Select Committee on Legislation and Security díospóireacht -
Tuesday, 5 Dec 1995

Courts and Court Officers Bill, 1995: Committee Stage.

Chairman

I welcome Members. I dispensed with the private session on the basis that the attendance at 2.15 p.m. was not such as to warrant one. I take it that Members are more than familiar with the content of the Bill.

As Members are aware, the purpose of the meeting today is to consider the Committee Stage of the Bill. First, we should decide on the amount of time we intend to spend on the Bill today and tomorrow. Members will be aware that we are under some pressure in so far as our reporting deadline to the House is Tuesday, 12 December 1995. I had intended that we should sit until 5.30 p.m. or 6 o'clock, or later, but I understand that Deputy O'Donoghue, the Opposition spokesperson on Justice, has an unavoidable commitment and has requested that we conclude by 4.45 p.m.

I am prepared and anxious to facilitate Deputy O'Donoghue, as I know that he and his colleagues will be their usual co-operative selves and will bear in mind that we unfortunately have a limited time in which to consider the Bill. Is it agreed, therefore, that we will conclude at approximately 4.45 p.m.? Agreed.

Presuming that we do not finish Committee Stage today, I propose that we meet tomorrow at 10.45 a.m. and continue up to 1.30 p.m., with a sos from then to approximately 2.35 p.m., at which time we will resume and continue until approximately 4 o'clock. The Minister has an important meeting at that time which she is obliged to attend. If we do not finish by 4 o'clock tomorrow we can, if necessary, resume at approximately 6 o'clock and continue until approximately 8.30 p.m.

I hope that this amount of time will be sufficient to allow us conclude, in its entirely, the Committee Stage of the Bill. Do Members wish to sit until 8.30 p.m. tomorrow, or will we see how we are going on the basis that Members will bear in mind the need to keep their contributions as concise, succinct and relevant as possible? I understand the convenors have been notified of this. As they are now in attendance, we can proceed. Is that agreed? Agreed.

The Minister is also available all day on Thursday, but I understand that the only time a room is available is 2.30 p.m. In the unlikely event that we have not concluded our consideration of the Bill by then we can, if necessary, meet at that time and continue until the Bill is finished. However, I suggest we aim to have the Bill concluded by tomorrow afternoon. We can amend our agreed schedule as we proceed.

The new division bell system, which is now in operation for all committees, will not be used today as the committee is meeting in the Seanad Chamber. Neither the Dáil Chamber nor the Seanad Chamber are connected to the system at this stage, and this is contrary to advise contained in a letter that Members would have received from Deputy Browne in the matter. In the event of there being divisions and in the event of Members not being here when these division are called, we will not be subjected to the new bell system. The normal "Votáil" sign will appear on the in-house monitor.

There is a typographical error in section 13, page nine, line 12, where ". . . (2). . ." should be deleted and substituted by ". . . (3). . .". There is another such error on page nine, line 17, where ". . . (3). . ." should be deleted and substituted by ". . . (4). . .".

Sections 1 to 3, inclusive, agreed to.

NEW SECTION.

Chairman

Amendment No. 31 is an alternative to amendment No. 1 and both may be taken together. Is that agreed? Agreed.

Ms O'Donnell

I move amendment No. 1:

In page 6, before section 4, but in Part I, to insert the following new section:

"4.—(1) The Minister may establish a judicial commission to be known as ‘the Courts Commission'.

(2) The Courts Commission shall have the function of advising the Government and the Minister on the organisation and management of the courts and court service and on such matters as in the opinion of the Minister or the Commission have a bearing on the capacity of the courts to discharge their functions.".

The purpose of the amendment, which is a modest proposal given that there is obvious political support for the establishment of a courts commission to deal with a total restructuring of the court service and an improvement and enhancement of the quality of the court service we provide to our citizens, is to place on a statutory footing the courts commission.

On 6 November last, the Minister established a working group on the courts commission, which has not completed its work. This is to be welcomed. However, the previous Bill contained a statutory basis for the establishment of such a judicial commission. The purpose of the amendment is to give the establishment of the commission a statutory basis. It also gives the Minister freedom to appoint the persons she wishes to the commission, while ensuring the commission has the status necessary to enable it to carry out its very important function.

It is clear from the establishment of the working group of the courts commission that there is a need for a complete overhaul for the management of the courts. It has not been overhauled since 1927. Any citizens who has cause to become involved in any aspect of litigation or with the courts system as a witness will testify as to the maladministration and the bad quality of the court service as it interfaces with the public. The courts system has been said to be almost in a state of collapse. The commission is taking submissions at present under the working party and it is long overdue that such a total, integrated and coherent strategy was put in place to deal with the management of our courts.

The courts system is the Cinderella of the State services at present. It is under funded, totally chaotic, run on an ad hocbasis and completely lacking in any long term strategy or planning. In some areas around the country, the courts’ buildings are testament to decades of neglect to the court service. The court lists, especially in the family law areas, are disgraceful. It has been said — it is almost a cliché— that delays in the administration of justice exacerbate the administration of justice and make worse the original fault which was the subject matter of the litigation.

This is particularly so in the case of family law. As legislators, generations of politicians have failed to improve the system of justice in our courts. The Law Society, the Bar Council and all those who have interfaced with the system have called for the establishment of a commission to report on and recommend changes in the entire system. I welcome the fact that the Minister, in recognition of the need for a root and branch reform, has set up a working group. Its status would be enhanced if it were placed on a statutory footing and this is the purpose of the amendment.

Mr. O'Donoghue

Amendment No. 31 also proposes the establishment of a courts commission on a statutory footing. The previous Bill contained a provision for such a commission. The reason for this is well known. Unfortunately, there are interminable delays and the courts system is in chaos. There is a need for a statutory body to engage in the management and organisation of the courts.

The increasing level of civil litigation over the past number of years establishes beyond doubt the need for a statutory body to oversee arrangements in our courts. In 1988 and 1989 there were 9,839 civil bills processed in the Dublin Circuit Court office alone. This figure increased to 13,000 between 1993 and 1994. As I pointed out on Second Stage, the Minister informed us on 25 May last that as of 22 July there were 8,710 cases listed for hearing in the Dublin Circuit Court. We must assume that by the end of the year this figure will have escalated to more than 20,000. The situation in Dublin is chronic. However, it is replicated in circuit and other courts throughout the country.

I acknowledge that the appointment of 17 additional judges in the various courts will undoubtedly have an effect in reducing backlogs but on its own this will not be sufficient. It must be clear to everybody that once a judge is appointed there is a need for backup staff, such as clerks, registrars and general clerical staff, to assist in the administration of the court. My information is that there is no room in Dublin for some of the additional judges proposed in the Bill.

It is clear that a courts commission, which could order and manage the system in a coherent fashion, would be desirable. Such a commission could carry out an audit of the number of cases going through the system and order the rostering of judges in courts accordingly. The time has come for a radical reappraisal of the ordering of court work and the proposal in this amendment would help in no small way to achieve this objective.

I accept and acknowledge that the Minister has set up a working group but it appears to me that at the end of the day a commission will be required and that in a year or two, perhaps longer, we may have to enact legislation to put such a commission on a statutory basis. We might as well do this now.

I cannot understand why the proposal for a courts commission was dropped from the Bill. The Labour Party committed itself to the establishment of a commission in the 1994 Bill and I do not understand why, less than one year later, it has now abandoned this proposal. This seems extraordinary when a commission is clearly desirable.

Minister for Justice (Mrs. Owen)

I thank Deputies O'Donnell and O'Donoghue for their amendments. As they were speaking, I was a little confused. The amendments do not provide for the type of courts commission about which they spoke, which is one that would order and run the business of courts. The amendments, in effect, endeavour to reintroduce the provisions relating to a courts commission contained in the 1994 Bill.

It is clear that the purpose of section 29 of that Bill was to provide for a courts commission without teeth; it was to be an advisory body only and there was no need to put it on a statutory basis. I am not privy to why this was included in the 1994 Bill. I can guess the reason was due to comments made by a Fianna Fáil Deputy on Second Stage. We do not need legislation to set up an advisory body.

I have gone a step further than this. I am not looking at the possibility of setting up an advisory courts commission. Under the working group's terms of references, we are asking it to consider the possibility of a courts commission with teeth which would not just advise the Government on how to run the courts but, as a permanent body with financial and management autonomy, would run the courts. We have moved the process further and it is wrong to say there has been a lack of commitment by any part of the Government to a courts commission. On the contrary, we have gone a great deal further than the 1994 Bill.

As we heard on Second Stage, the speed with which the 1994 Bill was put together was such that the terms of the proposed commission did not mean much and it did not need to be put on a statutory basis. Anybody could have set up an advisory group and called it a courts commission as long as it was only advisory. I am satisfied that what I have done is in keeping with what the Oppositon Deputies have proposed. They want a courts commission to be in charge of running the courts and not just advising the Government. Deputy O'Donoghue spoke about delays and the way business is ordered. He related this to the work of a future courts commission. I have asked the working group to consider the possibility of establishing a commission on the management of the courts as an independent and permanent body.

It might well be argued that a line should be inserted in the Bill stating that a commission will be established, leaving its format to be decided when the working group has finished its examination. If the group's report proposes the establishment of a courts commission and recommends how it should be structured, new legislation will be required and it will not be sufficient to have a line dealing with this in another Bill.

The amendment proposes the setting up not of a courts commission but of a working group, which I have already done. This would be the only effect of accepting this amendment. I believe the step I have taken is positive and practical and is better than the vague provisions of section 29 of the 1994 Bill, which Deputy O'Donnell and Deputy O'Donoghue are seeking to reinsert in this Bill. I ask them to recognise that this working group will take the courts commission idea much further than any amendment asking that an advisory group be established. The working group is essentially an advisory group which will be in place prior to the setting up of a courts commission. I regret that I cannot accept these amendments.

Deputy D. Wallace

I am disappointed with the Bill and with the Minister's reply. The problems in the courts are clear. The public are disappointed with long delays and inadequate facilities and these could have been addressed in the Bill.

While the Minister may say she has sent for a report, she is just fudging the issue. This is a very important part that could be included. It is a very commendable amendment and the Minister should consider it even at this stage. I am convinced the origins of the legislation have been practically ignored and the Minister's response to the courts commission is disappointing. It would serve an important function and would be of immense help to the Government in providing facilities and improving the operation of the courts.

We naturally welcome the appointment of additional judges but there are other aspects which are totally unsatisfactory. The courts commission would have been an ideal way to advise the Minister and the Government but, unfortunately, the Minister is not availing of that opportunity.

Mr. Ferris

I welcome the Minister's promises. She has moved from the original comment on the 1994 Bill about the need for this commission to be on a statutory basis. When is the Minister likely to have a report from this working party? What is the likely time frame for establishing this commission to come to grips with the management of our courts and the logjam therein?

Mrs. Owen

On what Deputy Wallace said it is wrong to indicate that in rejecting these amendments I am not taking into account the whole management structure of the courts. I thought I had explained it and have moved on these amendments. The amendments would only set up an advisory courts commission and one does not need legislation to set up an advisory group. The commitment to the courts commission is fulfilled in setting up a working group to advise the Government. That is all this amendment would do. It has already been done so under the circumstances the amendment is superfluous.

With regard to Deputy Ferris' question, in the terms of reference I have made it clear to this working group it has investigative, advisory and recommendatory functions to make reports as it sees fit. I did not put a deadline on reports because I was not in a position to do so. I was acting from knowledge of the position in Northern Ireland where it took over two years of discussions to set up their courts commission which is not as extensive as the one envisaged in the Programme for Government.

I asked the chairperson of this working group to make recommendations to me on an ongoing basis as to how improvements can be made in the courts system. I expect I will have a report some time during 1996. I cannot give a more precise date than that. Once I have its recommendations I will move them — if its recommendations are along the lines envisaged in the Programme for Government — in other words, to set up a courts commission.

We are breaking new ground in court management. Since the foundation of the State the courts have been run by their presidents but the Department of Justice has had responsibility for them. We are making huge strides in considering an independent management and financial structure for the courts and I have to give the working group the time to do it.

Even if this amendment was accepted I would have to set up that advisory group which still would not act as a courts commission, only as an advisory group and I already have that. I would have to give it a deadline and at some stage the Government would have to make decisions. I urge Deputies to recognise that we have moved on from the 1994 situation.

Mr. O'Donoghue

I fully recognise that one does not need legislation to establish an advisory board. However, this amendment enshrines in law that the Minister may appoint a courts commission, the function of which would be to advise the Minister and the Government on the ordering and management of the courts. I do not see what objection the Minister could have to that. It is quite obvious that not just an advisory body but a statutory advisory body would have the functions assigned to it under the legislation. In as much as the Minister knows that no legislation is required to establish an advisory board, she also knows that legislation is required to assign functions to a statutory nature. That is why the amendment is before the House in the first instance. This amendment is in the interests of the courts system and it was moved in good faith. The Minister should accept it.

Ms O'Donnell

I agree that without a legislative basis the report of this commission or working group could be shelved like so many reports of such working groups established by successive Governments on various matters. Its recommendations could be ignored if it lacks a statutory basis. It is a modest proposal to acknowledge the importance of the establishment of a courts commission by placing it on a proper legislative footing in this substantial Courts and Court Officers Bill.

It is an opportune moment to propose the establishment of this advisory commission which would have powers to make recommendations backed up by statute. It has to have the weight of legislation behind it to give it the necessary status. I do not accept the Minister's promises of future action. We have the proper legislation here so why not give this courts commission a statutory basis now? I still support this amendment and hope that it will be generally supported.

Dr. Woods

The Minister says the working party will, in effect, do the kind of work the commission was intended to do, and for this reason we should accept the working party as distinct from the commission. Of course, one could look at that the other way round and ask why not have the commission as was intended? That makes one wonder why the Government wants to change the position. What is the real reason for wanting to change? The proposal provides for a statutory courts commission which would have the ongoing function of advising the Government and the Minister on the organisation, management and service of the courts.

This is one of the most important functions that we could deal with. Anyone who has been here for a few years will know that one of the greatest problems affecting the courts is the issue of organisation, management and computerisation of activities within the courts, in addition to back-up services and the input of resources and finances into that area.

To a large extent it was always a matter for the courts to organise themselves. Their officers have always claimed informally that they were not given the opportunity although they are quite capable of doing so, as does any other organisation, business or Department. The commission would give the courts an opportunity to manage their own business and to put forward proposals on an advisory basis.

Mrs. Owen

That is what the Deputy wants but it is not what the amendment states.

Dr. Woods

The amendment states that the Minister may establish a judicial commission to be known as "the Courts Commission". It also states:

The Courts Commission shall have the function of advising the Government and the Minister on the organisation and management of the courts and the court service and on such matters as in the opinion of the Minister or the Commission have a bearing on the capacity of the courts to discharge their functions.

It states "as in the opinion of. . ." the commission and its composition will ensure the courts have a major input in that regard. The difficulty is that if, as the Minister states, the working group can cover these matters, why can the commission not do so? Why does the Minister not want the commission and is there some reason she does not want it involved on an ongoing basis?

Such a commission is necessary and would provide an obvious assurance that this important task is being tackled. People want a sense of urgency about this matter. The Minister may say the working group will act urgently. However, the amendment would provide a statutory commitment to a commission, it would be there for everybody to see. It would not be within the Department or at the whim of either the Department or its Minister. It would be a statutory body, with which members openly and transparently agree. As a consequence, it would also be accountable.

On balance, the amendments put down by Deputies O'Donoghue and O'Donnell are relevant to the debate on the matter. The Minister may feel they could be strengthened on Report Stage and perhaps she will take this course. However, they appear suitable amendments as they stand.

Mr. O'Dea

Deputies O'Donnell and Woods made the points I intended to make. I did not hear Deputy O'Donoghue's contribution in moving the amendment. Does the Minister intend to set up a judicial commission when the working group has reported? If that is her intention, the legislation empowers the Minister to do so. In that case, why not accept the amendment? Deputy Woods said it may be strengthened on Report Stage, perhaps by the insertion of a provision that the commission will be established within a certain period of time.

Mrs. Owen

At the risk of repeating myself, the amendments reintroduce a section of the 1994 Bill. The wording of the amendments do not oblige anybody to do anything. It states the Minister for Justice "may establish. . ." a commission but he or she does not have to do so.

Ms O'Donnell

It would rule that out.

Mrs. Owen

Deputy O'Donnell says she does not believe my promises or those of anybody else but I am not asking her to do so. I ask her to recognise that I have already commenced work on the establishment of a courts commission by setting up the working group, which includes the Law Society, the Bar Council and others. All the courts are represented and the group has various terms of reference. I do not need the fig-leaf of a statutory provision for a courts commission, which is probably not the type of commission that will emerge.

Under the terms of the amendments, the courts commission would have only an advisory role. It would not be in a position to do all the things mentioned by the Deputies. If the Minister of the day decided to set it up — it is not obligatory to do so — it could advise on various aspects. However, I want it to go further than that. I want the working group to examine a real courts commission which would have teeth and not just an advisory role. Deputies who are lawyers know this is the position in a number of other jurisdictions. I will bring forward legislation when the report of the working group is received.

Legislation will be necessary to establish how a courts commission will work. For example, there is nothing in the amendment about who would be on the commission. The word "judicial" is used but surely a courts commission should include individuals other than judicial people if it is to run the courts. The amendment does not flesh out the position. All it seeks is the creation of some type of fig-leaf so that the words "courts commission" become statutory terms. However, the amendment does not involve the type of courts commission that should be put in place. There is no real difference between myself and the Deputies; ultimately, we want a courts commission to run the courts. However, the amendment does not seek this and I do not need the amendment to set up a working group on a courts commission as I have already done so.

I ask the Deputies to bear with the working group which has an enormous task in terms of reorganising the courts. Approximately 800 staff are working in the courts and it also involves the mechanics of the Supreme, High, Circuit and District Courts and County Registrars. All these roles must be examined before there can be an effective courts commission. The amendments do not indicate anything about the courts commission other than an advisory role. I ask the Deputies to accept that the working group, which includes a wide variety of people, is the proper way to proceed towards the establishment of a courts commission with teeth.

Mr. O'Dea

Does the Minister envisage that some of the work in relation to the organisation and management of the courts, the decision making, will be transferred from the Department of Justice to the commission she mentioned?

Mrs. Owen

That is precisely why the working was established. One of the group's terms of reference states:

In the light of the foregoing review, to consider the matter of the establishment of a commission on the management of courts as an independent and permanent body with financial and management autonomy as envisaged in the December 1994 document entitled "A Government of Renewal".

As I stated on Second Stage, if things had not changed in 1994 and the then Bill had run its course, I have no doubt that the section dealing with the courts commission would have required enormous examination regarding its purpose and whether it would change the matters correctly highlighted by the Deputies about the current creaking court system.

Deputies O'Dea, O'Donoghue and O'Donnell are law practitioners and they would have found the provision meant nothing. They would have moved towards a much more substantial type of courts commission. I ask the Deputies to recognise my commitment that the working group on the courts commission will consider any proposal Members of the House or others wish to make. They can put forward their points to the group about how the management of the courts should be carried out. There is no point accepting the amendment because it will not move the aims of the Deputies' a single step forward.

Ms O'Donnell

One of the points the Minister used to undermine the amendment was that it states the Minister "may" rather than "shall". However, a different amendment has been ruled out as it would require a charge on the Exchequer because the term "shall" is used.

The purpose of the amendment is to place the existing working group on a courts commission on a statutory basis and to give it enhanced status. Obviously, the Minister is not for turning on this amendment but I will press it.

Mr. O'Donoghue

If the Minister wishes to indicate to the House that she wants to bring back a section which will make it a statutory imperative for a judicial commission to be appointed, I would be happy to withdraw. However, as the Minister has not indicated that I will press the amendment.

Amendment put and declared lost.

NEW SECTION.

Chairman

Amendments Nos. 40 and 41 are alternatives to amendment No. 2 and all may be taken together. Is that agreed? Agreed.

Mr. Shatter

I move 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'.".

The Courts (Supplemental Provisions) Act, 1961, sets out the criteria with regard to the eligibility of people for appointment to the High Court and the Supreme Court. Section 5 (2) (a) of the 1961 Act provides that a practising barrister of not less than 12 years standing shall be qualified for appointment as a judge of the Supreme Court or the High Court. This amendment proposes a provision whereby a practising barrister or a practising solicitor of not less than 12 years standing would be qualified for appointment as a judge of the Supreme Court or the High Court. The second part of the amendment, which proposes to amend section 5 (2) (b) of the 1961 Act, is effectively a tidying up measure consequent upon that.

Although it is not a national secret, I should declare an interest in this matter. I am a practising solicitor of about 20 years standing.

Ms O'Donnell

The Deputy will definitely be appointed.

Mr. Shatter

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.

Mr. O'Donoghue

On Second Stage I strongly advocated that the Bill be amended to ensure experienced practising solicitors were included for consideration by the judicial appointments advisory board for recommendation to the Government as members of the High Court and Supreme Court. I went into considerable detail and explained precisely why I felt it would be a most desirable development. At present, 80 per cent of the Irish legal profession is excluded from consideration for appointment to the higher courts. When one delves into the matter there does not appear to be a strong argument for excluding the solicitors from the opportunity of serving in our higher courts if they wish to apply.

The reason which has been and continues to be put forward is that solicitors do not have experience of advocacy as members of the Bar have. This is true to a certain extent as regards the higher courts but it is not because they are not entitled to go before those courts. Ironically, Ireland was one of the first countries to allow unlimited right of access to courts for solicitors, in the Courts Act, 1971. The principal reason solicitors do not normally appear in the higher courts is that the judges in front of whom they would appear all used to be practising barristers. There is an element of the "chicken and egg" syndrome here — because they are unwilling to go or feel inhibited about going into the higher courts before former barristers, they do not obtain experience in advocacy, which is the reason subsequently used against their ever being judges in the higher courts.

Undoubtedly it will take a brave move from this Minister for Justice to accept the amendments of Deputy O'Donnell, Deputy Shatter or myself but it is right that she should take that step. The rigid line of demarcation between the two legal professions, barristers and solicitors, is archaic and should be changed. It is time that our laws on the appointment of judges reflected the fact that this is a modern, young republic in a new Europe. There is a need for a unified law school, whereby barristers and solicitors can move from one profession to the other. It is extraordinary that a qualified solicitor may have all the intellectual ability, experience, knowledge, character and academic qualification necessary to make him or her an outstanding judge in the higher courts, yet an arcane rule denies that individual the opportunity of doing so.

It is interesting to note that the Fair Trade Commission has made clear its belief that the rigid lines of demarcation should be lifted. The Law Society of Ireland would clearly wish that its members had the opportunity to serve in the higher courts and the position is supported by the Law Society of England and Wales. There will soon be a change in the laws in Northern Ireland to provide that solicitors can serve on a much broader basis than at present.

Nothing demonstrates the ridiculousness of the rule that solicitors may not be appointed to a higher court irrespective of their achievements or knowledge than the fact that one must be a barrister to be a legal assistant in the Office of the Attorney General, but a solicitor may be Attorney General. No one could argue this rule was fair or was based on reason. The current position whereby solicitors may not become members of the higher courts amounts to a restraint of trade. It excludes new entrants and is contrary to the common good. The Minister is presented with a unique opportunity — she can change this arcane rule to bring the courts adequately into the 21st century or she can perpetuate a Victorian rule which serves neither the legal professions nor the Irish people. I ask her to accept my amendment.

Chairman

For the public record, Deputy O'Donoghue, may I ask if you are a member of any organisation or group which may be specified in your amendment?

Mr. O'Donoghue

I am a solicitor and a member of the Law Society but as I informed the Minister in a light-hearted moment on Second Stage, I am not interested in appointment myself.

Ms O'Donnell

In discussing my amendment I have no interest to declare except that I studied law — I am not a member of either profession. As has been eloquently stated by the two previous speakers, it would be logically defective to allow this Bill to pass without allowing the eligibility of solicitors for judicial office to be extended from the Circuit Court to the higher courts. This Bill permits solicitors to be appointed to the Circuit Court and there is no justification, based on any rational explanation, for perpetuating the continued exclusion of solicitors from consideration for appointment to the higher courts. The political purpose of this Bill is to radically alter the way in which we consider judges for appointment. This amendment neatly fits into that political ideal in that it would broaden the net from which we choose.

The political genesis of this Bill is to radically alter our procedures for appointing judges, but it is also an opportunity to place talent before contacts. The debacle we experienced during the last administration in regard to the appointment of the President of the High Court made it imperative that we move to a situation where we can divorce political patronage from judicial appointments. It is important to seize the opportunity to better this Bill and make it more inclusive of solicitors in the best possible way. This could be done by accepting these amendments tabled by Deputies O'Donoghue, Shatter and me.

What lies behind the way in which we treat solicitors differently from barristers in the context of judicial appointments is steeped in history. It is also steeped in a social form of intellectual elitism which has permeated through the professions and for which there is no educational justification. We need a broad base of talented people. We need a mixture of talents which would be provided by experienced solicitors who have had brilliant experience, particularly in the area of family law. This is particularly important in view of the divorce jurisdiction which may be introduced and the increase in family litigation which is constantly delayed in the courts.

If we had judges appointed from the solicitors' profession we would have a fantastic mix of experience, compassion and expertise, particularly in that area. If judges are competent to serve by virtue of this Bill in the Circuit Court which has a jurisdiction of up to £30,000 it is logically defective to deny them the opportunity to be considered for appointment to the higher courts. The fact that it is a great privilege to be a judge is often ignored. The public service aspect of that privilege should not be denied to solicitors who may well have a long standing desire to serve in a judicial capacity such as this. I hope the Minister will accept the amendments for which, we have argued, will open up a great opportunity for many talented people who would make excellent judges.

Mr. O'Dea

In view of the fact that Deputy Bruton had the prescience to see this 25 years ago, we have absolutely now choice but to support it. The difficulty is that Fine Gael see things but nothing happens. Deputy Shatter says that he has no ambitions to avail of any changes the Minister might feel disposed to accept in this Bill. If I was very cynical I might say that he might be interested in getting rid of some of the competition, but I know that is not his intention.

Chairman

The competition here, or in the courts?

Mr. O'Dea

Surely everybody agrees that it is in the interests of the people to have the best possible representation on the Bench. It is obvious that if we increase the pool of talent from which we are drawing fivefold, we will have a better Bench. Those two propositions follow logically from each other.

If the Bill becomes law in the format proposed by the Minister, solicitors will be eligible for appointment as judges of the Circuit Court, but they will still be excluded from appointment to the High Court or Supreme Court. I cannot understand the difference between the Circuit Court and the High Court. That would mean that only barristers can serve in the High Court and solicitors are only eligible for the Circuit Court. Neither can I understand the distinction between a barrister and a solicitor which makes it imperative that appointments to the High Court or Supreme Court are confined to the former branch of the profession rather than the latter.

The Minister is going some way, and I recognise that, to break the Law Library monopoly on appointments to the Bench above District Court level. I applaud and appreciate that. Why not go the whole way? The monopoly is being dented, not broken and the Minister should logically take this opportunity to break that monopoly.

The report of the Fair Trade Commission has been referred to. The Fair Trade Commission is clear that while an experience of advocacy is important, it is not the sole or even the primary factor that determines what makes a good judge. Deputy Shatter has made the point — I agree with him — that some of the best advocates do not necessarily turn out to be the best judges and vice versa. I often thought an analogy would be the distinction between a Minister and a Taoiseach. They are two totally different jobs.

The Fair Trade Commission also pointed out that if the higher courts were open to solicitors there would be a spin off in that solicitors would be more inclined to exercise their rights of advocacy under the 1971 legislation which they have been very shy about exercising. As Deputy O'Donoghue rightly said, they are actively discouraged by those on the Bench who are members of the other branch of the profession. I know of instances where it was made clear beyond any shadow of a doubt that the fact that somebody was taking a solicitor to the Circuit Court to plead their case rather than a member of the same profession as the person on the Bench was not appreciated.

The Fair Trade Commission has made the point — it has been made in the wider public domain also — that the distinction and division between the two branches of the legal profession has now become outdated. In preserving the positions in the High Court and the Supreme Court for one particular branch of the profession, we are entrenching an outdated and irrelevant distinction.

Deputy O'Donoghue mentioned the nonsense that the Attorney General can be a solicitor but a legal assistant must be a barrister. This situation has been compounded by something the Taoiseach told me recently in the House. There are two branches to the Attorney General's office, the parliamentary draftsmans branch and the advisory section. Apparently positions in the parliamentary draftsmans branch are being opened up to solicitors while the advisory section is still confined to barristers.

This situation reminds me of those battle scenes from the English civil war where the monarchists are defending their territory. They have lost a certain amount of territory but, by God, they will hold on to the rest of it and will fight inch by inch to hold what ground they can. The Minister has rightly dented the monopoly and I am asking her now to take this opportunity to break it.

Mr. J. O'Keeffe

I had better declare an interest before I start.

Mr. O'Dea

Before Deputy O'Keeffe begins, I wish to declare an interest. I am a member of the other branch of the legal profession. I am also a member of another profession which has nothing to do with the legal profession.

Mrs. Owen

Which branch is which? The Deputy is a solicitor and a nonpractising barrister, is that it?

Mr. O'Dea

I am a barrister and I am an accountant.

Mr Shatter

He is an ally.

Mrs. Owen

I was never clear where the Deputy stood.

Mr. J. O'Keeffe

I am glad the barristers have been put in their proper category. They should be referred to henceforth as the other branch. I declare an interest, Chairman, in that I am a member of the main branch, I am a solicitor and also a member of the Law Society. I am not a member of the Special Branch.

This discussion relates to an anachronism, a relic of the past, the result of which is that solicitors are excluded from judicial appointment to either the High Court or the Supreme Court. If one started from scratch in establishing a judicial system, one could not conceivably think of putting that type of anachronism into our legal system. Ireland has over 5,000 lawyers. Almost 80 per cent of that number would be excluded under this measure from judicial appointment to the High Court or the Supreme Court.

Is this measure in the public interest? Rather than defend the solicitors corner, one should try to examine the question objectively. What makes a good judge? A good judge has knowledge of the law and experience of its practice, whether as an advocate or otherwise. That would be fundamental before appointing somebody to a judicial office under our system. The person to be appointed should have independence of mind and, of course, commonsense. Any such appointee should also have good judgment and be decisive. Additional bonuses would be patience, courtesy and compassion.

The traditional approach in making appointments to the High Court and Supreme Court is that a senior counsel who is a good advocate is normally considered. It also does no harm if he is associated with the political party in power at the time of appointment. However, do the best advocates make the best judges? My experience is that this is not necessarily the case. Correspondingly, many of our more able judges have not had distinguished careers as advocates.

For example, a person who had little court experience was appointed to the Circuit Court. That he was friendly with the family of the Taoiseach of the day may have had something to do with his appointment. He took silk the day before his appointment and was not highly thought of by many of his professional colleagues following his appointment and he was known as the "artificial silk". However, he turned out to be one of the best judges I ever came across. It is important to remember that salutary tale.

It is also important for solicitors to be able to give their honest opinion of judges. Most judges I have come across have been good. One should be careful not to point out the defects in some judges but some of them have been appalling. That description would only apply to a small minority. There is a story about a certain judge, who no longer serves on the bench who was not noted for making wise decisions. A barrister went before the Supreme Court appealing a decision of the judge to which the chief justice asked if there were any other grounds of appeal. The judge in question was a growling grouser, was bad tempered and not an adornment to the bench.

Mrs. Owen

That sounds like a description of some of us.

Mr. J. O'Keeffe

Fortunately, that description would not apply to any of the judges on the bench today.

The present system of appointing advocates, senior counsel or barristers as judges of the High Court and Supreme Court because they are barristers is not in the public interest and should be changed. This has been recognised in other countries and it is clear the practice we have followed does not apply in most other countries. Why then should we continue this anachronism?

The Office of the Attorney General was referred to. My blood boiled when I saw a newspaper advertisement for a fourth legal assistant in the Attorney General's office last week. It was obvious that legal apartheid applied. "Barristers only need apply" was stated on the advertisement. Solicitors could apply but their applications would be rejected.

Ms O'Donnell

They would be a dead loss in the office.

Mr. J. O'Keeffe

That anachronism is not in the public interest and is part of the thinking that has led to the continuation of this system over the years.

It is time a fresh look was taken at the situation. I hope the Minister will seriously consider these points and discuss them with her colleagues and that arising out of this, we will see an end to this anachronism. It is not in the public interest to continue with it.

Mr. Browne (Carlow-Kilkenny)

I have a special interest in Deputy Shatter's legal skills and as usual, he made an excellent case. However, I have little interest in the legal profession as none of my relations was ever involved in it.

However, when I was ill in hospital, I had the privilege of sharing a room with one of the first civil servants to serve in the Department of Justice; unfortunately, I did not have the sense to bring a tape recorder with me. He told me that changes were made in the appointments made at a certain time and people who were not well qualified got new jobs. One of them was made a judge and the officials in the Department nicknamed him "necessity". I asked him why was he was called that and he told me it was because "necessity" knew no law. He had to get advice from others on how to do his job. I grew up thinking the courts administered justice in a fair manner. However, I always imagined the Supreme Court was the final arbiter and the people there were the real law experts. However, split decisions arise, sometimes with majorities of three to two, sometimes of four to one. People like myself who have no legal training expect the members of the Supreme Court to know the law inside out. How, therefore, is it possible that five experts cannot agree when administering the law?

Are judges administering law, as laid down in the books, or are they following their own interest in life? Is it not fascinating that these experts, who have been appointed to the top court in the land, can differ and argue cases instead of giving what should be unanimous decisions? If the law means anything, how can it be interpreted by individuals at the top to mean different things?

Many solicitors would make supremely good judges, perhaps even Supreme Court judges. They have common sense and have as much knowledge of the law as barristers. I had one experience of court and saw a Circuit Court judge behaving in a sensible way and a High Court judge proving that he was a fool. As far as he was concerned, the situation was black and white. One did not dare speak.

Barristers do not, of necessity, have any monopoly on common sense, and, clearly, they do not have it in law either. The case being made that solicitors should be able to go up the ladder is very strong. Many of them are probably ahead of their barrister colleagues. Having contributed to many debate here in the past and having heard clear-cut arguments, Ministers have always pointed out something to us that we have not anticipated. I presume, therefore, the Minister will have a genuine reason for not accepting this proposal. However, I find the present situation difficult to accept and this division should end.

Mr. D. McDowell

I wish to complete the all party consensus on this matter, but I should begin by declaring an interest in that I am also a member of that section of the legal profession which deals directly with the public. Much of what I intended to say has already been said by colleagues and I will not prolong the meeting unnecessarily by repeating it.

However, while listening to colleagues, it occurred to me that in some ways it is remarkable that most of us here today are members of the legal profession, which is unusual as most people entering this House do not have a qualification in drafting law, putting down amendments or anything of that nature. However, we consider it an essential part of democracy that each of us should be entitled, if we get the assent of the people, to parse, reparse and debate law as it is to be applied by the courts. Yet not only do we require people who enforce this law to get training in the law, which is only proper, but we also require them, indirectly, to be members of a specific social class. We also require them to pursue an arcane form of training.

The division in the legal profession is something we should be moving to abolish, not seeking to entrench it. Since the issue has come up, by way of this Bill, there is an onus on the Minister, who has moved progressively in the Bill, to justify why she is not prepared to go the full way and do what most people believe sensible. The argument has been made that advocates do not make good judges and vice versa and I will not repeat it.

There is an issue of social class here, because, in essence, it is essential — I do not mean this over critically — that to become a good barrister, one must have decent contacts. This, in turn implies or suggests that one must have contacts in the legal profession, in business or with people who are prepared to push business, directly or indirectly. It also sometimes implies that one has to have contacts in politics, or at least that it helps.

Many solicitors do not have these contacts, nor do many, so called, ordinary people. Unfortunately, a side effect is, undeniably, that a large number of people in the barristers' profession come from one specific social class and reflect a specific set of values. This does not necessarily mean that they cannot represent society or that they cannot implement the law properly, but it should invite us to look at the matter in a somewhat jaundiced way from time to time.

I do not mean this seriously, but I advise the Minister on this occasion to listen a little less carefully to the Attorney General. Speaking on behalf of my own party, perhaps she could reassure the leader of my party, the Tánaiste and Minister for Foreign Affairs, that we fully expect him to remain the leader of the party and in Government for the foreseeable future and do not wish him, at any stage, to return to his previous profession.

Mr. D. Wallace

I assure the Minister that I am not eligible for, and therefore will not be declaring an interest in, any of the positions. These amendments are very important. There is no doubt that some of the major controversies over the past number of years have arisen with regard to the Judiciary, where there has been widespread amazement at some of its decisions. In many instances we have been advised that decisions have been made because of technicalities. Unfortunately the public find it hard to accept that, for example, a technicality frees people from charges of a serious crime or offence.

It is imperative that the Minister give serious consideration to these amendments. While we have been well served by the Judiciary and are fortunate in the calibre of its members, this presents an opportunity to the Minister to widen its membership by including solicitors. There is no doubt that the role of the Judiciary would only be enhanced by allowing solicitors to be eligible for membership of the highest courts.

Deputy Browne spoke of his amazement that decisions of the Supreme Court could break down into majorities of four to one or two to three, or whatever. This is democracy. In an ideal situation such split decisions would not arise but, unfortunately, interpretation of law and legislation gives rise to these situations.

In some areas of major controversy, we have had to recall the House and introduce legislation to deal with decisions of the Judiciary. These have left politicians at the coal face of the criticisms of the public. This is, therefore, a very important section and the Minister must give it serious consideration. She should explain why she is not prepared to allow solicitors to be eligible for membership of the higher courts. It is an issue that is becoming increasingly important, given that even offenders know the law better than ourselves. They appear to have the angles on all aspects of it.

The area of technicality has caused amazement and annoyance to the public. We have too much law and not enough justice. The Minister should look seriously at these amendments. It would help her, help the courts and help the judicial system if solicitors were to become eligible for appointment to the higher courts.

Chairman

We have had a debate of one hour on these very important amendments. I have strong views on this amendment, I declared my interest on Second Stage, and repeat it now. However, for me to articulate my views on the matter, it would be improper to remain in the Chair. Rather than have a temporary Chairman appointed to allow me to make an address and take up the committee's valuable time, I will not proceed on that basis.

I wish to make a point that has not been made already. On listening to the contributions today one could deduce that the committee has an overwhelming view on the matter. We are talking about enabling legislation, not quotas or a directive. We are talking about enabling the commission at some time in the future to consider members of both arms of the profession. Being Chairman, I will not say anything further on it but I feel particularly strongly about it.

Deputy John Browne spoke about unanimity, split decisions and points decisions. Over the past hour this committee has been in the course of delivering a knock-out punch — Members of all parties in the House have spoken with one voice on this matter. That underlines the seriousness with which this committee regards the amendments. I hope the Minister can see her way to accepting them. I am not sure that I wish to force her hand but every consideration should be given to accepting an amendment that appears to have the support not only of the spokespersons but of every member of the committee who has spoken so far.

Mrs. Owen

The debate this afternoon has been eloquent, well researched and well briefed. At times I felt we had been transported to a Law Society versus Bar Council debating chamber. That is not to take away from the debate that has taken place. The points were well made.

In 1971, as Deputy Shatter correctly pointed out, solicitors acquired the right of audience in all the courts. It has been put to me that not that many, with some notable exceptions, have availed of that facility. Deputy O'Donoghue's argument, that the reason they do not do it is, perhaps, that there is a method of making solicitors feel they need to be accompanied by a counsel every time they go into court, has also been put to me previously. There is not a single argument — without taking away from what has been said today — that has not been put to me and discussed with me by members of both professions and people outside the profession.

I will outline the situation and I do not mean to be contentious in doing so. Deputy O'Donoghue said we should take this opportunity to show that we are a modern, young republic and that we should not have these Victorian rules. With respect, we were a slightly younger modern republic in November 1994 but the then Government did not decide to make this change. It decided to add a provision that solicitors could become Circuit Court judges and I have kept that provision in the Bill. It is a radical step after many years of solicitors being confined to District Court appointments.

Deputy O'Dea was a Minister of State in the Department of Justice when the 1994 Bill was prepared rather speedily. I am aware that Deputy O'Dea was very strong on the issue of wigs because he spoke in this House and elsewhere on the issue. He has made a strong case today that solicitors should be eligible for the two superior courts. I wonder if this is a new idea or did he feel as strongly in November 1994 when it could have been included in the Bill? That is not to take away from——

Mr. O'Dea

I will explain that.

Mrs. Owen

The point I am making is valid because if it had been included in that Bill the arguments would have been rehearsed and accepted at that stage. Were it not for the fact that these amendments were not included in the 1994 Bill, it would have been easier for me to accept that these were not the new found ideas of these Deputies. However, they had a chance about nine or ten months ago to do this and they chose for whatever reason not to do it.

The Bill makes a substantial move forward in allowing solicitors to be eligible for consideration for appointment to the Circuit Courts. It is the Government's considered view that we should allow those arrangements to be put into place, allow the judicial advisory board to be appointed under the new regulations whereby solicitors can be considered as Circuit Court judges and watch and prudently judge the new arrangements.

It is difficult to offer arguments to counter the arguments made here today. Since the foundation of the State solicitors have had one role and barristers have had another. Whoever devised that system probably thought that was the way the law was allocated and that was how the courts should be run. The solicitors profession has advanced in the sense that more solicitors are using the right of advocacy. A number of solicitors are moving from one side to the other, if I can use the description offered earlier by another Deputy. One often encounters solicitors who go on to study at the Bar or barristers who go on to study to be solicitors and thus have the dual mandate, as it were. I cannot quibble with all the solicitors who have spoken so eloquently and glowingly today about the qualities of solicitors. I will not debunk that because I know some very good solicitors.

The point is, is this the time to do it? Is it something that the Government will agree to do? It is the Government's considered opinion, having approved the Bill, that this is not the prudent time to make these changes. I will talk about how we should proceed from here, but first I must make a couple of other points.

The Judiciary has served us well. It is not the modus operandi of judges to secure universal popularity in everything they do. They are appointed to the bench to carry out a function and the Judiciary down through the years has carried out that function well. That is not to say there will not be disagreement with the decisions they make. However, if we have an independent Judiciary we must allow the judges to have their say and to make their judgments. Many of the comments today depicted situations that have been described from time to time in newspapers and so forth. However, it would be wrong for this committee to send out the message that we have no trust in or respect for our Judiciary. I do not believe anybody was trying to say that. They were trying by way of anecdote to highlight certain idiosyncratic occurrences through the years.

The issue of policy in this or any other Bill is a matter for the Government. It is not a matter for the Attorney General. The Attorney General is not an out-office of the Bar Council. The Government decides on the policy of legislation; the Attorney General advises the Government but does not make decisions on policy. It is the Government's considered opinion that it is prudent to see how the system of allowing solicitors to be appointed to the Circuit Court works and progresses and to look at the issue further at that stage.

It is not true that this is the only chance we have. A number of Bills passed since 1971 could have been used to make this change. Deputies familiar with Bills prepared by the Department of Justice over the years will probably say that none of them were as appropriate as this one, but I have seen legislation used from time to time to tidy up situations. It was not manifest at the time such Bills were passed that they were needed to do this. When I recently introduced an incest Bill, I used the opportunity to deal with a number of anomalies.

I wish to correct an impression given by one speaker that the only purpose of the Bill is to appoint 17 new judges. This is important but not its only purpose. I have included other proposals — this is why it has taken me so long to bring the Bill back to the House — which are an advance on the 1994 Bill. When the Bill is passed and implemented, TDs who are members of the legal profession will recognise that these proposals make a considerable contribution to improving and modernising the courts system and making it more efficient. It is not right to say the purpose of the Bill is to politically appoint judges. It is much wider than this. I ask Deputies who think this is its only purpose to examine it more carefully.

Representatives from Fine Gael, the Progressive Democrats, Fianna Fáil and the Labour Party — there is nobody from Democratic Left here — have all made an eloquent case. It would be difficult for me, if the committee system is to work, to disregard these views and say I will continue with the Bill in its present form. I am prepared to consider what I have heard but I cannot give a commitment that I will be able to accept these amendments. In view of the strength of the arguments which have been put, I would not be doing my job properly if I did not consider them before Report Stage. I do not want this to be taken as a commitment that I can deliver on what is being proposed.

I need some clarification on amendments Nos. 40 and 41, in the names of Deputy O'Donoghue and Deputy O'Donnell, respectively. I do not understand the intent of the change to section 5 (2) (b) of the Courts (Supplemental Provisions) Act, 1961 proposed in amendment No. 40 or the change to that subsection proposed in amendment No. 41. It seems the Deputies wish to enable practising solicitors to go before the superior courts but they are qualifying this by saying solicitors must have three years service in the Circuit Court before they can do so. Barristers are eligible to appear in the High and Supreme Courts after ten years service plus two years service in the Circuit Court whereas, according to the amendments, solicitors must have three years service in the Circuit Court in addition to ten years service as solicitors. Thus, the amendments provide for a further discrimination against solicitors.

The parts of the amendments dealing with this are not clear and were not made so by either of the Deputies in their submissions. Because the amendments are so alike, they may have come from the same source and the Deputies may have worked on them together. I hope one or other of them will be able to clarify what exactly they are proposing.

Mr. O'Donoghue

There are two parts to my amendment. It clearly provides for the eligibility of solicitors for appointment as judges of the High and Supreme Courts. It also amends the Courts (Supplemental Provisions) Act, 1961 to make Circuit Court judges eligible after three years service for appointment as High or Supreme Court judges.

Mrs. Owen

At the moment barristers must have 12 years service before they are eligible for appointment as High Court judges. They can practise as barristers for ten years and be Circuit Court judges for two years to be eligible. The Deputy is proposing that the qualifying criteria should now be ten years practise plus three years in the Circuit Court. Is he advocating that these should be the criteria for barristers as well as solicitors? This is not clear from his amendment.

Mr. O'Donoghue

I will come back to the Minister on this.

Mr. Shatter

I thank the Minister for her reply and all Members who have contributed. The amendment I have tabled is more straightforward than the ones tabled by Deputies O'Donoghue and O'Donnell but we have a similar intent, which is to move the law forward and to remove what I regard as the last fossil of a bygone age. The Minister's closing remarks are important and none of us should lose sight of them. What has happened here this afternoon is unprecedented in my experience of committee sittings. None of us seeks a war between barristers and solicitors or to argue that one side of the legal profession is better than the other. We are all talking about the public interest in widening the pool of practising lawyers with experience from whom we can select judges. The manner in how this works out is a litmus test of the usefulness of the committee system.

This and other committees exist so that Deputies, as legislators and regardless of whether they are on the Government or Oppositon sides of the House, can make a constructive policy contribution to the legislative process in a manner which is in the public interest. In committees points can be raised in a different manner to the way they used to be raised in the Dáil. Often the objective of a Deputy was to ambush a Minister or the Government on a particular issue. The substance of what was proposed was deemed to be of less importance than somebody scoring a political point.

We have all been concerned with the substance of an important issue in the life of the State and we have approached it from the basis of praising the Minister's initiative in extending the eligibility criteria for appointments to the Circuit Court. The credibility of the committee system is now an issue. This is not a major issue of Government policy and is not about ideology. It is improving our court system and providing a possibility for appointments, not dragooning a particular group of people into appointments to the Judiciary or dragooning Government into appointing certain individuals or people from a particular profession. The Minister rightly said that issues of policy are a matter for Government. She also said this was not the Attorney General's view, but the Government's view as regards legislation.

Unless these committees become meaningless and unless we rubber stamp all legislation, there is a need for the Government to take on board what has happened here today in a constructive way. I ask the Minister to talk to her colleagues about this matter which has the support of the Labour Party, Fine Gael, the Progressive Democrats and Fianna Fáil. Unfortunately, there is no member of the Democratic Left on this committee, but I am sure it would not oppose what we are doing. I hope this will allow the Minister to talk to her colleagues again before we finally address this issue at the committee, rather than leaving it to Report Stage. If this Bill is changed as a result of what has happened today, we will have proven the usefulness of such a committee system in which we can discuss issues in a non-party political, non-contentious way and address them in the interests of the people we serve.

Mr. O'Dea

The Minister was correct when she said that was the proposal in the 1994 legislation when I was Minister of State at the Department of Justice. I have not changed my mind. Anyone who is or was a Minister, let alone a Minister of State, would be dishonest if they pretended to agree with every detail of legislation which they were required to introduce. As the Minister said, the Government decides. I was unhappy with that provision in the 1994 legislation and I made representations in writing on the matter to the Government. I am sure I can find the copies if necessary. I was told to let it go through Second Stage and to wait until it was debated in detail on Committee Stage. The Minister will recall that the legislation did not reach Committee Stage.

We now have an opportunity to hear arguments from all sides of the committee. I do not understand the Minister's argument that this will not be the only opportunity to discuss this matter. Why should we not avail of this opportunity? If something will be right tomorrow, it is right today. If the change is desirable and necessary and she accepts the arguments in favour of it, why not implement it now?

As Deputy Shatter said, there is all party support for this provision. There is no member of the Democratic Left here, but I do not believe it would balk at this. Everyone who has spoken at this committee supports it. The Minister stated that she cannot advance any arguments against it and she is persuaded by the arguments for it. Where is the hidden hand? Who is controlling this behind the scenes if there is all party support for it and she cannot find any arguments against it? Why will the Minister not accept the amendment? If Deputy Shatter's amendment or the amendments in the name of Deputy O'Donoghue and Deputy O'Donnell are not perfect, why can she not ask her parliamentary draftsman to draft a better worded one? There is all party support for this, the Minister is persuaded by the arguments and she has no argument against it, yet nothing is happening. I did not read Deputy O'Donoghue's or Deputy O'Donnell's amendments closely, but the Minister has no technical difficulties with Deputy Shatter's amendment. I urge Deputy Shatter to press his amendment which I will support because he is right.

Mr. Ferris

I listened intently to all the contributions. The Minister and Deputy Shatter made the point that we must involve the committee system if it is to have any meaning. The Government gave a commitment that committees were to be consulted in the preparation of legislation. However, that did not happen with this legislation. The Minister pointed out that the Bill as drafted is based on a Government decision. However, that does not mean we are not allowed to go through the procedures.

Deputy Shatter suggested that we should allow the Minister the opportunity to consider the committee's views with her colleagues before we continue on Committee Stage. I also suggest that we should use the parliamentary party procedure to highlight this problem. We could then share those views with the Minister who could repeat them to the Executive. It would be unwise to call votes. We could achieve something and then go back to the Dáil for a different debate. In view of the Minister's comments that this is a Government decision, not the Attorney General's decision, we should try to influence the Government to change its decision to reflect the views of the committee. I ask the Minister to consider this option.

Mr. J. O'Keeffe

This is a defining moment in the development of the committee system. I understood the system was to be set up for the purpose of allowing people to express a view which would improve legislation. All Members who spoke today took a particular approach to this Bill. This will probably have an impact on the future development of the committee system.

Over the years there has been a tendency for the Legislature to rubber stamp legislation from the Executive. The establishment of the committee system has countered that tendency and will enhance our parliamentary democracy, provided it is given reasonably free rein and that some notice is taken of the views expressed at committees. It is to the Minister's credit that she has responded sensibly in the face of the overwhelming evidence with which she was confronted. We all understand the inhibitions within which she must work. I commend the approach she has adopted. I want her to have the opportunity to consult further in the light of the views expressed here.

Mr. D. Wallace

I am disappointed with the Minister's response. She spent a lot of time talking about Deputy O'Donoghue, Deputy O'Dea and what was in the 1994 Bill. I came here to discuss the 1995 Bill. She also said she did not want the message going out from here that we were unhappy or dissatisfied with the Judiciary. The Judiciary has served this country well, but there have been occasions of trauma and annoyance in this regard. I recall the Minister, when in Opposition, expressing concern, as I did, about some of these decisions. The inclusion of solicitors in the higher courts should be considered. The Minister is laughing, but there is nothing to smile about. It is a very serious issue and I would not want the message going——

Mrs. Owen

I was speaking of one of the stories that the Deputy told.

Mr. D. Wallace

Minister, I am speaking to the Minister and she should be prepared to listen and not joke across the House. This is a very serious situation and I do not want the message going out, certainly from my contribution, that we are unhappy with the Judiciary. The Minister made the very same comments as I did when she was in Opposition both in the Hose and outside it in relation to some of those decisions.

Chairman

In fairness to the Committee Members, Deputy, I do not believe there was any aspersion cast on the judiciary. Deputy O'Keeffe told a story about necessity but I think it was more of a light hearted approach. Of necessity, which is the mother of invention, I will adjourn the proceedings having regard to what we agreed at 2.30 p.m. and having particular regard to the comments of Deputy Ferris. The integrity of the committee system is fundamental to our deliberations. We have had a particularly good committee since its inception and under the chairmanship of Deputy Wallace we also had a very successful committee. It is an important committee and what we are discussing this afternoon places no obligation on Government. I hope that between now and the time we sit again tomorrow morning perhaps we will be in a position to have this principle conceded.

Mrs. Owen

Deputy O'Dea said I said "I have no arguments against it." I did not say that. I said that I find it hard to make arguments. There are arguments on the other side and most of the speakers we heard today are on one side of the solicitors' profession. If it was as simple as everybody says, it would have been done a long time ago. Arguments are being put on the other side so I did not waste the time of the House. I just said it was difficult to find arguments against the eloquence of what has been said here. However, I do not want them to think that arguments are not being put to me very strongly from the other side. I thank Deputies for their contributions. I gave a commitment in good faith that I would look at it.

On a practical level I do not know if it is possible to get a recording or a note of what has been said here. What is the procedure?

Chairman

It will be available as soon as possible.

Mr. Shatter

Just to correct the record, I quoted earlier saying it was from a Seanad report and, of course, it was from a Dáil report.

Chairman

We will adjourn until 10.50 a.m. tomorrow in G5, Kildare House.

Ms O'Donnell

Before we adjourn can I ascertain or confirm that the Minister has given a commitment that overnight she will consult and make a political enquiry?

Mrs. Owen

No, that is not what I said.

Ms O'Donnell

The reason the amendments are not being pressed and that we are adjourning until tomorrow is to enable the Minister to consult overnight because——

Mrs. Owen

No, I did not say that.

Ms O'Donnell

The principle at stake here is that we are trying to change this Bill. This is not a matter that was left out by accident. A political decision was made in drafting this Bill to maintain the status quo, which is to exclude solicitors from being considered for judicial office. Given the deliberations today, there has been an overwhelming tide of support to change the status quo, in other words in opposition to this section. The Minister says she finds it difficult to put forward arguments in defence of this position given the statement of the overwhelming majority of the committee saying that we want to change the Bill. I would like to hear that argument tomorrow.

Mrs. Owen

Yes, that is fine.

Chairman

It is more than an overwhelming majority, it is everybody.

Ms O'Donnell

Including Government Members.

Mr. O'Dea

Just to confirm that we will still be discussing these amendments when we sit tomorrow.

Ms O'Donnell

To make progress tomorrow some political movement must be made.

Chairman

It would be a matter for the committee.

Ms O'Donnell

It is up to the Minister to consult the Cabinet.

Mr. O'Donoghue

I think it is a matter for the Tánaiste.

Ms O'Donnell

A political decision has to be made otherwise we are wasting our time.

Chairman

No, in fairness to the Minister——

Mrs. Owen

Rather than get into contention, we have had a very constructive debate. I said I was prepared to take away what I heard today and consider it. Other Members asked me to try to bring it back while we are still on Committee Stage. I did not make any commitment along those lines. I will bring it back on Report Stage. That is another suggestion that has been made here as part of my consideration of all that has been said here. I will be back here tomorrow and I assume that all the Deputies will also be back. We are only adjourning the debate on this. I cannot give a commitment to come back with an answer tomorrow but, equally, I am not giving a commitment that I might not come back with an answer tomorrow. It is a matter of whether you will like the decision whatever way it is. In good faith I said that I will take away what was said here today. It would be wrong to push my hand to the point where I might be forced into coming back sooner than Deputies would like.

The Select Committee adjourned at 4.45 p.m.