My proposal is not a job application for myself. The proposal directly impacts on the system of the administration of justice and it is a reform which is long overdue. I am disappointed it is not a part of the Bill at this stage. I hope the Minister will listen favourably to our views on this issue from different party perspectives.
Since the foundation of the State, barristers alone have been eligible for appointment as judges to the Circuit Court, High Court and Supreme Court. I welcome the Minister's initiative in this Bill in making provision for the possibility of practising solicitors being appointed as judges of the Circuit Court. Nothing I say should take away from the Minister's initiative in bringing that proposal before us. Of itself, that proposal confirms the need to sweep the cobwebs out of our legal system, to sweep out colonial ways in which we have administered justice and made judicial appointments.
The present position is no longer tenable. Since 1971 solicitors have had a right of audience in all courts. Not all solicitors exercise their rights of audience in the High Court and Supreme Court but an increasing number are starting to do so in the High Court. I am among the solicitors who regularly appear in the High Court and who, on occasion, plead their own cases in the Supreme Court. In the context of the growing demands made on our courts and the need for additional judges it is in the public interest that the pool from which judges can be chosen for appointment to all levels in the courts be widened substantially.
At present there are less than 900 practising barristers in the State and 4,400 practising solicitors. The current eligibility rules relating to judicial appointments to the higher courts effectively mean that 80 per cent of practising lawyers are excluded from eligibility. We are administering rules we inherited from pre-1922 colonial times. There is nothing particularly unique about the profession of barrister which renders barristers more suitable or more eligible for judicial appointments in the higher courts than solicitors.
The Bar Library for many years made the case that solicitors should not have a right of audience, even as advocates, in the Higher Courts. To his credit Deputy O'Malley when Minister for Justice radically reformed the law in that regard with the Courts Act, 1971. He did so in the face of opposition from some members of the Bar Library who were of the view that the foundations of the legal system might collapse if solicitors were allowed plead cases and act as advocates in the Higher Courts. Strangely, the foundations of the legal system have not yet collapsed; indeed, there is sometimes too much work for lawyers in both professions.
That one may or may not be a good advocate does not of itself mean that one may be a good judge. Judges have been appointed to our superior courts who as eminent counsel rarely pleaded cases in the courts and they have proved to be extremely good judges. Some judges who have been good advocates have not always been as good judges. I do not wish to criticise the Judiciary as we are well served by it at all levels. However, as someone who has had the experience of appearing in courts at all levels I would make the case that we have some extremely good District Court judges who come from the solicitor's profession and who, because of their knowledge, ability, insight and compassion, would make equally good Circuit Court, High Court or Supreme Court judges.
There is a substantial number of solicitors involved in areas of law which are no different from those involved at the Bar and who have the same level of expertise in areas of the law as members of the Bar. The idiosyncratic nature of the current legal prohibition on solicitors being appointed to the higher courts is well illustrated by the Special Criminal Court. It has been part and parcel of the Special Criminal Court that a District Court judge sits as one of the judges in the Special Criminal Court. Any District Court judge who does so comes from the solicitor's profession. Why is it deemed appropriate for a District Court judge to sit in some of the most difficult, horrendous and subversive criminal trials and pass judgment and be part and parcel of that core structure when apparently, for some reason, the view is that all other members of the solicitors' profession and district judges should not be allowed to sit in the High Court or the Supreme Court? It makes no sense. Solicitors act as arbitrators in areas of law in which they specialise, often in commercial or engineering areas, and may make decisions to resolve multi million disputes which have gone to arbitration. The nature of what they are doing involves no greater or lesser responsibility, legal acumen or expertise than what takes place in our higher courts on a daily basis.
In this context it is interesting to note how law is now practised before the Circuit Court. I began by praising the Minister, which I meant most sincerely, on at least opening the Circuit Court Judiciary to the appointment of solicitors. However, when I first started practising law, two thirds of the business at present undertaken at Circuit Court level was confined exclusively to High Court level. The Courts Acts of 1981 and 1991 substantially widened the jurisdiction of the Circuit Court. Many areas of legal controversy where court cases arise which are now adjudicated upon and dealt with at Circuit Court level would have been, in some instances until 1981 and in others until 1991, confined to the High Court. If is appropriate to appoint solicitors to the Circuit Court — as I agree it is — to deal with areas of legal controversy which for the first 60 years of the existence of this State were dealt with at High Court level, it makes no sense to exclude solicitors from appointment to either the High Court or the Supreme Court.
I do not wish to upset anybody by voicing my view on why we are doing this, but the Attorney General's Office — I do not mean this in a personalised way vis-�-vis the present Attorney General or any of his predecessors — which advises Government Ministers on the drafting of legislation is basically an outer office of the Bar Library. It is an office to which no solicitors are appointed and, to some extent, either consciously or unconsciously, it has played a role in preserving some of the privileges of the Bar. It would be very difficult for any Attorney General who is a member of the Bar, or any of the people in the Attorney General’s Office, to ever advise a Government Minister that solicitors should perhaps be appointed to the High Court or the Supreme Court. It is an area over which the Bar Library currently exercises a monopoly which I believe is a restrictive practice and no longer in the public interest.
The public is entitled to know that there is a large pool of practising lawyers, from different walks of life with different legal experiences, from whom judicial appointments can be made. The Bar Library, in its involvement in day to day life and in the contact of barristers on a daily basis with people with legal problems, operates in too rarefied an atmosphere and, very frequently, is too distant from problems which ultimately need to be addressed in our courts. On occasion, members of the Bar Library who are appointed judges may not always be in tune with aspects of our society. We need a balanced Judiciary, from different walks of life, and I see no basis for excluding practising solicitors from appointment to the higher courts.
As we know, amendments are proposed to Bills to raise an issue in the hope that if the issue is not addressed in this Bill it might be addressed in a later one. It was very interesting to read the debates on the Courts Act, 1971, which was the last occasion on which the possibility of changes in the way in which we deal with these areas was raised and debated. There were all sorts of interesting comments about opening up advocacy in the courts to solicitors and the benefit to the public — which I wish to emphasise — of doing so and by expanding the choice available within the legal profession to those who need to be represented.
I was particularly struck by a comment on 16 November 1971 on Second Stage of the Courts Act, 1971, in the Seanad, at column 2080 volume 256, by a young Senator who stated: "It is my opinion that this division between solicitors and barristers is operating in some ways as a restrictive practice and is providing less than a good service to the public". It is a mirror image of something said many years later by the restrictive practices commission which indicated it could not see a good reason for excluding solicitors from appointment to the higher courts, By a strange coincidence, the young Senator who said that is the leader of our party, the Taoiseach. As a Member of the Seanad, he had the prescience to realise that there were problems with the manner in which the legal profession was operating.
There are a couple of other points worth making. Our legal system began as a common law jurisdiction and, until 1922, was practically identical to that of Great Britain. We maintained a legal profession in the manner of that built by the English in our country over a number of centuries. There are other common law countries which were English colonies and have managed to pull themselves away from the structures and restrictions which colonial times imposed on them. For example, in all of the federal states of Australia, as far as I am aware, solicitors are eligible for appointment right up to Supreme Court level and in a number of these states former solicitors have been appointed to high judicial office in recent years. In New Zealand, all solicitors are admitted to the roll of barristers and solicitors — there are no longer separate rolls — and although they can practise as both some choose to specialise in one area. Appointments can by made to the High Court or the Court of Appeal.
In the context of the new, expanded role of our courts and the Government's recognition of the need to appoint additional judges, which is provided for in this Bill, it is in the public's interest to move from a position where the sole group of people from whom judges can be selected for the higher courts are 900 practising barristers. As one has to be a practising barrister of 12 years' standing to qualify for appointment to the higher Judiciary, probably no more than one third of the current practising Bar would qualify. However, over 2,500 solicitors would currently qualify.
As far as I know, it is not party policy of the Labour Party or Democratic Left to preserve the Bar Library's monopoly on judicial appointments to the High Court and the Supreme Court. I do not believe that it has been party policy of the Fine Gael party to so do because I recall on a number of occasions raising this issue in the House when Deputy Woods was opposite me in a ministerial capacity. I do not know whether it is Fianna Fáil policy but I assume, from what is on the Order Paper today, that it is not. I do not believe it is party policy of the Progressive Democrats either. If it is therefore not the policy of either party, I am bemused as to why we are not addressing the issue — it is in the public interest that we do so. It has taken from 1971 to 1995 to have a legal vehicle before us by which we can tackle this matter. I am most reluctant to postpone dealing with it until another Bill in some years' time because I do not think I will see it in my lifetime and certainly not during my time in this House.
Our duty is not to preserve a Law Library monopoly or a cartel — I hope my use of that word will not be misinterpreted because it has been much abused in recent times. Our duty is not to regard the Bar as having the sole entitlement to these appointments. It is to appoint the best possible people to our higher courts who are best qualified and have the best insight to act as judges, whether appointment is through a commission advising the Minister or Government of the day or the Government itself. There is a wide pool of prospective candidates for judicial appointment from whom standards of insight, excellence, legal scholarship and compassion can be expected. The day is ended when we should exclude four-fifths of practising lawyers from the possibility of such appointments.
I urge the Minister to look seriously at the amendment I tabled and to go back to her Government colleagues so that it could be given due consideration. She should do so in the context of taking as radical a step as Deputy O'Malley took in 1971, to bring our system of justice into line with the realities of the 21st century and to remove from it a barrier to judicial appointments erected by the British in colonial times.