Barry Ward (Fine Gael) | Oireachtas source

I move amendment No. 41:

In page 44, to delete lines 13 to 40, and in page 45, to delete lines 1 to 26.

This series of amendments is grouped together. Those in my name are amendments Nos. 41 and 44. Amendment No. 41 proposes to delete section 45A which has been inserted in the Bill. Section 63(e) inserts a new section that deals with the “Qualification of certain legal academics for appointment and for nomination for appointment or election to judicial office". I am essentially proposing to delete paragraph (e) on page 44. The reason is that there is a misconception that academics should be people who would be put into judicial office. I do not have any difficulty with that per se. It is important that judges have an academic capacity because they need to understand the academic issues that underpin decisions. First and foremost, however, a judge's role is to govern a court, which is all about practice and procedure. It is less about the academia of the law. While judges need to have an understanding of that, the danger is that if an academic has not been in day-to-day practice over a regular period, he or she would not have the same familiarity with the practice and procedure. The difficulty that gives rise to is that he or she will not understand how the court works. When a person is the referee or chair of the court and responsible for the control and conduct of that court, it is very difficult to throw him or her in at the deep end in this regard and expect that person to understand how the court works and how procedures should operate in an efficient way. That is why I am proposing that those qualification matters inserted by section 63(e) be removed.

Amendment No. 44 is related to paragraph (c) of the inserted section 45A. I am open to correction in this regard but this appears to create lesser qualification criteria for academics on the basis that they somehow have a greater qualification than those who are in practice.Section 45A(1) provides that "A person shall be qualified for appointment and for nomination for appointment ... where he or she is ... for the time being ... a legal academic". However, it goes on to state that he or she must have "practised as a barrister or solicitor for a continuous period of at least 4 years." In the normal course, for those barristers and solicitors who are not coming from an academic basis, and I recognise that the proposed section 45A(1)(a), for example, requires a standing of at least 12 years as an academic, that is honestly a somewhat nebulous requirement. It is very difficult to establish what qualifies for establishment of that standing as an academic. Even leaving that aside, the section then creates a lesser requirement of academics, if they were to seek appointment through the Judicial Appointments Commission, of only four years' practice when the requirement is much higher for people who are actually in practice and may not have held academic office for 12 years. That is an erroneous basis on which to seek to admit academics to judicial office.

I will come back to the point I made in respect of amendment No. 41. As the Acting Chairman pointed out, amendment No. 44 is an alternative to amendment No. 41. If we want to put academics on the Bench - again, I do not have a problem with that per se- the problem arises whereby there is no provision or requirement that they have a clear understanding of how practice and procedure works. It is very difficult to have that understanding if someone has spent his or her time in a university or in a lecturing context. Those people have extraordinary skills and understanding and a greater depth of knowledge of the law than many practitioners. They do not have the same depth of knowledge of the practice of law as practitioners.

If amendment No. 41 is not to be accepted, the four years provided for in the inserted section 45A(1)(c) should be increased to ten years as per amendment No. 44. If anybody expects to be in a position to arrive into a court as a judge or judicial figure to preside over that court and make decisions about the appropriate conduct of practitioners or litigants, or about issues before the court where he or she is deciding on motions regarding practice and procedure, the notion that a person would only have had four years of experience of that practice and procedure is simply foolhardy. That is why amendment No. 44 proposes to extend that period, which is currently four years in the Bill, to a ten-year period.

As I said, these two amendments are not proposed because I have disrespect for academics; I have enormous respect for them. I also acknowledge as a practitioner that they have a great deal more understanding of the law than I do, most likely. However, I suggest they do not have a greater understanding of how the court works. If therefore we want to put them on the Bench, it would make more sense to ensure they have a minimum level of experience of how the court actually works. That is the idea behind the amendments.