Barry Ward (Fine Gael) | Oireachtas source

I agree with Senator McDowell. I understand where the reference to the Equal Status Act comes from. However, the Equal Status Act is there for the purpose of enforcing rights and creates categories in which litigation can be conducted to protect people in those categories. Broadly speaking in the context of this amendment while it is important to recognise that, of course, the Judiciary should represent diversity to the greatest extent possible and should reflect the community as a whole, that must be an aspiration rather than an imposition.

We need to remember two things. First, there is a limited number of judges. The High Court, for example, only has a little over 40 judges and I think the Court of Appeal has 20, but it is a small number of people. It will not always be possible to achieve the diversity across these nine categories that Senator Hoey might want to achieve because the reality is that there may not be enough people to do it.

The second restriction is on the category of people who are qualified to fill the positions. For example, obviously in certain diversity criteria such as gender, for example, it is relatively easy to achieve that diversity and that balance, but it might not be possible in respect of things like ethnicity, membership of the Traveller community, disability or age, as was mentioned. In reality, someone cannot become a judge in this country before the age of 30. By the time somebody qualifies as a lawyer and undertakes at least ten years of practice he or she will be over 30. That is one entire category that could not be included in a diversity. The Judiciary, on that basis, will never represent people under the age of 30, for example. That is a fact of life. It is not that there is any striving to exclude under 30s from the Judiciary, but the reality is that we simply cannot populate it with a diversity of our choice.

The reality is that several other criteria need to come in. It may well be that of the people who are qualified there may not be enough people who could be chosen to fulfil all of the nine categories defined under the Equal Status Act. While I applaud the provision in section 28 relating to a diversity statement by the commission, putting into the Act that the commission must be aware of that diversity issue and must therefore strive to achieve diversity where possible, we must also remember that the reality of having at least one member of each court, for example, from each of the nine categories defined in the Equal Status Act is not necessarily achievable. Perhaps it will be possible, but there is a very strong chance that it will not be in every court.

The notion of restricting the commission's ability to do its work by putting in such a specific amendment to section 28 fundamentally misunderstands the role of the commission which is to appoint members of the Judiciary who must be first and foremost excellent, competent and professional. Those must be the first criteria and after that to seek to achieve criteria relating to diversity, representation of the community as a whole and all that. However, first and foremost we must strive to have a Judiciary that can do its job effectively, professionally and excellently. I do not think this amendment would help us down that road. In fact, I think it would substantially restrict the ability of the commission to do its work.