The Gazette 1995

GAZETTE

DECEMBER 1995

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Solicitor Judges - Small but Significant Steps in the Right Direction

As far as the Law Society is concerned, this has always been

i a speech which had been delivered almost twenty-five years ago in the | Dail debate on the Courts Bill 1971 by '

for appointment as judges of the superior courts.

essentially a public interest issue. It is ; unquestionably in the public interest i to widen the pool of legal talent and experience from which new judges of the High Court and Supreme Court could be drawn by opening such judicial appointments to all lawyers with the ability to fill them. At the committee stage of the Courts and Court Officers Bill the Minister for Justice, under intense pressure j from the Dail Committee On Legislation and Security, introduced an amendment to provide that, for the first time, any solicitor who is appointed as a Circuit Court judge and serves as such for four years will be eligible for appointment as a judge of j the High Court or Supreme Court. By introducing this measure the | Government has taken a small step in the right direction although it has missed an opportunity to go the whole road. The public interest would have been better served if the Government had accepted the unanimous all-party Í recommendation of a Dail Committee and had opened the full range of judicial appointments to solicitors. In the Dail Committee debate all eleven contributors called on the Minister to discard the relic of history which restricts High Court and Supreme Court judicial appointments to barristers. The Chairman of the Committee, Charles Flanagan, TD, described the debate as having been won not on points but "by a knockout". The proposer of the amendment that solicitors should be eligible for all judicial appointments. Alan Shatter, TD (FG), provided a very well- researched and passionately argued opening to the debate. An example of I his research was the fact that he was able to quote, in support of the principle embodied in his amendment,

the then junior Deputy, now Taoiseach, John Bruton, TD.

Of course these concessions are not sufficient either to satisfy the public interest or that of the solicitors' profession. It remains the Law Society belief that there is no justification whatsoever in principle or in logic for the continued exclusion of solicitors, 80% of the legal profession, from consideration for appointment as judges of the High Court or Supreme | Court. Ireland should have been brought into line with current practice in Britain, Australia, New Zealand and almost every other jurisdiction across the world in which a divided profession of solicitors and barristers j continues to be found. 'Parity of j esteem' should have been fully j established, discrimination brought to an end and the 1990 Fair Trade Commission Report's recommendations implemented in full. On the other hand, the issue was aired as never before both in the political ; arena and in the media. Small but j significant concessions were made. | Although it falls far short of the decision which the solicitors believe should have been taken by the Government, the Society nonetheless welcomes the Minister's | announcement about a Working J Group. The Society assumes that this Working Group will examine the issue in a speedy and balanced way and that the Government will quickly thereafter enact the legislation which the Working Group's recommendations will require. With the opening up to solicitors of the Circuit Court bench and the opening of a route to the High Court and Supreme Court, it can now surely be only a matter of time before the remaining monopoly on judicial appointments is ended in the public interest.

i It is worth recording the names of the other ten members of a football team | of deputies who supported Alan Shatter in the 11 - 0 rout that ! followed. They were John O'Donoghue (FF), Liz O'Donnell (PD), Willie O'Dea (FF), Jim O'Keeffe (FG), Michael Woods (FF), John Browne (FG), Derek McDowell (Lab), i Dan Wallace (FF), Michael Ferris ! (Lab) and Charles Flanagan (FG). | This remarkable unanimity of a Dail Committee, which was subsequently Í referred to by experienced deputies as "unprecedented", can be attributed to three things. First, there were five solicitors on the Committee, second, j all of the Committee members had been well briefed in advance by the J Law Society and, third, the merit of The Minister said that she found it very difficult to respond to the debate. She admitted that the arguments put to her by the Committee were "compelling" and she never in fact, even on subsequent committee days, sought to rebut them. It is the view of the Society that this was because no reasonable or logical rebuttal to these arguments exists. In the end, however, it would seem that the majority view at the Cabinet table held out against the pressure from the Dail Committee, although the Government was compelled to concede the principle of solicitors becoming eligible for appointment to the superior courts provided they first serve four years in the Circuit Court. In addition the Government also made a commitment to shortly establish a Working Group to report within a year ' on all aspects of the issue of eligibility I the argument itself was I overwhelming.

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