The amendment makes great sense in that the other references to practising barrister and the redefinition are in amendments to other statutes about eligibility to be appointed a judge, whereas this amendment applies to the definition of practising barrister insofar as it refers to somebody who cannot be viewed as a layperson.

I will go back to the effect of the amendment that we have just made to the Bill to reduce the period of 15 years down to three years. That is highly important. It means that people who have ceased to be a practising barrister or practising solicitor, after a quarantine period - as if that was necessary - of three years, will be eligible to be considered lay people. Given that under the Legal Services Regulation Act, every barrister and solicitor must register with the authority, it is going to be very clear that one is either a practising barrister or one is not a practising barrister because one will be either registered or not registered. There will be no lack of clarity if Senator Bacik's amendment is accepted. It makes eminent sense to cover all the bases on this and say that "practising barrister" means what it means now as a matter of law, namely, that one can be a practising barrister who has nothing to do with the Bar Council and does not practice under that rubric.

This is not an alternative to the Minister's subsequent amendments because they propose to amend prior statutes on who can or cannot be appointed judges. Those amendments are specific to specific sections in prior Acts, whereas Senator Bacik's amendment is for the purpose of this Bill. If enacted, it will have a simple effect that if there is any argument as to whether someone is or is not a practising barrister, that person will either be registered with the authority or not. That will be the basis upon which people will be determined as being laypersons and or non-laypersons for the purposes of the legislation. On another important point, this will also have the effect that the 15-year quarantine period will effectively be measured by when a person ceases to be a registered practitioner. That makes eminent sense.

I ask the Minister to consider this amendment. He may be suspicious of anything that comes from anybody other than a Senator on his own benches but this amendment makes eminent sense and will improve the Bill.Dare I say it but even the Minister for Transport, Tourism and Sport, Deputy Ross, should be happy with this amendment.