Mr. Liam Herrick:

I thank the Senator and the Chair. The Senator will note from our submission that we do not recommend the Attorney General be excluded from participation in the commission. We do think the provision that he or she be a non-voting member addresses some of the concerns. There is a separate question, of course, about the potential appointment of an Attorney General as a member of the Judiciary and whether there should be an exclusion, which is a separate question.

The Senator set out very clearly a political and philosophical perspective on the potential role of the Government in the process. He spoke about the concepts of correcting what might be the philosophical or ideological balance on the court. I understand this point of view but we could easily counter it. They are subjective concepts that can also be interpreted as an excess of political input in the process. Overall, we clearly recommend a curtailment of discretion but a retention of some discretion. With regard to how this balance is achieved, broadly speaking the approach taken strikes the balance quite well, when it is combined with accountability on the part of the Government once it has made decisions and has responsibility for the commission and how it exercises its functions.

The Senator made the point that it is essential the Government has sight of all persons who apply. We understand the proposed scheme retains the provision that the Government will have sight of all applicants, which would be an important safeguard against what the Senator has suggested, that the commission tends to go in a particular direction.

On the question of whether the Government might have to start again, a chain is a very important practical concern. Our understanding, and Mr. Condon might correct me on this, is that the scheme allows for the Government to anticipate a vacancy arising so it can act before the vacancy manifests, which I imagine would happen, for example, when a judge is going to reach retirement age or where the term of office of a senior officeholder expires.

The scenario outlined by the Senator might not be quite as grim as he depicted. It might be possible for the Government to act in advance and put the appointment chains in motion before the vacancy would arise.

The point about the legal profession is well made. It might be possible to address that in how the criteria for lay members might be set by the Public Appointments Service, for example, and whether there would be requirements for legal professional expertise within those criteria. We note the comments made by the Bar Council and the Law Society in that regard but, overall, we think the balance is quite well struck as it is.

When we speak of diversity it relates to the profound problem of a lack of representativeness in the legal professions. This was manifested as recently as yesterday with appointments to the inner Bar, for example, where, in the solicitors' profession, five women were appointed as opposed to nine men, and, on the Bar side, it was five women as opposed to 20 men. There are problems with diversity even when it comes to the question of gender, not to mention, as matters stand, other questions of diversity. It is appropriate that this proposed Bill would be used to try to address the issue, but it will not be possible to do so without also looking deeper into the processes and structures within the professions.