Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The committee is in public session. I remind Deputies that as we are in public session, all mobile phones should be switched off as they cause interference with the recording equipment. The meeting has been convened to resume Committee Stage of the Judicial Appointments Commission Bill 2017. I welcome the Minister for Justice and Equality, Deputy Charles Flanagan, and his officials to the meeting. When we last addressed the legislation, we were considering amendment No. 8 under section 2. The amendment is grouped with amendments Nos. 84, 85, 162 to 172, inclusive, 175 to 179, inclusive and 181 to 183, inclusive. While we had commenced to address the grouping, it is appropriate to reopen the opportunity to discuss amendment No. 8 in the names of Deputies Jim O'Callaghan and Jack Chambers. Accordingly, I invite either Deputy to outline once again the purpose of their proposed amendment.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendment No. 8 is linked with a number of others, which I have just looked at. A lot of them are in my name and some are in the name of Deputy Wallace. The purpose of amendment No. 8 and many of the others in the grouping is to simplify the process set out by the Minister in the Bill. From the last occasion, it may be recalled that one of the arguments I made was that a very complicated statutory scheme has been set out. The purpose of amendment No. 8 is to try to simplify it. The reason I say it is complicated is that under the Bill there are a number of committees. There is a procedures committee and another section refers to a "relevant committee". The procedures committee is supposed to set out the procedures for the operation of judicial advisory board. The purpose of the amendment is to simplify matters to make it one board. It is not a body which is appointing hundreds of people each year. The Minister may have more accurate figures, but I think it will be ten to 15 appointments to the Judiciary each year. What is the point of having a procedures committee and some other one? I know there is a dispute about who should be on the body, but let us just put together a body which makes decisions as to who should be recommended for judicial appointment.

It is for that reason, in amendment No. 8, we seek to delete the definition of the Procedures Committee in section 2, which states the ""Procedures Committee" has the meaning assigned to it by section 19(1)."

Amendment No. 84 is in the name of Deputy Wallace and amendment No. 85 is in the names of Deputies Sean Sherlock and Mick Wallace. One can see that after amendment No. 85 that the proposal put forward by myself and Deputy Jack Chambers is that section 19 should be deleted. Section 19, on page 17, deals with the "Procedures Committee and other committees of Commission". Again, the purpose of our proposal is to simplify the matter.

I might as well deal with the other amendments in this group now rather than have to talk about them later. Amendment No. 162, in section 53, states: "In page 36 to delete lines 2 to 5." Again, the amendment seeks to remove references to the Procedures Committee and to remove, in particular, the first part of section 53(1) where the Procedures Committee can "consult with the President of each court". If one is going to get rid of the Procedures Committee then there is obviously no need to do that.

Amendments Nos. 163 to 165, inclusive, relate to section 53. They also seek to delete references to the Procedures Committee.

In terms of Section 55, Deputy Jack Chambers and I have proposed amendments Nos. 166 to 172, inclusive. Again, they deal with the preparation of statements under the Act and the role of the Procedures Committee.

Amendments Nos. 175 to 179, inclusive, seek to get rid of references to the Procedures Committee. Again, what will be mentioned simply is that it will be the Commission as opposed to the Procedures Committee.

Members will note that Deputy Jack Chambers and I oppose section 56 in its entirety. We oppose it because we do not think there is a necessity to include section 56 if it is the case that the Procedures Committee will be removed.

Finally, amendments Nos. 181 to 183, inclusive, are the last amendments in my name and that of Deputy Jack Chambers in this group of amendments and they concern section 58. Again, they refer to the review by the Procedures Committee and recommendations. We have proposed that we should, in amendments Nos. 181 to 183, inclusive, remove the reference to the Procedures Committee and substitute the word "Commission".

We have tabled many amendments but they all seek to do the same thing - remove references to the Procedures Committee and just have the Commission perform the function. Our rationale is that it is complicated to have a separate committee within a commission, which is already doing a fairly net short job. That is my overview of the grouped amendments. I know the group of amendments contained a number of amendments tabled by Deputy Wallace but I think they are on the same topic and seek to have the same effect.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Before I ask the Minister to comment, does Deputy Wallace wish to contribute at this point?

Mick Wallace (Wexford, Independent)
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No. Let the Minister in now.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Before I bring him in, I noted Deputy O'Callaghan's reference to the complexity of the grouping. I wish to advise him that he has seen nothing yet until we get to the next one. I call on the Minister to reply.

Charles Flanagan (Laois, Fine Gael)
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I thank the Cathaoirleach and Members. I am not sure the extent to which we need to go back over, in its entirety, the debate on the last occasion that took place on group three. Of course, I accept the need for a refresher, which we have had from Deputy O'Callaghan.

On the last occasion, just looking at the transcript, I had given my response to the various amendments in group three, which seek to remove from the Bill references to the Procedures Committee, the creation of the Procedures Committee, the role of the Procedures Committee, and the function of the Procedures Committee. I had indicated that I was not minded to accept the amendments because I do not accept the Opposition's view, or the proposers of the amendments' view, that the structure envisaged under the Bill is overly complicated and overly cumbersome. I believe it is important that we have a Procedures Committee under section 12(2), and that that committee would approve its statement of selection procedures and its statements of appropriate skills and attributes for inclusion in the published statement. That performance of the functions of a Procedures Committee is under section 19.

I want to reiterate the importance of the setting up of the Procedures Committee and, indeed, the functions of the Procedures Committee. I have to say that I would regard this committee as being a core element of the Bill and I am not inclined to accept the change in approach, as proposed by the Deputies. I did, on the last occasion, make reference to amendment No. 84 by Deputy Wallace and amendments No. 85 by Deputies Sherlock and Wallace. Again, amendments Nos. 84 and 85 seek to remove from section 19(2) and 19(5) the stipulation that the procedures committee or, indeed, any other committee should contain a majority of lay members and, indeed, a lay chair, as determined by the commission. Without reopening the debate, Chair, let me just say, as succinctly as possible, that I reject the import of the amendments because I do not accept that the structure envisaged under the Bill is unduly complicated, and I think this is a really important committee within the legislation. Therefore, I am unable to accept the amendments.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is open to any member who wishes to contribute.

Mick Wallace (Wexford, Independent)
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My amendments are Nos. 84 and 85. The rationale for removing the requirement that the Chairperson be lay was explained earlier. Similarly, the other amendments allowed the commission to regulate itself for the reasons set out earlier as well. The Bill focuses too much on having a lay majority. We may well end up with a procedural committee with a lay majority and a sub-committee with a lay majority. However, I do not see the need to require them in advance in legislation. My colleagues and I have proposed that the chairpersons are selected by the committees themselves thus giving them a bit more independence.

The Bar Council submission refers to the committee of Ministers of the Council of Europe and its statement that the procedure for the appointment of judges should be transparent and independent in practice. The authority taking the decision on the selection and career of judges should be independent of the Government and the Administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the Judiciary and that the authority decides itself on its procedural rules. That shows that the Bar Council encourages greater independence.

I believe that there has been a deliberate focus on the lay versus legal aspect. Obviously this Bill was very much driven by Lord Ross. He argued that this legislation would de-politicise how judges are appointed and diminish the legal powers over same but, in fact, that completely depends on the lay people appointed. If we want to stop this but have the usual types and civil servants, then they will be creatures of politics. The measure will not remove political influence from this area.

While we may diminish the legal influence over who becomes a judge and when, we may increase the political influence in the whole area. I would argue, and I would have thought Lord Ross would have argued the same a year ago-----

Colm Brophy (Dublin South West, Fine Gael)
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On a point of order, it is highly inappropriate for a Deputy at a committee to use facetious and smart comments-----

Mick Wallace (Wexford, Independent)
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Sorry, the Minister, Deputy Ross.

Colm Brophy (Dublin South West, Fine Gael)
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-----when referring to a Government Minister, especially as the Deputy could be the recipient of a number of very smart comments in regard to himself, which people do not do.

Mick Wallace (Wexford, Independent)
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It does not stop the Deputy.

Colm Brophy (Dublin South West, Fine Gael)
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I ask that the Deputy would just make his contribution in a more respectful manner as his approach has been inappropriate.

Mick Wallace (Wexford, Independent)
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I met the Minister, Deputy Ross-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The point has been made as to whether any of us are open to derogatory reference. In regard to the Minister, Deputy Ross, I ask if the Deputy would refer to him by his appropriate title here.

Mick Wallace (Wexford, Independent)
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Apologies, my mistake.

The lay versus law focus may have the effect of polarising the commission and that would not be helpful. We should steer away from that rather than going down that track. I certainly am of the opinion that unless the lay members who will make up this commission come from a broad range of society, we are not going to get the change that we would like.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I do not believe a response is specifically necessitated by the Deputy's contribution. I will bring in the other members who have indicated, namely, Deputies Ó Laoghaire, Clare Daly, Jack Chambers and O'Callaghan in that order. I call Deputy Ó Laoghaire.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I will be brief. Regarding some of the points made by Deputy Wallace, we support the idea of a lay majority on the judicial appointments commission. We believe it is in line with what is in place in many other jurisdictions and in many other professions and organisations, and that is something that we will be supporting throughout this process.

A point that was clearly made is that lay appointments often are made through the standard process. In order to reform the appointments of judges and any impact that would have on court procedures, there needs to be a much broader representation in the appointments. There are a number of amendments in my name and the names of other members to address that issue.

Regarding Deputy O'Callaghan's amendments, there is a substantial degree of duplication in the different committees for the appointments of judges to different courts. I made that point on the last occasion we discussed the Bill. That is something that could be considered. Of all the additional committees outlined in the legislation, and there may well be too many of them, the procedures committee is probably the one that has the most to offer. The appointments of judges to different courts might have different considerations but, ultimately, the principle would be the same. The procedures committee would have a value in addressing consistency in appointments to the different courts. There is a great deal in this legislation about diversity and the representativeness of the Judiciary. If there is any structure that is appropriate to address that, it is the procedures committee. However, I would be open to supporting some of the other amendments that relate to consolidating some of the committees for the appointments.

Clare Daly (Dublin Fingal, Independent)
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I wish to touch on the same point and I spoke about this at the last hearing dealing with this legislation. It is hard to remember back to where we were at. Fianna Fáil's bigger group of amendments, or the next group, deal with getting rid of the relevant committees. We examined that and I have some sympathy for that but my understanding is that this group of amendments relates to getting rid of the procedures committee only. Like Deputy Ó Laoghaire, I have less sympathy for that argument than I have for the argument made in the next group of amendment dealing the other relevant committees. There is a logic in having the commission as a whole doing all the decision making. What is the point in setting it up and having another gang of little groups all over the place? I am seeking clarity on whether the idea of having a procedures committee only set up at the start is to decide the criteria of selection. Is it dissolved then? Is that it? The procedures committee has one job and one job only, which is to set up the criteria for selection. There is more logic in the idea that a smaller group might be better at doing that.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Before I bring in the other colleagues they might wish to hear to the Minister reply to that specific question.

Charles Flanagan (Laois, Fine Gael)
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One of the main purposes of the procedures committee is to reflect, in respect of the overall commission that we will have here, the opportunity to specialise in research and in the design of the professional selection process for judges. It is important that the composition would be reflective of the overall commission in respect of its membership.

On Deputy Wallace's reference to other members of the Government, lest he be of the view that this Bill is under the sponsorship of one individual Minister, this is a Government Bill and is not the property of any one Minister or any one arm of the Government. This is a Government Bill, having enjoyed the full support of the Government in accordance with a specific commitment given in the programme for Government. Therefore, reference to any one Minister would not be reflective of the actual situation as far as the Government is concerned. This is a Government-sponsored Bill.

I must take issue with suggestions that this committee - or the commission but we are dealing with the committee in so far as what Deputy Daly has said - will not be occupied by people without expertise and certainly will not be occupied by civil servants, as suggested by Deputy Wallace. In section 15(7), specific reference is made to areas of Irish life, including human rights, equality, issues concerning diversity, private sector organisations, commerce, finance, administration, public administration, experience in respect of board membership, corporate governance or areas such as mediation or professional dispute resolution. What we are doing here is important in ensuring that we have a level of expertise and that they would be non-legal persons. We had this debate to a great extent in the past but it is important that we have people who are other than simply legal practitioners or former legal practitioners.

I cannot accept the amendments because it is important that we would retain a stipulation that this procedures committee or any other committee of the commission would have a lay majority, a lay chair, as determined by the commission. It is important that we do not depart from what is a core function of the Bill.

On Deputy Daly's specific question, the procedures committee will not be just a once off. We will see the application under the Bill as different criteria and different emphases for the different courts.

It may even be for posts within the courts where a vacancy may arise from time to time depending on the particular requirement of the court. Having regard to the entire gamut of our courts system now and the way that over recent years, they have become more specialised with different divisions, it is important to continue to move in that direction. For example, having a particular family law division is importance. In that regard, where vacancies arise from time to time, there will need to be reference to the particular requirements of the court at that given time. As such, there will be an ongoing role for the procedures committee but its most important work will be at the commencement. Of course, the procedures committee will also have a role under section 58 in monitoring and reviewing on an ongoing basis, which is necessary.

Jack Chambers (Dublin West, Fianna Fail)
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If we take a step back, the Government's Bill is being overly prescriptive to an excessive degree. We are talking about ten to 15 appointments per year but the Bill provides for five specific committees under the remit of the commission and a further procedural committee, which is what we are talking about here. Under section 19, there is a further proposal that other relevant committees may be established. In effect, the commission could have as many committees as actual appointments. If that does not alarm the Minister about the superstructure and layers he is creating and the discretion he is giving the commission to establish more committees, where will it end? What is the rationale for giving the commission a discretion in addition to the committee's specified in the Bill to establish as many committees as the number of appointments it makes? The Government is over-complicating what could be a much simpler commission. That is why Fianna Fáil considers that while there should be a discretion to establish a committee, it should be for the commission to decide what committees it requires rather than to establish a prescriptive process from the get go that is going to cost enormous amounts of public money. On what basis is it being done? If one is going to equate the number of committees with the number of appointments, it is excessive in the context of the Bill.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I will take the next number of contributions before inviting the Minister to respond, just to try to move things on a little bit.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will be very brief. I state formally that I support Deputy Wallace's amendments Nos. 84 and 85. I will not get an opportunity to speak on them again but I think I spoke on them before. I will be supporting them. There are many amendments on the procedures committee, but it all comes down to one issue, which is whether we need one. I do not know if members have the Bill before them, but the functions of the procedures committee are dealt with in section 58. It is on page 39 of the Bill. The section provides that the procedures committee will be responsible for monitoring and reviewing the implementation of the Act, the practical operation of the published statement, the diversity among candidates for judicial appointment, the effectiveness and application of the qualification requirements, the effectiveness of the administrative support, the adequacy of the functions assigned to the commission and international developments. Those functions should be carried out by the commission itself. We will have a judicial appointments commission and a separate procedures commission. I assume every member of the judicial appointments commission will be on top of the items I have just outlined. I would not like to see a situation in which one could be a member of the commission and say, "The issue of diversity among candidates is not an issue for me because it is a matter for the procedures committee". It complicates matters and is unnecessary. It is one commission with 13 individuals. If one is on it, one should have a full, broad overview of the functions one is being asked to carry out by the Oireachtas. It is not necessary to have separate committees to deal with it. I am conscious of what Deputies Daly and Ó Laoghaire say about the procedures committee. They appear to be more favourable and if that is the case, so be it. We can deal with the other things in the next grouping of amendments.

Colm Brophy (Dublin South West, Fine Gael)
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There is some confusion on my part on the Fianna Fáil position. I cannot understand why it could be so opposed to the establishment of such a committee while pointing out at the same time that it has no problem if it is established by the group itself. It seems to me that there is a contradiction. If there is no reason to have the committee, why is it fine if, after the appointments commission is established, it establishes one itself? Deputy Chambers said in his contribution that the commission would have the right to establish a relevant committee and therefore could do it. There is no problem he has with the commission establishing committees.

Jack Chambers (Dublin West, Fianna Fail)
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It should have the discretion.

Colm Brophy (Dublin South West, Fine Gael)
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It seems to be arguing on a pinhead.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I ask the Minister to respond to the grouping.

Charles Flanagan (Laois, Fine Gael)
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I will deal with the issues raised in particular by Deputies Chambers and O'Callaghan. I acknowledge what Deputy O'Callaghan said in his concluding comments. I reiterate that the procedures committee has a very important role not only in section 58 as mentioned by Deputy O'Callaghan, but also under section 55, which is important as far as the preparation of statements setting out the selection process and procedures is concerned. It also covers a statement of the appropriate level of attributes and skills. I would not like the committee to be of the view that there is not much to be done here, that there are as many committee as there are appointments and that it is too cumbersome. There are hundreds of applications annually. I look in particular at the number of applications to the judicial appointments board where there is a District or Circuit Court vacancy. There is a huge amount of work to undertake. There will be hundreds of applications. Having a sub-committee of the procedures committee will ensure that the work is done effectively and efficiently. I see every reason that it is important to provide an option to have a smaller group in the form of a committee to look at these issues. Therefore, I am not minded to accept amendments which would delete all reference to the procedures committee because we need one.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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There are no further contributions. In that case, people know their minds on amendment No. 8 and we will move to a decision on it.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Standing Order 97(1) negatives a question when there is an equality of votes.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We now move on to amendment No. 9. As I indicated earlier, this is, by my experience, an extraordinary grouping and I am obliged to read it into the record. The following amendments are grouped for address at this point. They are amendments Nos. 9; 12; 22 and 23; 44 to 48, inclusive; 73 to 75, inclusive; 77 and 78; 81 to 83, inclusive; 86 to 93, inclusive; 99; 102; 104 to 108, inclusive; 116 to 118, inclusive; 123; 126; 129 to 132, inclusive; 135 and 136; 138; 152 to 156, inclusive; 185; 188; and 190. Amendment No. 9 is in the names of Deputies O'Callaghan and Chambers.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 9:

In page 8, to delete line 32.

The Chairman referred to this as an extraordinary grouping. An extraordinary grouping requires an extraordinary response. I do not propose to go through each one of these amendments by way of an individual debate because they are all in my name and that of Deputy Chambers and they all concern the same net issue. Rather than saying "amendment No. 9 deals with this" and going through each one individually, I will deal with them broadly and it will cover all of them.

If members have the Bill in front of them and look at page 11, sections 11 and 12, they will see the purpose of all of these amendments. In effect, amendment No. 9, all the other amendments being consequential on it, seeks to remove from the piece of legislation this definition of relevant committees of the commission. We know a commission will be established but what happened after the heads of Bill were published is that the Government made a decision that it was going to include within the commission all these groups of relevant committees. Those relevant committees are set out on page 11 in section 11 of the Bill. Members can see that there are five relevant committees of the commission. They are the Supreme Court appointments committee, the Court of Appeal appointments committee, the High Court appointments committee, the Circuit Court appointments committee and the District Court appointments committee. All the other amendments that come after amendment No. 9 are consequential. They remove references to the relevant committee.

What I propose should happen is that instead of having five different committees within the commission, we should just have one body, which would be the Judicial Appointments Commission. The reason this committee structure was introduced after the heads of Bill were published by the Government was because the Government recognised that membership of the commission was inadequate. If members look at section 12 on page, they will see that the commission is to be made up of 13 members. One of my criticisms and that of others is that it was wrong that the president of the Circuit Court and the president of the District Court were excluded from the commission since they are the presidents of the courts that have the largest number of judges and have the greatest amount of interaction with members of the public and because they are people who know what is required in a District or Circuit Court judge. That was a legitimate criticism. I think the Government recognised that there was legitimacy in that criticism but because of that, it responded by trying to set up all these different committees. The Government's purpose in setting up all these different committees is that when the Circuit Court appointments committee was meeting, it would be able to invite in the president of the Circuit Court and similarly, when the District Court appointments committee was meeting, it could invite in the president of the District Court. That was the way of getting around not having the presidents of both those courts on the commission. It would be much simpler and more appropriate if the presidents of the two busiest courts were members of the commission.

Another reason I think it is a bad idea to have relevant committees, and the Minister knows this more than anyone else in the room, is that sometimes, one could get a person who could apply for a job as a Circuit Court judge, the Minister may think a better candidate for the Circuit Court exists but there is a District Court vacancy at present and that would be a very suitable person to be a District Court judge.

One is not going to have a capacity for the committee to consider that someone who did not get a Circuit Court appointment might be a good District Court judge. For that reason and because of the limited number of appointments, it is more appropriate to have one commission as opposed to five committees. We seem to be obsessed in this country with having committees for everything. For instance, how often will the Supreme Court appointments committee meet? There may not be a Supreme Court appointment for two or three years whereas the really busy one is the District Court. The media pays more attention to who is appointed to the Supreme or High Court but far more important appointments from the point of view of members of the public are to the District Court because they are the judges with whom they have the most interaction. Their appointments deserve as much scrutiny as appointments to the Supreme Court.

I will not go through all of the amendments individually. They are all consequential on this proposal. We should get rid of "relevant committees" and have one commission which considers applications and nominations for appointment to all the courts. It will allow them to suggest that a person who applied for the Court of Appeal should go to the Supreme Court. It is a small country and there are a small number of positions on the Bench. It is wrong to exclude the Presidents of the District and Circuit Courts from the commission, which is something that can be perfected later. The Government has brought in this committee structure to allow them to come back in, but it would be much easier to put them on the commission. While there are a huge number of amendments here, they all relate to the same thing. That is my contribution on each of the proposals. I recognise that when we make a decision on amendment No. 9, it will deal with the rest of them.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Other members are indicating, but the committee may wish to hear the Minister reply to Deputy O'Callaghan first.

Charles Flanagan (Laois, Fine Gael)
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I agree that there are a lot of amendments here. In fact, there are more than 50 in the grouping. In response to Deputy O'Callaghan and for the benefit of members who have not yet made a contribution on their amendments, I will set out briefly and clearly the structure of these sections of the Bill and their purpose. Section 9 of the Bill establishes the relevant committees. Section 10 is the enabling provision requiring the commission to select and recommend to the Minister persons for appointment to judicial office through the relevant committee as set out in section 11(2). I remind members that section 10 is being opposed through these amendments. Section 11 provides for the membership of the relevant committees. I note the section is also opposed. Section 11 sets out the committees to be established under section 9. I will not repeat what Deputy O'Callaghan said in that regard. He draws our attention to the section, the content of which is self-explanatory. Section 11(2) provides in the table for the role of each committee in making a selection and recommendation. Section 13 provides for the membership of the relevant committees and other provisions in relation to them. Section 13 is opposed. Section 13(1) sets out the composition of the committees, each of which will have a total of 11 members. All committees will have as members the Chief Justice, the Attorney General, a nominee of the Bar Council and Law Society, respectively, and the lay chair. A committee will also comprise five of the lay persons.

The second judicial member provision is set out in section 13. Section 13(2) provides the detail to ensure that the selection and recommendation of appointees to judicial office in a particular court will be conducted by a committee whose membership includes a judge serving at the level of the courts system to which the committee's business relates. There are obvious and important reasons that should be the case. In the case of a Supreme Court appointments committee, the additional member shall be either the President of the Court of Appeal or, with the concurrence of that President, an ordinary Supreme Court judge nominated by the Chief Justice. Deputies will be aware that these important provisions were not included in the Bill as published. I acknowledge what Deputy O'Callaghan has said. These provisions were included following careful consideration and having regard to what Deputies, including Deputy O'Callaghan, had to say in the course of pre-legislative scrutiny about the need to have all court Presidents as well as the Chief Justice involved in the function of selecting and recommending persons for judicial appointment. The provisions were also developed following a period of consultation with members of the Judiciary at senior level. These sections and related provisions create a structure whereby the selection and recommendation function will be carried out within the framework of the five relevant committees designed to address judicial vacancies in each of the five court levels. This architecture reflects concerns raised by the Judiciary in the consultation process.

Deputies will be fully aware that the Judiciary is opposed to having a majority of lay persons on the commission and to having a lay chairperson presiding over a commission of which the Chief Justice is a member. I am conscious that we will be addressing issues relating to the composition of the commission on a separate basis but I must advert to a particular concern the Judiciary had that all five court Presidents, including the Chief Justice, should be involved directly in the selection and recommendation process for the appointment of persons as is currently the case with the judicial appointments board. Having listened to the views of the Judiciary on the matter, having reflected on the point during the pre-legislative scrutiny debate and having regard to the input of my predecessor, I am of the view that it is desirable to meet this particular concern in the manner set out in the Bill. Rather than to provide for a consultation arrangement with, for example, the President of the District Court, as the ex officioarrangement under the general scheme of the Bill originally provided, a direct decision-making role for each President should be retained. That is what we have under the current process.

Sections 11 and 13 provide that the commission shall act in the form of a relevant 11 person committee, one for each of the five courts. In the case of an appointment to the Circuit Court, for example, the committee will comprise the commission members, with the President of the Circuit Court replacing the Presidents of the Court of Appeal and the High Court and with five ordinary lay members instead of six. It is that committee which will conduct the selection process and recommend persons for appointment to the Circuit Court in that example. While all Superior Court Presidents, including the Chief Justice, are permanent members of the commission through the appointment committees format in the Bill, all Presidents will form part of the decision-making process through the relevant committees in selecting and recommending persons for appointment to the relevant courts. Under section 10 of the Bill, the relevant committees will perform the functions of the commission in respect of the selection of persons for each court. In that sense, they will be the statutory iteration of the commission itself and be empowered to select and make decisions as to who to recommend. I refer again to the programme for Government in that regard.

The chair, the Chief Justice and a number of other members will be common across the relevant committees. There will be a perspective across the entire gamut of selection applications. I say this in response to the point raised by Deputy Jim O'Callaghan who spoke in terms of there being silos in this respect. That will not necessarily be the case because there will be common membership and a common secretariat across all the relevant committees via a judicial appointments commission office, which will be established under the Bill.

I have listened to Deputy O'Callaghan in particular, as well as other members, but I am not minded to increase the number of members of the commission beyond the 13-member composition that the legislation now provides. Nor am I in a position to pull back on the key programme for Government commitments in this regard. I am therefore unable to accept any of the amendments, including amendments Nos. 9, 22 and 23, which have the effect of removing the relevant committee structures in the Bill. I agree with Deputy O'Callaghan that this is the core matter and many of the other 50 amendments are related or consequential. It is important we retain the relevant committees as in the Bill.

Clare Daly (Dublin Fingal, Independent)
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These are incredibly difficult and confusing. There are aspects of amendments that could be supported but they have a knock-on effect for other parts of the legislation, which makes it very difficult for us in handling them. As I said in a previous discussion, this is an area we actively examined in preparation of our amendments. It is the idea of getting rid of all the relevant committees. There is a very compelling argument for that, not least of which is the idea of having a commission of 13 people and a plethora of committees made up of 11 people. That sort of goes against the grain of the establishment of the commission in the first place. It is still unwieldy, even with a few people taken out, but most of the people on the committees would be on the other body. Are we not better off just leaving it at the commission itself? It is quite a compelling argument.

We wanted to hear the discussion and I am not sure the reasons we did not put down specific amendments stand up. There may be other ways of achieving the goal that we cannot do in the course of these amendments. I suppose we decided against proposing getting rid of them because the Bill, as currently constituted, precisely excludes the presidents of the District Court and Circuit Court from membership. There are committees that allow them to come in through an elegant way to be part of the process under the headline of an additional member. That is without making the commission so big by adding them on. That is too messy, although I know it is the logic behind the process. I would like the involvement of the two presidents and I note Deputy O'Callaghan provides for that. If he is providing for extra lay people etc., we could suddenly be talking about 17 people, which is too big.

This comes back to the idea of the lay majority and how important it is. In some ways, it is kind of a matter of preference. That said, I still like the idea of a lay majority. We made the point before that focusing really gets away from what we should be looking at, which is who gets appointed as a judge, rather than necessarily how such people get appointed. I echo very much the points made by Deputy Wallace earlier that we are talking about a lay majority but the criteria for those lay people is really such that in a different way they will replicate certain sections of Irish society that are already over-represented. The points about the Civil Service are not meant to be derogatory in any way but many of these State bodies tend to have people from those types of backgrounds. In many ways they are as institutionalised, if not more, than the Judiciary or the legal profession. Would we get a diverse balance and would it really be a lay representation? It is more of the same.

The Judiciary should not be a career progression for people in the legal profession as such. We should not have a position where judges are a class apart but they are. If there was a different way we could get representation for the presidents of the District Court and Circuit Court to become involved in the commission, I would be open to considering it. It is not a strong enough reason to maintain the relevant committees. They will create mayhem. The legislation will be made chaotic by having these multiple committees with 11 people when there is a commission of 13 people. It will not work. I will have to do some work on this to bring about a different way for the presidents of the District Court and Circuit Court to have a role in this process without relevant committees. They are a really cumbersome way of trying to get over that point and they will not work. I am strongly against them but we must find a different way of getting the other two involved in the process. Those are my initial thoughts.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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As I noted with the previous set of amendments, the procedures committee would have a very specific role to play in guiding the diversity and representation of the Judiciary and it was worth preserving. Having said that, the multiple committees of 11 members drawn from a commission of 13 members amount to an overly complex system. It is unnecessary. It would be desirable for one body to look at all appointments, with different considerations for every level. There would also be considerations that would be the same in all appointments as well. The example given by Deputy O'Callaghan of identifying a judge interested in one position who may be more suited to another position shows that such considerations are relevant. The commission should be responsible for the nomination of judges as a whole and the main body is suitable for that.

Deputy Daly has indicated very clearly that acceptance of these amendments will require a cleaning up exercise in subsequent Stages but there would be no problem with that and it is the reason we have multiple Stages when considering legislation. I am quite open to the original proposal of the presidents of the two courts attending ex officiobut I am not of the view that 17 members would be excessive. There are ways around this and the matters can be resolved if the amendments are accepted. I do not see any compelling reason for this number of committees to exist in the legislation.

Jack Chambers (Dublin West, Fianna Fail)
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I agree with the other speakers. This amounts to appointments by the back door and the Minister is creating sub-structures in that respect. In section 13 it states that each relevant committee may establish one or more sub-committees. This means there would be committees, which everybody has stated are excessive, and then there could be multiple sub-committees of the committees from the commission. The Minister is making this overly complicated and he should re-examine the matter. That is why the amendments need to be progressed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I do not think there is a huge amount of disagreement here. The Minister recognises that the presidents of the District Court and the Circuit Court should be involved. I think everyone agrees with that. Deputy Chambers and I believe that the committee structure is too complicated for the level of work that the Commission will have to do. If I was going to have any judge on this Commission, I would have the president of the District Court, considering the number of candidates who are appointed to that court.

Part of the reason we are here is that politics is damaging the legislation. The Government wants to have a lay majority on the Commission, and it is entitled to have that view. That is the reason the presidents of the Circuit Court and District Court were originally excluded. The Government was concerned about the size of the Commission. As Deputy Ó Laoghaire said, if we must add the presidents of the District Court and the Circuit Court, as I think we should, and we want a lay majority, then two more laypeople must be added. I think that is inappropriately large, but for some reason this lay majority is said to be politically necessary and of public benefit. I disagree with that. If the Minister believes that then it can still be done, but the presence of the District Court and Circuit Court presidents, who know their courts better than anyone else, should not be sacrificed.

Charles Flanagan (Laois, Fine Gael)
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Listening to the Deputies, I am not satisfied that we have found a way to deal with the concerns of those who are submitting the amendments. Simply deleting reference to the relevant committees is not in itself advisable. I do not accept that this is unduly cumbersome. I do accept that there are a number of committees that have different functions, and which might, at face value, appear to be somewhat technical in nature. In practice, however, the relevant committees are effectively the Commission itself. It is a function of the Commission to select and recommend people for appointment. Under section 10, this function is performed by the relevant committee only. As such the relevant committees are in effect iterations of the Commission. It is not as though we are introducing significant layers of bureaucracy. Circumstances are such that there will be common membership across a range of relevant committees. However, I agree with Deputy Daly that ultimately the objective here is to reform the process of appointment. That is the main thrust of the legislation. It is the manner in which we arrange structures in order to facilitate that objective that we are discussing here.

I said at the outset of this debate that I did not come in here with a closed mind. I have not changed that view. There may be different ways of achieving the objective we all share, as noted by Deputy Daly. I am prepared to further examine the balance between having a manageable number on the Commission and ensuring the membership of the presidents. We all agree that the direct involvement of the presidents of the courts is extremely valuable and will be very important in the new process. The question is how we can best avoid having an unwieldy overall Commission with large numbers of people, while meeting the obligation to have a lay chair and a lay majority, assuming that members of this committee are minded to continue with that central thrust of the legislation.

To my mind, the current relevant committee process is the most effective way of involving the presidents as experts in their own court area. I do not accept Deputy O'Callaghan's contention that we are creating indivisible silos, considering the common membership across the relevant committees. We will continue to have a perspective across the whole gamut of selections and applications. We will also have a common secretariat across all of the relevant committees, which will be the Judicial Appointments Commission office. Should we delete all reference to the committees and deny ourselves the opportunity to avail of expertise of the presidents? I believe that expertise is essential, as the presidents themselves have said. I would be reluctant to depart from that. If we are not going to proceed by way of the relevant committees, as allowed for under the Bill, we return to the structure of the overall Commission. I believe that we envision a membership number that will ensure that the Commission is efficient and effective in the manner it goes about its business. It also respects our central tenets, a lay majority and a lay chair.

However, I am open to giving the matter further consideration in so far as I can.

Mick Wallace (Wexford, Independent)
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I think that Deputy O'Callaghan's argument is very rational, and I do not think the Minister has dealt with his contention that this is overly bureaucratic. We all agree that the experience of the presidents of the Circuit Court and District Court must be taken on board. However, we have tabled an amendment removing the Attorney General from the board, reducing duplication of effort. The Attorney General has a say when the three nominations go to the Government. There is not much rationale in the Attorney General having a say at both stages. If the Attorney General is removed, it is not as cumbersome to include the two presidents in the Commission. It gives us an opportunity to get rid of some of the bureaucracy surrounding the extra committees.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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We will be supporting all the amendments. At the heart of our position will be support for a lay majority, but I think there are other ways of doing this. I have no problem with a commission of 17. Perhaps the Government does, but I certainly do not. One of the issues arising from this bureaucracy is that there would be six lay members, but only five on each committee. There would be lay members, whom we hope will influence the diversity and representation of the judiciary. However, there might be somebody who is perfectly well equipped to deal with that who would never have a say in a District Court or Supreme Court appointment, merely because they are not on that committee. If the model of the Commission as a whole was adopted, all six of the lay members currently proposed would have a say in each appointment. That is something of an anomaly.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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There might also be eight lay members.

I will tease this out for a moment. It is not a case of a win-win situation regarding any amendment or set of amendments. It is about helping the process to get the best result. I wonder is there, in the Minister's indication of a willingness to look again at this, the prospect of not dividing on this and allowing Report Stage to be an opportunity for substantive address. I am only teasing this out because the question should be put. As things stand, we will drive into a division situation. Report Stage will still stand, but what suggests itself to me is a very strongly shared view of the committee that this matter be revisited. I am trying to interpret what the Minister said, but my sense is he is indicating a willingness to look again at this as best as he may be able. Is there something in this whereby we could reach some agreement here at this point?

Charles Flanagan (Laois, Fine Gael)
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I am satisfied there is an intent on the part of the committee to deal with this issue by coming to a consensus on it. I am certainly prepared to consider the matter further for Report Stage, on the basis there may well be a number of options available to us to achieve what, in effect, is the same objective, which is the balance between having a commission with a number of people, or membership, that is not considered so unwieldy as to be unworkable or problematic and, at the same time, acknowledging the importance of the membership of the presidents of the courts. I really feel we should do that. The original scheme, as committee members recall, had ex officioparticipation of Presidents of the Circuit Court and the District Court in the selection process, but that was seen as distinguishing between presidents who are commission members and those who are not. There is an issue there about fairness and the need to be representative. I am minded to give this matter further consideration to see how best we can achieve that balance between, on the one hand, the commission not having such a large number of members as to be problematic and, on the other hand, the need to ensure we can have the input and draw on the experience and expertise of the presidents of the courts. We can only do this by having their active engagement and involvement, and that would be through membership.

Reference was made to the Attorney General and whether we might reflect on the membership of the Attorney General and the role and function of the Office of the Attorney General. I very much caution against this. The Attorney General has a very important role to play and brings a special perspective to the process. It is important this is acknowledged in the context of the legislation. I would not be minded to dispense with this very important role.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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That is separate to the specifics of this group of amendments. I am endeavouring to find a situation to allow us to move forward, in the hope there would be consensus reached at least on Report Stage. How does Deputy O’Callaghan respond?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Obviously, the legislation will not be cast in stone after this meeting of the committee. All we can do is table the amendments which the committee thinks are suitable, have a vote on them and see how they are. Everyone recognises further thought will have to be put into the legislation after Committee Stage concludes. No matter what happens, the Minister recognises this. In terms of the group of amendments we are considering at present, dividing the body into five different committees is not a good idea. We have gone through the reasons for and against, and the Minister will consider all of this, but the committee should make a decision on it. What the committee decides will not be the end of the world. The Minister will have to come back and reconsider it. I am not sure what the outcome is going to be, to be frank. If the outcome is to remove these committees the Minister will be able to come back with a proposal on how the presidents of the two other courts should be included. They should just be made part of the commission. I do not agree with a lay majority because, as Deputy Ó Laoghaire said, if it needs to increase in number then it needs to increase in number.

I am a conciliator by nature, but if I am being asked to withdraw the amendments in the prospect that the Minister will come back in due course, that sounds great today but with the passage of time things change and before we know it we will be on Report Stage and I will be stating that I thought we had an arrangement. The committee should send a message to the Minister as to what we think of the legislation. It is either voted down or it is not.

Clare Daly (Dublin Fingal, Independent)
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I honestly see this as a practical issue. We are all very clear that the view of this committee is that the relevant committees will not work and Report Stage will not change this, but that we are very open to looking at how, in a different format, the presidents of the two courts can be given a role on the commission. I agree we should make the decision today in order to advance the issue. If we do not, we will be left with a Bill that is largely unworkable and will be very difficult to reform at a later stage when we have to take out all of these bits to take on board the fact we do not agree with the committees. We should just decide that now, and all of us should engage seriously on how we get a role for the other two presidents.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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As there are no further contributions would the Minister like to make any closing remark before I pose the question?

Charles Flanagan (Laois, Fine Gael)
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I have listened to the views of committee members. We have had an interesting exchange on these amendments, the import of which is the change proposed to the relevant committee structure. I reiterate a huge amount of work has been undertaken on this precise issue in terms of active engagement on the part of the Department, the Office of the Attorney General and the Office of the Parliamentary Counsel. These arrangements were certainly not made lightly. My concern is that should Deputy O'Callaghan's amendments and other amendments be now put to a vote we run the risk of unravelling what is a very carefully constructed piece of legislation in a way that might not be fully mindful of the consequential knock-ons for other parts of the Bill. It is important that integrity be maintained at this stage. I am not for a moment suggesting any aspect of the Bill is in any way less than workable.

However, my concern is that a number of amendments would be passed on Committee Stage in a way that might not be fully reflective of the end product. Therefore, if Deputy O'Callaghan is minded to press the amendments, I must oppose them. I would see the removal of what currently is an important piece of its architecture, which is the relevant committees, as an unravelling of the entire Bill. I will acknowledge the disposition of the committee, however, as it would expect me and instruct me to do.

Mick Wallace (Wexford, Independent)
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It is a bit harsh to say that we are trying to unravel the Bill. I think that is the job of the committee. We agree that we need better legislation and a better arrangement on how we appoint judges, which is what we are teasing out. The reason we have this on Committee Stage is to debate it. We are not trying to destroy or unravel the Bill; we are trying to make it better. Perhaps the Minister does not agree but that is what we are trying to do. We are on the committee and entitled to make a rational argument and we think that our argument is more rational than the Minister's defence. I do not think it is counterproductive for us to take a position where we think improvements can be made to the Bill. We want the Bill to be as good as possible. We have put a lot of work into it and thought a lot about it because we care. We want it to be good legislation. We are not trying to unravel it but improve it.

Jack Chambers (Dublin West, Fianna Fail)
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I was just going to say what Deputy Wallace said. I do not believe it is an unravelling. The committee considers the Minister's committee structure as unwieldy and overly complex. If anything, despite differences in terms of the lay majority or otherwise, even members who agree with the thrust of what the Minister is proposing recognise that there should be changes at the commission level and the removal of the committee structure proposed by the Minister. They are trying to be constructive rather than trying to unravel what the Minister has proposed. It is for the Minister to return on Report Stage to reform and restructure what we see as overly complex rather than us relying on the Minister to bring forward amendments. As Deputy Daly said earlier, if we were to rely on the Minister, we could end up with the committees on Report Stage. It is clear that the Minister wants to maintain the committee structure more or less as he proposed it. It is important that members understand that the Minister wants that now and will want it on Report Stage also. It is important that members understand that there is no commitment to change or reform the committee structure going into Report Stage. It is, therefore, important that we address that now.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Are any other members offering?

Charles Flanagan (Laois, Fine Gael)
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I will make a point that may be of assistance to members. In practice, the process will be quite straightforward. Deputy O'Callaghan and other Deputies mentioned, for example, the appointment to a vacancy in the District Court under the new framework. This court is perhaps most relevant to the day-to-day lives of individuals. Hundreds of thousands of people appear annually in District Courts up and down the country. If the committee forms the view that the relevant committees under the Bill would have no function and would be non-existent, we would then have a situation in practice where there might be up to 200 applications for consideration for a vacancy in the District Court from all over the country. Without the relevant committee structure, these applications would be put to the entire commission for due consideration. There is real danger that much other work of importance that might be undertaken by the commission would not take place because of a concentration by the commission on dealing with one appointment to the District Court. That is one of the important reasons we have carefully arrived at after significant consideration at the relevant committee structure. It is to ensure efficiency and expertise and it would provide for the membership of the president of the court to which the appointment is to be made. I believe this could be done in a way that would not involve the overall commission unduly in the process.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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My position is that I absolutely hold fast to the importance of a lay majority. I think that is crucial and central. There are strong views reflected here on the proposed methodology. I favour a more integrated engagement on the consideration across any and all of the appointments to be made. I share that view in advance of taking the vote. Is the amendment being pressed?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Amendment No. 10, which is in the names of Deputies O'Callaghan and Chambers, was already discussed with amendment No. 1. Is the amendment being pressed?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I think a related amendment was defeated in the previous vote, so it is not being pressed. Am I right that, in the previous grouping, it was discussed with amendments Nos. 1 and 7?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Correct.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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They were defeated. Therefore, on the basis that this would also be defeated, I am not moving it.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Amendment No. 11 was discussed in the second grouping.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The same point applies.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I move amendment No. 12:

In page 9, to delete lines 13 to 17.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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There are no amendments to the section.

Charles Flanagan (Laois, Fine Gael)
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I give the committee notice that I may have an amendment to section 4 on Report Stage that will address a technical matter concerning advances of funds to the commission. If I proceed with an amendment, it will be circulated in advance at the appropriate stage.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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That is noted.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Amendments Nos. 13 and 14 may be taken together.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I move amendment No. 13:

In page 9, line 24, to delete "5 years" and substitute "3 years".

The two amendments are very straightforward and I simply felt it appropriate, given the weight, importance and complexity of the legislation, that it would be reviewed sooner. I am proposing that after the establishment of the commission, a review would take place after three years rather than five years. The report would be allowed six months for placing before the Houses of the Oireachtas rather than 12 months.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I support that as it is such a transformative piece of legislation. It is important that we have a review sooner rather than later to see that it is working effectively.

Clare Daly (Dublin Fingal, Independent)
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It is very reasonable and I will support it too.

Charles Flanagan (Laois, Fine Gael)
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I acknowledge Deputy Ó Laoghaire's amendments Nos. 13 and 14. I will briefly make reference to section 5, which concerns the review of operation. As we know, the Bill is new, innovative and ground-breaking in the extensive changes it introduces in the process of judicial appointments. We are moving to make an important step forward. This is a very innovative adjustment to the manner in which we deal with such matters. I only have to mention the significant reduction in the number of recommendations that the Government receives and the extension of this system to all judicial appointments, including the further appointment of serving judges. There would be increased lay participation in decision making and a developmental function in the commission.

In a short period following enactment, the landscape will change in a most significant manner. It is worth pointing out that the review arrangements envisaged in section 5 will have close interaction with later provisions in the Bill. I refer specifically to the requirements of section 58, which requires the procedures committee, to which we made considerable reference earlier, to be charged with responsibility to monitor and review the implementation of the Act, having regard to the various factors. That review should be conducted two years after commencement of the section and thereafter from time to time as the commission might request.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I am willing to take into consideration what the Minister has said in terms of the ongoing review. I may possibly return to it on Report Stage but for the minute, I am happy to withdraw the amendment.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Amendment No. 15 proposes the insertion of a new section. It is in the name of Deputy Sherlock. As Deputy Sherlock is not here to move his amendment, the amendment is not moved.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Amendment No. 16 in the name of Deputy Ó Laoghaire proposes the insertion of a new section and acceptance of this amendment involves the deletion of section 7 of the Bill. If the question on amendment No. 16 is agreed, amendments Nos. 17 to 20, inclusive, that follow on amendment No. 16, cannot be moved. Amendment No. 16 is being taken with amendments Nos. 17 to 21, inclusive, and amendment No. 124 - a new grouping.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I move amendment No. 16:

In page 10, between lines 2 and 3, to insert the following:"Recommendations to be based on merit

7.(1) No person shall be recommended, under this Act, for appointment to judicial office unless they are of sufficient merit to discharge with distinction the responsibilities of the office to which they are appointed (the "Merit Principle").

(2) Subject always to the Merit Principle, described in subsection (1), recommendations of persons for appointment to judicial office under this Act shall have regard to the "Diversity Principle"—

(a) the objective that membership of the judiciary should comprise equal numbers of men and women, and

(b) the objective that the membership of the judiciary should reflect the diversity within the population as a whole.

(3) Subject always to the Merit Principle, described in subsection (1), a list of persons recommended for appointment to judicial office under this Act shall include at least one person whose appointment would further the objectives of the Diversity Principle described in subsection (2).".

It had not occurred to me that this would have an impact on those subsequent amendments and I would have to be mindful of that. First, I will deal with my proposed new section and then I take into consideration arguments that are made by Deputies on their amendments.

The amendment I have proposed is based largely on a proposal from Dr. Patrick O'Brien who, I believe, corresponded with us all. His submission on this legislation quite articulately outlined some improvements that could have been made to it.

This, specifically, is to make it more explicit to be representative of the population as a whole. It closely resembles the existing provision in section 7. However, it introduces the concept of the merit principle, and obviously, that every candidate for proposal would have to meet the merit principle, but also that the judicial appointments commission should always have regard to the diversity principle that membership of the Judiciary should comprise equal numbers of men and women and the objective that the membership of the Judiciary should reflect the diversity within the population as a whole.

It is important to emphasise, as laid out in subsection (3) of the proposal, that that would always be subject to the merit principle. There would never be any question of an unqualified incapable person achieving such an office. There would always have to be that qualification.

This is germane and appropriate to the intention and approach of the entire Bill which is to ensure that appointments to the Judiciary are independent but also that they are representative, diverse and proportionate to the population as a whole.

I commend the amendment to the committee.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am supportive of putting expressly into the legislation a requirement that any recommendation should be based on merit. That is extremely important. The objective of every person in this room is to ensure that those appointed to the Bench get there because of their ability and the type of judge that they will be rather than any political affiliation, friendship or other connection that they may have. We all want the best people to be made judges.

It is interesting that Deputy Ó Laoghaire mentioned Dr. Patrick O'Brien who has done a lot of research in the area of how they have changed the system in England. I met Dr. O'Brien as well. He made an interesting point about the emphasis of the merit principle in England and Wales at present. He stated that one of the consequences of having a completely autonomous body that recommends people based solely on merit is that one gets a lot of people who are similar being appointed. He stated that one gets a lot of highly intelligent people who got firsts in Oxbridge being recommended because on the principle of merit they appear to be come out on top.

However, that has a consequential downside in terms of how the Judiciary must reflect diversity in society and shows where the advantage lies with Government. A Government does not operate the same way as a statutory body that must operate on the basis of merit. A Government will take into account diversity. Many appointments in recent times recognise that more women must be appointed to the Bench. That is a benefit. It is important to link merit and diversity together. In section 7, as it stands, there is reference to how appointments should be based on merit and how they should reflect diversity. My only problem with Deputy Ó Laoghaire's amendment is that, if passed, it will have the effect of knocking out my amendment No. 20, although I know that was not his intention.

Amendment No. 20, which was tabled by me and Deputy Jack Chambers, requires that when judges are being recommended by this body, consideration will be given to ensuring the objective that there is proficiency in the Irish language among members of the Judiciary, which is a practical problem at present. Every person is entitled to have his or her case heard in Irish, whether in the District Court, Circuit Court, High Court or on appeal. It is difficult enough to converse in Irish but running a case in Irish is extremely difficult. I could not do it. However, it is important that we have judges with proficiency in the Irish language so that those who want to exercise the constitutional right to have their case heard through Irish can do so.

On a number of occasions judges have to come down from higher courts to hear cases and three judges who are proficient in the Irish language are needed to hear an appeal in the Court of Appeal. Previous Governments have not given sufficient recognition to this factor but it is now an issue - not a problem - for the courts. It is important that this body recognises, when recommending people, that it must consider that proficiency in a court. For instance, if someone wants to have his or her appeal heard through Irish, we have to ensure that there are three judges on either the Court of Appeal or the Supreme Court who can hear such cases. This amendment would knock out my amendment No. 20. However, I will not oppose Deputy Ó Laoghaire's amendment because I agree with the principle of it. I also think Deputy Clare Daly's amendments No. 17 and 19 and perhaps amendment No. 21 - I do not know if it is in this grouping - achieve the objective Deputy Ó Laoghaire is seeking to achieve.

Clare Daly (Dublin Fingal, Independent)
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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.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I will allow the Minister to respond at this point and then I will bring Deputy O'Callaghan in. Is that agreed?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes.

Charles Flanagan (Laois, Fine Gael)
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The sixth group of amendments relates to the merit issue in relation to the selection procedures for judges, as has been referred to by the proposers of a number of amendments.

Amendment No. 16, a new section 7, would have the effect of replicating the fabric of section 7, as provided. That, to my mind, is a positive. Section 7 of the Bill is an important section setting down in statute for the first time the explicit stipulation that a decision to recommend a person must be based on merit, as expressly contained in the section.

The Deputy's amendment effectively requires under subsection (1) that recommendations made by the commission shall be based on merit. It refers to this stipulation as being the "Merit Principle". I have no particular objection to that terminology but, right through these amendments on the issue of merit, it is important that we are mindful of the need to retain certain flexibilities. I would be concerned about a series of amendments that would have the effect of constricting the commission in a way that is not intended but could ultimately have the effect of some form of hamstring.

Subsection (2) of the proposed new section has the effect of benchmarking the merit-based recommendation against the objectives of equality of men and women in the membership of the Judiciary and diversity among membership of the Judiciary. These objectives are denoted by reference to a diversity principle. The proposed terminology is not in any way objectionable, but terminology of itself does not change the basis on which the recommendations are to be made, as provided for under the Bill. What is new in the amendment is the stipulation that a list of persons recommended for appointment to office under the Act shall include at least one person whose appointment would further the objectives of the diversity principle. While the naming of merit and diversity principles would not perhaps be unwelcome, I am much less sure that the hand of the commission must be compelled or mandated to select in a particular direction.

It is important that we step back for a moment to describe broadly how the Bill addresses what is an important, but also a sensitive, issue of diversity. There are a number of elements to the manner in which these issues are addressed. First, the provisions of section 7 develop significantly from what was contained in the general scheme of the Bill, moving from guiding principles to a direct stipulation with regard to merit-based recommendations. The Government, to my mind, made the correct decision when publishing the Bill that guiding principles were not sufficiently strong as far as this issue was concerned. The public consultation phases of the reform process clearly signposted the need for merit to be very much to the forefront in the matter of our reform proposal. It is also significant that, subject to the merit-based recommendation only, the concerns around gender balance and diversity in the membership of the Judiciary are brought up and that they be dealt with in a front and centre way - to borrow a term from the Act.

Regarding gender equality and diversity, section 15(7), which is the subject of a separate debate, provides one area where knowledge and experience will be to the fore in the selection of the lay members with regard to "human rights, equality or issues concerning diversity amongst members of society". The Bill signals the critical importance of taking account of that perspective in appointing the lay members of the commission.

A third area that is worthy of mention relates to the requirement under section 55 of the Bill. This requires, in the preparation of the statements of selection, the procedures for selection and the requisite skills and attributes, that regard will be had to the following two objectives: in subsection (5)(c) "the objective that the membership of the judiciary should comprise equal numbers of men and women,"; and "the objective that, to the extent feasible and practicable, the membership of the judiciary should reflect the diversity within the population as a whole". There is a direct co-relation between the objective set out in section 7 and the requirement of the commission to cater for this in its own published statements. In this context, Part 8 of the Bill will ensure that the judicial selection procedures and the qualities of persons selected will take full account of the gender equality and diversity objectives which are integral objectives in everything the Bill is aimed at achieving. The final element I should mention in this matter is that, in the section 58 review process that we discussed earlier, diversity must be monitored and reported upon to the commission and to the Minister.

All in all, I have no specific difficulty with a variation in terminology denoting the principles that are framing the Bill, but I am not inclined to accept what will be a prescription that subsection (3) in the amendment implies. I do not intend to support the amendment.

I acknowledge Deputy Clare Daly's amendments Nos. 17 and 19, which propose the deletion of aspects of the phraseology of section 7. I accept that it is not just a question of removing or changing words, but there are significant adjustments. Amendment No. 17 appears to delete the provision that the objectives of subsection (2) around gender equality and diversity are subject to the merit-based recommendation principle.

The intention behind this appears to be to remove the element which makes the gender equality and diversity objectives in section 7 subject to the overall principle of selection on merit. The purpose of the existing provisions of the Bill is to ensure that the overarching consideration in the selection of people for appointment to judicial office is merit and to make any consideration of gender equality and diversity clearly subject to that overarching principle. Having it subject to that provision serves merely to underpin the primacy of the merit based recommendation provisions.

What is merit? I cannot see how the concept can be compromised in any sense by reference to any competing principle. Merit is merit. It is fully acceptable to associate the concept with the specified objectives. That is what we are doing in the Bill. I am sure the members and Chairman will testify to the huge advance we are making in specifying those very objectives. It is important to have no misunderstanding about the single criterion to be referenced in the recommendation process. Dropping the term "subject to subsection 1" is unhelpful in respect of the core principle of the section. Looking at merit or a definition of merit, it can to many be a fluid concept. According to 2012 research, merit is often invoked in the eye of the beholder. Oftentimes, merit does not necessarily equate to the status quo. I refer briefly to Paterson 2012, a research study, which stated that historically what has been put into the definition of merit for judicial appointments has constantly shifted. In Lord Halsbury's day, it included, apparently, coming from the same party as the Lord Chancellor. At a later point, it was deemed to be a good thing to have had previous political experience before appointment as a judge in the House of Lords. More recently, however, it has been and remains in large part the case that merit is regarded as coterminous with having been a junior or Queen's Counsel at the bar for a period of 30 years. I merely make the point by way of that short reference that merit is a changeable feature. In many respects, it is subjective.

I am unable to accept the amendment which dilutes the overall stipulation of merit as the overarching criterion for selection. At best, the effect of Deputy Daly's amendment would be to create confusion as to the relative status of merit, gender equality and diversity, respectively, in the selection process. At worst, we could have a situation in which candidates were selected primarily on gender or diversity considerations, with merit not constituting the primary or overarching criterion but rather being somehow secondary to other issues. I am not sure to what extent that is intended. I have no doubt that the Irish people are entitled to be assured through the legislation that the overarching basis for recruitment to the Judiciary is merit. They are also entitled to be assured that diversity considerations and gender equality are taken into account in the selection process. It is important that there is no confusion as to merit being the main deciding factor. The section was carefully drafted and a lot of work went into it. A great deal of consideration has been given to these matters by the drafters to deliver on this. It would be unwise for us to change it. The Judiciary has asked repeatedly that legislation contain a stipulation as to the overarching status of merit and I accept their position on that fully.

The aim of amendment No. 19 is to remove the wording from section 7(2)(b) which stipulates that the achievement of the diversity objective in relation to the Judiciary is "to the extent feasible and practicable". The words "to the extent feasible and practicable" are no more than a reflection of the task to which the commission will have to have regard in the attainment of this objective. The amendment, if made, would require the selection process to have regard to the need for diversity in the Judiciary whether or not the achievement of such diversity was feasible or practicable in all of the circumstances. That could be problematic. The achievement of a diversity among the Judiciary which reflects the diversity of the population as a whole is a medium to long-term desirable objective based on the premise that all cadres and groups in society should be able to identify with those who are appointed to judicial office and have the confidence that our judges are in a position to understand and reflect their particular needs and aspirations. That objective must be subject to what is feasible and practicable. That qualification is important because of a whole range of things, not least the availability in a particular judicial selection process of diversity within the ranks of the highest performing lawyers who choose to apply and from among whom members of the Judiciary are chosen. I am satisfied that the provision in place is sufficient as it draws attention to the important matter of diversity, requires that it be acted on and will ensure it is taken into account in the selection of appropriate candidates for the Judiciary.

The effect of amendments Nos. 19 and 20 taken together would be to insert in the Bill express statutory provisions governing requirements for proficiency in the Irish language. If members wish, I am happy to wait before addressing this.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is a grouping. Members have addressed the individual motions and the Minister will not get an opportunity to come back.

Charles Flanagan (Laois, Fine Gael)
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I am conscious of the fact.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We are also conscious that it is a fairly lengthy case the Minister is making.

Charles Flanagan (Laois, Fine Gael)
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That is why I indicated that I might pause. I make the point that these are important issues.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is better to complete it now.

Charles Flanagan (Laois, Fine Gael)
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I thank the Chairman. I will be brief. I am not inclined to accept amendments Nos. 19 and 20 in the context of the Bill before us. Making the amendments would mean that, subject to the existing fundamental requirement in section 7 that merit is the basis for any decision to recommend a person for appointment to judicial office, regard would also have to be had to an additional new and third objective that there be proficiency in the Irish language among the Judiciary. Deputies will know that the Law Reform Commission's 2010 report on the consolidation and reform of the Courts Acts examined existing provisions in sections 44 and 71 of the Courts of Justice Act 1924 which provide that, where practicable, a person assigned as a judge to a district or circuit where the Irish language is in general use must possess such knowledge of the Irish language to enable proceedings to be conducted without the aid of an interpreter. The Law Reform Commission examined these provisions in light of the requirements of sections 8 and 9 of the Official Languages Act 2003 which deal with a person choosing to use the national language of his or her choice when dealing with a public body. The commission recommended that its proposed courts (consolidation and reform) Bill should enhance the provisions of the 1924 Act.

It recommended that its proposed courts consolidation reform Bill should enhance the existing 24 statutory provisions and should provide for a Circuit Court or District Court judge assigned to a Gaeltacht area to be registered in the Irish language registers provided for under the Legal Practitioners (Irish Language) Act 2008 without prejudice to any right or obligation under the Official Languages Act - sections 8 and 9 in particular.

It has not proved possible to put such proposals into current substantial legislative reform programme. However, if and when it arises, it could be a more appropriate place to examine further where there is a need for the Deputy's proposed reforms not in the stand alone piecemeal way peculiar to the judicial appointments process, but in the broader context of the provision of courts services through the Irish language generally in the existing law as set out in 1924 and more recent statutes not under the direct remit of my Department as well as wider aspects of the European Union law. The language issue is wider than the appointments process, looking at the scheme of the courts services Bill - the scheme of courts services as published in the 2003 Act detailing the courts services existing policy in practice regarding the delivery of services in the Irish language.

Deputy Clare Daly makes her point in amendment No. 21 dealing with political affiliation. That is similar in effect to amendment No. 189 to section 64 proposed by Deputy Wallace. That amendment seeks to prohibit any consideration of political affiliation in the judicial selection process. I accept the thinking behind the amendment to the effect that political affiliation should not in any way be reckoned as better qualifying a candidate for appointment to judicial office, but a stipulation in section 7 of the Bill, which sets merit as the overarching criterion for recommendation with a requirement also but subject to merit the issue of gender equality and diversity into account, that makes my mind clear that political affiliation will play no role in the process of selecting persons for judicial office.

I have a concern about Deputy Daly's proposed wording that the complete prohibition on consideration of a candidate's political affiliation could be counterproductive to the intention of the amendment. For example, as political affiliation is not defined, could the Deputy's proposed amendment mean that the commission's processes would be prohibited from considering the political affiliations of a candidate who may be a known member of an extremist political group with views that would make him or her patently unsuitable to be a member of the Judiciary?

I have a number of amendments and having regard to time, we will probably have a further opportunity before these questions are put.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I wish to refer to two amendments about which I have not spoken previously. The first is amendment No. 21 in the name of Deputy Clare Daly on which the Minister has just spoken. This proposes including an express reference to the fact that a person's political affiliation should not be considered when the recommending body is considering their application. The purpose behind the legislation is to ensure people are appointed on merit. There is a public concern that sometimes people are appointed to political office because they have political connections or because of their political affiliations. I am sure that has happened in the past. I do not think it is a good thing. Therefore, there is benefit in including within the section on recommendations based on merit a reference to the fact that somebody's political affiliation should be irrelevant and should not be considered when it comes to an application.

I hear the interesting point the Minister just made about extremist political views. Consideration should be given to whether that would preclude an individual. On balance, I would have thought that would be a factor that would exclude a person from consideration because they did not display the type of independence or integrity that would be required of somebody being appointed to the Bench. On balance, I am favourably disposed to amendment No. 21.

What I like about amendment No. 21 is that it does not assume that just because somebody has a political affiliation they should not be made a judge. Some of the best judges we have had are people with political affiliations. In some instances, I am sure members of the public who come before a judge would prefer to be before an individual who has experience like all of us. Sometimes we denigrate politicians and politics too much. We have the advantage of having an exemplary insight into the public's thinking. People sometimes think the media have a better insight; that is wrong. Politicians have a much greater insight into what is happening on the ground with the public and how the public are thinking on certain issues. We should not be nervous about the fact that somebody who had a political affiliation or was involved in politics then decides to get into the Judiciary afterwards. I have no interest, myself, Chairman, just in case you think this is a defence.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I was just wondering if this was a personal bid.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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No, it is not. In other countries, many people who made excellent judges previously had political affiliations. The same is true in this country, but we will not go into that.

I have not yet referred to my amendment No. 124 which is in this grouping. I know the Minister did not have an opportunity to discuss it. In amendment No. 124, Deputy Jack Chambers and I seek to set out the characteristics that would make a good judge - the basis and the factors that should be considered by the commission when it is making a determination to recommend a person based on merit. Obviously, it is difficult to set out the characteristics that constitute merit. In many respects, a good judge is like an elephant: it is hard to describe, but when one sees it, one knows it.

I have sought to identify the characteristics that I think are important for somebody to be a good judge such as integrity; independence of mind; intellectual skills; sound temperament; ability to exercise sound judgment; impartiality; and an ability to interact with people in a courteous and considerate manner. That is not something that can be overemphasised. It is a public job dealing with members of the public and a judge must have an ability to deal with people in a courteous and considerate manner.

I have set them out in amendment No. 124. I do not know what the Minister's views are on it. I also follow it on with the fact that a judge needs to have a certain level of legal knowledge to be a judge. Sometimes people view judges as they view the current President of the United States - anybody can do it. Someone needs to be a lawyer and have a good knowledge and understanding of law in order to be a judge. It might be important to set that out.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I will let the Minister to come back in after a few more contributions. However, he still has to address amendment No. 124.

Mick Wallace (Wexford, Independent)
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My amendment No. 189 regarding political connections is on its own and not included in this group. For some reason we will deal with separately later. Just after that I have suggested the deletion of section 39. Should that have an amendment number?

Clare Daly (Dublin Fingal, Independent)
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Deputy Wallace actually thought amendment No. 124 was his amendment. However, Deputy Wallace's amendment, which appears just after Deputy O'Callaghan's amendment No. 124, actually does not have a number. It relates to the next section but Deputy Wallace thought amendment No. 124 was his.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Section 39 is opposed.

Clare Daly (Dublin Fingal, Independent)
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It is a different section.

Mick Wallace (Wexford, Independent)
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That is just section 39. I will just wait until we come to section 39.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is not an amendment. The Deputy has signalled his opposition to section 39.

Clare Daly (Dublin Fingal, Independent)
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Is that not an amendment though?

Mick Wallace (Wexford, Independent)
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No. I will wait until section 39 comes around.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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That is right.

Clare Daly (Dublin Fingal, Independent)
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Okay.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We are only dealing with amendment No. 124 in this grouping. The section will be addressed as a stand alone question.

Mick Wallace (Wexford, Independent)
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I have amendment No. 189, but I will wait for my turn on it because for some reason it was not linked to these.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is not in the grouping and I cannot explain that, but we will take it on its own.

Mick Wallace (Wexford, Independent)
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I have no problem.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Having listened to a number of the points made, I believe that amendment is the best way of dealing with that issue.

However, in the interests of being expeditious, I will withdraw it. I will reintroduce and press it on Report Stage but I wish to facilitate the subsequent amendments now.

What I want to emphasise is why I think this is necessary and proportionate. Essentially, the new section 7(3) would require that the net be case a little wider. There is no question of anyone who is not qualified and who does not meet the merit proposal being appointed. However, the short list of persons who could be appointed would have to include at least one person who satisfies the diversity criteria. I think this is quite a low threshold. In fact, I do not believe the Minister or anyone else would be satisfied if the Judicial Appointments Commission was producing short lists that were exclusively made up of middle-aged white men. I do not think that would be satisfactory for the purposes of what we are trying to achieve and I am of the view that if we address it by means of casting the net wider, then at that point the commission may appoint whoever it wishes to appoint. That is the separate issue but it is forcing the commission to cast the net wider and that is entirely in keeping with the spirit of and intention behind the legislation. It is for this reason that the amendment, as worded, is valuable. I am of the view that it can be of assistance and make it more explicit that the commission would take account of diversity and would serve the agenda relating to and purposes of the legislation.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Will the Minister note Deputy Ó Laoghaire's comments and commendation? We note that he was withdrawn amendment No. 16.

Clare Daly (Dublin Fingal, Independent)
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I echo some of the points made by Deputy Ó Laoghaire. His amendment is stronger than mine in some ways but both seek to achieve the same thing. In respect of amendment No. 19 and the debate regarding the term "feasible and practicable", the issue here that, under paragraphs (a) and (b), there is an objective to have equal numbers of men and women and to reflect diversity. However, it is only in the provision relating to diversity that we include the caveat "feasible and practicable". What I am saying is that if it is not necessary to include the "feasible and practicable" bit with regard to the equal numbers of men and women, which is also an objective, why is it included in the context of diversity? It is putting it down the pecking order. I do not think there is any merit to it at all. I do not think it is a big deal. It is only putting it on an equal footing. I would not have thought that was controversial at all.

In terms of the other one about merit and diversity, this is putting them on an equal footing. I think that is important. Senator Michael McDowell, who is one of the biggest critics of this Bill in the Seanad, made the point that he did not understand why we needed diversity at all because we have loads of excellent judges as matters stand. In their submission, the judges said that diversity is a non-issue but that proves the point. The fact that one has to make the argument for diversity shows that the nature of privilege is not being understood here. I will put one quote on the record because I think it is very relevant. It is from Dr. Laura Cahillane in UCC who said:

Diversity is not about expecting different decisions than those that are given now but about providing equality of opportunity, democratic legitimacy, which feeds into public confidence that judges are representative of the community as a whole and can understand a vast array of issues, and also about providing diversity of opinion and divergent views.

In order to have that kind of equality of opportunity, we must ensure a diverse Judiciary. I am glad to see stuff from the Bar Council and the Law Society of Ireland to the effect that there is a responsibility to get more people into the profession from those sections, so it not singly the responsibility of this Bill but it is key. It is as equally as important as merit and not of lesser consideration. That is not to say that people who are not qualified and do not have an understanding of the law should be given positions. Nobody is arguing for that but it is saying that it is at least as important that people would have a broad range of experience of different cultural backgrounds and so on. That is what we are trying to do.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Before I invite the Minister to speak, I note that it is now 1.04 p.m. We only have the use of this facility until 1.15 p.m. I wish to be able to address the rescheduling of the resumption of Committee Stage and, as a result, we may not be able to proceed to take each of these amendments. Perhaps we could conclude on our contributions. I wanted to go into private session just to discuss the rescheduling issue. We must be out of here by 1.15 p.m. I do not want a repetition of what happened on the previous occasion when another committee was severely affected in the context of commencing its proceedings on time.

Charles Flanagan (Laois, Fine Gael)
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I neglected to address amendment No. 124 in the names of Deputies O'Callaghan and Jack Chambers, so I will briefly refer to it and then come back to the more general issues as raised again by Deputy Clare Daly. Amendment No. 124 proposes to insert into section 38 a requirement that the commission ascertain which candidates for judicial office demonstrate specified qualities and characteristics and also have regard to the necessity for candidates to possess specified legal skills or competencies. I have a number of difficulties with the amendment. I am concerned that it would have the effect of detracting from the prevalence of the merit principle in section 7. The latter establishes clearly that recommendations be based on merit and that merit assumes full consideration of equality as between men and women and diversity within the population. The very detailed provisions in the amendment could be construed as overriding the crucial section 7 principles and objectives. I invite Deputy O'Callaghan to agree that there are issues relating to what is a very wide-ranging amendment that go beyond merit. I refer specifically to subparagraph (viii) concerning sensibility and cultural sensitivity. There is also reference to "sound temperament and common sense" in subparagraph (iv). I am not saying that these are not important. However, I am saying that we have gone beyond the section 7 merit principle.

The amendment is simply too prescriptive and comprehensive to have an application in primary law. It also runs contrary to the approach in Part 8 of the Bill, which tasks the procedures committee with defining and drawing up statements of skills, competencies, personal attributes and characteristics that an aspirant for judicial office must possess. The Bill recognises that different statements may apply to different judicial offices and different classes of business. If people read section 55 (5) and (6), they will see that we have covered much of the import of Deputy O'Callaghan's amendment without actually specifying matters in the detail into which he goes. In the circumstances, going into such detail is problematic. Section 55(6) sets out clearly for the procedures committee some specific issues to which regard should be had at the design stage. I refer here to knowledge of the law, the proper and efficient conduct of proceedings, decision-making and awareness of the needs of those persons who use the courts. I am of the view that this is sufficient. The Bill recognises the different statements that may apply to various judicial offices. There is a danger that what is proposed in Deputy O'Callaghan's amendment could prove too onerous should all of these issues become part of the legislative process. In the UK - or at least in England and Wales - the Judicial Appointments Commission has developed merit criteria.

It deals with, for example, intellectual capacity and personal qualities of sound judgment, objectivity, decisiveness, an ability to understand and deal fairly, authority, and efficiency. It is at that level that our new body might be charged with those responsibilities rather than have it in the primary legislation.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank the Minister.

Charles Flanagan (Laois, Fine Gael)
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I would make one point in response to Deputy Daly. We can come back to this because it is important. On the matter of diversity, it is easy-reach targets. There are areas which have been referred to where there will be a difficulty in setting particular targets but there is no doubt that there is a compelling constitutional rationale and objective to have diversity in the Judiciary. This is well documented in public commentary but it is not something that can be laid down and done in a prescriptive way within a clearly defined timeframe. What we have done in the Bill is laid down clearly, through the two-pronged approach, at selection stage and at design stage. That is in section 7 on merit and section 55(5).

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank the Minister. I do not propose to open it up again. I suggest that we defer further consideration for each of the remaining amendments in this grouping.