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Select Committee on Legislation and Security debate -
Wednesday, 6 Dec 1995

Business of Select Committee

Business of Select Committee.

I welcome the Minister for Justice, Deputy Owen, who has become a fixture at our committee in recent times, and her officials, Mr. Kevin Condon and Mr. Richie Ryan. We will shortly resume Committee Stage of the Court and Court Officers Bill, 1995, on amendment No. 2 in the name of Deputy Shatter. Before doing so I am anxious that we decide on arrangements for today and tomorrow, bearing in mind that this Bill must be reported back to the House before Tuesday next.

I propose that we continue until 1.15 p.m. and then take a sos until 2.30 p.m. at which time we will resume until 4 p.m. Members will be aware that the Minister has an important meeting at that time which she is obliged to attend. I propose that we resume at 6 p.m. until 8.30 p.m. If the committee does not have sufficient time to conclude consideration of the Bill, we will resume at 2.30 p.m. tomorrow because that is the only time a room is available.

I request that we do not resume until 6.30 p.m. because I have an engagement at 5.30 p.m. which I promised to attend.

Is it agreed that we resume at 6.30 p.m. until 8.30 p.m. ? Agreed.

Members will be aware that a Garda Vote in the form of a Supplementary Estimate for the Department of Justice was referred to the committee in relation to the Garda Representative Association and the Garda Federation. It is a small supplementary for £1,000 and I suggest that it be dealt with in the Dáil, where the Minister for Finance will take a number of Supplementary Estimates, rather than debate it in this Committee. Is that agreed? Agreed.

Courts and Court Officers Bill, 1995: Committee Stage (Resumed).

NEW SECTION.

Debate resumed on amendment No. 2:
In page 6, before section 4, but in Part I, to insert the following new section:
"PART II
QUALIFICATIONS OF JUDGES OF SUPREME COURT AND HIGH COURT
4.—The Act of 1961 is hereby amended by—
(a) the insertion in section 5 (2) (a) of ‘or a practising solicitor' after 'barrister', and
(b) the insertion in section 5 (2) (b) of ‘or practice as a solicitor' after ‘Bar'.".
—(Deputy Shatter.)

Amendments Nos. 40 and 41 are alternatives to amendment No. 2.

I gave an undertaking yesterday to review what was said and to get back to the committee as quickly as possible. I plead the indulgence of the committee because I need more time. I do not know whether it would be possible to postpone agreeing to this section and move on. I will give Members an indication as soon as possible. We will sit for another five or six hours between today and tomorrow, so before completing Committee Stage I will come back to report on the matter as I am not in a position to do so. I would not like to militate against the workings of the committee by forcing anyone to make a decision now.

The Minister's bona fides in this matter are acceptable. From a procedural point of view, it is not possible to move to a further section without having dealt with amendment No. 2. Amendments Nos. 40 and 41 are alternatives and will not be voted on until we reach them. However, we need to reach a conclusion on amendment No. 2. Perhaps Deputy Shatter would consider withdrawing his amendment and redrafting it at a later stage. Having regard to what the Minister said, we are in an unprecedented situation in that each Member spoke in favour of Deputy Shatter's amendment and amendments Nos. 40 and 41 in the names of Deputy O'Donoghue and Deputy O'Donnell.

I thank the Minister for adopting a helpful and constructive approach to our discussions and she is entitled to some time to consult with colleagues. I emphasise the Chairman's view which was expressed as we drew to a close yesterday. The issue is of importance in the context of the future of our courts system and the widening of the pool of lawyers eligible to be selected for appointment to our courts.

This issue is also important for the integrity and credibility of the committee system. When I first came to the House in 1981 I was appalled by the lack of a committee structure. Like many others — some of whom are here today — I sought to extend the committee system so Deputies on all sides of the House could play a genuine role in the legislative process. This is the first occasion I have been at a meeting where there has been unanimity on an issue which has been based on a perception of the public good and not on anyone taking a partisan political stance; I hope no one would do so on this issue or try to score party political points. We are trying to improve this Bill.

It would be a bad day for the credibility of the committee system if the Government did not accept what we propose. I do not see why it should cause a clash or a conflict between members of the committee and Government. The previous Government and this one made an input into this Bill. Unfortunately, this issue was not fully teased out because the concentration from the Government side, of different political persuasions, has been on dealing with other aspects of the appointment process, primarily the Judiciary.

The Minister is entitled to discuss with colleagues the debate the committee has had. I consulted with the Bills Office on the best way to deal with this matter. I understand we cannot postpone this, but I am entitled to withdraw amendment No. 2 and resubmit it so it can arise for formal decision by the committee at a later stage. I assure members it will be resubmitted. I have been advised there are no technical or procedural problems of any nature in doing so. On that basis I intend to withdraw the amendment. It will be recirculated to appear at a later stage in the Bill, which will allow the committee to make the proper decision on this issue.

The Minister has been constructive and helpful in taking this on board and I urge her to make known to the Government the strength of the committee's feeling on this issue. I am conscious that each Minister is responsible for their own areas of legislation and it is often difficult to get colleagues to fully understand that particular issues need to be addressed or examined. The Minister should have the full support of the committee in doing that. I hope — if not today, perhaps some time early tomorrow afternoon — the Minister will be in a position to come back to us and confirm this matter can be addressed on an all party basis, without conflict either within or between parties, and that we will put in place a reform which has been needed for many years.

This will finally ensure that all practising lawyers, whether barristers or solicitors, of experience and appropriate training, aptitude and insight are available in a pool of lawyers from which judges may be selected for appointment not just to the Circuit Court but to the High and Supreme Courts. If the committee achieves this at the conclusion of its deliberations, we will have done a good day's work for the country in general. We should not deal with this issue from the narrow perspective of one or the other profession. In the context of the equality legislation members mentioned and future legislation, it is quite nonsensical to maintain to an anachronistic anomaly with regard to judicial appointments which is a throwback to colonial days pre 1922. I thank the Minister. I intend to withdraw the amendment and I assure the committee it will be recirculated for a later portion of the Bill.

I accept the commitment given by the Minister with the magnanimity in which it was announced. The Minister may come back with an amendment of her own which would provide that solicitors may be members of the High and Supreme Courts. If so, I would be prepared to accept that position, provided the amendment put forward achieves the committee's desired objective.

If the amendment is accepted it will represent an evolution in the committee system of the House because Members will have had a real input into the legislative process. If that were the case, nothing higher could be said of democracy. We will have reached a milestone, particularly given that the issue is so important. As I said previously, it requires a certain amount of magnanimity and bravery on the Minister's part to accept the measures proposed in the three amendments. It will advance the cause of justice in this country and assist in no small way in bringing about equity in the courts. In the final analysis, the greatest benefactors will not just be those who administer justice but people in general.

Is amendment No. 40 withdrawn in deference to the Minister, Deputy O'Donoghue?

No, because we have not heard the Minister's final position.

Does the same apply to Deputy O'Donnell's amendment?

Yes. I welcome the Minister's intervention and I look forward to her return when she has discussed the matter further with her colleagues or examined the area in greater detail. This issue is a test of the committee system. There is nothing more depressing for Deputies than to participate in a committee system which is, in the main, going through the motions. Amendments are put forward but rarely accepted; even the principle of amendments is rarely taken on board.

It was unanimously agreed yesterday that the status quo of excluding solicitors from eligibility for judicial office and the superior courts is no longer logically, or in terms of public policy, justified. The committee’s deliberations will bring about a fundamental change in the legal system. It will improve the law and create a system where judicial appointments are considered on a much more inclusive basis regarding solicitors. I welcome the developments thus far today and I look forward to the Minister’s response. However, I do not intend to withdraw my amendment at this point because it is not imperative to do so yet.

I thank the Deputies for their contributions. Deputy O'Donnell clarified the situation. I wish to make my position clear. I am considering what was said. The terminology of members, with words such as "commitment", should not give anybody the feeling that I said I will accept these amendments. I did not say that and I am not in a position to do so. I said I would review everything said yesterday and come back to the committee with the results of my deliberations. I must consult colleagues on the matter. I also recognise that the aim of the amendments is a major step.

The Bill is being taken in a short time and perhaps this is why there has not been time to carry out much consultation, etc. However, the matter has been in the public arena for many years, long before I became Minister for Justice or the members here even became Deputies. It is interesting to note that the Fair Trade Commission in its 1990 report made some pronouncements on this matter. As a Deputy mentioned yesterday, it said there would be no objection to the appointment of solicitors as judges. However, it went on to say a start could be made by such appointments to the Circuit Court and the matter could then be considered further.

It is a wide issue of policy and not just a question of dotting an "i" or crossing a "t". I am glad the members recognise I need some time to consult further on the matter and I will come back as quickly as possible. Obviously, this must be before the Committee Stage is complete because the committee must make a decision on the amendments when they are reached. I am not indicating what my approach will be at that stage.

I thank the Minister for her remarks. When I served as Minister of State at the Department of Justice, I accepted a significant number of Opposition amendments. People who were involved in debates at that time, particularly at this committee, will accept that point. However, it is fair to say I was not asked to accept, nor did I accept, an amendment of this significance.

The people the Minister will consult in relation to this amendment have not had an opportunity to sit in on the debate, but I am sure the Minister will faithfully convey the unanimous view of the committee. I hope they will be disposed towards accepting the arguments made yesterday. The net result will be a better bench, which is in the interest of the public whom we serve.

I also welcome the Minister's intervention on this matter which was debated over a long period yesterday. The Minister indicated early on that she recognised what members were trying to convey in relation to the implications of the widening of judicial appointments to include solicitors. She indicated she may come back to the matter on Report Stage, but overnight she has had an opportunity to look at the matter in more detail and I hope the Government will agree with us. The Minister believes it is the right step and I hope she will be able to accept the amendment.

Deputy Wallace has slightly broadened what I said yesterday. I did not say that I accept we should go ahead with this but that I would listen to the arguments. I said there were eloquent arguments on the issue. It is the Government's considered view that it would be prudent to take it step by step.

I accept that.

In fairness to the Minister, she has been particularly clear time and again. It would be unfair if her views were in any way misrepresented.

Politicians from different parties rarely praise each other, but when Deputy O'Dea was Minister of State he surprised me on a number of occasions in committee meetings by taking on board amendments which I had tabled, all of which I knew had to be meritorious because I tabled them. Some of them were matters of policy and effected substantial changes to some legislation. I hope it is a tradition we will maintain.

However meritorious they may have been, they are not particularly relevant to the amendments in question.

I just wished to praise a colleague for a change.

Enough has been said. We should leave it to the Minister to see how far she can advance the proposals.

We trust the Minister will convey the strong, unanimous view of the committee to the Cabinet as soon as possible. This is merely an enabling provision under which no obligation will be placed on Government or any future authority or commission. We thank the Minister for the constructive manner in which she has listened to the committee's views and we look forward to resuming the debate on this matter at the earliest time.

Amendment, by leave, withdrawn.

Amendments Nos. 4, 6 and 7 are cognate with amendment No. 3, and amendments Nos. 5 and 8 are related. Amendments Nos. 3 to 8, inclusive, may be taken together. Is that agreed? Agreed.

I move amendment No. 3:

In page 6, subsection (1), line 29, to delete "making" and substitute "coming into operation".

Amendment agreed to.

I move amendment No. 4:

In page 6, subsection (2), line 33, to delete "making" and substitute "coming into operation".

Amendment agreed to.

I move amendment No. 5:

In page 6, subsection (3), lines 38 and 39, to delete "On and with effect from the making of an order under section 1(2) of this Act,”.

Amendment agreed to.
Section 4, as amended, agreed to.
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