Barry Ward (Fine Gael) | Oireachtas source

I agree with what has been said, not least because this is exactly the same as my amendment No. 16 on Committee Stage. I will say what I said then. Judges are judges; they are not solicitors or barristers. They may have been in the past. I would not even say a few years after they have been appointed but the day after they have been appointed, judges leave behind any professional biases they may have or, particularly, any political biases they may have. A judge on the bench will never disclose what he or she might have thought about a particular polity or policy before he or she became a judge. He or she will listen to the arguments because that is what a judge does. The job of a judge is to apply the rule of law, the case law, the statute law and the constitutional provisions relevant to a given case for whatever hearing he or she is involved in. It does not matter whether he or she spent ten, 20 or 30 years as a solicitor or as a barrister; it makes no difference whatsoever. The point made by Senator McDowell is a good one in terms of the make-up of the different courts because different courts are populated to different extents by former barristers and former solicitors. It would be ludicrous that there would be a situation in which one applicant must be turned down because he or she practices as a barrister or solicitor because the quota must be made up on a particular bench. That is nonsense. As we know, certain benches have more solicitors and some have more barristers, and there are identifiable reasons that is the case.

I tabled this in amendment No. 16 on Committee Stage. I raised these issues and they were not accepted; it is what it is. This demonstrates a fundamental misunderstanding of the role a judge carries out. Sitting on the bench, he or she does not act as a former anything; he or she acts as a judge. Judges swear an oath, which I listened to last week during the swearing-in of two High Court judges. I was astonished to find, and perhaps I should have known this, that the oath stated that they would not bear any ill will towards any man, which is something I think should be changed. We must look at the constitutional context of that, and Senator McDowell and I have discussed this. I know we cannot do it from this House but I have recruited a colleague in the Dáil to bring forward a Bill to amend that. It seems to me to be preposterously out of date. The point is, they swear a constitutional oath at the point they are sworn in, irrespective of which court they are joining, which is to exercise their functions as a judge without fear or favour and certainly without any prejudice to a previous profession to which they may have belonged.

This provision in the Bill is ill-conceived and not rational, reasonable or grounded in fact. I say all of this in the circumstance in which I brought forward this amendment. I do not know if the Minister of State is now minded to consider it, but it is a real problem and will create unnecessary administrative difficulties for the new commission when the time comes to appoint good people to these jobs. That is perhaps the most important function of this judicial appointments commission, to put people in judicial positions who are good judges, render good decisions, apply the law in a good way and give justice to the people who come before the courts.