Charles Flanagan (Laois, Fine Gael) | Oireachtas source

There are 24 amendments in this grouping. We are now dealing with key aspects of the Bill in terms of the nominating bodies and the nominating process. We are really at the heart of the legislation. I will deal with the points made in support of the amendments. In the first instance, I want to consider the proposed section 15 in respect of amendment No. 49, the deletion of section 15 and the substitution of that with a new section. In summary, the amendment replaces the role and function of the Public Appointments Service in the recommendation of lay members and indeed the lay chairperson as envisaged under the legislation. The amendment deletes the provision in the Bill relating to knowledge and professional experience pertaining to lay members and the non-legal chairperson. The amendment also substitutes a nomination process for the appointment by the Minister of lay members involving six specified nominating bodies. The amendment also provides that the Minister shall appoint as chairperson a retired judge of the High Court, Court of Appeal or Supreme Court. The amendment effectively replicates other provisions of the Bill, for example, those relating to the suitability of persons to be appointed, as provided for under section 15(4) and those relating to approval by resolutions of the Houses of the Oireachtas of layperson appointments, as provided for under section 17(1) of the Bill.

Indeed, on the matter of the Public Appointments Service aspect of the amendment, I am concerned at the effect of these provisions which seek to remove from the process the appointment of members. Removing any role from the Public Appointments Service is not something that I can support. I am aware that concern was expressed on Second Stage of the Bill by Deputies at the involvement of PAS in the process. I stated then, and repeat now, I do not see any foundation for aspersions cast on the Public Appointments Service process in so far as that would relate to the selection of the non-legal or lay members, including the lay chairperson, as provided for under the Bill. The position under section 15 of the Bill provides for an independent, detached and objective process for securing the services of lay member appointees.

The Public Appointment Service model is the centralised recruitment process across the public service, including appointments to State boards. I have heard criticism of the process in the House. I have read it in the media. I am firmly of the view that that process is open to scrutiny and transparent. Furthermore, I believe it is highly effective in doing the job it is required to do under legislation. I am not convinced by arguments that appear to question the integrity of such a fundamental public service process.

As far as the application of the Public Appointments Service to this particular piece of legislation is concerned it seems that in the matter of selection of lay members, the Public Appointments Service would, indeed, be the appropriate body to charge with responsibility and that process is, to my mind, the most appropriate. It also ties in directly to the carefully designed provisions of section 15(7) setting out the relevant knowledge, the matter of experience and the level of expertise that we would be looking for in the lay appointees.

I believe that it is important that we keep this to the fore in the context of what we are doing here. We are not merely appointing individual non-legal randomers here. We are charging persons with certain responsibility. Of course, I fully accept that it is important, and striking at the heart of this process, that there will be a non-legal chair and non-legal majority of those on the commission but I cannot accept that there is any plausible basis for a suggestion that there could be either political interference or what might be described as legal interference in the selection of lay members once the Public Appointments Service is the recommending body for appointment of lay members.

The PAS will conduct the selection process. It will recommend the names. The Minister will appoint such persons but only following resolutions approving the appointments in the Houses of the Oireachtas. I would perhaps see a role potentially for this committee in the matter of the resolutions of the appointments of the Houses of the Oireachtas, and this is as it should be.

It is not reasonable, in my view, that what is now effectively the standard arrangement for such board appointments could be construed as anything other than independent or how it could in any manner be characterised as being potentially an instrument for some sort of agenda-pushing or preferment. The PAS is the centralised provider of recruitment assessment and deals with the selection services. It provides recruitment services to many public bodies that members around this table will be aware of. It is the recognised leading recruiter for public service jobs here and as a member of Government, I endorse that role.

Deputies have suggested that this system produces a certain homogenous type of board member. I reject that. I do not believe that to be the case, especially in the circumstances where varying criteria for selection, as is the case here, are being provided for.

I am particularly concerned at the manner in which Deputies propose to dispense with the carefully crafted wording of section 15(7) of the Bill that we have made reference to in previous debate. It is vital that the Bill continues to contain very well considered and sufficiently detailed criteria against which the appointments of the non-legal members must be considered.

It is important that we consider the detail here - the indicated knowledge and indicated experience of the lay members, the operation of the courts, the provision of supports to persons who are victims of crime, human rights, equality, issues concerning diversity among members of society, process and procedures for making appointments to public office or to senior positions in public or private sector organisations, commerce, finance, administration, including public administration, board membership and corporate governance, professional dispute resolution, experience in the area of mediation. This is also supported by the stipulation in section 15 that PAS shall have regard to the desirability that the lay members of the commission will, among them, possess certain knowledge and experience in as many as possible of the areas as outlined.

I am not really sure on what basis the stipulated criteria around experience or knowledge might be dispensed with under the amendments that we have here. I would have thought knowledge and experience of the operation of the courts, matters pertaining to diversity, appointments procedures and corporate governance, for instance, were really important in the context of what we are discussing.

I do not agree to the proposed amendment that would move away from the Public Appointments Service model and dispense with a set of known experience and knowledge criteria.

On the last aspect of the amendment dealing with the nominating bodies, having regard to the fact that the amendments envisage no role for the Public Appointments Service, this involves the deletion of section 15 so that the mechanism for securing lay membership of the commission is based on a nominating bodies approach - these bodies ranging from citizens advice bureau to TLAC. However, I need to stress here that given the position of the Deputies as far as the committee model is concerned and other aspects of the membership of the commission, there are consequential issues here that we will have to revisit on Report Stage. I want to flag that now. I am sure I am saying something that, having regard to amendments already made, will not be taken as a surprise by members but that may well entail a different design. It may entail a bigger, somewhat tailored commission, for example, to ensure that all five court presidents have an appropriate involvement and role. There may be some scope to consider how precisely the appointment or nomination process for lay-members might best be organised. I have already indicated that I would be far from happy to have a situation where we are writing out or deleting all reference to or role of the Public Appointments Service.

As regards this amendment, as the Deputies are putting forward a nominating body mechanism which is focused on six specific organisations, it is true that a number of other board arrangements are based on a nomination system focused around a specific number of organisations.

We have examples, such as the recently inaugurated Legal Services Regulatory Authority. We look at the Policing Authority nominating bodies for membership. Having nominating bodies is not in any way objectionable in itself. However, while the bodies with which we are now dealing may well be in a position to nominate suitable persons, it is possible to think of many more bodies that could have a role. Many of those would perhaps say that they have an even more relevant role in these circumstances. In ways, it is invidious to speak of different bodies here in terms of their possible contribution or lack thereof, but any departure from the role of the PAS will give rise to a weakness in the legislation.

I cannot accept the specific aspect of the amendment which provides that the chairperson would be a retired judge of the High Court, the Court of Appeal or the Supreme Court. I said this on Second Stage, and perhaps I have even said it at this committee, so it will come as no surprise if I repeat it, but I cannot accept that a person with such a bank of experience, knowledge and expertise, having regard to his or her fundamental and active role of the Judiciary, can suddenly become a lay person within the meaning of the Bill. I would have thought that in order to qualify under the term "lay", one's experience and expertise would have to be outside of the area of law.

Amendment No. 4 seeks to provide that an individual who previously held judicial office could be considered a layperson. That strikes at the heart of the Bill. I strongly contend that a layperson should not have held senior judicial office or, dare I say, any judicial office. Having a lay chair of selection commissions is not uncommon in other jurisdictions. Corresponding commissions in England, Wales and Scotland have lay chairs. It is clear that not everyone agrees with this measure, but the amendment puts forward the notion of a retired senior judge as chairperson and I do not believe that is in keeping with the letter or spirit of the Bill. I am not going to accept that amendment.

Amendment No. 50, in the name of Deputy Ó Laoghaire, seeks to replace section 15. My difficulty with this prescription is that the targeted and comprehensive framework to be referenced in selecting six ordinary lay members as set out in the section 15(7) would be very difficult to observe if the PAS was confined to only making three selections from these seven categories of experience and knowledge. Again, my concern would be that we would lose valuable inputs to the judicial appointments framework of the commission if we embark on a process that would unduly restrict the operation of section 15(7). The Deputy has indicated that he wants to consider some diversity aspects of the Bill on Report Stage. As I have already mentioned, I am not overlooking the need to reflect on the lay membership aspects of the Bill between now and Report Stage.

I cannot agree with the approach in amendments Nos. 51 and 52 in the name of Deputy Wallace. I understand that amendment No. 54 in the name of Deputy Seán Sherlock will not be moved.

Amendments Nos. 53, 56, 57, 59, 61 and 62 in the name of Deputy Clare Daly would have the effect of removing certain references to laypersons being recruited by the PAS, instead giving it the job of recruiting the practising solicitor member of the commission, the practising barrister member and the four lay members. These amendments are necessary to facilitate the overall approach of Deputy Daly's amendments which seek to replace the Bar Council and the Law Society nominees on the commission with a practising solicitor and a practising barrister recruited by the PAS. The effect of that is to remove the very important role for the Law Society and the Bar Council, which is that they would be the bodies charged with the responsibility of nominating members of their own society or organisation. I will be supporting the retention of this section.

On Amendment No. 60-----