Paddy Burke (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister of State, Deputy Ó Ríordáin, to the House.

Ivana Bacik (Independent)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister of State, Deputy Ó Ríordáin, to the House, and I welcome the fact that my matter on the Commencement was one of those chosen on the first day of this new procedure. I very much welcome the change we have made, which will streamline Seanad procedures and make them more effective. I am grateful to the Minister of State for coming in to answer the question.

My question is simply about the need to inform the House as to whether maternity, adoptive and parental leave are available for members of the Judiciary. I will explain briefly to the Minister why I ask this question. In 2003, along with two colleagues in Trinity, I conducted a survey on gender discrimination in the legal profession. It was published as "Gender in Justice," the first ever examination of gender discrimination in the legal professions, including among members of the Judiciary. At the time, we made 50 recommendations on how to improve the position for lawyers, particularly female lawyers, because we found evidence of significant discrimination at various levels. Among the 50 recommendations, one I am glad to see was implemented was that solicitors' firms would pay full maternity pay to their employees who are on maternity leave, which had not previously been the case - they were only getting statutory pay.

We revisited the study in 2013, looking at various figures. At that point I was interested to note that the proportion of female members of the Judiciary had increased from 21% in 2003 to 28% in 2013. In particular, in December 2013, 30% of Supreme Court judges, 42% of Circuit Court judges, and 27% of District Court were women. In fact, significant numbers of the Judiciary are women.

The Joint Committee on Justice, Defence and Equality, of which I am a member, has been looking at the issue of judicial appointments. Recently, we sent some material to the Minister for Justice and Equality, Deputy Frances Fitzgerald, on the workings of the Judicial Appointments Advisory Board, JAAB, which she is reviewing currently.

I am conscious that within the past ten years there have been significant moves in the promotion of many women in senior levels of the legal professions. The Chief Justice, the Minister for Justice and Equality, the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor and the Garda Commissioner are all female. Significant progress has been made.

On foot of all of these changes, it occurred to me that in 2003 we had not considered the issue of child care, particularly maternity, adoptive and parental leave, for members of the Judiciary. It was not raised with us, although many other issues were. We conducted an extensive survey of lawyers, judges, legal academics, etc., and the issue of child care generally was raised universally by working lawyers, but it was not raised with us as an issue for members of the Judiciary. It struck me that, as we see increasing numbers of women entering the Judiciary, this should become more of an issue. Of course, it should also be an issue for men who are fathers and members of the Judiciary too, but generally it has been raised with us by women as an issue. I look forward to the response of the Minister of State.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
Link to this: Individually | In context | Oireachtas source

Gabhaim buíochas leis an Chathaoirleach agus leis an Seanadóir. The Minister for Justice and Equality, Deputy Frances Fitzgerald, wishes to thank the Senator for raising the matter and regrets that she is unable to be present for this discussion today.

As the Senator may be aware, members of the Judiciary are office holders and not employees, and therefore the provisions of the current statutory employment legislation do not apply to them. As such, they have no statutory entitlement to the categories of leave to which contractual employees are entitled, such as maternity, adoptive and parental leave.

Senators will be aware that, under the Constitution, judges are appointed by the President on the advice of the Government. The current process for the appointment of judges in Ireland is set out in sections 12 to 17, inclusive, of the Courts and Courts Officers Act 1995.

The Constitution also provides for aspects of the terms and conditions of judges, such as remuneration, pension and age of retirement, to be regulated by law. Senators will be aware that the Minister for Public Expenditure and Reform is responsible for the pay and pensions of judges.

In respect of maternity leave, while recognising that judges as officeholders have no statutory entitlement to maternity leave, judges who have been due to give birth while in office have been permitted to avail of the same period of maternity leave that was available to civil servants and contractual employees under the legislation in effect at that time. The decision to allow judges to avail of maternity leave was taken with a view to ensuring their terms and conditions during their terms in office were not inferior to those of employees or to the terms and conditions to which they may have been entitled at an earlier stage of their careers. In addition, it was considered that not allowing judges to avail of maternity leave could serve to discourage women from applying to the Bench.

The Minister has been informed that relatively few judges have availed of maternity leave in the past. She is pleased that the proportion of women in the Judiciary is increasing. Of the 81 judicial appointments made since this Government came into office in March 2011, some 35 were female, which was 43.2% of the total number of judges appointed. There are now 53 female judges, of a total of 161 judges, holding office in the State. This equates to 33% of all judges. As judges generally take up office at a later stage in their career, it is not anticipated that the number of judges availing of maternity leave will increase significantly. The Minister wishes to underline that it is intended that the established procedure of permitting judges to avail of paid maternity leave, in line with prevailing statutory entitlements, will continue.

Senators will be aware that the scheduling of court cases and the allocation of court business is a matter for the presidents of the courts and the presiding judges. Under the Constitution, they are independent in the exercise of their judicial functions. Issues which may arise over the management of the courts owing to the absence of a particular judge are matters for the president of the relevant court. As no procedures are in place to enable judges to avail of unpaid leave, the Minister is not in a position to comment on the unpaid aspects of the maternity and adoptive leave or unpaid parental leave. The Minister would like to emphasise that every effort will be made to facilitate female members of the Judiciary in fulfilling their roles and that applications for unpaid leave will be considered on a case-by-case basis. I thank Senator Bacik for raising this important issue. The Minister wishes to assure her that she will keep her updated on any developments.

Ivana Bacik (Independent)
Link to this: Individually | In context | Oireachtas source

I thank the Minister of State for his full response. I am delighted to note that the proportion of women in the Judiciary has increased to 33%. I was conscious that there had been increases since we did our last survey in December 2013. While this increase is welcome, it must be noted that over 50% of those entering the Law Society as trainee solicitors are women. Indeed, two thirds of law students have been female for some decades now. It is certainly about catching up. It is very welcome. I note the Minister of State's comments about judges being officeholders, rather than employees. I had anticipated that. Similar issues apply to Members of the Oireachtas, of course. I speak as a Member of the Oireachtas who was pregnant and had a child while in office. I took some time without having the benefit of any application of statutory maternity leave while in office. I am conscious of that aspect.

I am very grateful for the Minister of State's comments about allowing judges to avail of maternity leave on the same basis as civil servants and contractual employees. It is hugely important for it to be emphasised that judges should have such an entitlement on the same basis. The Minister of State's comment that not allowing judges to avail of maternity and other forms of parental leave "could serve to discourage women from applying to the Bench" is an important consideration when we are seeking to achieve greater diversity and, particularly, greater gender balance on the Bench. I ask the Minister of State to ensure that this practice continues and that applications for unpaid leave such as parental leave are considered favourably on a case-by-case basis. It is hugely important as a general issue in terms of seeking to encourage more women and more younger people to enter the Judiciary.

Aodhán Ó Ríordáin (Dublin North Central, Labour)
Link to this: Individually | In context | Oireachtas source

I thank the Senator again. While this specific issue falls outside my area of responsibility, I do have responsibility for gender equality. Therefore, I have a keen issue in the issue raised by the Senator. I have explained that members of the Judiciary are not employees but are officeholders and as such do not fall within the statutory employment legislation. Having said that, the issue of paid maternity leave has been appropriately managed on a case-by-case basis by the Department in the small number of circumstances in which it has arisen in the past. The independence of judges and their status as officeholders rather than employees is an important principle. The Minister considers it to be of paramount importance that women should not experience barriers to applying for and successfully taking up judicial appointments.

Senators will appreciate the important role that is carried out by members of the Judiciary. It is important that judges are able to carry out their duties in ensuring access to justice. However, this need will also be balanced with the needs of the individual judge to avail of appropriate leave, such as maternity or adoptive leave. While these matters have not caused any particular issues to date, the Minister wishes to assure the Senator that the Department will keep the matter under review.