Lynn Ruane (Independent) | Oireachtas source

One can have an amazing understanding of the law and be an amazing judge, but still have an atrocious attitude towards people of a different class. That can make the difference in a judgment. Everyone who sits and makes a judgment definitely has an unconscious bias. It does not matter whether he or she understands the law. In 2017, some 60 people were locked up for offences relating to television licences. Then Deputy Michael Lowry walked free last week. I ask Senators not to tell me that when a judge sits in the chair to consider these matters, he or she does not have an unconscious bias. After the period of austerity, the number of people being locked up for not having television licences peaked at an all-time high. This was based on austerity and on poverty. If the judge understood the context, I am pretty sure the last thing he or she would do is lock up a woman from Jobstown for having missed her television licence payment. There are differences in judgments, whether we like it or not. The question of whether people set out to do this is a different one. We need to be aware that we have an unconscious bias. I have it and Senator McDowell has it. Regardless of how fair and just we like to be, we all possess an unconscious bias that sways how we think and how we judge things and sometimes gives us a lack of understanding.

Senators might like to pay attention to section 7(1) in Part 2, which provides that recommendations "shall be based on merit". Everything in section 7 after subsection (1) is based on subsection (1). Section 7(2) provides that "Subject to subsection (1), where the function, under this Act, of selecting and recommending persons for appointment to a judicial office falls to be performed, regard shall be had to" three objectives that are set out and defined. Everything is underpinned by merit. When I read the Bill, I noted that section 7(2)(b) sets out "the objective that the membership of the judiciary should, to the extent feasible and practicable, reflect the diversity within the population as a whole". Diversity is mentioned throughout this Bill. Some people might like to think that diversity is about whether someone went to UCD or TCD, but that is not the case. Diversity is based on a million other factors, including social class, gender, ethnicity, sexual orientation and gender identity. There is so much more to it. Right now, diversity, as set out in this Bill, does not reflect the actual diversity among the population as a whole.

When I read the Bill, I formed the impression that its objective was to address diversity deficits on the basis of a report that advocates systematic changes to judicial appointments. We need to be aspirational when we look to reform our Judiciary. I refer specifically to the structural barriers faced by minority groups and people from less advantaged socioeconomic backgrounds. It is often the case that people like me do not feel like we belong in certain spaces. We are not staying at the bottom of the ladder because we do not have ability or merit, but because other people are maintaining the space rather than moving over and allowing us to be part of the setting of the agenda. That is where the provision with regard to lay people comes in. It will allow us to become part of the setting of the agenda and to be noticed. That is when our merit comes to light. It is sometimes the case that the only reason our merit is picked up on is that we were allowed to come to the table. We need to define "diversity" so that diversity can be at the table, be represented and be heard. That will allow people to be acknowledged for their merit. When we aim for our Judiciary to reflect the ethnic, gender or social composition of this State, we send a clear message that people from under-represented groups who want to pursue judicial careers will be welcomed, supported and valued in those careers. Does Senator McDowell value diversity and difference?