Michael McDowell (Independent) | Oireachtas source

While I appreciate Senator Bacik's commitment to fairness and justice for women and gender justice, I do not agree with her amendments. I will explain why. Section 7(1) states: "A decision to recommend, under this Act, a person for appointment to judicial office shall be based on merit." Section 7(2) states:

Subject to subsection (1), where the function, under this Act, of selecting and recommending persons for appointment to a judicial office falls to be performed, regard shall be had to - (a) the objective that the membership of the judiciary should comprise equal numbers of men and women,".

The subsection goes on to say that it should reflect diversity and, third, should make provision for people with the Irish language. As I understand the Bill, its policy is that the commission must operate on the basis of merit, but while considering people from that point of view, it shall have regard to the objective that the membership of the Judiciary should comprise equal numbers of men and women. That is a simple intellectual exercise. The overriding rule is merit, therefore the three best people are always recommended. However, in looking at whether people are best or not regard should be had to the objective that the membership of the Judiciary should comprise equal numbers of men and women. We are either adhering to section 7 or we are not.

The first of Senator Bacik's amendments relates to section 40. That section as it is proposed to be amended would add to the words "the names of 3 persons, ranked in the order of the Commission’s preference" an extra phrase, "at least one of whom must be of each gender". Now we have a different concept. Merit is no longer the overriding cardinal principle. We are saying that even if one arrived at the view that three women were clearly the best, one must throw in a man and delete one of the women to conform with the Bill. That cannot be right. Either section 7 or section 40 operates. The commission is being told that having looked at the available people to be, for example, President of the Circuit Court and having come to the conclusion that the three best qualified are women, it must then grab the emergency brake because Senator Bacik's amendment provides that it must dump one of the women from the shortlist and put a man on it. Even though they are clearly better, the commission must hunt for the best of the men who applied and put him on the list to satisfy this requirement.

I fully understand affirmative action and such ideas-----