Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

Gabhaim buíochas leis an Chathaoirleach agus leis an Seanadóir. The Minister for Justice and Equality, Deputy Frances Fitzgerald, wishes to thank the Senator for raising the matter and regrets that she is unable to be present for this discussion today.

As the Senator may be aware, members of the Judiciary are office holders and not employees, and therefore the provisions of the current statutory employment legislation do not apply to them. As such, they have no statutory entitlement to the categories of leave to which contractual employees are entitled, such as maternity, adoptive and parental leave.

Senators will be aware that, under the Constitution, judges are appointed by the President on the advice of the Government. The current process for the appointment of judges in Ireland is set out in sections 12 to 17, inclusive, of the Courts and Courts Officers Act 1995.

The Constitution also provides for aspects of the terms and conditions of judges, such as remuneration, pension and age of retirement, to be regulated by law. Senators will be aware that the Minister for Public Expenditure and Reform is responsible for the pay and pensions of judges.

In respect of maternity leave, while recognising that judges as officeholders have no statutory entitlement to maternity leave, judges who have been due to give birth while in office have been permitted to avail of the same period of maternity leave that was available to civil servants and contractual employees under the legislation in effect at that time. The decision to allow judges to avail of maternity leave was taken with a view to ensuring their terms and conditions during their terms in office were not inferior to those of employees or to the terms and conditions to which they may have been entitled at an earlier stage of their careers. In addition, it was considered that not allowing judges to avail of maternity leave could serve to discourage women from applying to the Bench.

The Minister has been informed that relatively few judges have availed of maternity leave in the past. She is pleased that the proportion of women in the Judiciary is increasing. Of the 81 judicial appointments made since this Government came into office in March 2011, some 35 were female, which was 43.2% of the total number of judges appointed. There are now 53 female judges, of a total of 161 judges, holding office in the State. This equates to 33% of all judges. As judges generally take up office at a later stage in their career, it is not anticipated that the number of judges availing of maternity leave will increase significantly. The Minister wishes to underline that it is intended that the established procedure of permitting judges to avail of paid maternity leave, in line with prevailing statutory entitlements, will continue.

Senators will be aware that the scheduling of court cases and the allocation of court business is a matter for the presidents of the courts and the presiding judges. Under the Constitution, they are independent in the exercise of their judicial functions. Issues which may arise over the management of the courts owing to the absence of a particular judge are matters for the president of the relevant court. As no procedures are in place to enable judges to avail of unpaid leave, the Minister is not in a position to comment on the unpaid aspects of the maternity and adoptive leave or unpaid parental leave. The Minister would like to emphasise that every effort will be made to facilitate female members of the Judiciary in fulfilling their roles and that applications for unpaid leave will be considered on a case-by-case basis. I thank Senator Bacik for raising this important issue. The Minister wishes to assure her that she will keep her updated on any developments.