Michael McDowell (Independent) | Oireachtas source

After an extensive effort to amend section 15 and make it more sensible, we now come to consider what it looks like. It provides as follows:

(1) The Commission shall hold such and so many meetings as may be necessary for the due performance of its functions.

(2) The chairperson shall fix the date, time and place of the first meeting of the Commission which shall be a date no later than 3 months from the establishment day.

I find it difficult to understand why such a time limit has been put in. It is extraordinary that the chairperson would not convene a meeting less than three months after the establishment day. It goes on:

(3) At a meeting of the Commission—

(a) the chairperson shall, if present, be the chairperson of the meeting, or

(b) if and so long as the chairperson is not present or if that office is vacant, the other members of the Commission, as the case may be, [which includes the judicial and legal members] who are present shall choose another one of its lay members to be chairperson of the meeting.

It is extraordinary that a majority of people, who may be lawyers, are obliged to choose which of the lay people they want to be the chair of the meeting. The people who are there in the absence of the chairperson cannot choose anybody else to be the chairperson of the meeting. The significance of the chairperson being a lay person is emphasised by subsection (6), which states:

(6) Where there is no consensus on a question at a meeting of the Commission, the question shall be determined by a majority of the votes of the members of the Commission present and voting on the question, and, in the case of an equal division of votes, the chairperson shall have a second or casting vote.

The curious thing about this provision is that it means the lay persons would, theoretically, have a majority, even where there is an equality of lay and non-lay people present. It makes one wonder why a red-line issue was put in place about a majority of lay people being on the commission. This provision gives a lay majority via the second, or casting, vote of the chairperson. The song and dance about the necessity of having a lay majority on the commission is undermined by this provision. If the Bill had been drafted to give an equality of numbers as between lay and non-lay members, the lay people would have an effective majority by virtue of having a lay chairman. I wonder why we went to all the bother about a lay majority when there was always to be an effective majority, in the event of a division of opinion, in favour of the lay members present.

It is not to be assumed for one minute that the lay members will be a cohesive group or that the lawyers and judges present will be cohesive and of one mind on any issue. It is fanciful to believe there will be a bloc on one side or another on the issues that arise.It is much more likely that the commission will operate on the basis of an ad hocexpression of views on each subject, regardless of whether a person was a lawyer or judge or a lay person selected in the manner provided for in the Bill, whatever that ends up being. It is unlikely, if they were just dealing with the merits or demerits of an individual, that there would be unanimity on either side in terms of a block of lay persons and another of legal people. When one imagines that the lawyers are effectively confined, in every situation as far as the Bill can have its way, to being a permanent minority no matter what way the issue goes, unless the lay persons divide among themselves - considering that this is the apparent aim of the Bill, it does occur to me that the one occasion on which all the lawyers decide to oppose something will be when the lay persons are going to do something very foolish indeed.