Barry Ward (Fine Gael) | Oireachtas source

I move amendment No. 19:

In page 13, to delete lines 17 to 23 and substitute the following: "(4) The matters referred to in subsection (3) are matters connected with—

(a) the courts and the operation of the justice system both in the State and in places outside the State,

(b) the importance of protection of human rights and equality,

(c) business, finance or public service, and

(d) corporate governance and human resources (including making, or recommending persons for, senior appointments).".

Amendment No. 19 relates to section 13(4), which sets out the matters to which the PAS is to have regard in appointing the lay members to the commission. It qualifies section 13(3), which states:

The Minister shall agree with the Public Appointments Service the selection criteria and procedures applicable to a selection process under this section having regard to— (a) the objective that the lay members will, having regard to the functions of the Commission, amongst them possess knowledge of, and experience, qualifications, training or expertise in, the matters specified in subsection (4),

(b) the need, in so far as possible, to ensure that recommendations made under subsection (2) should comprise an equal number of women and men and reflect the diversity of the population of the State as a whole, and

(c) the need to ensure that a person recommended to the Minister under subsection (2) is a fit and proper person to be a lay member.

This is all very well. The manner in which section 13(3) and section 13(4) are constructed is difficult to navigate. It unnecessarily creates a dual system to be applied when all of this could have been done in one subsection. Perhaps this is a view on the style rather than the substance. The issue I have is that section 13(4) sets out the matters referred to in section 13(3) and ranks them. It certainly lists them; I do not know whether the Minister of State would agree they are ranked. Section 13(4) states:

The matters referred to in subsection (3) are matters connected with— (a) business, finance or public service,

(b) corporate governance and human resources (including making, or recommending persons for, senior appointments),

(c) the courts and the operation of the justice system both in the State and in places outside the State, and

(d) the importance of protection of human rights and equality.

I take the view they are de facto ranked in the way they are listed. I understand the need for a board or a commission to have certain expertise on the operation of the commission itself. There will be a secretariat associated with the commission. There will be a director of the commission. There will be a body of professionals in the commission who will take care of those matters that need to be dealt with, particularly those covered by subsections (a) and (b) of section 13(4).

First and foremost on the list of criteria of experience that people need to have to serve on this commission are not business and finance; they are, in fact, experience of the Judiciary, the courts system, the practice of law, the way our courts operate and the way our system operates. Without this a person is not fit to serve on the commission. To have a lay person who does not understand how the court system works or has no experience of it or any legal aspects of the State is a person who does not have the requisite experience to serve on the commission.

Whatever about the need for people who have business, finance, public service, corporate governance or human resources experience, however desirable these might be in addition, the point of thee amendment is to put up a clear ranking that the first criterion people should look at is experience of matters connected with the courts and the operation of the justice system in the State and places outside the State. This is a totally legitimate criterion and it should be first. It should be in section 13(4)(a). The importance of the protection of human rights and equality is another extremely important criterion that is totally valid in the context of what we have been speaking about throughout the debate on the Bill. This should be in section 13(4)(b). If needs be, finance, business, public administration and corporate governance should be included in section 13(4)(c) and section 13(4)(d).I do not have a difficulty with them being there, but when we are putting them in, we should rank them in the order of their importance. The most important is what is currently listed in section 13(4)(c), which should instead be paragraph (a). In reality, amendment No. 19 reorders the criteria set out in section 13(4) to list them in the order of priority and importance for the purposes of looking at a person who will be a proper, fit or qualified person to serve as a lay member of the commission. It is a simple change that I hope the Minister will look seriously at accepting. It is an important statement of the qualities and experience that we require of a person who is to serve as a lay member of the commission.

I am less concerned about amendment No. 26 because we already had the debate about IHREC. I suggested earlier that there should be a position on the commission for a nominee of IHREC. Amendment No. 26 creates two new subsections. The proposed subsection (5) states, "In furtherance of its functions under section 10 of the Irish Human Rights and Equality Commission Act 2014, the Irish Human Rights and Equality Commission shall nominate one person to the Commission, to be one of the 4 lay members provided for by section 9(1)(e)". The proposed subsection (6) states, "In making a nomination under subsection (5), the Irish Human Rights and Equality Commission shall have regard to the criteria set out in subsections (3)and (4)". The Government has already made its view on the power of IHREC to appoint somebody clear. I do not propose to dwell on that. When Senator Currie and I tabled this amendment, we believed that there should be representation of IHREC or a nominee from IHREC, but I understand the Minister's position.

Amendment No. 27 deals with a different part of section 13, which is the provision in subsection (5), which currently states, "Subject to subsection (6), the Minister shall appoint lay members from among the persons recommended by the Public Appointments Service under subsection (2)". Subsection (2) provides the Minister with power to request the Public Appointments Service to conduct that search or qualification process so it can come up with names to give to the Minister. In amendment No. 27, I am saying that subsection (5) should say that the Minister may appoint those laypersons. I do not really understand why the Minister has decided to again restrict herself only to the people who have come through the Public Appointments Service process. I mentioned this earlier. This is why I think this should have been debated with an earlier amendment.

I think the Public Appointments Service is good at what it does. However, without criticising the Public Appointments Service, I do not agree with the Government's move to decide that every public position should be filled through the Public Appointments Service. When one is dealing with people who require specific expertise and carry out a particular role in the context of commission membership, I think a different approach should be taken. It is not the case that the criteria applied by a Civil Service metric for assessing the suitability, qualifications and so on of a person to serve in a particular role necessarily suit this kind of appointment. I do not think this should necessarily come through the Public Appointments Service, but I do not think the Minister is any worse off for having the benefit of the advice of the Public Appointments Service and the process that it has gone through which requires an interview of those candidates, as we know from the Bill. I think the interview is problematic in itself but that is another day's work.

The difficulty that I have is that the Minister has not just said that she would like the benefit of the view of the Public Appointments Service or that she would like to hear what it has to say and to look at the people that it has suggested, but that she is bound by it and can only appoint someone as a lay member of the commission if the Public Appointments Service tells her it is okay to do that. I have a difficulty with that. Why would we hamstring the Minister into only selecting those people when she or he might reasonably be aware of somebody who, in her or his mind, would be a better candidate for the commission? Amendment No. 28 deals with this. It states that the Minister should have the power to choose somebody beyond the recommendations that come from the Public Appointments Service. In the interests of transparency and with a view to avoiding any suggestion that it is a job for the boys, or whatever other criticism might be made, amendment No. 28 inserts a new paragraph to subsection (5), which states that where the Minister, in her or his wisdom, whoever it might be, decides to pick somebody who has not come through the Public Appointments Service process, she or he would explain that. The Minister would put a clear explanation on the record about why that person outside the Public Appointments Service process has been selected.

What I am suggesting in these amendments is not unreasonable. It is a measured way to include as many people as possible. As I said earlier, the Public Appointments Service applies a particular metric to the selection of candidates. I am not saying that it is a bad metric, but if we approach this with a one-size-fits-all mentality, then we will only get one size. Sometimes, when we are looking at boards, commissions and bodies like this, we need somebody who does not necessarily fit into the square hole that has been set out by the Civil Service. I say that with no criticism whatsoever of the Civil Service. With amendments Nos. 27 and 28, I try to present an opportunity which I would much rather see. That is an opportunity for the Minister to make a decision based on what she or he wants to do and to achieve with the commission, by putting in place a body which has a real opportunity to look at possible candidates to form part of the Judiciary, which is a branch of our government, and to put in place people who she or he thinks are right. They should not just be the people who tick the boxes on psychometric forms or whatever it is that people have to do to go through that process.

The reality is that the Public Appointments Service needs to put in place measurable targets and processes that people can follow so that it can rank people against each other. I am not criticising that but that does not suit every candidate. My concern is that in section 13, we are iron-cladding a system that only suits certain types of candidate. We should be willing to look beyond that to the broader spectrum and to a system that includes people who may not fit into that metric but who might nonetheless be excellent lay members of the judicial appointments commission, so that we as a country could have better recommendations to the Minister for appointment to judicial office.