Seanad debates

Tuesday, 7 March 2023

Judicial Appointments Commission Bill 2022: Committee Stage (Resumed)

 

12:30 pm

Photo of James BrowneJames Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Senator. Amendments Nos. 41 to 44, inclusive, are being taken together. Their purpose is to amend section 63, which is an important section. Section 63 provides for amendments to the Courts (Supplemental Provisions) Act 1961, including the insertion of a new section 45A to provide for the qualification of certain legal academics for judicial office as an additional basis for qualification.

The new section 45A provides that a person who is a legal academic or who is the head of a faculty in an educational establishment, and who has practised as a barrister or solicitor for at least four years, shall be qualified for nomination for appointment or election to judicial office. A legal academic is a person who is a permanent member of the academic staff in the field of law in a specified education establishment, including a university, the King's Inns or the Law Society of Ireland.

Amendment No. 41 would delete all of the new section 45A. The effect of that is, of course, that a legal academic would not, in fact, be eligible even for consideration for a judicial appointment. In my view, part of the significance of this Bill is that it goes some way to extending the pool of eligible candidates for judicial appointment. District Court service will now qualify as will employed barrister service.

The third category to which the Bill extends eligibility is legal academics. It is generally and widely recognised that legal academics are well placed to provide legal opinion across a range of matters, and many have significant depth of knowledge and expertise in particular areas of the law. The new section 45A has been tightly drawn. First, a legal academic who is an applicant for judicial appointment must be of not less than 12 years' standing in that role and be currently employed in that capacity. The applicant must also be a qualified barrister or solicitor. The applicant must have practised as a barrister or solicitor for four continuous years and many, of course, will have more practice years than that.These are quite exacting requirements as to eligibility. On top of that, such an applicant must be suitable in other respects, as the Bill requires, such as for example on health grounds, compliance with regulatory law and being in a position to provide the required information. Such applicants must undergo the selection procedures, including a requirement to be interviewed by the commission and, therefore, I cannot support the amendment. The requirements set out are demanding and the addition of knowledge and expertise from within the academic legal field in a court environment is a significant and important addition to eligibility range.

The Senator's amendment also proposes to amend section 63 by the insertion of a new section 45A dealing with legal academics. As I have indicated in respect of the previous amendment, the legal academic who is an applicant for a judicial appointment must be of not less than 12 years standing in that role and currently employed in that capacity, which bears repeating. In addition, the applicant must also be a qualified barrister or solicitor. The applicant must have practised as a barrister or solicitor continuously for four years. Many will, of course, have more practice than that.

The amendment would retain the possibility of legal academics being considered for judicial appointments, but only if those applicants have, along with 12 years standing as an academic, ten years' practice as a barrister or solicitor. The Senator might accept that there is a logic in extending the edge of eligibility criteria to legal academics. However, the extended four-year requirement to have previously practised on a continuous basis to ten years would be problematic and unreasonable. This is exacting, unlikely to be generally achievable and, therefore, not entirely practical. Four years' practice as a legal professional strikes the proper balance between the competing experiences and practices required in this context. On that basis, I cannot accept the amendment.

The applicant will be required under the selection statements to demonstrate that he or she has undergone professional development or training relevant to the role of a judge. The Senator might agree this is relevant to the matter we have debated. Senators Ruane and Higgins have also tabled amendments to this section. I am not sure whether they have moved those amendments.

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