Michael McDowell (Independent) | Oireachtas source

When Senator Ward tabled these amendments on Committee Stage, I was in agreement with them. I have listened carefully to what the Minister of State has just said. He has not replied to the points I made about the fact that members of the two professions are now able to form joint firms and practise together indistinguishably. We have not heard a word about that. There is no explanation as to how this provision sits with the imminent reform about to be triggered by the Legal Services Regulatory Authority to allow solicitors and barristers to practice together in firms. There has been no response to that point, which is disappointing.

The Minister of State has made reference to the appointment of persons who have experience as legal academics. I have no problem with the principle of persons being appointed on the basis that they are currently legal academics, provided they have some minimum previous experience of the courts, because you might as well say somebody could be appointed a consultant surgeon who has never seen a patient or a hospital if you did not have something of that kind provided for. I have also tabled a late amendment in respect of the appointment of legal academics because on Committee Stage, to my surprise, although I suppose I should not have been surprised, it emerged that service in foreign universities will qualify. Somebody could do four years as a barrister or solicitor in Ireland, go off to the US, South Africa, Great Britain or, more likely, Queen's University in Belfast or the University of Ulster and, on the basis of those four years, become eligible to be recommended to the Government for membership of our Supreme Court and for appointment as Chief Justice. It was in that context that the light bulb suddenly went on. There is nothing in this legislation that requires any of these people to be a citizen of Ireland, and there is nothing I could find in any of the courts Acts that provides that this should be the case either. So we have a situation whereby a French or English person who is not a citizen of this country could qualify as a legal academic on the basis of having practised for four years in the Irish legal system and then be appointed to any court in the country without even being an Irish citizen. It is for this reason that I tabled the amendment. Articles 8 and 9 of the Constitution state that fidelity to the nation and loyalty to the State are the primary duties of citizens. It would be remarkable if people who do not have those duties would be eligible to be appointed to positions in the Irish courts.

When I considered the matter further, I thought that perhaps the Government should be able to appoint somebody who is not an Irish citizen to judicial office outside the State, for example, the International Criminal Court, the Court of Justice of the European Union or the European Court of Human Rights. Maybe it is an unnecessary requirement. If Ireland considered that there was a particularly good jurist we wanted to appoint to a position in one of those courts, there is no reason why he or she should be a Irish citizen given that his or her loyalty is not to the member state and he or she is not administering the Irish Constitution or the laws enacted by Ireland. The amendment I tabled purely concerns judicial appointments to positions within the State. I wanted to say that because the grouping has raised the issue of academic appointees. I have no problem with such a liberalisation, but I believe that a fundamental requirement for appointment to the Irish domestic judicial system - the Supreme Court, the Court of Appeal, the High Court and the other courts - should be that the person involved owes the same duty to the Irish State as that owed by all citizens, namely, loyalty, and is not loyal to some other state.

I am disappointed that the Minister of State made no reference to the fact that it is now perfectly permissible for people who have qualified from either end of the legal profession, through either professional body, to practise together. In such circumstances, to say that someone who goes to King's Inns and sets up a legal firm with a solicitor or who becomes the chief managing partner of Arthur Cox should be treated differently in respect of his or her capacity to be elected by his or her fellow judges to the Judicial Appointments Commission by virtue of the fact that in his or her youth, he or she went one way rather than another into the legal profession even though he or she practised throughout his or her entire history as a partner and in the same firm as another person is an antiquated and nonsensical distinction to draw at this stage. I am disappointed that the Minister of State did not accept the amendment tabled by Senator Ward on Committee Stage. I am also disappointed that he is not accepting this amendment.