Barry Ward (Fine Gael) | Oireachtas source

I move amendment No. 15:

In page 12, to delete lines 4 to 12.

Section 15 deals with the nomination of members of the Judicial Council and their appointment as members of the commission. The section 12 provisions provide for the appointment, essentially of judges, to the proposed judicial appointments commission. There are three amendments in the group. Amendment No. 15 deals with section 12(2), which provides for two nominees from the Judicial Council, one of whom shall be from the Supreme Court, Court of Appeal or High Court and one of whom shall be a judge of the Circuit Court or the District Court. In addition, one of the nominees shall be a former practising solicitor and one a former practising barrister and one must be male and one female. Amendment No. 16 deals with subsection (4), which provides again for having a certain number of practising barristers and solicitors. Amendment No. 17 is to subsection (6), which provides that where a judge appointed under the section ceases to be a member of the commission, the person who replaces that member must fulfil the same criteria in terms of gender and former practice.

I spoke about this matter on Second Stage and earlier on Committee Stage. The gender quota is one thing. Gender diversity is tremendously important but can be achieved in different ways. I am less concerned about that than I am about the notion that judges, no matter how long they are in judicial office, somehow remain former practising solicitors or barristers. This section proposes to essentially divide judges into those two categories and qualify or disqualify them, as the case maybe, on the basis of their former practice. That might have been yesterday or, more likely when dealing with the Judicial Council because by virtue of practicality, it is unlikely that new judges will be in a position to be appointed under this section and nominees will usually be judges of some experience, it may have been up to 20 years since they practised in that area. I have said on many occasions that I do not believe once a person achieves judicial office that he or she continues to represent one profession or the other. I am not saying that is what the Department or Minister of State is saying, but there is a presupposition in this section that somehow they are never just a judge; they are a former solicitor or barrister in a judicial role. This fundamentally misunderstands the role that judges take. It also ignores the fact that in reality, different courts are made up predominantly of one profession or the other. A greater proportion of barristers will be found in one court and a greater proportion of solicitors in another.

In these circumstances, judges who occupied one former profession are effectively being hamstrung from moving into the commission through membership of the Judicial Council. More importantly, judges are not former solicitors or barristers but judges who have sworn an oath to uphold the law and to apply it as it applies in this jurisdiction. As I said on the previous amendment, they do so very well and diligently. This section starts from the view that they do not do that and it is wrong to place them in that category.

The other issue with the section is that it makes the re-appointment or replacement of a member of the commission incredibly clunky and awkward. Instead of just leaving it up to the Judicial Council to appoint the people it believes to be the appropriate persons to represent them on the commission, this section is, incorrectly and erroneously, dictating to the judges the type of person they should chose from the Judicial Council to be on the commission. That is misguided as well.

I put forward these three amendments essentially to undo these provisions and put back in the hands of members of the Judicial Council, the right and, perhaps more importantly, discretion to appoint the person or persons, from whatever background, that they think best represent them. That is what is important. The starting point in section 12, particularly in subsections (2), (4) and (6), is that we somehow need to dictate to the Judicial Council what the background of that person is when in fact that person is simply a judge, irrespective of his or her gender or whether he or she was a practising barrister or solicitor, how long he or she has been practising, whether he or she was an academic or whatever the case may be. My respectful submission to the Minister of State, to use legal parlance, is that we should do away with this provision and leave it up to the discretion of the members of the Judicial Council.