Michael McDowell (Independent) | Oireachtas source

This amendment is to remove lines 16 to 22, inclusive, on page 12 of the Bill in the form we are considering it. The purpose of this amendment is to query what I consider to be a completely artificial aim, namely, that somehow the branch of the profession that a person was a part of at the time that he or she was originally made a judge should determine for any purpose later whether that person should or should not be able to play a full role as a nominee of the Judicial Council. It is more or less grotesque that this proposal should be made. A person will have been a solicitor or a barrister on the day of his or her appointment. Ten or 12 years later, well into his or her judicial career, it becomes absolutely immaterial as to what profession he or she practised the day of his or her appointment. It is a ridiculous proposition that some people who have been on the High Court for ten years cannot both be appointed to the commission because both of them happened to be solicitors at the time of their original appointment. They cannot be elected by members of the Judicial Council because of which side of the fence, which is a completely forgotten aspect of their careers, they used stand on at the day of their appointment.

Let us think. If somebody has been practising as a solicitor for ten years or 12 years or whatever the requirement is, becomes a High Court judge and later becomes a Court of Appeal judge, why is it that when his or her Judicial Council colleagues decide to elect two members to the commission, if there are two people offering, one of them will have to stand by and allow somebody else from the other side of this entirely historical accidental qualification, possibly of 15 years' historical duration, in order that they should somehow be balanced as between the two sides of the profession?

I will tell the Minister of State why I object to it. It is, in effect, a sop to the fact that the Government has made a cardinal error of not allowing any practising solicitor or barrister to have any participative role in the affairs of this commission. That is what it is all about. It is saying that as between them, we will somehow represent those professions by taking a look at judges who at some stage of their careers used be one or the other and that will achieve what we have rather ridiculously removed from the legislation, which is practitioners who have a valuable input to make at the moment the commission makes a recommendation, and not a judge who, 15 years ago, was a member of one profession and might in those days have been in a position to be in the District Court, the Circuit Court, the High Court, the Court of Appeal, the Supreme Court or whatever it may be as a practitioner. It simply does not make sense. It should not be part of this Bill. I do not know what the purpose of it is.

The Judiciary, as I understand it, will all collectively elect these people. As I understand the present composition of the Judiciary - maybe I am wrong about this but I think I am right - a majority are solicitors and if the notion is that the barristers could all get together to nobble solicitor candidates for the Judicial Appointments Commission Bill, that does not stand up to scrutiny at all. The great majority of District Court judges were solicitors when they were appointed and a very significant number of Circuit Court judges are now former solicitors. I do not know what the exact figures are. I do not keep count. I do not really care because, like any other legal practitioner, when I go into court I do not ask which profession the judge was in when he or she was appointed ten years ago. It does not occur to me to ask that question. It would be a wrong question, even for a client or a practitioner, to entertain in the back of their heads when they are dealing with a member of the Judiciary.

The purpose, as I say, of this amendment is simply to bring about a situation where the nonsense stops and the Judicial Council is entitled to elect two people. I am not suggesting they should not be a man or a woman because this amendment does not affect that - there is a gender balance provided for - but that they should be allowed to decide which of their own number is or is not suitable or would be a good person to have on the commission without having to trawl back ten, 15 or 20 years to try to find out which side of the professional fence these people came from.

The other issue I want to point out is that the Legal Services Regulatory Authority is about to generate proposals that solicitors and barristers can be partners in firms so that, again, the nonsense of this particular so-called balance becomes apparent. You will in the very near future be entitled, if you are a barrister or a solicitor, to form a partnership with another barrister or solicitor to carry on a practice. If two people sit around the same table for ten years during their lives as practitioners, how does it become relevant subsequently that the whole way through the rest of their careers, if they are appointed to the Judiciary, one of them carries this badge of having been a solicitor on day one and the other a badge of having been a barrister when the pair of them ran the same firm and were liable in exactly the same way as each other for the conduct of legal business as practitioners? This is nonsense. It is old-fashioned thinking by the Department. If we are going to the point where barristers and solicitors are free to form partnerships - I do not know whether that is a good idea or a bad idea or whether it will take off or will not take off but I am sure barristers will become partners in large solicitors' firms as time goes by - how can it possibly be relevant one way or the other ten or 15 years after that as to what they were the day they became a partner in a large solicitors' or legal firm? I am interested to hear the Minister's justification for this so-called balance item. What is the reasoning behind it? Who asked for it? Was it the Law Society or the Bar Council or is it the Department's view? How is it reconcilable with the imminent development that solicitors and barristers will be allowed to practise together as members of the same firm?