Barry Ward (Fine Gael) | Oireachtas source

I will support the amendments, which make a great deal of sense. The notion that the professions that know and understand the role a judge plays would be cut out of the decision-making process is, I think, flawed. They should not have a veto. I have a certain discomfort that the words as spoken by Senator McDowell, with the greatest of respect, sound a little like a boys' club supporting or endorsing one of their own. That is not what it is about. It is about people having an understanding of the individuals involved in a profession who might have a reputation among their colleagues. It is less about a veto because there is no perfect system and any lawyer will agree there are colleagues who seem like perfectly reasonable people but who find themselves on the Bench and suddenly develop what we know as "judgitis" and can sometimes manifest traits they did not have in practice, and vice versa. People who you might have thought would be wonderful members of the Bench do not always turn out to be that way. There is no perfect system and no hard and fast way to assess who is or is not going to be a good judge.

Nevertheless, there is a benefit in having what a colleague of mine refers to as a smell test or a litmus test, which somebody might not pass for a good and justifiable reason, not because Joe does not like him or Mary thinks he is whatever. It is about knowing the person in the context of his or her professional past, behaviour or reputation. If a lot of laypeople who have no connection to the legal professions and no understanding of how they work are brought in to make that decision, that will divorce that professional experience from the decision-making process, and there will be a loss in that regard.

On Second Stage, I raised this issue and the Minister pointed out that there are provisions to ensure that some of the judges from the Judicial Council who are put onto this commission will include both those who formerly practised as solicitors and those who formerly practised as barristers and I applaud the attempt to recognise the professions in that respect, but I do not think it is adequate for a number of reasons. As I said just a moment ago, when a person becomes a judge, he or she leaves behind in many respects his or her past experiences, albeit not all of them and they inform his or her judicial persona. There are not judges who are former solicitors and judges who are former barristers. We could certainly point out judges who previously practised as barristers and those who previously practised as solicitors, but that is not their persona on the Bench. Their persona is as a judge and they change when they move from the role of poacher to that of gamekeeper, if I can put it in those terms. They change and no longer occupy a position as a former solicitor or former barrister. I think there is a fundamental flaw in trying to address the absence of the professions' input into the decision-making process by having that in the judicial corner. I do not think that works.

The other difficulty with that is there will not necessarily be a balance of barristers and solicitors in any court. For example, there will be far more solicitors in one court than another and far more barristers in one than another, and there will be no guarantee as we go through the process that there will be an adequate number of people from whom to select former solicitors and former barristers. The notion of doing it that way is inadequate and far inferior to the notion of putting a representative of each of the professions on the commission who, as a representative of his or her respective profession, will have the ability to have that input at the point where the decision and the appointment are being made. It is akin to a committee to appoint a consultant cardiac surgeon having no cardiologist or doctor on the committee. We would not say that was reasonable because there would need to be somebody who has the expertise to understand the application coming before the committee. Those two circumstances are comparable because the appointment of a judge requires a level of professional understanding of the individual but also of the role and where that person can fit into the role.

I support the notion that there would be professional representatives. Where that has been the position in the past, in the case of JAAB, it has worked well. I return to the comment I made earlier in respect of our Judiciary. On the whole, our Judiciary works very well, diligently and impartially and does a very good job. To an extent,, it is a case of "If it ain't broke, don't fix it". For that reason, these amendments make sense and are worthy of consideration if the Minister feels that is appropriate.