Alice-Mary Higgins (Independent) | Oireachtas source

We heard the word "reasonable" many times. I am not saying that it is automatically illegal. My point is that it has to meet a test of being necessary and proportionate. All of the circumstances which were described as a concern were questions of capacity, but the key question is a person's capacity to do the job. One needs to pass a physical examination if one is to become a garda because one is required to do physical work and one has to demonstrate the capacity to deliver. There is nothing wrong with having people demonstrate their capacity to do the job, but I think Senator McDowell made the case for why we might need to have a clearer bar because he set out what he thought may or may not be a bar to appointment. It is okay if a person has MS, but it is not okay if one has motor neurone disease. It is not okay if one needs to use Irish Sign Language, even though we have passed the Irish Sign Language Act 2017. Sign language is officially recognised as a language that people can use in engaging with the State. I am advocating for a clear test about capacity instead of leaving it wide open and entirely down to the subjective experience. People may know about certain conditions and have baggage around different disabilities. When we speak of Irish Sign Language we are now into the area of disability. We are talking about persons who have a disability and suggesting that perhaps it would not be reasonable to appoint them to a role in the Judiciary. People may have an unconscious bias. The point I am making is that we must ensure that it relates to capacity to do the job and not to a person's feelings on an array of conditions and disabilities.

I think that is a reasonable proposal. I recognised there was a concern to be addressed, and that is the reason I put forward capacity. I have indicated that I am happy to look at another substitute which may do the same work. I recognise that an appointment should not be made where there is a concern that somebody may not be able to do late night sittings for whatever reasons or may not be able to manage a busy courtroom, but I think the question is whether he or she can do the job, not who they are.