Michael McDowell (Independent) | Oireachtas source

Senator Norris seems to ignore the fact that we are dealing with Part 8 of the Bill, which is concerned with the publication. This is set out from page 33 onwards and we are now at page 34. The purpose of this part is to provide for a statement on selection procedures and requisite skills and attributes. This is to be prepared in draft form by the procedures committee of the commission and approved by the commission having consulted the Minister. Section 53(1) states:

Subject to the provisions of this section, the Procedures Committee shall, as soon as may be after the commencement of this section and from time to time thereafter when required by a subsequent provision of this Part to do so, prepare—

(a) a statement setting out the selection procedures, and

(b) a statement of requisite skills and attributes,

and submit each of those statements to the Commission for its approval under section 54.

Then section 55 permits the commission to publish those statements if it approves them. These are effectively the ground rules for the interview process, which refers to need for selection procedures to comprise comprehensive procedures, including provision for interviews and other selection test approaches and methods in line with the requirement of the vacancy or vacancies proposed to be filled. This is not a scenario where the commission would end up asking a candidate or applicant about his sexual orientation or political outlook with a view to publishing that information. This provides for publishing the ground rules of the interview process. That is what I am concerned with. The ground rules for the interview process should be blind on these issues. That is why the statement made or published should be interpreted in a accordance with the terms of the Bill and in particular with the definition of "published statement" in the section 2, which means a published statement having the meaning assigned to it by section 55 (1).

If an applicant comes before a committee for appointment to any position that is deemed to be employment in an office in the public service, the applicant has a statutory right under equality legislation not to be asked these questions or not to have these questions put to him or her. That applies under the equality legislation that these Houses have enacted. An employer may not conduct an interview process in which he asks questions along those lines. To ask such questions as part of the interview process is deemed to be discriminatory. If an employer asks a candidate whether he or she is a member of the Traveller community as part of the interview process, that immediately gives rise to a statutory right to invalidate the interview process if the candidate does not get the job on the basis that irrelevant considerations were raised for his or her employment.

I accept what Senator Norris says about the requirement for diversity being something that might or might not make it relevant or irrelevant that someone came from the Traveller community or was manifestly of a different racial orientation by skin colour to other candidates or whatever. What I am seeking to establish is the ground rules that the commission is obliged to create under this Part and what the procedures committee is obliged to draft and have approved by the commission subject to consultation with the Minister. Those rules make it clear that, although this is not an employment process and although the equality Acts clearly will not apply here - they could not possibly apply - some of the foundation principles of fair interview and selection equally apply to the processes of the commission.

Senator Norris makes the point that if it is for the Government to decide then the commission is not making that decision and yet the commission will be faced with 12 applicants for a position in the Court of Appeal. The commission will be obliged to cut down the number to three. As the Bill stands, the commission must indicate its order of preference within a shortlist of three. The real issue is if the commission is going to tell people they were not shortlisted but they were asked about their sexual orientation, religion, political or ideological views. If that happened in any other context a case for compensation would immediately arise. We have to be consistent in our approach to these matters. The Government, in making a decision on whether to appoint myself or Senator Norris to judicial appointment, would be free to make the decision between us by reference to whom it considers to merit the position more and by reference to a great many things, including outlook, things we have said in the past or things we are thought likely to believe or whatever. That is perfectly reasonable.

Senator Norris contested the presidency. The people were entitled to take into account what they thought of his outlook and all the rest in an electoral process.