Barry Ward (Fine Gael) | Oireachtas source

I will respond to three points that the Minister of State made. The first relates to the qualification of academics to give solid legal opinion. I do not dispute that. I suspect that the legal opinion offered by somebody who is a world expert or a particular expert in the field is likely to be more considered and more focused than that of an ordinary practitioner in the same area. I can see the value of that. However, the purpose of a judge is not alone to give a legal opinion but also to preside over court proceedings and to render a judgment. A judgment differs from a legal opinion. The important difference between a legal opinion and a judgment is that a legal opinion sets out all the parameters but does not actually come down on either side of the fence. That is the true skill. That is a skill that must be ascribed to Ministers also. People do not necessarily understand that the job of Minister is not necessarily to know everything or to be an expert on everything, but to have the key skill of being able to make decisions that are ultimately saleable and reconcilable. That is a similar skill to that we expect from judges. They are people who can look at multiple sides of an argument and arrive not at an opinion as to what the law on the subject is, but on what the decision in regard to that particular question must be. Frequently, cases come before the courts not for general discussion but for a decision on what is often a very minute question within a particular area of law. The job of a good judge is to consider all those factors but ultimately to arrive at a conclusion that is fair and based on the law - not just to have an opinion but to have an actual judgment that is reasoned and defensible in terms of what appeal might come thereafter. Therefore, I do not accept that the ability of an academic to give a super legal opinion is necessarily a skill that we would require of a judge. I agree with what has been said about the possibility of academics having a particular role. That would particularly apply in the Court of Appeal and the Supreme Court, where they form part of multiple judge panels and the practice and procedure of the conduct of the case falls less on one set of shoulders than it does on multiple sets of shoulders.

The Minister of State said that many of them will have more experience. That is undoubtedly true but we are not setting the parameters for that. We are setting minimum parameters here and the provision set down in the proposed new section 45A(1)(c) is a minimum of four years of experience. Of course many of them will have more experience but that is not the consideration we have here. More importantly, it is not an additional requirement because as the Minister of State knows, many legal academics will also be engaged in practice. The frailty of the definition of "continuous" when considering what constitutes somebody who is, as per the proposed new section 45A(1)(a)(i), "a legal academic of not less than 12 years’ standing who has been employed as such for a continuous period" arises in this context. The frailty of the strict definition of what constitutes "continuous" employment as a legal academic also applies to practice. Some people are in practice because as solicitors they have a practising certificate, or as barristers they are enrolled with the Legal Services Regulatory Authority or are members of the Law Library of Ireland, however costly that might be in regard to insurance or other regulatory costs. They can be in practice yet not appear in court. They can be in practice yet not do the day-to-day work of a practitioner.

While there are difficulties with the definitions, I am not suggesting a change that would impose the four- to ten-year requirement in addition to the 12-year requirement because that would mean that nobody could become a judge, as an academic, without having done 22 years of work. That is not what I am suggesting. I suggest that many of those people who will apply from academia will also have been practitioners for some period, or all of the period, in which they worked as academics. That is true of many of my colleagues at the Bar who also lecture in august institutions such as University College Dublin and Trinity College Dublin. It is not an impractical obligation to have somebody with ten years' practice. I do not agree with Senator McDowell. He is quite correct to say that four years' practice connotes some period in the courts and some understanding. I do not think any of us will be endorsing the notion that fourth-year barristers or four-year post-qualified experience, PQE, solicitors should be taking the Bench on the basis that they have four years' experience. That is why the requirement for those practitioners is 12 years. I have a difficulty with equating a legal academic and legal expert with the judge of a case. I do not think that the two are necessarily equal and they do not necessarily cross-qualify. There is a gap, primarily in the context of section (1)(a)(i). If one were relying primarily on that academic qualification in the context, for example, of courts like the Circuit Court or District Court, it would be a very little use because they are primarily courts that are concerned with practice and procedure, and there are not written judgments, for example. Such a person would be underqualified to be a judge in those courts. That is why I have suggested they should have a greater understanding of practice and procedure, through practice and living what it is to be in court. In this way they would see it from the point of view of practitioners. They would see how cases work and how the practice and procedure is used and sometimes abused, to be honest. They would see how the rules of court can be used to achieve certain ends that may not be in accordance with justice. If a person does not have that experience and then sits on the Bench, it could be very difficult to see through what practitioners are doing. The benefit of that time at practice, doing the same thing oneself, is that a judge is a poacher turned gamekeeper, in many respects. If one has not spent that time poaching, then one will not understand the tricks of the poacher. That is the point I am making. I do not think it is impractical, erroneous or unreasonable to increase the period from four years to ten years as per amendment No. 44.