Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Amendment No. 8, in the name of Senator Ó Donnghaile, proposes to insert a new section in place of the current section 7. The Senator will be aware it is similar to an amendment discussed at some length already at the Dáil committee which was ultimately withdrawn by the Senator's colleague. It was well flagged in the Dáil that the matter would be submitted in an updated form to take account of the newer element in the section relating to proficiency in the Irish language, which was added on Committee Stage. I refer here to the committee amendment that introduced the objective of Irish language proficiency. I am not amenable to accepting this amendment.

Subsection (1) of the proposed replacement section 7 states that, "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')". Subsection (2) of the proposed new section has the effect of benchmarking that merit-based recommendation against the objectives of an equality of men and women in the membership of the Judiciary, and diversity among the membership of the Judiciary. These objectives are denoted by reference to the diversity principle. Subsection (3) stipulates that a list of persons recommended for appointment to office must include at least one person whose appointment would further the objectives of the diversity principle.

I am a bit concerned the Bill would mandate the hand of the commission to select in such a direct and specific mode. In fact, I am more than concerned. My concern is such that I am against it. Senators will know there are a number of elements to how the Bill addresses the issue of gender equality and the broader issue of population diversity. Under section 7 itself, subject to decisions being based on merit, the concerns around gender balance and diversity in the membership of the Judiciary are very clearly brought to the forefront by way of the requirement that they must be regarded where the function of selecting and recommending persons for appointment to office falls to be performed. The word "must" is important here.

Gender equality and diversity feature elsewhere throughout the Bill. Section 12(4), which was also amended on Committee Stage, mirrors the section 7 provision which requires PAS to apply gender equality and population diversity objectives when selecting lay persons, that is, non-legal persons, for appointment to the commission. Section 12(6) provides that one area where knowledge and experience is to be to the fore in the selection of lay members is with respect to human rights, equality or issues concerning diversity among members of society. The Bill signals the critical importance of taking account of that perspective in appointing lay members to the commission. Section 53(5) requires that, in the preparation of the statements of selection procedures, regard will be had for, among other things, the two objectives of gender equality and population diversity. Therefore, there is a direct correlation between the objectives set out in section 7 and the requirement of the commission to cater for this in its published statements. Under the review process provided for under section 56, the procedures committee, which was mentioned earlier, must monitor "the diversity among candidates for judicial appointment", on review of the implementation of the Act. The committee must report its finding to the commission, and any recommendations it may have in this particular area. The commission will in turn report to the Minister in this matter. In the context of the review, it probably will be a role and function for the appropriate parliamentary committee.

I am satisfied the Bill already addresses what the Senator intends to achieve by his amendment. I am not inclined to support the amendment.