Michael McDowell (Independent) | Oireachtas source

I am interested in the answer the Minister of State has given to this amendment. During the past week I had the honour to be invited to the Law Society of Ireland to speak at a seminar organised by its students’ legal publication, theHibernian Law Journal. This was to commemorate 20 years of solicitors being appointed to the higher courts. In the course of that very interesting seminar, which I very much enjoyed, a number of judges, including Mr. Justice Quinn and former judge, Mr. Justice Michael Peart, gave their views about solicitor judges and barrister judges. The interesting thing was they both made it very clear that the day that they were appointed to the Bench, they regarded themselves simply as a judge and that their origin did not matter to them, honoured as they were to be appointed to the courts.I do not think the antecedence and whether a person was or was not, ten years prior to his or her election as a Judicial Council nominee to the Judicial Appointments Commission, and the fact that they were there quaa practising barrister at the time of their appointment or otherwise, makes very much difference. In fact, a former president of the High Court, Joe Finnegan, had spent many years in practice as a solicitor and had been at one stage the secretary of the Law Society. I say that just to show that these distinctions do not matter.

The point I made earlier is that with the Legal Services Regulation Act, which is now being slowly implemented, we have reached the point where solicitors and barristers can form partnerships together. Therefore, if they can form partnerships it is very difficult to understand in those circumstances why there should be an artificial barrier as to which of them should or should not be capable, in certain circumstances, of being elected by their fellow members of the Judicial Council to represent the Judiciary on the Judicial Appointments Commission. It is ludicrous that somebody after 15 years on the Bench is either qualified or disqualified for nomination by his or her fellow judges on the happenstance that ten or 15 years before, he or she, was at the time of their admission, a barrister or a solicitor, regardless of the fact that they could have spent the majority of their practice life as a member of the other profession.

I will raise just one other point that the Minister of State has raised, which is that we now have a clear distinction in legislation being put forward by the Department of Justice between male and female persons, yet there is legislation coming before this House in the near future to say that gender can mean male or female, whichever gender you want to be a member of, transgender, and this remarkable add on - "and any other gender". I asked the present Minister for an explanation as to what other genders there were in addition to male or female, your preferred gender, or transgender, but I got no substantive reply. It is odd that we are segregating the Judiciary into male and female for this purpose, but we are coming into this House to say that gender no longer means male or female and that gender can cover virtually anything else. I just wonder how a single Department of State can be so worried about gender balance in the Judiciary and at the same time deny the very concept of gender as between male and female when it produces an incitement to hatred Bill. It is a strange thing to happen. I would love to know if somebody identified themselves as "trans" where they would feature on this spectrum of male or female. Can a judge opt to be regarded as male or female in order to be nominated? That is strange but that is apparently what the law is at the moment. Just in case the Minister of State is wondering about "any other gender", I took the trouble to research this on the Internet and discovered that there are 72 other genders, according to some American specialists, which is a remarkable thing.

In any event, I am saying that the fact that a person was a solicitor at the time he or she was appointed a judge ignores completely that he or she could have been a barrister until a year or two years prior to that. It ignores completely the fact that happenstance 15 years later speaks in no way to anything of significance as regards whether one should or should not be appointed to the Judiciary. The fact that we are now moving to a situation where solicitors and barristers can run joint practices as partners clearly indicates that this is an unjustifiable distinction.

I will finish by saying this: it is meant entirely to be a fig leaf for the complaints made by the Law Society of Ireland that it no longer has a representative on the Judicial Appointments Commission of any kind whatsoever. It was thrown this fig leaf that one of the judicial appointees, on the date of his or her appointment as a judge, would have been a member of each profession, as if that makes any difference whatsoever.

In the circumstances, I have to say that when Senator Ward tabled this amendment I was struck by its correctness. I am glad he is still of that opinion. I share his pessimism that it will be accepted, but in all the circumstances I must put the matter to a vote.