Dáil Éireann debate -
Wednesday, 17 Dec 1997

Vol. 485 No. 3

Courts (No. 2) Bill, 1997 [ Seanad ] : Committee and Remaining Stages.

Sections 1 to 3, inclusive, agreed to.

SECTION 4.

Dr. Upton

I move amendment No. 1:

In page 5, subsection (1), lines 3 to 5, to delete ", and, in a case to which paragraph (a) relates, shall not be eligible for reappointment as presiding judge of that Court”.

The primary purpose of this amendment is to allow an element of flexibility about the seven year period of appointment. I have no difficulty with the principle — it is a good idea and should be the norm under most circumstances. I put forward this amendment to cater for eventualities which may not be apparent now, whereby it might be desirable to prolong an appointment even for a short period. I accept the standard practice should be a seven year appointment and that judges should step down at the end of that period but this amendment will allow flexibility in the event of unusual circumstances.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I listened carefully to Deputy Upton but I have difficulties with his amendment. He will recall that the provision in section 4 was based on recommendations made by the working group on the courts commission. The group examined the relevant issues in detail and concluded that, in view of the heavy judicial and administrative workload which falls to be carried out by court presidents, the appropriate arrangements to be put in place were that such appointments should be for a maximum term of seven years which would not be renewable. I have already indicated that I agree with the reasoning of the group and would be reluctant to depart from its recommendations in this area.

I know Deputy Upton is concerned that in an individual case it should be possible for a presiding judge to serve for in excess of seven years but that is a substantial period and should allow sufficient time for the initiation of new policies and to ensure they are fully developed and implemented. In addition, the Deputy will be aware it has become the norm that appointments to senior public positions are made for fixed and limited terms.

The amendment has major implications for the Bill and if adopted would seriously undermine the proposal to introduce seven year court presidencies. I do not believe there would be much point retaining that proposal if the House agreed to the change the Deputy suggests. When a seven year term came to an end, arguments would be advanced for lengthening a person's term, the probability is that there would be good reasons for doing so and it would duly happen.

It may be argued that if there are good reasons, the term should be lengthened but the philosophy behind limiting the term to seven years is to ensure fresh, innovative thinking after that period. It is not intended as an insult to the work of the person retiring but a statement that we wish to move to the next stage. The incumbent has moved matters as far as he could in his seven year term and we now wish to appoint someone else. The need for fresh thinking after an individual has served seven years would be apparent to all and is part of the fundamental philosophy of providing for a limited seven year term. I, therefore, regret I cannot accept the amendment.

Mr. Higgins

(Mayo): I sympathise with what Deputy Upton is trying to achieve. His rationale is that an extension should be granted only in exceptional circumstances. The problem is that if there is a deviation, the exception often becomes the rule. We are introducing clear and definitive legislation and we should stick, as far as possible, to what it sets out to do. In this case, it sets out to fix a maximum seven year term. As the Minister said, there will be plenty of advance notice and opportunity to make changes and adapt. My fear, which is shared by the Minister, is that if one allows extensions in exceptional circumstances, many persuasive arguments will be advanced about the exceptional brilliance of the present incumbent, or that he or she is only at the halfway stage in any reforms, procedural changes or administrative adjustments which are being suggested, and so the term should be extended for another year or two. The tendency will probably be to grant the extension.

I agree with the principle on which it is based, that apart from enabling everyone to give of their best for the seven years, it will help to clear the arteries, as it were — to enable new people to come in who will rejuvenate the system with fresh ideas and bring their reforming zeal and vigour to bear on the office which, as has been acknowledged, is an onerous position from the point of view of challenge, day to day tedium and demands, and charting a course for the period for which the person is responsible and the years ahead.

The Minister is right to stick with the determination that the period should be seven years. One would like to go along with the argument that there should be flexibility in certain exceptional circumstances but I fear that once it is allowed, the exception will become the rule.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Sections 5 to 8, inclusive, agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill".

Mr. Higgins

(Mayo): This section concerns the “pecking order” as referred to by Deputy Upton. It is a sensible if elaborate procedure, concerning the variation in numbers depending on who is appointed and the length of time they will serve. How much consultation was there with the Judiciary and the presidents of the various courts about the arrangements in this section?

Dr. Upton

I would have presumed custom, tradition and standard practice, and no profession is more given to custom and tradition than the legal profession. I wonder, therefore, why it is necessary to write this into the Act rather than that it should be the accepted standard of behaviour, particularly in the context of the people with whom we are dealing. If we were dealing with another element of society — politicians perhaps — it would be necessary to write it into the Act.

Mr. O'Donoghue

The existing order of precedence in relation to the superior courts is the Chief Justice who ranks first, the President of the High Court, the ordinary judges of the Supreme Court according to priority of appointment, and the ordinary judges of the High Court according to priority of appointment. We are filling a gap to provide that a former Chief Justice will have precedence after the present Chief Justice and the President of the High Court but before the ordinary members of the Supreme Court; that a former President of the High Court will have precedence after the President of the High Court and after the judges of the Supreme Court but before the ordinary judges of the High Court; and that a former President of the Circuit Court would rank after the President of the Circuit Court. We are setting out in legislative format the position of those who have served as heads of the respective courts. It could be of considerable importance. If, for example, the Chief Justice were to become ill or had to be absent, the next person in order of precedence would be the person who had retired as Chief Justice immediately preceding the appointment of the Chief Justice, and so on down the line. There is nothing very revolutionary in it. It merely sets out their precedence following retirement from their positions as heads of the respective courts. I trust that explains the mystery that appears to have surrounded that section.

Mr. Higgins

(Mayo): Was there discussion with the Judiciary in relation to this?

Mr. O'Donoghue

There was no specific discussion with the judges on this matter. I anticipate that it is what the Judiciary would have expected and I do not anticipate any objection on its part to it.

Question put and agreed to.

Sections 10 to 12, inclusive, agreed to.

SECTION 13.

Mr. Higgins

(Mayo): I move amendment No. 2:

In page 8, before section 13, to insert the following new section:

"13. -The Courts (Supplemental Provisions) Act, 1961, is hereby amended by—

(a) the insertion in section 5(2)(a) of ‘or a practising solicitor' after ‘barrister', and

(b) the insertion in section 5(2) of the following paragraph for paragraph (e) (as inserted by the Courts and Court Officers Act, 1995)

‘(e) for the purposes of paragraph (a) of this subsection, service, in the case of a solicitor as a judge of the Circuit Court, shall be deemed to be practice as a solicitor.' .".

Deputy Shatter made the case very eloquently and I thank the Minister for his response — he made a pre-emptive strike in relation to the amendment. I welcome the thrust of the Minister's remarks in view of the fact that he has shown clear intent in relation to whatever transpires in the working group report.

The case is well made. The Courts and Court Officers Act, 1995, was a watershed in that it opened up doors which had previously been locked to the solicitors' profession. The judgment of its performance by those who have benefited from the promotional opportunity has been very positive indeed. The situation opened up a huge area of potential, promise and promotion to solicitors who had the acumen, ability, training and skill to undertake higher judicial appointments. It introduced a filtering process whereby one had to have served for a period in the Circuit Court before being eligible for appointment to the High Court and, consequently, the Supreme Court. The basic thrust of my proposal is to eliminate that interim period so that where one has the ability, where one is deemed worthy of appointment, there would be no bar to going straight into the court. I make the point in the context of what Deputy Shatter said and the Minister acknowledged, that there is huge potential in terms of the expertise garnered collectively and individually by solicitors. Solicitors are very close to the ground in terms of knowing what happens in the real world — I say this with no disrespect to people at the Bar. One only has to look at the sheer numbers. There are 4,400 practising solicitors and 900 barristers. It would seem wrong to preclude these people from the possibility of being appointed at the outset in terms of their capacity to serve in the higher courts.

I make the point also that much of our law has been borrowed from Britain, our parliament is almost an exact parallel of that in the United Kingdom. Similarly our courts and court procedures are borrowed, almost en masse, from the British system. Much of the legislation and many of the Acts that determine what happens in the courts are based on what happened in the days of British jurisdiction. Rather than slavishly following the United Kingdom, we should take an initiative of our own in this House and make a quantum leap forward. I suspect from what the Minister said, although I do not know whether he has had a preview of the report, that he has had some indication that the report will go along with what I am seeking to implement by way of this amendment. Therefore, I ask that the House take the amendment on board.

Dr. Upton

Nobody could argue against the fundamental principle of Deputy Higgins's amendment, namely, that the best person should get the job, a solicitor, barrister or, in the context of what Deputy Shatter said, somebody from the world of academic law. As I said on Second Stage, I have encountered some barristers who were less than enthusiastic about this amendment. In that context the Minister is wise to at least wait until he obtains the report of the working group which, I presume, includes an appropriate number of barristers who can state their case as eloquently as only they can, and let us hope not as expensively as they usually do. It is worth giving them the opportunity to state their case and to consider it carefully. As a general principle it would seem impossible to argue against the amendment or against the further principle that the scope should be extended to anybody who is capable of doing the job. Presumably people who are not lawyers would not be acceptable as being able to adjudicate in the courts, but it would seem proper that anybody who has an adequate knowledge, understanding and experience of law should have the opportunity of putting their names forward for a position, and if they are good enough, good luck to them.

Mr. O'Donoghue

I had an opportunity of mentioning this matter earlier when Deputy Shatter spoke in support of Deputy Higgins's amendment. It was extremely interesting to hear the views of the Opposition spokespersons on Justice on this important matter and they, obviously, must be given due weight and consideration. The effect of the amendment would be to put practising solicitors on the same footing as practising barristers in terms of their basic eligibility for appointment as judges of the High and Supreme Courts. It would also provide that the services of a judge of the Circuit Court would reckon for the purpose of the qualification period as a practising solicitor in the same way as the law provides for the reckoning of services of a judge of the Circuit Court for the purpose of the qualification period as a practising barrister.

Before the enactment of the Court, and Court Officers Act, 1995, practising solicitors of not less than ten years standing qualified for appointment as judges of the District Court only. The Act qualified practising solicitors of not less than ten years standing for appointment as judges of the Circuit Court. During the debate on the legislation the main Opposition spokesperson advocated this change which the then Minister for Justice, Deputy Owen, took on board. The Act also provided that a judge of the Circuit Court of four years standing would be qualified for appointment as a judge of the Supreme Court or the High Court.

During the debate on the legislation by the Select Committee on Legislation and Security in December 1995 the then Minister, Deputy Owen, indicated she would examine further the qualifications required to be eligible for appointment as judges of the High and Supreme Courts and on 10 December 1996 she established a working group on qualifications for appointment as judges of the High and Supreme Courts with the following terms of reference: to consider and make recommendations to the Minister for Justice on the question of qualifications for appointment as judges of the High and Supreme Courts.

I appreciate the very real interest among Deputies in the outcome of the deliberations of the working group. I am not privy to the conclusions reached but I am pleased to inform Deputies that the working group has made considerable progress and I expect its final report to be submitted to me early in the new year. I assure Deputy Higgins that on receipt of the report I will quickly move to consider the appropriate legislative reforms arising from its recommendations. It is appropriate that we should await the outcome of the working group's deliberations before seeking to legislate further in the area of judicial appointments. In these circumstances I am glad Deputy Higgins indicated he is prepared to withdraw his amendment. If changes are deemed desirable following consideration of the report then I propose to introduce them in a new courts Bill which I anticipate will be introduced next year.

Mr. Higgins

(Mayo): Does the Minister intend to publish the report after due consideration?

Mr. O'Donoghue

It is my intention to publish the report in so far as it contains material which should be made available to the public.

Amendment, by leave, withdrawn.

Section 13 agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.

Sitting suspended at 6.45 p.m. and resumed at 7 p.m.