I move: "That the Bill be now read a Second Time."
I wish to share my time with Deputy Jim Higgins.
Private Members' Business. - Courts Bill, 2000: Second Stage.
Is that agreed? Agreed.
The Courts Bill, 2000, proposes to broaden the pool of lawyers from which High Court and Supreme Court judges can be selected, to provide for greater openness and transparency in the making of judicial appointments, to require the sanction of an appropriate Oireachtas committee for the appointment of a retired judge to a domestic or international body, to ensure the tax affairs of those appointed to the Judiciary are in order and to reform structures and outdated practices within the legal profession. The Bill is proposed by me and Deputy Higgins on behalf of the Fine Gael Party.
The 1937 Constitution in Article 6.1 provides for a tripartite division of powers, stating that
All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
Central to this doctrine of the separation of powers is the independence of the Judiciary. Montesquieu explained the importance of an independent judiciary as follows:
Again, there is no liberty, if the judiciary be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive, the judge might behave with violence and oppression.
The independence of the Judiciary is copper fastened in this State by constitutional provision and it is the Constitution which lays down the fundamental basic law relating to the appointment of judges. Legislation enacted by the Houses of the Oireachtas in relation to judicial appointments is, therefore, circumscribed by constitutional provision.
All judicial appointments in this State, whether they be judges in the District, Circuit, High or Supreme Court are made by the President on the advice of the Government. This is provided for by Articles 35.1 and 13.9 of the Constitution. Article 35.1 states that, "The judges of the Supreme Court, the High Court and all other Courts established in pursuance of Article 34 hereof shall be appointed by the President." However, the Government selects the judges. The President is required when exercising this function by Article 13.9 to act "only on the advice of the Government".
The Courts and Court Officers Act, 1995, put in place for the first time a statutory mechanism for advertising judicial vacancies and short-listing applicants for judicial appointments. Under the Act, the Judicial Appointments Advisory Board advertises judicial vacancies to be filled. The board can identify persons through their own application or the board's invitation who are suitably qualified for judicial office and then in the context of each judicial vacancy may submit a list of up to seven names to Government for the particular judicial position. The Government may select for judicial appointment one of the seven persons listed by the board or may nominate a person not listed by the board.
Where the person nominated by government is not included on the board's shortlist, that fact must be stated by notice in Iris Oifigiúil. In practice, since the board's establishment, all judicial appointments made by successive Governments have been from persons included in the board's shortlist submitted to Government. The remit of the board excludes the offices of Chief Justice and the presidents of the other courts, but in relation to those offices the Government is subject to some limitations in that it is required to “have regard first” to the qualifications and suitability of existing judges. Where the Government proposes to appoint a person to those positions who is already a judge, the board is not involved.
The Judicial Appointments Advisory Board was established to ensure that those appointed to the Judiciary had the legal competence, character and temperament to properly fill a judicial vacancy. The procedure established under the 1995 Act superseded the informal processes pursued previously by successive governments up to that point. The 1995 Act does not interfere with the Government's constitutional right and obligation to nominate members of the Judiciary. It merely seeks to ensure there is a mechanism in place to permit those eligible to apply for such appointment and a body available to assess their eligibility and expertise. However, this is done behind closed doors and the first time the public or Members of the Oireachtas learn of a judicial appointment is when the Government submits the name of its nominee to the President for appointment. There is no openness or transparency about the process nor does the Oireachtas, to which the Government is accountable, have a direct role.
Fine Gael believes there should be greater governmental accountability for the making of judicial appointments and that there should be proper parliamentary scrutiny. The Courts Bill, 2000, requires, therefore, that prior to the Government formally advising the President of the name of its nominee to a judicial office, it shall first submit the name of its proposed nominee to an appropriate committee of the Houses of the Oireachtas and shall take into consideration the opinion of that committee. At present the appropriate committee would be the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. Upon being furnished by the Government with the name of its proposed nominee, the committee will be entitled to determine whether it should hold any hearing on the nomination or whether it should require the person proposed for appointment as a judge to attend before it. The committee, under the Bill will thereafter furnish to Government its opinion on the nomination which will be published and laid before this House.
This new procedure, which implements a proposal contained in the recently published Fine Gael policy document, A Democratic Revolution, will ensure parliamentary scrutiny of judicial nominations and provide for a new openness and transparency in the making of judicial appointments. In doing so, it does not in any way impinge on the Government's constitutional role in recommending to the President a person to be appointed to judicial office. Should the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights issue an opinion opposing the appointment of a particular nominee, it could be expected that the Government would be very reluctant to proceed with an appointment. It would be expected that the Government would not then submit to the President the name of such a person initially nominated by it for that appointment.
A major public controversy was caused by the Government's attempt to appoint former Supreme Court justice Hugh O'Flaherty to the board of the European Investment Bank. At present the Government is at liberty to appoint retired judges, including judges who have been impeached or threatened with impeachment, to international and domestic bodies without such appointments first requiring the prior approval of either the Houses of the Oireachtas or an appropriate Oireachtas committee. The independence of the Judiciary is a central core value of our constitutional democracy. Appointments by Government of retired members of the Judiciary to international or domestic bodies are matters of particular sensitivity. Under our constitutional system of separation of powers, the Executive should be properly accountable to the Legislature for any such proposed appointments prior to the appointment being taken up and there is a need for a mechanism which ensures the Government cannot make such appointments where they are opposed by a majority of members of the Houses of the Oireachtas.
The Courts Bill, 2000, provides that no person who has occupied a judicial office and has ceased to occupy that office due to retirement or impeachment may be appointed by the Government or any Minister of State to any office or employment unless the Government has first submitted the name of that person to the appropriate Oireachtas committee, which at present would be the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. It further provides that no such appointment shall be made without the prior approval of that committee.
If this provision had been in place last May, the Government would have known that it could not have made the appointment of former Supreme Court justice Hugh O'Flaherty to the European Investment Bank without such appointment being first approved by the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. If such a provision had been in place the Minister for Finance would not have originated that proposal, the Government would have avoided a great deal of public controversy, the country would not have been involved in any international embarrassment and the Ryan and O'Flaherty families would not again have been thrown into the public limelight and would have avoided much upset and distress.
Ordinary legislation specifies the eligibility criteria for judicial appointment. Eligibility is confined to members of the legal profession, that is, to barristers and solicitors. To be eligible for appointment as a judge of the Circuit Court or District Court, a person must be a practising barrister or solicitor of not less than ten years standing. Only practising barristers of not less than 12 years standing are eligible for direct appointment to the superior courts, that is, the High Court and Supreme Court.
The Courts and Court Officers Act, 1995, for the first time permitted the appointment to the Circuit Court of practising solicitors of ten years standing. When published as a Bill, this measure did not envisage the appointment of practising solicitors to either the High Court or the Supreme Court nor did it provide for a practising solicitor, having been appointed as a Circuit Court judge, becoming eligible for appointment to either the High or the Supreme Court. During the debate in this House and on Committee Stage of the Courts and Court Officers Bill, I proposed that the pool of lawyers from which superior court judges are selected should be substantially widened to ensure judges were selected from lawyers with a diversity of experience and from different backgrounds which could be reflected on the bench.
The proposal was also made as since the coming into force of the Courts Act, 1971, a measure steered through this House by Deputy O'Malley, the then Fianna Fáil Minister for Justice, solicitors had an equal right of audience in our superior courts to that of barristers. Almost 25 years later, it seemed both illogical and discriminatory that a law from a different era which restricted eligibility for High and Supreme Court judicial appointments to members of the Bar should continue to remain in place. I should also say in the context of making a personal declaration of interest, as one of a very small number of solicitors who have for many years acted as advocates in our superior courts, I was at that time firmly of the view, and still remain of the view, that qualities of either legal brilliance or personal eccentricity are shared in equal measure as between members of the Bar and the solicitors' profession. In the context of there being approximately 1,300 practising barristers in the State as compared to 5,500 practising solicitors approximately, it is clearly in the public interest that the selection of High Court and Supreme Court judges should not be confined to practising members of the Bar who constitute just over 20% of practising lawyers in the State.
As a result of the debate I initiated on the 1995 Act and in response to amendments tabled by me on Committee Stage to that Act which gave rise to considerable controversy, the Government agreed to amend the measure to allow for the appointment as judges of the High Court solicitors appointed as Circuit Court judges who had served in the Circuit Court for in excess of four years.
In response to the debate on the 1995 Act, the then Minister for Justice, Deputy Owen, on 10 December 1996 appointed a working group on qualifications for appointment as judges of the High and Supreme Courts. This working group finally reported on 16 February 1999 and recommended that appointment to the High Court and Supreme Court should no longer be confined to practising barristers but should also extend to practising litigation solicitors.
Under the Courts (Supplemental Provisions) Act, 1961, and the predecessor to that Act, eligibility for appointment as a High Court or Supreme Court judge was confined to a practising barrister of not less than 12 years standing. Despite the 1995 Act permitting the promotion of solicitor Circuit Court judges with four years experience as a Circuit Court judge to the High Court, no solicitor has yet been so appointed to the High Court. The Courts Bill, 2000, provides for the direct appointment as judges to the High Court or Supreme Court of practising litigation solicitors as well as practising barristers who have been such for at least ten years, including a continuous period of two years immediately prior to the date of such judicial appointment.
At present appointment to the District Court or Circuit Court requires that a person be a barrister or solicitor of only ten years standing. It is the view of Fine Gael that there is no public need or interest in maintaining a distinction between the number of years lawyers should be qualified to be eligible for appointment as judges of the superior courts as compared with the lower courts. In many areas of law, the Circuit Court exercises a jurisdiction concurrent with and identical to the High Court. If Circuit Court judges are deemed qualified upon appointment to hear a broad range of cases, similar or identical to cases which can be heard in the High Court, it is not in the public interest nor in the interest of the Judiciary that a suggestion could arise that by virtue of the eligibility criteria for appointment, Circuit Court judges are in some way less qualified to determine such cases than are High Court judges. The current 12 year rule requires a period of time in legal practice in excess of that required for eligibility for judicial appointment in most other common law jurisdictions.
Under the provisions of the Courts Act, 2000, practising barristers and High Court or Supreme Court litigation solicitors will be equally eligible for judicial appointment to the High Court or Supreme Court. The requirement that each have "at least ten years practising experience" does not require that the ten years be continuous. The ten year period can be interrupted by other work they may have undertaken. The Bill, however, requires a continuous period of two years as a practising barrister or a High Court or Supreme Court litigation solicitor immediately prior to appointment as a judge of the Supreme or High Court. In this context it reflects a recommendation contained in the working group's report.
The working group recommended that there should be no change to the existing position whereby District Court judges are not eligible for appointment to the High Court or Supreme Court. Appointment as a judge of the District Court requires that a person appointed has a minimum of ten years as a practising solicitor or barrister. A District Court judge hears on a daily basis criminal trials and adjudicates on contentious issues of civil or family law. Fine Gael sees no public interest in excluding from eligibility for appointment to the High Court or Supreme Court District Court judges who on a daily basis by the nature of their job acquire substantial experience across a broad range of litigation. Such persons prior to being appointed District Court judges under the recommendations made by the working group and also under the provisions of this Bill could, prior to appointment to the District Court, be eligible for appointment to a higher court.
The Courts Bill, 2000, states: ".service as a judge of the Circuit Court or of the District Court shall be deemed to be practice as a practising barrister or a High Court or Supreme Court litigation solicitor." It is important that individuals who are judges of the courts of justice or of the court of first instance attached to that court or who are acting as advocate general of the Court of Justice are not excluded from judicial appointment in this State. Accordingly, the Bill also provides that service in such position "shall be deemed to be practice as a practising barrister or a High Court or Supreme Court litigation solicitor" and that also upon a person vacating any such office he or she shall be regarded as qualified for appointment as a judge of the High or Supreme Court.
The procedures in place for the appointment of members of the Judiciary are designed not only to ensure that those appointed are properly qualified to exercise judicial functions but also to depoliticise appointments made in so far as is possible. The Judicial Appointments Advisory Board goes about its business in a non-party political way and since its establishment no Government has appointed a person to a judicial office who has not been short-listed by the board in circumstances in which the 1995 Act provides for such short-listing. It is inevitable that included in the short-lists of persons properly qualified for judicial appointment are men and women identified with the various political parties in this State, including the Government parties. It is clear from a reply received under the Freedom of Information Act from the Department of Justice, Equality and Law Reform on 31 July 2000 by Mr. Brian Gallagher who, as a solicitor, sought information as convenor of the litigation committee of the Dublin Solicitors Bar Association that current Oireachtas members of Fianna Fáil, including the Taoiseach, and the Progressive Democrats, in addition to Independent Deputies on whom the Government depends, have since the Government came into office regularly made written representations in favour of specific individuals receiving a judicial nomination.
In reply to a parliamentary question on Thursday, 5 October, the Minister for Justice, Equality and Law Reform confirmed that since taking office he has received over 40 representations from members of the Oireachtas in respect of judicial appointments. Although in the reply the Minister stated that eight persons on whose behalf representations were made were subsequently appointed, all to the District Court Bench, he stated that he did not regard these representations as particularly relevant. To date, a total of ten appointments have been made by the Government to the District Court, eight of which are in respect of individuals on whose behalf the Minister has received representations.
If those representations, to use the Minister's words, are not regarded by him as "particularly relevant" why is he in receipt of them not only from the Taoiseach but also from so many of his ministerial colleagues. In addition to representations being made to the Taoiseach, represen tations have been received by the Minister since 21 April 1998 from the Minister for Education and Science, Deputy Woods, the Minister for Social, Community and Family Affairs, Deputy Dermot Ahern, the former Minister for Foreign Affairs, Deputy Andrews, the former Minister for Health and Children, now Minister for Foreign Affairs, Deputy Cowen, the Minister of State at the Department of the Environment and Local Government, Deputy Molloy, the Minister for Tourism, Sport and Recreation, Deputy McDaid, and the Minister for Arts, Heritage, Gaeltacht and the Islands, Deputy de Valera. Are the letters sent by individual Ministers advocating a particular appointment circulated to the ministerial colleagues of the Minister for Justice, Equality and Law Reform? Is it as a result of receiving such letters that the Minister proposes at Cabinet the nomination to the Judiciary of a particular applicant included as one of the seven in the list submitted to him by the Judicial Appointments Advisory Board?
Between 21 April 1998 and 31 July 2000, in relation to District Court appointments it seems that the Minister for Justice, Equality and Law Reform received 29 representations from elected members of the Government parties, 27 from Fianna Fáil and two from the Progressive Democrats.
In addition, one representation was received from Ray McSharry, a former senior Government Minister and a current trustee of the Fianna Fáil Party, concerning a District Court appointment. During the same period, according to the information supplied under the Freedom of Information Act, seven representations were received relating to judicial appointments to the Circuit Court, four of which were made by members of Fianna Fáil, including the Taoiseach, yet again, and Deputy Tom Kitt, Minister of State at the Department of Enterprise, Trade and Employment. In the context of a District Court appointment, Deputy Healy-Rae made representations to the Minister for Justice, Equality and Law Reform in writing. It was not enough simply to have a word with him in a pub in Kerry. Deputy Blaney made representations to the Minister in relation to a Circuit Court appointment.
Are the Independent Deputies, on whom the Government is dependent, now dictating who should receive judicial appointments? When will Deputy Fox and Deputy Gildea get their turn to propose somebody for nomination to the Judiciary? Has the Minister told them that this is an opportunity of which they can avail? Is this something the Chief Whip, Deputy Brennan, discusses with them in the privacy of their weekly meetings to ensure they are kept on board?
The Minister for Justice, Equality and Law Reform should answer the questions I have raised and a number of others. First, why have the District Court appointments been targeted by the majority of representations he received? Did the Minister at any time prior to the parliamentary question of 5 October being tabled make it known to his ministerial colleagues, to backbench members of the Government parties or to the Independent Deputies on whose support the Government is dependent, that he did not regard these representations "as particularly relevant", to use his own words? Alternatively, did he make it known that he would facilitate such representations? Could the Minister clarify how relevant they are if he regards them as "not particularly relevant"?
He should also clarify why eight out of the ten appointments made by him to the District Court Bench were nominated to the District Court after he was in receipt of political representations on their behalf. The Taoiseach should explain why he declined to answer a parliamentary question tabled to him last week which sought to ascertain whether any of the individuals, on whose behalf he had made written representations to the Minister for Justice, Equality and Law Reform, have to date received a judicial appointment and which sought an explanation for his making representations in circumstances in which his own Minister regards his representations as "not particularly relevant".
Fianna Fáil and the Progressive Democrats have in Government violated both the spirit and the intent of the 1995 Act. They have sought to corrupt the provisions of that Act in so far as it is available to them to do so. Undoubtedly, at all stages, the Judicial Appointments Advisory Board has acted with integrity. I accept that all appointments made by the present Government derive from lists of seven names furnished by the board. However, the number of persons appointed by the Minister to the District Court as a result of receipt by him of representations from his own colleagues or from Government friendly Independent Deputies leads heavily to the suspicion that if one is short listed by the board, one is more likely to be appointed to a District Court vacancy if representations are made on one's behalf by a member of one of the Government parties or by an Independent Deputy on whose support the Government parties are dependent.
There is clearly a need to enact legislation to render it unlawful for any person to make any such representations and to require by law that any such representations received shall not be considered by the Minister or the Government in determining who should be nominated for judicial appointment. Various Acts relating to the making of appointments in the Civil Service and local authorities and also with regard to the prosecution of offences contain adequate legal precedents which could be applied to representations relating to judicial nominations.
It is no longer tenable that in this Republic, 80 years after attaining statehood, we still apply anachronistic rules and principles inherited from our colonial past. The previous Government, in the Courts and Court Officers Act, 1995, failed in its attempt to abolish the wearing of 19th century wigs by barristers who appear before our courts. Under pressure from the Law Library, a provision in that legislation which proposed to abolish the wearing of wigs was amended to confer on barristers a discretion to determine whether they should or should not wear wigs. As a consequence, the overwhelming majority of barristers continue to dress in 19th century garb except when appearing in family law cases for which the wearing of wigs was abolished in the Private Members Bill that I brought through this House, the Judicial Separation and Family Law Reform Act, 1989. Most newly qualified junior counsel wear wigs due to peer pressure by their elders and a fear that if they abandon the wig, it could detrimentally impact on their legal careers. The wearing of wigs, however, has minimal impact on the general public and is more an item of curiosity. There are more serious issues to be tackled than the wearing of wigs.
As already noted, since the Courts Act, 1971 solicitors have had a full right of audience before all our courts, including the High Court and the Supreme Court. The legislation of this Republic, therefore, recognises that litigation solicitors are as well intellectually equipped in the law as are members of the Law Library who act as advocates. This is something the Government still fails to recognise in the context of various matters for which it has responsibility. For example, there is no legal provision of which I am aware which excludes a solicitor from appointment to the important constitutional post of Attorney General. No provision is contained in our Constitution which states that qualification for appointment as Attorney General is confined to members of the Law Library.
Fine Gael, in our document "A Democratic Revolution", proposes that not only in law but also in practice solicitors should be regarded as eligible for such appointment. Section 7 of the Courts Bill 2000 provides that "notwithstanding any rule of law or practice to the contrary, a solicitor shall be qualified for appointment as Attorney General". The enactment of such a provision would ensure that future Taoisigh have available to them a far wider pool of lawyers from which to select Attorneys General. In the context of it now being acknowledged that solicitors should be eligible for appointment as High Court and Supreme Court Judges, it makes no sense that they should be excluded from appointment in the future as Attorneys General.
Not only is the legal profession in this State divided into two branches of solicitors and barristers, but barristers make a distinction as between junior and senior counsel. Experienced barristers are appointed senior counsel as recognition of their experience and seniority. In complex litigation that comes before our courts, it is usual that both a senior and junior counsel represent a litigant, be the litigant an individual, a company, a trade union, an organisation, a club or the State or a State agency. In cases of great complexity two senior counsel and one junior counsel may appear.
As already noted, since 1971 solicitors have been free to act as advocates in all our courts. On occasions in the High or Supreme Court a case of complexity may arise in which a solicitor is acting as advocate and in which it is in the interests of the client for whom the solicitor acts that the client be represented in court by more than one advocate. While it is commonplace in our courts for an individual to be represented by both a senior and a junior counsel, it is not usual where a litigant requires representation by two advocates that a case is conducted in the context of the taking of evidence, cross-examination and the making of legal submissions jointly by a solicitor and barrister. Most junior counsel believe that their senior peers would disapprove should they act jointly in a court hearing with a litigation solicitor or a solicitor acting as advocate.
I am aware that solicitors have written on occasion to the chairman of the Bar Council to seek to have this difficulty resolved but despite doing so, the Bar Council has declined to address this issue. This is a restrictive practice and contrary to the public interest which results in litigants incurring more legal costs than are necessary in circumstances in which a solicitor jointly with a barrister can properly represent their interests without the need to appoint a senior counsel.
A person appointed as senior counsel is granted by the Government something called a patent of precedence. The Government's power to grant a patent of precedence is inherited from colonial times and the Courts Bill, 2000 proposes, notwithstanding any rule or law or statutory provision or practice to the contrary, the Government may grant patents of precedence at the Bar to High Court or Supreme Court litigation solicitors. There is no reason a litigation solicitor with expertise and experience should not have extended to him or her the same recognition of seniority as is currently conferred on members of the Bar. The granting of such patents of precedence to solicitors will also effectively circumvent the restrictive practices operated by the Bar with regard to solicitors and barristers jointly acting as advocates in major litigation.
The Minister for Justice, Equality and Law Reform has for 18 months promised to introduce measures to render solicitors eligible for appointment as judges to the High and Supreme Courts. The Courts Bill, 2000, published in my name and that of Deputy Jim Higgins on behalf of Fine Gael, provides for this and also addresses broader issues which I have referred to and which we believe this House should address without further delay in the public interest.
As is the case with practically every Bill published, including Private Members' Bills, I have no doubt technical and substantive amendments could be made to this measure to improve it. The Bill, however, opens the door to implementing important and far-reaching reforms which will modernise our legal system and provide for greater openness and transparency in making judicial appointments which will substantially benefit the general public.
Since my appointment to the justice brief, I have noted the Minister for Justice, Equality and Law Reform's regular reference to Private Members' Bills published by him when on the Opposition benches and to the generosity of the previous Government in taking on board and enacting into legislation proposals made by him. In the same spirit, I am asking the Minister not to oppose this measure and to permit it to pass unopposed into committee to facilitate its enactment into law before the end of this year.
(Mayo): I compliment my colleague, Deputy Shatter, who is the main architect of this Bill. As he said, the Bill seeks to introduce basic best practice procedures in the process of the selection of judges. As he has acknowledged, the Courts and Court Officers Bill, 1995, is a considerable milestone in the process of judicial appointments in that the Judicial Appointments Board now advertises, consults and deliberates, and accepts the nominations of people who deign it worthwhile to make an application for the post. Seven names go before Cabinet, one of the names is selected and, as has been acknowledged, it has never happened that names which have not been on the list have been parachuted in to take precedence over the selected seven. Therefore, there has been a considerable advance in relation to opening up the process while at the same time it is, by and large, a closed shop. This is the reason Deputy Shatter and I have brought forward this measure to introduce the openness, transparency and accountability that is now part and parcel of every aspect of life.
The courts are the cornerstone of the Constitution and democracy and are responsible for the administration of justice. We cannot allow for the possibility of cronyism. This is the reason the Bill seeks to root out, once and for all, any taint or suspicion of cronyism. The Bill does four things. First, from the point of view of one's nomination, the nominee to a judicial position will now have his or her nomination considered by the Joint Committee on Justice, Equality, Defence and Women's Rights. The committee may seek among its majority members to have the matter dealt with by way of oral hearing. In addition, we set down clearly that no retired judge can be appointed to a domestic or international body without the committee's approval. As has already been said, the likelihood is that the O'Flaherty appointment would never have been made if this provision had been introduced, even though that does not take account of the arrogance of the Minister for Finance in relation to such matters.
The Attorney General's office is dominated by people from the Bar. All the staff in that office come through the Bar. The possibility of the appointment of solicitors has been in existence for some time but this has not been addressed. There is no legal prohibition on solicitors being considered for such posts. The Bill will ensure, therefore, that the broadest possible pool of expertise is available to the Attorney General's office. Last, but by no means least, it will enable direct appointments of solicitors to High Court and Supreme Court positions. As Deputy Shatter said, at present only barristers with 12 years experience may be appointed to the High Court. The Bill makes it possible for any solicitor with ten years litigation experience to be so appointed. Since 1995, a solicitor who has been appointed to the Circuit Court, having four years experience in that court, may now be appointed to the High Court. However, the proof of the pudding is that to date no such appointment has been made.
Given the requirement to preserve judicial independence, it is acknowledged that the Legislature or Executive has very narrow powers in dealing with complaints in relation to misconduct by judges. A judge of the High Court may only be removed from office on grounds of stated misbehaviour or incapacity and then only by resolution of the Dáil and Seanad, in accordance with the provisions of Article 35.4.1 of the Constitution. Statutes provide a similar provision for Circuit or District Court judges. In April 1999 in the Sheedy case we faced an unprecedented constitutional dilemma. The Government threatened to invoke the impeachment procedures in the Constitution to remove from office High Court judge, Cyril Kelly, and Supreme Court judge, Hugh O'Flaherty. We do not know what would have happened had they refused the Government's request. There would certainly have been an unprecedented constitutional crisis. Thankfully, the judges resigned, but had they not resigned, they would have been entitled to due process. They would have been entitled to have their case stated, to be heard. However, the question is by whom, when, how and where because this never happened before. No procedures were in place. They were entitled to legal representation and natural justice.
At the time, the Government, knowing that it could have been facing an unprecedented crisis, promised that this matter would be addressed as a matter of urgency, but to date nothing has happened. There is no guarantee a similar crisis will not arise in future and that in such a case those involved might not be nearly as accommodating as the former Supreme Court and High Court judges.
Then there was the extraordinary spectacle of Mr. O'Flaherty offering to come before the committee to answer questions, resigning on foot of a £40,000 pension from the Government and, subsequently, refusing to come before the committee to which he had offered his services merely weeks previously. He then went on "Today FM" and contradicted many of the assertions he made at the time of his resignation in relation to his protestations of innocence.
The question is what constitutes a judicial func tion and where does one draw the line? Not only has the process of impeachment not been sorted out in respect of judges, but the powers of the committee to deal with the issue have still not been sorted out. Deputy Howlin and I deliberated at length in the committee with legal opinion and other members of the committee as to what form of inquiry could be instituted or where precisely our powers lay in relation to investigating further the Sheedy affair. We considered six options. First, we considered the informal inquiry which is dependent on the co-operation of all parties. The joint committee has no powers of compellability to summon witnesses or evidence or make records available. Even if such persons were prepared to co-operate and come before the committee – that did not seem possible in the Sheedy case – the question of the separation of powers came into play immediately. Therefore, an informal inquiry could merely gather information. The second option we considered was to seek from the Oireachtas powers to send for persons, papers or records, in other words, to give ourselves the powers. Section 3 of the Compellability Act, 1997, excludes such judges, therefore, that option was a non-runner.
The committee considered also the possibility of overcoming the procedural difficulties by amending the 1997 Act by removing the prohibition against compelling judges. Again, this would have to exclude judicial function and give rise to the question of what constitutes in strict legal terminology judicial functions. The committee considered amending Article 35.2 of the Constitution to compel judges to appear and be questioned on matters relating to their judicial function. This would have been a major step but I do not think anyone wanted to go down that road. We considered the possibility of a tribunal of inquiry under the Tribunals of Inquiry Evidence Act, 1921. The Dáil would have to be satisfied that the terms of the resolution were constitutional and did not infringe on the separation of powers. Had we gone that route, the likelihood is that it would have been challenged. We considered the possibility of having the matter returned to the Chief Justice who declined the offer.
We are extremely lacking in relation to procedures. A mechanism is still not in place, in regard to impeachment procedures, to deal with the crisis with which we could have been confronted in April 1999. Nothing has happened in terms of making judges accountable for their actions without at the same time infringing on their constitutional protection. I acknowledge that the commission chaired by Mrs. Justice Susan Denham has produced an analysis in regard to options and examples but we have not embarked on any meaningful steps with regard to the model to be embraced.
The report of the Constitution review group in May 1996 recommended the possibility of introducing legislation and this reality has not been addressed. I hope the Minister will accept the Bill in the positive spirit in which it was proposed and that something is done to try to ensure there is greater openness, transparency and accountability in relation to this fundamental aspect of society.
The Government has already made clear, by way of commitments in its legislation programme, that it accepts the principle that solicitors should be eligible for appointment as judges of the High and Supreme Courts. The Government, therefore, has no problem with the principle enshrined in this Bill—
The Minister should declare his interest.
—but there are good and valid reasons why the Bill cannot be supported by the Government in the form that it takes, in this and other matters. Those reasons will become clear during my contribution to this debate.
I endorse wholeheartedly the principle which the Bill espouses and wish to see it enshrined in legislation. It will give me immense pleasure, in what I expect will be the near future, to introduce a Government Bill which will deal not just with the eligibility of solicitors for appointment to the superior courts but with a range of other court-related matters. I have to tread somewhat delicately because it would be improper for me to dwell in particular detail upon the provisions of the Bill which is going before Government for approval to publish.
However, there will be significant points of difference on the issue of eligibility between it and the Bill we are debating. Considerable additional matters will also be included within the scope of the Government's Bill which are not comprehended by the Deputy's Bill and which will, for the most part, facilitate the administration of our courts system.
The argument is sometimes made that Governments should accept Private Members' Bills where the principle of the Bill is broadly acceptable and then deal with any defects or additional matters at Committee Stage. Sometimes this approach can work well. However, in this instance, a Government Bill is almost ready for publication. Its scope is much broader than the Bill we are debating and it would not be efficient in terms of resources or time if it were to be accepted and then amended to take account of the content of my Department's Bill, both in so far as that content relates to the content of the Deputy's Bill and in so far as it differs. Certainly, were I to take that approach, I can guarantee that we would have a messy and unsatisfactory Committee Stage and the opportunity to have a wide-ranging and open debate on the policy which underlines my Bill would be lost.
The Deputy will not take issue with me that a substantial portion of his Bill is a reasonably true and faithful reflection of the recommendations which were contained in the report of the work ing group on qualifications for appointment as judges of the High and Supreme Courts. The working group was established in 1996, its report was published in February 1999 and Government approval for the drafting of the necessary legislation was obtained in June of that year.
The main recommendations contained in the report, some of which the Deputy has taken on board fully and some of which he has modified, were as follows: eligibility for appointment as a judge of the High or Supreme Courts should be extended to solicitors of at least 12 years standing who have been engaged in litigation in those Courts for at least 10 years; in this context, experience and knowledge of the superior courts would be a prerequisite for eligibility for appointment for all persons, regardless of whether they are barristers or solicitors; five of the ten years High or Supreme Court litigation experience, which it is recommended would be required by solicitors, could be gained while employed in the public service or by a commercial entity – however, solicitors would have to spend a continuous period of two years in private practice immediately prior to their appointment as a judge and, related to this, would be the requirement that, subject to certain exceptions, barristers should also be in practice for an equal period of two years prior to any appointment, and cumulative relevant professional experience of a person who has practised both as barrister and solicitor would be reckonable for the purpose of the eligibility criteria.
In making its proposals, the members of the working group were unanimous in their view that, since the foundation of the State, Ireland has had a Judiciary of high quality which has served it well. It was against that background the group recommended that any change to the qualifications required for appointment to the Supreme Court and High Court be clearly reasoned and demonstrated to be in the public interest. Given the importance of the positions which are in question, change for change's sake can never be a factor in any decision to alter existing arrangements. At the same time, a settled adherence to existing tradition may not always be in the best interests of any profession and every so often it is desirable that we look hard at existing practices and determine whether or not some modifications are required.
In this context, I am satisfied that it would be in the public interest that the pool from which judges can be chosen for appointment should be widened to include people with the experience and training deemed necessary to be considered as a potential judge of the superior courts, regardless of whether they are barristers or solicitors. The fundamental principle of broader eligibility has been accepted by the Government and I endorse it fully. However, the mechanism whereby that principle can be implemented is of fundamental importance.
There may well be a view that transposition of the blueprint offered by the report was all that was necessary in the matter and that little by way of additional work was called for. Leaving aside the inevitable slippages which are part and parcel of the development of legislative proposals, there are particular reasons in this instance why progress has not been as brisk as we might all have wished. While the proposals contained in the working group's report are unexceptionable with regard to principle, they needed to be fully examined and teased out to ensure that no deficiencies were contained within them.
That process has suggested some difficulties with the approach taken in the report, which are close to resolution. It also suggested that the approach taken was, perhaps, unnecessarily rigid and that something a little less formulaic might work better in practice. However, lest Deputies leap to hasty conclusions, I cannot emphasise strongly enough how valuable was the work which the members of that group undertook and without it the task of my Department in framing the policy of the relevant legislative provisions would have been much harder. It is easy to forget that many who accept the onerous task of serving on a working group of this nature usually do so for no remuneration and often give up much of their personal and professional time to offer genuine service to the State. It behoves us to be grateful that this ethic of public service still exists strongly in so many of our people.
Some of the concepts upon which the working group placed reliance in its report could give rise to uncertainty as to whether or not a particular solicitor was eligible for appointment to high judicial office. The House will appreciate that it is a serious matter if a challenge is mounted to a judge's jurisdiction on the basis that he or she had been invalidly appointed and that a successful challenge could have significant consequences. If a challenge were to be mounted in future against a solicitor judge, and if it were successful because of an inherent weakness in the enabling legislation, both the reputations of the Oireachtas and the profession itself would be damaged.
For that reason, the precise formula which should apply so as to enable suitably qualified solicitors to serve as judges of both the High and Supreme Courts has been the subject of very careful and considered discussion between my Department and the Office of the Attorney General. I am satisfied, on the basis of advice received, that the approach we are embarking upon should not give rise to the difficulties I have referred to and should be capable of being applied in an objective manner which will not give rise to unnecessary dispute.
The process of teasing out which I mentioned has also entailed close consultation with the relevant professional interests. The Bar Council and the Law Society have a natural and particular interest in the evolution of proposals which will impact closely upon them and, for that reason, I have taken some pains to ensure that a proper consultation mechanism has been put in place in so far as both those bodies are concerned. However, interest in the criteria for eligibility for judicial appointment is not confined to the professional bodies and I am acutely aware of the need to also take cognisance of those wider concerns.
Another matter which has impacted on the timing of the Bill's publication will be familiar to anyone who has had the privilege to serve as a Minister in my Department. Any courts Bill has a way of expanding to take on board a range of issues which may not have been in contemplation when it was first mooted. Some of these inevitably require legislative intervention and it would be derelict of me were I to refuse to deal with them when a ready vehicle was to hand. The discipline of managing the legislative process also demands that some issues be left behind for another day, otherwise, a Bill would never emerge.
This Courts and Court Officers Bill is at an advanced stage of drafting and it has grown appreciably during its evolution. I am confident that its finalisation is imminent and that it is being accorded the priority which it merits. It goes without saying that I look forward with considerable anticipation to the debate which will take place following the Bill's publication in this current session.
There are a number of other matters which are dealt with in the Bill before the House on which I wish to comment. A particular provision has been included in the Bill which would make the office of Master of the High Court open both to solicitors and to barristers. At present, only persons who are barristers of not less than ten years standing and who are then actually practising are eligible for appointment to this office. Conversely, the office of Taxing Master is only open to persons who are solicitors of not less than ten years standing who are either actually practising then or have previously practised for not less than ten years.
I note that the Bill appears to lack a certain degree of reciprocity in that only the non-eligibility of solicitors is addressed. Obviously, if one were to do something in this area, a degree of even-handedness would be required. However, these offices are somewhat specialist in nature and it may not necessarily be the case that a change of the kind suggested is warranted at this time.
The Bill also specifies that a solicitor shall be qualified for appointment as Attorney General notwithstanding any rule of law or practice to the contrary. I am not aware of any legislative barrier in this area and, as the Deputy will appreciate, legislative intervention is not necessary in order to effect a change in practice. I am not convinced that it would be prudent to have a statutory provision of the type suggested. This is without prejudice to any views I might have concerning the desirability of solicitors being appointed to the office of Attorney General.
Perhaps not unrelated to the provision I men tioned is that concerning the granting of patents of precedence at the Bar to High Court or Supreme Court litigation solicitors. In relation to such patents of precedence, the current arrangements governing this matter are that, on foot of an application received from a barrister, a patent of precedence may be granted by the Government on the basis of a recommendation by the Taoiseach, based on the advice of the Attorney General following discussions involving the Chief Justice, other senior members of the Judiciary and the chairman of the Bar Council.
As the Deputy will be aware, membership of the Senior Bar is a mark of eminence among barristers. It is not a requirement for gaining audience in the superior courts and the absence of a patent of precedence does not impinge in any way upon the ability of an appropriately skilled solicitor to act for his or her client before those courts.
It fixes the fees payable though.
I understand that there are no proposals to change the current arrangements for admission to the Senior Bar.
If there are no proposals from the Bar, perhaps something should be done.
The Bill also has a number of provisions concerning compliance with the tax Acts. Deputies will be aware that the Standards in Public Office Bill, 2000, is before the House and is currently awaiting Second Stage. That Bill contains provisions which touch upon these matters in so far as holders of judicial office and holders of senior office are concerned. Matters to do with tax compliance of senior public servants in general are best considered within the broader framework which that legislation provides. I have some doubts as to the appropriateness of courts legislation for provisions of this kind.
Section 9 of the Bill deals with the service of court documents by post. This is essentially a technical provision but addresses an issue which has already been brought to my attention. The issue in question is one which will be dealt with in the Bill which is in preparation in my Department.
The final matter of substance which is contained in this Private Members' Bill concerns a proposal which would introduce a radical change into the procedures which currently govern judicial appointment in this country. What appears to be envisaged is that prior to advising the President in relation to the appointment of a person to judicial office, the Government should consider the views of a committee of the Houses of the Oireachtas to whom the name of that person would have been submitted.
It is not clear from the text of the Bill what the nature and extent of the role envisaged for that committee would be, although, presumably, the intention is that some view as to the suitability of that person for the office concerned would be formed. In addition, it is not clear whether that view would be formed in the abstract or whether the attendance of the individual concerned, coupled with the possibility for some kind of questioning, would be mandated.
I find it very difficult to envisage how a system of this nature would work in practice and in a way which would not have the potential to impact adversely on our judicial system. The independence of our Judiciary, enshrined as it is in our Constitution, is a much cherished tradition and we have to be very careful that we do not move in a direction which might be seen as encroaching upon that tradition. We have in place, by virtue of the Courts and Court Officers Act, 1995, a Judicial Appointments Advisory Board which, in many ways, is still in its infancy but which has, nonetheless, already made an impact in terms of providing a structure which puts an element of distance between the selection of judges and the political process.
The board is composed of eminent individuals of the highest integrity who are well equipped for the delicate task of assessing which of the many individuals who apply for appointment to judicial office should be recommended for appointment to that office. It is a mark of the esteem in which the recommendations of the board are held that all persons nominated for judicial appointment since this Government took office have been drawn from lists submitted by that board. This is notwithstanding the fact that, under the Act, it would be open to the Government to ignore the recommendations of that board.
It is also the case that in recommending a person for appointment to judicial office the board has to satisfy itself that the person concerned has met certain criteria which are set out in the Act. This is a way of ensuring that only individuals of appropriate competence and probity are recommended for such appointment. Deputy Shatter made some criticism of the Government in regard to the appointment of members of the Judiciary. However, the situation is that appointments are made on foot of recommendations received from the Judicial Appointments Advisory Board.
It is also the case that all Governments, irrespective of their colour, have received representations occasionally in relation to appointments to the Judiciary. However, if one takes a broad look at the appointments made by the Government since it took office, one could identify people of great eminence – it would be wrong of me to even attempt to say who they are – who would not be associated with my party or the Progressive Democrats.
I could take the reverse position and suggest to Deputy Shatter that I could name people who were appointed by Fine Gael Governments who were very much attached to his party. However, I would not insult them by doing so because, as I stated, people who have been appointed to the Judiciary since the foundation of the State have served it extremely well. I wish to take the oppor tunity during this important debate to acknowledge that fact.
However, there is perhaps scope for improvement in the way in which the operation of the judicial appointments board is perceived by the public. Inevitably, there is a degree of confidentiality which has to attach to the board's proceedings. Otherwise its task would be very difficult and, in any event, it would be improper if any assessments which the board may carry out as part of its functions were to be brought into the public domain. There is a balance of rights between the courtesy and confidentiality which individual applicants have a right to expect and the requirements of accountability.
Nonetheless, in the course of developing proposals for inclusion in the Courts and Court Officers Bill, I have been reviewing whether it might be appropriate to introduce certain modifications in respect of aspects of the board's operation. These modifications would be geared towards introducing an element of transparency commensurate with the necessary confidentiality to which I adverted. Any changes which might be introduced on foot of that review will be evident when the Bill is published.
I believe strongly that it is better to work with the existing structures which have only been in place since 1995 than to introduce new and untested structures which might compromise the integrity of our judicial process. This is not to say that our existing structures are perfect and I have made it clear that I am not averse to introducing modifications which, without jeopardising the integrity to which I referred, will introduce elements of transparency which are not, perhaps, evident at present.
However, we cannot afford to take risks with our courts system. That system is too important for that and it, therefore, behoves us to move with care. Radicalism has its place, but we cannot afford to be too experimental when it comes to the administration of justice. In this area, a cautious approach is warranted and if the matter were to be progressed any further, it would require very careful debate among the legal professions, the Judiciary and the Courts Service. It is worth recalling that in the related area of examining the options for a code of judicial conduct and ethics, a judicial committee is examining the matter so as to inform political debate on these issues. I shall return to the work of that committee later.
As Minister with responsibility for our courts system, I have to take the long view. Unlike Deputy Shatter, I do not have the luxury of putting forward proposals whose consequences I, or anybody else, cannot even begin to foresee. That is a luxury which goes with being in Opposition, but I must be more considered when it comes to moving forward with proposals which would effect a major and substantial change in the judicial selection process. Even if I conceded that the Deputy's proposal had any merit, it is still the case that any change of the kind mooted could only be introduced after the widest possible consultation and examination. What is being offered at present is a mere skeleton proposal. The devil is always in the detail and there is an insufficiency of detail in the proposal contained in this Bill such as would make acceptance of it by me an act of impermissible folly.
It is important that public confidence exists in our judicial system and that includes a confidence that those who are chosen for judicial office are worthy of being chosen. Since the foundation of the State, we have been extremely lucky that men and women of high moral calibre, intellect and principle have been willing to serve as judges in our courts, notwithstanding the fact that in many instances this has meant that the earnings which might otherwise have accrued to them if they had continued in practice as a barrister or solicitor would have been substantially more than they receive as judges.
Acceptance of judicial office also carries with it certain constraints and exacts a price in terms of an individual's personal life which we do not, perhaps, always acknowledge. As I have said, I am open to the possibility of introducing some modifications which will be of assistance in ensuring that confidence in our judicial system is strengthened. I am not, however, convinced that the proposal contained in section 10 of this Bill would necessarily be instrumental in shoring up that confidence at this time.
In this context, it is appropriate to refer to the All-Party Oireachtas Committee on the Constitution and specifically to the fourth progress report of that committee which dealt with the courts and the Judiciary. That report noted that the role of the Judicial Appointments Advisory Board is to identify persons, through their own application or the board's invitation, who are suitably qualified for judicial office. In particular, it noted that short listing is on the basis of merit and not political affiliation and that this procedure compares favourably with those in other common law countries because the opportunity has been taken to combine the best features of those systems. The committee also went on to say that the present system of appointing judges should be retained, that the Government has sufficient non-partisan advice from the board and that it, as the Executive of the elected representatives of the people, should retain the final decision. The all-party report also went on to comment:
It is significant that because the judicial candidates are already short-listed by the Board strictly on merit, the Government cannot be open to the criticism that it appoints only its own supporters rather than suitably qualified persons when it chooses from the list.
I am considerably fortified by the fact that existing procedures have won the endorsement of a group such as the all-party committee. Such an endorsement would seem to indicate that poli ticians on all sides of the House have faith in the integrity of existing structures and accept that in this sensitive area we need to work with what we have and not veer off in the direction of more experimental procedures which ultimately might see a more intense politicisation of the judicial appointment process than has ever existed in this State since its foundation.
The Private Members' Bill before the House contains one final provision at section 11 which I do not propose to deal with in any degree of detail. It is directed solely towards the appointment to office or employment of former holders of judicial office. Among other matters, it would appear to mean that a former judge could not be appointed to chair a tribunal unless that person had first received the prior approval of the committee which is proposed to be established under section 10 of the Bill. That seems to be an unacceptable fetter on the ability of the Executive to conduct its business. It would also be invidious to single out the former holders of judicial office in this way. It suggests that such persons require particular scrutiny and, if one thinks seriously about this, there is an implication here which is profoundly offensive to all who have served honourably both in the past and in the present as dedicated servants of our legal system. There is a broader context to this issue and the approach taken by the Deputy is both narrow in scope and somewhat flawed in terms of method.
I have already referred to the fourth progress report of the All-Party Oireachtas Committee on the Constitution in the context of that committee's consideration of the issue of judicial appointments. That report deals with a much broader range of issues as it deals with the removal of judges, judicial conduct and ethics and questions concerning the judicial review of the constitutionality of legislation and the constitutionality of Bills and laws and related matters. The Government will carefully consider this report in a broad context which recognises the implications it has for all Departments and for public life in general. That consideration will also take place in tandem with the consideration which is being given to the recommendations contained in other reports from the all-party committee.
As regards the fourth report in particular, I have completed a preliminary examination of its recommendations and I welcome the contribution it has made to an informed debate on matters of fundamental moment. There is considerable public interest in matters connected with the courts and the Judiciary. This reflects well on our democratic tradition and is a mark of the fact that individual citizens feel they have a stake in the way in which our courts do business. They also have a healthy interest in ensuring that the system we have functions in a way which merits their trust and support. As Minister with responsibility for the range of matters addressed by the all-party's report, I look forward to the challenge which dealing with these matters represents.
It would be remiss of me if I did not also refer to the judicial committee which was established in April 1999 in response to the sixth report of the working group on a courts commission. That group was established with a broad remit. In particular, it was to advise on and prepare the way for the establishment of a judicial body which would contribute to high standards of judicial conduct, establish a system for the handling of complaints of judicial conduct and other activities such as are taken by similar bodies elsewhere. It was also empowered to consider further the position in other jurisdictions including Canada, New South Wales, the United States of America and New Zealand.
Since its establishment, the judicial committee has been engaged in consultation with interested bodies and has been faithfully following the remit to which I have just referred. The issues the committee has had to address have been complex but I understand it has almost completed its work and it is hoped its report will be available before the end of this year. I look forward to receiving that report and, in conjunction with the all-party committee's report into related matters, I am sure it will put the Government in a position whereby full consideration can be given to this important matter.
Does the Minister intend to publish the report next week?
No. It is hoped the report will be available before the end of the year.
I presume the Minister will have it next week.
No.
We cannot have a debate on it now. I ask the Minister to continue.
It would be premature for me to comment at this stage in respect of any recommendations the report might contain. It is only right and proper that I should await the final report before pronouncing in any detail as to the future way forward. Nonetheless, there is probably agreement on all sides of the House and among the Judiciary that some change may be needed. I am aware that there is a view that some body needs to be established which will be able to investigate complaints or concerns voiced about members of the Judiciary. However, it would be wise for me to see what emerges as a result of the analysis of the eminent individuals who are currently engaged in the task of drawing up the report on this matter. I have no doubt but that its final conclusions will make for interesting reading and the Government will not be lacking when it comes to formulating a response to those conclusions.
In recent years, there have been a number of important developments which have impacted upon the way in which our judges are appointed and in which our courts go about their business. The establishment of the Judicial Appointments Advisory Board was an important step in introducing a degree of transparency into the judicial appointment process. The more recent establishment of the Courts Service is indicative of a modern and progressive approach to the management of our courts – an approach which ensures that our courts will be well equipped to confront the challenges of the 21st century. Attention has now begun to focus on how we might develop further the structures which have already been put in place and on how we can ensure that the confidence which has always existed in our judicial system is strengthened and enhanced.
I hope the debate we are having here this evening is not counterproductive in terms of the impact it may have on members of the public who will undoubtedly be exposed to negative and damaging comments from members of the Opposition. It should be remembered that Governments of all parties since the foundation of the State have had a role in shaping the judicial appointments system. If there are to be changes in that system, they should be introduced on the basis of consensus and general agreement.
An independent Judiciary is a precious commodity. We have been lucky to date in the calibre of those who have been appointed to serve as judges and, as the all-party committee has noted, there is no evidence that those appointed in the past have displayed favouritism to the party that appointed them. Any such suggestion would be insulting in the extreme. If we are to have changes in the appointments process we must be sure those changes are worthwhile and that there is a demonstrable value to be gained in making them. While it may have some imperfections, our current system has worked well in practice and we should be slow to interfere too dramatically with that system now.
I reiterate what I said earlier concerning the Government's openness to widening the pool of eligibility for appointment to the Superior Courts. However, the Bill before this House is limited in scope and it has certain flaws which will be apparent when the Government Bill is published later this session. I have no doubt that many of the issues which surface in this evening's debate will fall to be debated yet again and I look forward to that debate with considerable anticipation.
I welcome this first legislative measure introduced by the relatively new Fine Gael spokesperson on Justice, Deputy Shatter, who has a distinguished record of producing Private Members' legislation which subsequently made it onto the Statute Book. I fear that in his new portfolio his legislative record in Opposition might not fare as well as the Minister who is now departing the House for what is I am sure another important engagement. In not untypical language, he said that acceptance of Deputy Shatter's Bill would be an act of impermissible folly. Even the language is typical of the Minister. The attitude is certainly typical of the Minister who often vaunted the generosity of the previous Administration and characterised it as somehow an achievement of his that good and sensible suggestions emanating from the Opposition benches were taken, accepted and teased out, often with significant amendment, in committee. I fear that no matter how meritorious proposals come from this side of the House, they will not be met with favour by the current incumbent in the Department of Justice, Equality and Law Reform. Any act from this side of the House is perceived by him as an impermissible folly.
I want to address the contents of this important measure and deal with it as constructively as possible. The Bill presented to the House addresses one aspect of a much larger issue which deserves careful and systematic consideration. The wider context is the interaction between the branches of the legal profession and the extent to which that interaction serves the common good. I am always aware that when I approach legal issues in this House I do so as an untrained layman, a mere servant of the people of Wexford, whereas many who address this House are trained lawyers, but I hope I do it with a layman's and a common-sense perspective.
The Bill before us deals with one manifestation of the distinction between the two branches of the law, that is, qualification for appointment to the superior courts in this land. It is not necessary, for the purposes of this debate, to attempt to justify or even understand the present division of the legal profession into two branches. There is no doubt in my mind that no one starting with a blank sheet of paper would come up now with anything approaching the existing divided system, with different entry requirements, training modules, methods of practice and disciplinary regimes.
There will always be trial lawyers who specialise in advocacy, advising and arguing from time to time on litigation, as opposed to the rest of the profession whose job is to keep themselves and their clients as far away from the courts as possible. United legal professions produce such specialists but there is a lot to be said for the view that if any such specialisation should occur at a later stage in the career of lawyers who have had common entry and training, it would be a good thing. There is a lot to be said for the argument that the current arrangement here results, where litigation arises, in unnecessary over-manning, duplication and expense.
One beneficial effect of the present system claimed for the Bar is that its members, by and large, are not tied economically to the interests of one particular client base. The argument is that practitioners who take on clients on a case by case basis conserve a wide catchment of clients and have a more dispassionate viewpoint which places greater stress on maintaining the overall system from which they earn their livelihood, rather than the interests of any one client or sector. Being tied to the status quo is all the more attractive, however, when one can claim the public interest is best served by a system which also serves one very well financially.
Essentially, the justification for the Bar, to the extent that there continues to be one, will have to be the sourcing, by office bound solicitors, of specialist expertise from off-site independent contractors, who are barristers. The argument is that the process where solicitors buy in the best independent experts to serve a client is efficient and is bound to produce the best results. Major law firms will continuously reassess the extent to which they can provide such in-house services from their own resources and also to the extent to which sole traders, that is, barristers have the resources behind them to guarantee the same quality of service.
As regards smaller solicitors' firms, there must be a real question as to whether a practice of off-loading responsibility for many aspects of their workload involving litigation to a barrister entitles them to charge for their services in any cases that arise subsequently on anything other than the basis of secretarial and postal expenses. It may be that there should be a trend towards the development of the legal equivalent of the chain store, nationwide partnerships operating in towns around the country so that smaller populations could be better served by economies of scale and by access to centralised resources and expertise. The exigencies of the rules of effective competition might demand a review of our partnership law to encourage such a result. Under current rules, barristers may not act as partners.
I make these general points as a layman's introduction to the division of the legal system and the way it serves the public, which is increasingly a matter that is exercising the public mind. I set it out in the context in which we should consider this measure before us.
At present appointment to the High Court and the Supreme Court is largely confined to persons who, at the time of nomination, are practising barristers of 12 years standing, and Circuit Court judges, whether formally practising as barristers or solicitors, of four years standing as judges. Solicitors can make their way to the superior courts if they are introduced through the Circuit Court. The argument for retention of the status quo is that even those who wish to see radical changes in the criteria for appointment are prepared to accept that, by and large, there is generally a high quality of judges in the superior courts. That is a fact. Not many people would argue that we have been well served by extremely competent, able and discerning superior court judges.
The working group on this question summarised the position of the Bar Council. The argument for any change to the present situation must be not that the present system is bad but that any improved system, such as the one being examined tonight in this House, would be better. In respect of about two or so superior court vacancies that arise annually, about 150 senior counsel who have been in practice for more than 12 years fall to be considered. The solicitors' branch, by contrast, would run into thousands. There is an argument to be made, therefore, that simply widening the criteria for eligibility without other changes being made would have the effect of increasing rather than reducing political influence and personal favouritism in judicial appointments. If far more people possess the basic qualifications, there is all the more possibility for Government to apply the Lemass dictum to the effect that, all other things being equal and if there are thousands suitably qualified, the job should go to the party man. In other words, if a great number of people are made eligible for appointment while retaining the appointment power in the same hands, the net effect is to greatly increase the discretion of those to whom one gives the power to appoint. Widening the pool of available talent only provides great opportunity to pick and choose according to the personal preference of the the person who makes the choice.
Because Deputy Shatter's Bill is confined largely to the judicial appointments procedure and does not seek to address the wider issue of the disjointed nature of the structure of the legal profession, there are very few people to whom it would or ought to apply. As Deputy Shatter said, solicitors have been entitled to act as advocates in the superior courts since 1971. It is not only conventional politeness that requires me to recognise that Deputy Shatter has ably availed of the opportunity provided by that legislative change and by all accounts, although I have not witnessed him in action, has done it very well. He is one of a mere handful of solicitors who have attempted over the past 30 years to carve out a career as an advocate in the superior courts, although the legislative ability to do that is available, and the Deputy has been most successful in that attempt.
I have no difficulty in asserting the Deputy's qualifications for high judicial appointment. I would, however, query from the track record whether many of his colleagues would join him in that qualification. Deputy Shatter recognises the difficulty and provides in his Bill that eligibility for appointment should be confined to what he classes as "litigation solicitors". That point was also taken up by the Minister. It is difficult to define who is a litigation solicitor and how that should be determined. Under the Bill the question of who is or who is not a litigation solicitor is to be determined by a certificate issued by the President of the Law Society to that effect.
Two issues arise here. The first relates to the new section 5(2)(c) of the 1961 Act, provided for in section 3 of Deputy Shatter's Bill, which provides that a certificate to that effect by the President of the Law Society shall be conclusive evidence that a person is a litigation solicitor. I am advised by my eminent legal advisers that there must be a question as to the constitutional validity of a provision that a matter of evidence should be determined by conclusive certificate rather than on facts as found by a court. On the face of it, this appears to fall foul of the decision of the Supreme Court in Mahon v . Attorney General, on the grounds that its operation would constitute interference with the administration of justice. However, it may be that, although drafted in the way it is, it might not be construed as a rule of evidence but as a preliminary step in the qualification procedure.
The second question is how the President of the Law Society should judge which of his colleagues should be so classified. What does the phrase mean? They are all solicitors of the High Court and entitled to practice in any court in the land. Does the expression mean they are available to practice in the superior courts, that they do so on occasion or that they do so regularly or exclusively? Under the present rules, a barrister is classified as practising if he or she, "on the hazard", is available for work. It is a separate question as to whether any work is given to them. A barrister may be of 12 years standing but might not have been very active for that 12 years.
He may be standing alone.
Absolutely.
That is covered in the definitions section.
By analogy, is a litigation solicitor someone who would not refuse a High Court case if offered it at one extreme or, at the other extreme, someone who would refuse work that did not fall into the category of advocacy before the superior courts.
If we are to widen the criteria for eligibility for appointment, which I and the Labour Party support, we need to be clear on the criteria we define and it is a matter to which the Minister alluded.
The Bill proposes to amend the criteria the Judicial Appointments Advisory Board should bring to bear in assessing applications for judicial appointment once this preliminary hurdle has been passed. The board should consider whether the applicant has displayed by his or her practice a significant knowledge and experience of the decisions, practices and procedures of the High Court and Supreme Court. It seems we are returning to the basic question, how do we do it? How do we demonstrate significant knowledge and experience of decisions, practices and procedures, which, in many instances, would be difficult for people who do not give advocacy in the courts? I am sure we can tease out that point on Committee Stage, if the Bill reaches that Stage.
The advisory board does not engage in a widespread practice of consultation and peer review in respect of the names appearing before it. Perhaps it should so that the collective wisdom of the profession could be applied. Until it does so, only the personal knowledge of the members of the advisory board is relevant or comes into play. How is the President of the High Court to assess the extent, if any, of the knowledge of a solicitor who appears regularly before him. sitting in the court but not making advocacy on behalf of a client?
Our position is that the Bill is welcome. It opens a debate on how to broaden the criteria for eligibility. It also opens debate on other wider issues that are important in the context of the demand for greater transparency in public administration.
I am not certain whether Article 30 of the Constitution could be interpreted as allowing the position of Attorney General to be confined to members of the Bar or even that any legal qualification, academic or professional could be lawfully specified. Professor John Kelly was a non-practising barrister on appointment as Attorney General, yet by virtue of his appointment he became leader of the Bar.
At present the Court and Court Officers Act, 1995, provides in section 16(6) that in advising the President on the appointment of a person to a judicial office, the Government shall first consider for appointment those persons whose names have been recommended to the Minister by the advisory board. Whether it would be constitutionally feasible to fetter a discretion as to the appointment conferred on the Executive, as the Minister voiced, by requiring it, once it has made its nomination, to take a further interim step of having it vetted by a committee of the House is one we need to address. It is a proposal I strongly support.
The current requirement that the board should forward at least seven names to the Minister for consideration needs to be tightened up, given that a name once forwarded remains on the table for all future vacancies unless it is specifically removed by the nominee and any further vacancy requires a further seven nominees, which means that at any given stage there is a broad pool of recommended personages before the committee.
Debate adjourned.