Michael McDowell (Independent) | Oireachtas source

I move amendment No. 102:

In page 35, between lines 39 and 40, to insert the following:"(7) (a) Lay members of the Procedures Committee shall not take part in the preparation of a statement referred to in subsection (1)(b).

(b) Lay members of the Procedures Committee shall not take part in the preparation of that part of the statement referred to in subsection (1)(a) which concerns—

(i) knowledge of the law,

(ii) skills and competence in the interpretation and application of the law, or

(iii) ability to exercise functions as holders of judicial office.".

This amendment is intended to provide that, in respect of certain functions of the procedures committee, the requirement that the committee be composed of a majority of lay persons, which is provided for earlier in the Bill, should not mean that certain matters be decided by a lay majority. Those functions are effectively those mentioned in section 7(1)(b). We are dealing with lines 39 and 40.

These amendments are designed to make it clear that lay members of the procedures committee should not be the people who determine issues regarding knowledge of the law, skills and competence in the interpretation and application of the law and the ability to exercise functions as holders of judicial office. I only came to appreciate one of the problems with the Bill on a close reading as I came to the end of it. The commission itself will comprise 16 or 17 people but there will then be a procedures committee that will comprise a smaller group and seems to be intended by the draftsman to be the engine house of the commission. When it comes to doing reviews, the procedures committee will carry them out and do the drafting. When it comes to statements of aptitudes or procedures, the procedures committee will do them. In a sense, there is a kind of executive committee and the procedures committee will be an executive committee of the commission. I am conscious that, if that is the case, the members of the professional bodies, the Law Society and Bar Council, should be guaranteed a position on the procedures committee. There is another amendment tabled in our names to achieve that. It would be strange if the two professions in law should be excluded from the engine house of the commission itself. That is another amendment at which we will arrive later.

The Bill is crafted so that lay members must be in a majority even on the procedures committee. These amendments are designed to ensure that the lay members of the committee should not be in the majority for drafting criteria that relate to the knowledge of the law and ability to conduct proceedings in a manner that ensures the skills and competence in the interpretation and application of the law or the ability to exercise functions as holders of judicial office. In essence, these are areas in which the sole criterion for appointment under this legislation, which I regret, is that they are people who, almost by definition, are less knowledgeable about the law than anybody else on the commission. It is a strange construct of the commission that the executive committee, when it carries out drafting of criteria relating to knowledge of the law and the like, should be composed as to its majority by people who are inexpert in that area. As I mentioned, there is not even a guarantee. Say there are nine people on the procedures committee and a majority has to be lay, that is five committee members. That means a total of four people on this committee who are lawyers, and there is no guarantee that members of either the solicitors' profession or the Bar Council will be among those four lawyers. The composition of the procedures committee is a matter for the commission itself and it is a matter for determination by a majority of the commission.

I am not happy with the architecture of the procedures committee but that was dealt with earlier in the debate. We are now stuck with the position that a committee within the commission, the procedures committee, will effectively do most of the heavy lifting and the other members will, in many respects, just be in a "Yea" or "Nay" role to them as regards the policy decisions of the commission. We are stuck with the proposition that, because there are nine members on the procedures committee, only four can be lawyers. It is wrong and a mistake that only four people out of nine should be people who are conversant with, and know something about, the law when they are dealing with criteria for appointments that deal with the law. That is the gravamen of what this amendment is designed to remedy.