The Gazette 1995

GAZETTE

0 I N

DECEMBER 1995

Solicitor Judges - Small but Significant

Steps in the Right Direction

As far as the Law Society is

concerned, this has always been

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

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,

i a speech which had been delivered

almost twenty-five years ago in the

| Dail debate on the Courts Bill 1971 by '

the then junior Deputy, now

Taoiseach,

John Bruton,

TD.

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

Law Society and, third, the merit of

I the argument itself was

I overwhelming.

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

for appointment as judges of the

superior courts.

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

esteem' should have been fully

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

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

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.

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