Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I will discuss my amendments Nos. 17 and 19 first and then deal with amendment No. 21 separately. These amendments are seeking to do the same thing in some ways. Ours might be a little less complicated than Sinn Féin's in that it allows for recommendations for the appointment to be based on merit while having regard to objectives of gender equality and diversity. They might be less complicated than the Sinn Féin proposal, although I am open to looking at it. This gets to the heart of a lot of what we are talking about and what we want to see. The outcome in terms of the judges that we have is more important than the process, which we have all been absorbed in until now. What do we get out of the end of this process?

As it stands, the Bill states that, in decisions to recommend persons to the appointment of judicial office, regard shall be had, subject to merit, to "the objective that the membership of the judiciary should comprise equal numbers of men and women" and "to the extent feasible and practicable, reflect the diversity within the population". In revising this section, we are proposing that the objectives of gender equality and diversity are not subject to the principle that all appointments must be made on merit. The reason is to emphasise that diversity, be it social or gender, is as important as merit in making appointments. At the same time, these amendments do not have the effect of allowing the recommendation of less worthy female appointments or appointments of people from ethnic minorities or under-represented classes. It is trying to balance the two and to equate them.

We propose to delete the words "feasible and practicable" in the subsection on diversity because there is no clear reason for it. This is all the more so if we are saying the Judiciary should be made up of equal numbers of men and women where we do not have that caveat of "feasible and practicable" but it is there when it comes to broader diversity. That should be removed, which is straightforward enough.

We are taking a lot of guidance on these amendments. The English Constitutional Reform Act 2005 places a specific onus on the judicial appointments commission in performing its function to have regard to "the need to encourage diversity in the range of persons available for selection", which I think is what we are all trying to do here. Arguments about merit started to take off in the UK and Australia a couple of years ago, after their merit-based systems were in place. They found that the judiciary being appointed after introducing a merit-based ground looked very like the judiciary they had before it. They all tended to be the same type of middle class white males. Jack Straw, a former Minister for justice, said that merit can too easily mean "people like us", which is what we are trying to get away from.

We are not encouraging diversity for the sake of it. Judges who are drawn from a wide range of backgrounds and life experiences bring varying perspectives to bear on critical legal issues. That is important. That is what we are trying to do here. The Bar Council was of the view that "justice is best served when the judiciary [is more reflective of] the collective morals of society and when they, as a group, have wider perspectives and a broader experience of life".

The inclusion of diversity as an element of merit enshrines its importance and moral legitimacy and, in that sense, would achieve an enhancing of public confidence in the Judiciary, which is supposed to be the concern of the Bill. Therefore, why not make a firm commitment in that regard? Rather than hiding behind "feasible and practicable", let us put it on an equal footing. If other amendments with regard to the appointment and background of lay members of the commission fall, we run the risk of ending up with quite a narrowly defined version of merit which is "people like us".

As currently constituted, the Bill provides for a lay majority made up of ex-civil servants, human resources managers and CEOs. Those are the criteria in the Bill as it stands. Those are the types of lay persons we would be selecting. The vast number of them will come from a particular background and a good number of them will see merit as meaning the person attended a good university and had a career at the Bar and that is about it.

We should be saying that merit is a lot more than that. It is about appreciating and really understanding cultural and social diversity. It is about having experience of a wide range of different circumstances as well as a deep knowledge of the legal system and the law. With these amendments, I am trying to put diversity on an equal footing, and not a lesser one, with merit. It is not seeking to discount merit or anything like that.

I will not labour the points but this is critical. Three of six current Supreme Court judges went to fee paying schools. I cannot find the details on one of them so I am not sure but potentially more than 50% of the Supreme Court judges had a private education. Only 7% of the population has a private education. Therefore, we need to address those aspects. It is very important.

The other matter is slightly different but it is related. I am referring to amendment No. 21. This is similar to Deputy Wallace's amendment No. 189 and a little like Deputy Sherlock's amendment No. 15. I think the reason all of us tabled these amendments is pretty obvious. The whole aim of the Bill should be to remove political meddling as far as possible or, at least, the perception of political meddling from the judicial appointments process. The reasons are well rehearsed but I will run through them briefly. I will not labour the point but removing political influence from the judicial appointments process is key to giving us a more diverse Judiciary and to ensuring that the perception of judicial independence is not compromised.

The Bar Council, for its part, supports an explicit statutory prohibition on consideration of a person's political affiliation in determining his or her suitability for appointment in order to dispel the apprehension that party politics plays a role in the appointment of judges. It is about more than perception. Dr. Eoin Daly of NUI Galway made a good point that we must factor in the role that judges play in shaping the law as well, where he states:

Far from mechanically administering laws laid down by the legislature, judges are, in reality, responsible for developing the law. And the question of how the law should be developed in this way raises fundamental "political" questions about the nature of justice and injustice, the distribution of power and opportunity in society, and so on. ...judging at all levels involves sometimes significant elements of discretion – which means that judicial power is not always guided by strictly "legal" standards.

In that sense, we must also factor in that the nature of the legal system is such that the Judiciary has far more far-reaching powers, such as constitutional powers, than its counterpart in England. The political nature is key. My other amendment seeks to deal with that issue also. It is quite important.