Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I do not accept that at all. Neither do I accept that this judicial commission, with a non-judicial, non-legal chair and a non-legal majority, is showing contempt for the courts and contempt for and distrust of the Judiciary.I reject that entirely. We are back to the garage man analogy of last week, and the doomsday scenario that due to a flat tire or car crash, this body will not be able to function. I reject that entirely.

I point out the importance of the judicial, legal and other members of this commission. To suggest that judges do not have any role to play, are being silent, or will not have an opportunity to engage fully on this commission is simply wrong and I reject it. On the suggestion that because somebody is not in the chair, he or she cannot make a contribution, I merely point to this House. It is the function of the chair to make sure everybody has a say and his or her submission, observation, experience and expertise are fully acknowledged. We have, following an amendment that I made in the Dáil, the full participation of every branch of the courts at commission level, including the Chief Justice and the presidents of the Court of Appeal, High Court, Circuit Court and District Court, all of whom, as Senator McDowell stated, are influential persons. To suggest that they are in some way being sidelined because they cannot immediately take the chair if the chair does not turn up is offensive to the work and status of the commission. Of course the work can proceed in such a circumstance.

This is merely a facility in the Bill to ensure we preserve a key plank of Government policy, namely, that there will be a lay and non-legal majority of persons who are not judges, with a non-judicial chair. It is important that we carry through on that principle in every aspect of the Bill and do not accede to what Senator McDowell wishes to do, namely, bring the Judiciary in through the back door in the event that somebody does not turn up. It is not envisaged that people will get flat tires or crash in dramatic circumstances on the way to a meeting of the appointments commission. In the event that, for some reason or another, a person has a double-booking, as often happens in this House, there is provision for the commission to be chaired by a very competent person, namely, one of the non-judicial members. That does not in any way equates to silence or is in any way offensive to any member of the commission, all of whom will pay an important role in this and will only be appointed and accepted to be members of the commission following a rigorous process. I will not accept the amendment.

We are merely following through on an important principle in the legislation, that is, that we continue to have the proceedings chaired by somebody other than a judge. That is by no means to say that the influence, expertise and qualifications of all of the judicial members, who will sit around the table at the commission, will not be fully acknowledged. Senator McDowell indicated this provision was in some way motivated by malice on the part of an unnamed person here. If that was the case, this section would be unique and unprecedented. I refer the Senator to the position in Scotland and the Judicial and Courts (Scotland) Act 2008, which specifies that during any period when the chairing member is for any reason unable to act, the functions of the chairing member "may be carried out by another lay member" which is to say another non-judicial or non-legal member. That is exactly what is envisaged under this Bill once that person is approached by either the chair, in the knowledge that the chair is for some reason indisposed, or indeed by the board itself. This provision is not motivated by some form of malice to inflict offence on members of the Judiciary. Members of the Judiciary will play a vital role on this commission.

The Senator's amendment is in contravention of one of the fundamental principles of the Bill. When I hear Senators Marie-Louise O'Donnell and McDowell suggest that because someone is not in the chair, that person will be, as a consequence, silenced. Nothing could be further from the truth-----