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.