Tim O'Malley (Limerick East, Progressive Democrats)

The Minister was sympathetic to the objective of this amendment on Committee Stage. She made the point then, and I make it again, that under the existing provision, there is nothing to stop 80% or even the entire board of the authority being female. Currently five of the 12 board members of the interim HIQA are women. The matter has been further researched and we have found that legislation establishing boards invariably addresses the matter of gender balance in board membership. The exact wording tends to vary from statute to statute but it seems clear the principle of gender balance is normally stated as an objective rather than an absolute requirement. There is one exception to this principle and I will refer to it later.

This is to ensure that decisions on board membership, especially in cases of casual vacancies, which can create particular difficulties where gender based percentages or absolute numbers are involved, are not determined solely on gender considerations. There is a particular need for this where the organisation involved has specialised functions. In such situations a primary consideration must be that a board member has the knowledge, experience and/or qualifications to enable him or her to discharge properly his or her public responsibilities as a board member. HIQA is a specialised body covering a wide range of expert areas, including safety, quality, health information systems and standards and health technologies. To be fully effective there must be flexibility in board appointments to ensure the appropriate mix of specialist skills on the board. Accordingly, it would be inappropriate to subject appointments to an overriding and exclusive gender consideration, especially where a vacancy occurs where a specialist member resigns and his or her expertise must be replaced.

In addition to the above policy consideration, legal advice was sought. That advice stated the current provisions in the Bill adequately address the matter of gender balance. The Minister has a mind to ensure there is an equitable balance between men and women and to allow for the proper retention of necessary ministerial discretion. More significantly, from a legal perspective, the advice was that acceptance of the proposed amendment posed a legal risk that arises from the fact that at any given time, there may be an unavoidable delay in making a required appointment after a vacancy occurs pending the recruitment and appointment of a suitably qualified man or woman. Whenever the number of board members falls short of statutory requirements, there is a chance that the argument that the board, and hence the authority, is not legally constituted might succeed. If so, that has potential to adversely affect the board's ability to function, the authority of which the board is the governing body and the authority's employee, the chief inspector.

I referred earlier to an exception to the special principle, the Education for Persons with Special Needs Act 2004, which requires the Minister to ensure that at least six of the members of the 13 member council are women and at least six of them are men. Even in that Act, when it comes to the membership of the special education appeals board, which is a specialist board, there is no reference to gender balance. It is stated that the chairperson and ordinary members of the appeals board shall be appointed by the Minister from among persons who have a special interest in or knowledge of education and, in particular, the education of persons with special educational needs.

Having regard to all these factors and the legal advice received, I feel that the current provision is the most appropriate in the circumstances.

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