Alice-Mary Higgins (Independent) | Oireachtas source

To be clear, it is not only inappropriate, it may be illegal. Whenever the grounds of health may have been used or introduced in the past has changed.

Recently the general data protection regulation came into effect. Under those regulations, the legislation for which we passed in this House, there are much stricter tests that need to be established in any situation in which persons are required to share their information, including health information. There is a test around necessity and proportionality. If that test were to be used, then we would have to be very clear on what was the basis. We would need to establish a legislative basis or another clear basis for asking persons to share their health information.That could be done under section 38 of the Data Protection Bill with the Minister putting forward that there is a public interest need to know about the health of candidates - that would be to satisfy both Houses - or under the Data Sharing and Governance Bill going through the Houses now. That Bill, however, explicitly excludes special categories of personal information so data cannot be shared. If the Minister really is keen, and it has been determined that health will be dealt with and will be part of this process, there is much work to be done on how that can be achieved.

We talked about prejudice and unconscious bias was the subject of lengthy discussion yesterday. There is such a thing as unconscious bias and people deciding whether a person is healthy - for example, a person who may be in remission from cancer. Someone on a panel might decide that person should not become a judge on the grounds of health because he or she should focus on his or her recovery. That decision is made for that candidate because there is no guarantee in respect of that person's health.

The Minister mentioned the potential ambiguity in respect of capacity. All of the possible interpretations of capacity he mentioned, however, seemed useful. Capacity in handling the challenges and requirements of a role in robust environments was mentioned. The Minister also mentioned, however, that there is a clear precedent regarding incapacity in respect of judges. If we have a clear and functioning definition of incapacity regarding judges - that already functions in respect of removing people from the role - it is not such a stretch to introduce an idea of capacity. If the Minister were amenable and if he would prefer it, we could amend the Bill to leave temperament and character on its own, standing with the history ascribed to it as the Minister has set out, and put in something addressing the key issue of incapacity. Incapacity has precedent in other areas of the law, as the Minister described. It is already case law and there is some precedent in how it is interpreted in respect of judges. We could refer to where there is not an incapacity. If the Minister was more comfortable with that, we should do it. Incapacity is, appropriately, a higher bar for somebody to be potentially excluded from a role, rather than simply the grounds of health with its wide open interpretation. Incapacity has some level of precedent we can look to and it is a more reasonable approach overall. Any concerns that the previous judicial appointments commission may have raised could be addressed by a clause on incapacity. It might also involve health issues but it would meet the test, in respect of GDPR, on necessity and proportionality while the wide open grounds of health does not.