Alice-Mary Higgins (Independent) | Oireachtas source

I will speak to amendment No. 17. While I am in favour of clear measures on gender equality in general in legislation, and we have been waiting a very long time for incremental progress, there is a problem with the way in which section 12(6) is worded. That is the subsection Senator Ward is proposing to amend. It is possibly inadvertent but it addresses the fact that a number of intersecting criteria are being applied. The subsection provides that when somebody stops being a judge, or when a judge ceases to be a member of the commission, the Judicial Council shall nominate a judge of the same gender as the judge who has ceased to be a member and of the same set of courts. If that judge who has ceased to be a member was in the Supreme Court, Court of Appeal or High Court, it would be a judge from one of those courts. If it is a judge from the Circuit Court or District Court, he or she would be replaced by judge from one of those courts. Given the small number of appointments to be made, these two criteria will create a situation, which I do not imagine is the policy intent, whereby if the judge is a man from the Supreme Court, Court of Appeal or High Court, he must be replaced by a man from the same courts.Similarly, if you have a woman from the Circuit Court or the District Court, the subsequent appointment must be a woman from the Circuit Court or the District Court. You could end up in a situation where there will never be a woman from the Supreme Court, the Court of Appeal or the High Court, or a man from the Circuit Court or the District Court, which means you would end up reifying the genders into court groupings. I do not believe that is the intention. The intention is to ensure there will be a balance from all the courts and a gender balance.

As a result of the decision to tie it so closely to the role held by the previous member of the council, however, there is a danger of having a situation whereby if there is once a man from a certain set of courts, it will always be a man from that set of courts, and vice versa. That is not good in terms of progression or gender equality and parity. It might need to be examined by the Government between now and Report Stage. A simple way to do it would be to remove section 12(6)(b), which is part of what Senator Ward is seeking to do in his amendment. His amendment is wider and seeks to remove a number of subsections. The question of the appointee needing to be from the same court grouping could be removed. If there was simply a separate provision to the effect that the Judicial Council in its appointments under section 12 should endeavour to have a balance from the various court groupings, that could be addressed as a separate point. By tying it to the previous appointee, we are potentially creating a trap that might lead to a lack of diversity and a lack of movement. That is not what we want to have in that context. Section 12(6)(c), which provides simply that the appointee must qualify as a judge "on the same basis as the judge who is being replaced", seems to be wide enough without specifying that they have to have served in the same court, as section 12(6)(b) does. Sections 12(6)(a) and 12(6)(c) seem to be enough. I do not really know what section 12(6)(b) adds, but I suggest there is an inadvertent consequence there which is a danger.