Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Before I speak about amendments Nos. 81 to 83, inclusive, I would like to respond to the point made by Senator Ruane about the inclusion in section 7(2) of this Bill of the words "to the extent feasible and practicable". There is no ulterior motive here. This clause has been inserted in section 7(2) as a safeguard to cover circumstances in which the commission might be prevented from taking a certain course of action by a perception of rigidity in some absolute or absurd obligation to have regard to diversity. I am talking about unusual circumstances, clearly not intended by the Bill, in which a right or entitlement on the part of a disaffected candidate might be created by relying on a diversity ground where there would not be a real claim. The words "feasible and practicable" have not been inserted to provide an out, or to reduce what will be an obligation in the same manner and means as the gender obligation and the other obligations.

I mentioned earlier that 16 judicial appointments have been made so far this year. I should mention in the context of our discussion about gender balance that nine of them were men and seven of them were women. I assure the House that this is a most important consideration in the context of the Government's obligations in respect of appointments. I do not recall circumstances - over recent years or indeed ever - in which this principle has been applied in the manner in which it is being applied now, where we almost have a 50:50 split. I intend to ensure the existing gap is closed and we reach 50:50. It is absolutely essential for the fact that most entrants to both branches of the profession are now women to be reflected in the appointments to the Judiciary and in the membership of the Law Society and the Bar. The appointments we have seen in recent times are very reflective of that. This pattern will continue to ensure we reach equality at a very early stage. I can say to Senator Ruane that the words "feasible and practicable" have been inserted to cover circumstances in which there might be an over-reliance on what could be regarded as rigid wording or a rigid obligation. It is by no means the case that they will restrict or weaken this obligation in any way.

In amendment No. 81, Senator Ruane is seeking to delete section 36(1)(b), which proposes that one of the conditions to be satisfied when a person is being recommended should be that the person in question is "is suitable on grounds of character and temperament". Amendment No. 82 seeks to amend section 36 of the Bill, the overall purpose of which is to set down some matters concerning a candidate to which the commission must have regard before it chooses to recommend that person for appointment to office. These matters relate in general to the characteristics and suitability of the person concerned. One of these matters, as set out in section 36(1)(b), is the stipulation that the person must be "suitable on grounds of character and temperament". Amendment No. 81 would delete section 36(1)(b), whereas amendment No. 82 seeks to replace it with a new subsection, which refers to being "suitable on grounds of character, temperament and capacity". Amendment No. 83 seeks to delete the next suitability ground in section 36(1)(c), which is that the person being recommended must be "suitable on grounds of health".

The reference to suitability on grounds of character and temperament is a time-honoured formula and is not new. It was originally contained in the Courts and Court Officers Act 1995, under which the present board of the Judicial Appointments Advisory Board was established. The purpose of section 36 of the Bill is to ensure the commission has regard to the suitability of a person in terms of his or her general disposition. I do not disagree with what Senator McDowell said when he referred to this earlier. It is a question of assessing whether a candidate for recommendation has a character and temperament, including personal traits and behaviours, that is suitable when considered in the context of what is often required of judges in the pressure-cooker of a court. Judges must handle in appropriate ways the situations in which people find themselves.Judges must ensure that they have a level of temperament and disposition that allows them to serve the best interests of people.

The suitability requirement reflects the fact that the administration of justice is not only about the law but about the many different types of people involved. Sometimes, as we all know, these are the most vulnerable people. Again, this is something I am really keen to ensure is encouraged and acknowledged in the administration of justice.

Earlier I mentioned the courthouse estate plan. It seeks to ensure that the surrounds of the court are particularly appropriate and suitable for vulnerable witnesses, vulnerable complainants and for children. Life-changing decisions are made on a daily basis in our courts. People often only attend court on very few occasions in the course of their lives and often times, that one occasion can be life-changing, in terms of experience. The administration of justice is not about lawyers and judges; it is about the people who are served. I believe there is a common understanding and appreciation of what is meant when we refer to the suitability of a person's character or temperament with regard to a particular role or job. As I see no basis for dropping this long-standing, accepted and, dare I say, minimalist conditionality, I am not agreeing with amendment No. 81.

In addition, to add the notion of capacity into this mix has the potential to confuse matters in an unintended way. The issue of capacity could relate to a person's intellectual capacity or skills capacity in respect of his or her understanding of the law or a capacity to handle the difficult and demanding situations that occur on a daily basis in courts and courtrooms. On the other hand, it could also refer to a mental or decision-making capacity, which is about something completely different. It may be seen as asking the commission to assess whether a person's mental capacity might be in some way impaired. In fact, as Members will know, Article 35.4.1° of the Constitution, which is the article that governs the circumstances under which a judge may be removed from office following resolutions of the Houses, refers to one of the grounds for such removal as "incapacity". The question of the capacity of a judge, in terms of his or her mental or decision-making capacity, is comprehended among other aspects of health but within the concept of his or her suitability on grounds of health, as provided for in section 36(1)(c) of the Bill. I am not inclined to add the concept of capacity, as proposed in amendment No. 82. I think it will be less than certain and if it is less than certain, it will be open to confusion. We do not want confusion, having regard to the original purpose of character and temperament. If we confuse the original purpose by an add-on then I think we would make things really difficult for the new commission. Therefore, I am not inclined to accept the amendment.

As for the health question posed by Senator Higgins, in 1983 the condition of suitability on grounds of health arose to some degree out of the experience of the Judicial Appointments Advisory Board over the years. I draw on Senator McDowell's experience in this regard, which is greater than mine in terms of dealing with the appointments board. It is fair to say that from time to time, the board has made the point that one of the conditions in the area of judicial appointment should be the health of the candidate and the suitability of the person for the job, as it were, having regard to the issue of health. I listened closely to the submission made by Senator Higgins but this provision is certainly not designed with any intention of being exclusive. It is not intended to introduce new obstacles or barriers or, indeed, in any way militate against an otherwise suitable candidate. In that regard it is not an unusual requirement to have regard to, in the context of any interview for any position. I think it is a standard enough guide and I am not minded to support the deletion of this matter from the Bill.