Michael McDowell (Independent) | Oireachtas source

A couple of different points arise on the section that I want to ask a couple of simple questions on. Persons will be considered legal academics if they have been in a place equivalent to an Irish university but outside of Ireland. As a matter of law, is there a requirement that a person should be an Irish citizen? It is not necessary to be an Irish citizen to be, say, a barrister or solicitor, subject to what Senator Ward would say. Is it to be the case that a professor of law in Oxford can, although a subject of His Majesty, become a member of the Irish Judiciary? I am interested in hearing some illumination on that point.

On the question of legal academics, academics are suitable for appointment to some kinds of cases in some circumstances. I do not know what kind of experience being a legal academic would assist one in an application to become a district judge or something like that. I can imagine a world class expert who happened to be a legal academic in European law or the law of trusts, equity or whatever would be a significant addition to the Irish Judiciary. I have no principled objection to learned people becoming judges. As I understand the new section 45A, at some stage in their career applicants will have to do four years of practice as a practitioner.It is not as though they would be totally unaccustomed to the practice of law.

The rules of this House prevent me from putting down an amendment to a Government Bill which might have the effect of imposing a charge upon the Exchequer. If that rule was not there, there is one point that I would have tendered an amendment to achieve. When Alan Shatter was Minister for Justice and Deputy Howlin was Minister for Public Expenditure and Reform, they pushed through a pensions provision as part of a massive Act. Deep within the Schedule there was, without any explanation, side note or warning as to what it entailed, a provision deleting "15" from an Act and putting "20" in its place. The consequence of that particular provision is that with a retirement age of 70, one has to be appointed at the age of 50 in order to qualify for a full judicial pension. This means that if people really get their skates on in being appointed as judges, they need to be considering in their late 40s getting their curriculum vitae polished up and making their few attempts at being interviewed by the judicial appointments commission, if it is established.

It seems to me that there was absolutely no reason to make that change. It was pure meddlesome vindictiveness at the time. The curious thing is that it was never mentioned in Dáil Éireann, in any explanatory memorandum or in this House that it was being done. It was simply hidden away in a Schedule to a pensions Act. There was no publicity drawn to it. The attention of no Member of either House was drawn to it in an explanatory memorandum. The result was that many people who theretofore had considered practice until about the age of 55, with a view to having a judicial pension if appointed at that age, suddenly became disentitled to a full pension for no particular reason, except, as I say, meddlesome vindictiveness. It certainly had the effect of rendering a whole cohort of people unwilling to apply for judicial office thereafter.

I do not want to be too irrelevant, but I want to make the point that when we are considering appointing people to the bench, we should not close down options. We should not tell people who are in their early 50s, “Sorry, you are too late”. That is a mistake. It was an unforced error that can only be explained by some odd motivation. I have never heard a public explanation of it, of any kind. The one thing that is necessary at some stage is that somebody, perhaps in the position of the Minister of State here today, should actually indicate to the Houses that this will not happen again - that a sleight of hand of that kind will not be attempted again because it served no useful purpose. Those are the two points I want to raise, firstly the citizenship issue and secondly to make my point, irrelevant though it may be,-----