Denis O'Donovan (Fianna Fail)
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I welcome the Minister for Justice and Equality, Deputy Fitzgerald.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I thank Senators for making time available to address these important matters in the House.

As Senators are aware, there is a commitment in the current programme for Government to reform the judicial appointments process and to introduce legislation for the establishment of a new judicial appointments commission. The judicial appointments Bill involves complex legal and constitutional questions which will require careful consideration, further consultation and teasing out into the most appropriate measures. I intend then to proceed to finalise a general scheme of the Bill and to bring it before the Government for approval.

Senators will be aware that, under the Constitution, judges are appointed by the President on the advice of the Government. It is an act of the Executive under the Constitution to advise the President on the persons to be appointed to judicial office. The current process for the appointment of judges in Ireland is set out in the Courts and Court Officers Act 1995, as amended, which established the Judicial Appointments Advisory Board as a recommending body. The role of the board is to identify persons through their own application or the board's invitation who are suitably qualified for judicial office.

A process involving a wide-ranging review of all aspects of the law on the system concerning judicial appointments was commenced under the previous Government and has been referred to by me in previous contributions in this House and in the Dáil. A consultation process on the system of judicial appointments was conducted by my Department in 2014 and it was acknowledged then that the Judicial Appointments Advisory Board process was a model of best practice in its day but that it was time, after almost 20 years, to review the operation of the judicial appointments system to ensure it reflects current best practice having regard to international standards, that it is open, transparent, accountable and that it promotes diversity.There was an encouraging response to the call for submissions. A total of 27 submissions were received from a range of interested persons and bodies, including the Judicial Appointments Review Committee, which is a committee of the Judiciary, the Bar Council, the Law Society of Ireland, the Irish Council for Civil Liberties and other civil society groupings, former judges, public representatives, university-based lawyers and private individuals. These submissions remain available to us and are of direct relevance in terms of moving to the delivery of new legislation in this area.

A number of reform themes emerged from the consultation process and, along with the programme for Government commitment, they are informing the preparation of the new legislation. Among the strongest ideas to emerge is the idea of the importance of ensuring that the Judiciary retains the independence essential for discharging its constitutional function. I believe Ireland has a proud record in this regard. Another important idea is that the Judiciary should reflect, as far as possible, the diverse nature of society, from which it is drawn, as is the idea that judges should be appointed on merit.

I imagine the House will agree that our reforms must have regard to these important principles. Significant further work and critical consultation will be necessary in finalising the scheme for a new judicial appointments commission Bill. This is a priority for the Government and I look forward to bringing this legislative reform to the House at the earliest opportunity.

A number of vacancies exist in the courts. Currently, there is one vacancy in the Supreme Court, two vacancies in the Circuit Court and one vacancy in the District Court. There are also two pending vacancies, one in each of the Circuit Court and the District Court. Undoubtedly, there will be more over the coming period. The requirements of the administration of justice will be the over-riding priority for the Government over the period ahead as the necessary reforms are brought forward as expeditiously as practicable.

It is intended to publish the judicial council Bill in this session. Considerable work has been done on it. The Bill will provide for the establishment of a judicial council to promote excellence and high standards of conduct by judges as well as to facilitate the investigation of allegations of judicial misconduct. That legislation and the judicial appointments commission Bill will together provide for a fundamental and far-reaching reform of the judicial system.

Senators have called on me to address the issue of Garda pay. I am disappointed that the Garda Representative Association rejected the agreement reached with my Department in recent weeks and has announced an intention to take industrial action.

It is disappointing that the Association of Garda Sergeants and Inspectors is contemplating action, particularly in view of the positive outcome of the recent association ballot on the Lansdowne Road agreement. Members of the association accepted the proposal by a ratio of 70:30 some weeks ago. In the event that it proceeds, such action would be unprecedented and would be detrimental for society, An Garda Síochána, Garda morale and public confidence. I am committed to doing everything possible to find a resolution within the very real constraints that exist in terms of public sector pay. Everything that can be done will be done. My focus and that of the Government is on negotiation and we are looking for a pathway to move forward. I have said consistently that all sides must continue to explore ways forward through further engagement. I met with the GRA and the AGSI last week to hear first-hand their outstanding concerns. Those meetings were constructive and I will continue to facilitate further engagement. The GRA will meet this week and I hope my officials and the GRA will be in a position to meet us before the end of the week, if not, then early next week.

As Senators will be aware, the agreement reached between my Department and the GRA addressed in a positive way the issues raised by the GRA in the course of negotiations, which took place over a number of months. In particular, the agreement sought to address the concerns articulated in respect of the pay of new recruits, the additional hours that gardaí are required to work, access to pay determination and dispute resolution bodies and the completion of the review of An Garda Síochána. The agreement we had reached included significant benefits, including the restoration of the rent allowance, worth over €4,000 annually, to new recruits as well as lifting the increment freeze that has been in place since 1 July.

It would be most unfortunate if, rather than engaging further, action was to be contemplated that would not be in the best interests of our communities or An Garda Síochána. I have mentioned this on a number of occasions and I imagine Senators will agree with me. Members of An Garda Síochána, like all public servants, played a significant part in stabilising the public finances and bringing about the economic recovery. They were subject to the same pay reductions as all other public servants over the course of the financial crisis years and similarly have benefitted from the partial restoration of pay commenced on foot of the Lansdowne Road agreement. Like all public servants, members of An Garda Síochána played a significant role in stabilising the public finances. In working with them I am keen to find a way forward towards pay restoration that can be managed within the parameters laid down.

The Government is conscious that the associations, as is the case with many public sector representative bodies, are frustrated at the pace of pay restoration. However, I imagine many Senators would agree that the Government must take a sustainable and prudent approach to public sector pay. We are committed to the Lansdowne Road agreement as the framework for industrial relations and pay determination within the public service. Within this framework, the programme commits to the establishment of a commission for public sector pay to examine pay levels across the public sector, including entry levels of pay, and to the gradual negotiated repeal of the Financial Emergency Measures in the Public Interest Acts.

As the Minister for Public Expenditure and Reform, Deputy Donohoe, said in his budget speech yesterday, the public service pay commission will report to him by the middle of next year and provide inputs on how the unwinding of the financial emergency measures in the public interest legislation should proceed. We will ensure all those represented there do so on an equal footing. The resolution of any outstanding issues of concern to the GRA or the AGSI can only be addressed through engagement between the parties, and I urge them to engage in discussions before contemplating any action that, as I have said on numerous occasions, would not be in the best interests of our communities or An Garda Síochána.

Denis O'Donovan (Fianna Fail)
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Senator Clifford-Lee is next. I understand you wish to share time.

Lorraine Clifford Lee (Fianna Fail)
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I wish to share time with my colleague, Senator Robbie Gallagher. I thank the Minister for coming to the House to address these two important issues.

The decision of An Garda Síochána to strike is not one that Fianna Fáil supports or agrees with. However, it shows that there is rampant demoralisation and anger within the force. We need a commitment from the Government that it does not intend to allow a stand-off between the Garda Representative Association and the State. It is essential that we see the Government re-engage with Garda representatives.

We learned on 28 September that the Garda Representative Association had voted for industrial action for four days in November. Fianna Fáil immediately raised this issue in the Dáil. This is an unprecedented development which would have serious consequences not just for the Garda but for the public as well. As we know, unlike other workers, gardaí do not have the right to strike. An Garda Síochána has always served the State with great pride and its members take an oath to defend the public and the State. However, the decision to strike, which Fianna Fáil does not support or agree with, nonetheless shows a rampant demoralisation, as I have already said.

The Government has been aware that industrial relations issues have been brewing in the Garda for some time. This Government has been in place for five months and among the major issues on its agenda are public service pay and industrial relations problems within the public sector.In recent months deals have been done in respect of low grade entry level nurses and teachers and allowances for firefighters, yet the Government only entered into what it thought would be an agreement with the GRA late on Friday, 23 September 2016. It is to be regretted that the Government has stumbled and stalled in dealing with the challenges facing An Garda Síochána. The Government must recognise that reports by GSOC, the Policing Authority or the Garda Inspectorate will be meaningless unless the Garda Síochána has good morale within its force and feels its members are being respected and valued by the State and the Government. Morale is low because of the terms and conditions. It is clear the grievances of gardaí are not being treated seriously by the Government.

In the confidence and supply agreement with Fianna Fáil, the Government agreed to establish a commission on public service pay. The Minister said the commission will report in the middle of next year but did not specify when it will be established. Will she address that? I am calling on the Minister to give a commitment that the Government will engage with the GRA to defuse the situation immediately.

I will touch on the issue of judicial appointments. Fianna Fáil recently published a Bill to provide for the establishment of an independent judicial appointments commission that would recommend persons for appointment to judicial office based solely on merit. The timescale and delay by the Government in dealing with the issue has prompted Fianna Fáil to put forward its own Bill. We are fortunate in Ireland to have a staunchly independent Judiciary. This is in spite of, rather than because of, our system of appointing judges. Fianna Fáil’s legislation provides for an independent commission that can recommend and rank, based solely on merit, a small group of substantially qualified persons to be nominated. A merit-based system of appointment will enhance the principle of judicial independence. Publishing the Bill would remove the possibility of Government foot dragging for any longer on establishing a judicial appointments commission, which would be required to make recommendations to the Minister for Justice and Equality based on merit.

The Minister touched on the vacancies in the Judiciary and we call on her to fill them as a matter of urgency. There is no reason they cannot be filled.

I will give my remaining time to my colleague.

Denis O'Donovan (Fianna Fail)
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Senator Robbie Gallagher has two minutes.

Robbie Gallagher (Fianna Fail)
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I welcome the Minister to the House. On Garda pay, I am very disappointed by the decision taken by gardaí to have four days of action for four Fridays in November. There is a strong possibility that the AGSI will join them. It will be a very sad day for the country and the gardaí.

It is regrettable and disappointing that this situation has been allowed to develop to this point. I fully appreciate that the Minister has only been in office a short period of time. We have to be aware that pride and morale in the Garda is probably at an all-time low. It is important to send out a message as a country that we need to protect the people who protect us. We need to protect those people who, when they go out to work in the morning or the evening, may not come back home alive. There are very few workers in the country who have those sort of working conditions in their daily lives. We need to accept and appreciate that, and acknowledge that gardaí are different for the reasons I have outlined. They are also very reasonable people. We all know them from our everyday lives. I call on the Minister to fully engage with the gardaí and use all her resources to adequately address the outstanding issues that are there to be addressed. I welcome the tone of the Minister's comments and I have no doubt that if she fully engages a resolution can be found to this problem so we can move on and remove the threat that currently hangs over the gardaí and communities.

Denis O'Donovan (Fianna Fail)
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Senator McDowell is sharing his time.

Michael McDowell (Independent)
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I am sharing with Senator Boyhan. We will take four minutes each.

Denis O'Donovan (Fianna Fail)
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I will tap the bell when there is about 20 seconds left.

Michael McDowell (Independent)
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I welcome the Minister for Justice and Equality, Deputy Fitzgerald. I thank her for coming in response to a suggestion I made that this debate should happen and I thank the Leader of the House for arranging for it.

The particular issue I was concerned about was the question of judicial appointments in view of media reports that a moratorium on the appointment of judges had been put in place at Cabinet level pending the passage of the legislation outlined in the programme for Government. I note what has been said here about the Fianna Fáil Bill. I have had an opportunity to look at Deputy Jim O'Callaghan's Bill and it seems to me that the principle of the Bill is preferable to that adumbrated in the programme for Government. I am deeply concerned that the model proposed in the programme for Government for an inexpert majority on the appointments commission will lead to poor rather than good results.

The principle in Deputy O'Callaghan's Bill is a better principle, which provides that the advice of people who know what they are talking about is made more focused and is available to the Executive. It strikes me that Senator Boyhan has been advancing the proposal to have the judicial council legislation brought forward and considered at an early date. The Minister will know it is a longstanding chestnut in her Department. I was recently interested to see judicial impatience at the progress. There was a time when the impatience was all in St. Stephen's Green and it was the Judiciary who were on the receiving end of correspondence from impatient Ministers.

It is important that our Judiciary has the relevant institutions to enable it to function to the best possible standard in the eyes of the public. There is no opposition to the idea of a judicial council any more, although there was at one point, so now is the time to get on with it. If Deputy O'Callaghan's Bill receives the favour of Dáil Éireann, where I presume it will be introduced, the Government should adopt it and get on with it rather than going through the process of developing its own model. Deputy O'Callaghan's Bill can be amended if it is the will of that House and this one, but it would be pointless to have two alternative views competing in the form of two separate Bills and to delay any action until the Government prepares its own Bill in this respect.

Reference has been made to the Garda pay issue. I do not want to put any further political pressure of any kind on the Minister. I understand completely the circumstances in which the Tánaiste finds herself. Everybody, including the Tánaiste, will agree with me that An Garda Síochána needs to be treated as a special case because its members carry out special functions and are deprived of certain rights which other people in the community enjoy in respect of negotiating their own wages and conditions. The idea of a two-tier wage structure within An Garda Síochána is unacceptable.

Right across Ireland, there are people who believe they are being policed by gardaí who live 50 or 60 miles away and who are driving to work and going home to wherever they leave. Will the Minister confirm whether or not the Garda Reserve, which could serve to establish local roots for An Garda Síochána in every community, will be expanded and its numbers increased? It is no threat to Garda status or pay but it would be a huge bonus for linking An Garda Síochána to the communities in a way they were in the past when it was common for the local sergeant to live above the station.

Victor Boyhan (Independent)
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I welcome the Minister for Justice and Equality to the House. I want to make a number of comments on judicial appointments with reference to the programme for Government.I welcome the Minister's comments on the judicial council. There is no mention of the judicial council in the programme for Government, only three paragraphs about judicial appointments.

Articles 34 and 37 of the 1937 Constitution of Ireland regulate the courts and outline generally how judges are to be appointed. The President of Ireland appoints judges on the advice of the Government. In practice, the decision to appoint a person to the Judiciary is made by the Minister for Justice and Equality. He or she is under no legal obligation to accept a person recommended by the Judicial Appointments Advisory Board, JAAB. These are facts. The JAAB is a statutory body. It has no role in appointing a person who is already a judge to a judicial appointment, such as a higher court than the one in which he or she sits. This critical point is somewhat lost. The JAAB creates a list of at least seven people whom it recommends for appointment. The Government is under no obligation to accept any of these recommendations. In practice, there is no review of a decision regarding the appointment of a judge.

The JAAB does not have the power to rank the names on the list in order of preference or merit. Neither is the Government obliged to select any one of these recommended by the JAAB. The JAAB has no role in the appointment to a judicial office of a person who is already a judge. If a judge of the Circuit Court is to be appointed to the bench of the High Court, no provisions of section 16 of the 1995 Act apply.

The programme for Government sets out three simple paragraphs regarding political judicial appointments. How can we progress the matter? There is no doubt that reform is needed in this area. It is important to set out the facts of where we are. I want to hear how we will change from the status quoto the Tánaiste's proposals.

Martin Conway (Fine Gael)
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I, too, welcome the Tánaiste and Minister for Justice and Equality. We are discussing very important aspects. For too long, the system of judicial appointments has not been dealt with. I share Senator McDowell's concern about a moratorium. The legislation the Tánaiste proposes is a very important incremental step forward in tidying up the process. We have been very lucky to have an effectively unblemished record of judicial decency and honour. We have great judges, many of whom are coming out of retirement to do the State further service. It shows the calibre of the people who served on the benches of the country over the years.

On the difficulties faced regarding the Garda Síochána, I call on all parties to continue engagement. The rank and file members of the Garda Síochána do not want to go on strike. They do not want any disciplinary issues or for the public to feel afraid that there may be an increase in crime on the allocated days. The responsibility is on the Garda representatives and the Government to engage and continue to engage. I have no doubt the issues will be ironed out. I agree there is a special case for the Garda and maybe we should debate it. They are one of the few groups of public servants who put themselves in the line of danger, and some have lost their lives. Garda Tony Golden's anniversary mass was yesterday.

The Garda Commissioner, Nóirín O'Sullivan, appeared before the Oireachtas Joint Committee on Justice and Equality this morning and gave a phenomenal performance, although it was all about one issue. Enormous transformation is taking place across the Garda Síochána. Templemore has reopened and new recruits are coming in. The Government has committed to an additional 800 gardaí per year over the coming years. There is a programme for change to modernise the structures of the force in terms of ICT. Millions of euro have been invested in Garda vehicles. The provision whereby civilians can do certain behind the desk tasks is happening. There will be recruitment of senior management to ensure the Garda Síochána has the necessary skills base to do its work. It is a very exciting time for the Garda Síochána.

Let us not forget the quarterly behaviour and attitudes survey shows that the public has more than 85% confidence in the Garda Síochána, which is a world record compared with other police forces. Three or four years ago, public confidence stood at 67%, which was still much higher than other countries. Less than 15% of the population do not have confidence in the Garda Síochána. Given the programme of transformation, steered by a phenomenal Garda Commissioner with a phenomenal work ethic and supported by the Tánaiste and Government, the next few years will be a very exciting time for the Garda Síochána. I sincerely hope the little difficulties in terms of pay will be resolved, bearing in mind that the whole country has suffered pay cuts over recent years. Maybe we can consider creating a special case for the men and women of the Garda Síochána.

Niall Ó Donnghaile (Sinn Fein)
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Go raibh maith ag an Tánaiste as an chur i láthair atá déanta aici. There is a degree of unity in the Chamber this evening around the Tánaiste's proposal regarding judicial reviews. We all acknowledge, as the Tánaiste did in her contribution, that the previous process is outdated and no longer fit for purpose. Going back many years, it has been Sinn Féin's position that the issue of judicial appointments needed to be reviewed and changed to become compliant with a more independent ethos. It is the right thing for the Judiciary and for those who find themselves engaging with it. Given that it has been our position, I remind the House of the Reform of Judicial Appointments Procedures Bill 2013, which my colleague, Senator Pádraig Mac Lochlainn brought before the previous Dáil. Unfortunately, the Government opposed it. However, it is not the time to look back.

There is a degree of heart to be taken from the Tánaiste's acknowledgement in her contribution that she would like to see the independent oversight and the shade of independence in judicial reviews become institutionalised. Is there a timeframe? While we can all get into the nuance of it when it come before us, and no doubt Members will do so, for all the reasons previous speakers outlined, we need to know when it will happen and we need it to be expedited, not in a haphazard way but in a way that brings it to the fore sooner rather than later.

Paul Gavan (Sinn Fein)
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The Tánaiste is very welcome. I will deal with the impending Garda strike. Week after week, public sector workers are making the difficult and, in certain instances, unprecedented decision to take industrial action. We have had the Luas drivers and the Dublin Bus drivers. Now it is gardaí and soon it will be the teachers and nurses.We are seeing a mass movement across the public sector demanding fair pay and proper working conditions. These workers have endured austerity budget after austerity budget in which this State took rights from them year on year and now they are telling the State: "Pay us what we are worth, or else we'll down tools and leave you to it”. It has got so bad that today we are debating the unprecedented move by gardaí to vote to take industrial action. We need to recognise this anger and frustration over public sector pay will not go away any time soon but is gathering momentum. The Tánaiste needs to get to grips with this soon because this vote by gardaí for industrial action is serious. It is a reality check for those among her civil servants or her ministerial colleagues who seem to be playing hard ball on these issues.

We are currently seeing recently recruited members of An Garda Síochána on starting salaries of €23,500. To put that in context, that is about one third of what we earn before we get our expenses and they have a much tougher job than we have. They sleep in cars because they are unable to afford spiralling rent costs. They drive all the way from places like Tipperary to Dublin every day, from their parents' homes, just to turn up for work because they cannot afford to live in Dublin. On the broader morale front, given the continuous issues regarding whistleblowers, gardaí do not feel safe to make protected disclosures. When new gardaí starting on a salary of €23,500 read the Comptroller and Auditor's General's report about a €150,000 slush fund to buy presents for senior gardaí in Templemore, how does the Tánaiste think that will affect the morale in the workforce? Yesterday the Government gave Deputies a very generous €5,000 annual pay increase but still has not restored the rent allowance for gardaí. We begin to get a clearer picture of the choices we make and the choices the Tánaiste's Government has decided to make.

To be clear, Sinn Féin supports the right of any worker to engage in industrial action for better terms and conditions and we support the right of gardaí to do so. We believe the Garda Commissioner, Nóirín O'Sullivan, and her senior team must now put in place a contingency plan for policing on those dates. If the Association of Garda Sergeants and Inspectors, AGSI, join the action of the Garda Representative Association, GRA, it will leave 160 superintendents, 42 chief superintendents and eight commissioners, including the chief, Nóirín O'Sullivan, manning the force, according to the Garda figures we have. The Garda Reserve, a force of 1,100 unpaid civilian volunteers, would most likely need to be deployed as well.

There is a scandal of low pay and poor working conditions in our public sector and this domino effect we are seeing is no surprise. The only surprise is it has not happened sooner. The Government needs to act with urgency and enter further negotiations with the GRA. Yesterday, we heard about the political centre. The problem, as I alluded to in another debate today, is that the Government does not occupy the political centre. Unfortunately, it occupies quite a position on the hard right and that is why so many public sector workers are voting with their feet.

Ivana Bacik (Independent)
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I welcome the Tánaiste and Minister for Justice and Equality to the House. I also welcome the opportunity to have this debate. A consensus has been breaking out across the House on the need for reform of judicial appointments, as other colleagues have said. As the Minister said, this is very much an ongoing issue about which there has been extensive consultation. At the justice committee last year, at my instigation we conducted a hearing on the subject of judicial appointments. I hope we forwarded the transcript of that hearing to the Tánaiste and her Department to inform the consultation process and the discussion around reform.

I believe we all agree with the Tánaiste's comment that any system of judicial appointment must be open, transparent and accountable and must promote diversity. In the debate around the nature of the reform, I would make three points about how reform should be carried out. The first point is to emphasise the critical issue that reform should not be long delayed, or at least that the process should not delay the much-needed appointments of judges. The Tánaiste referred to the vacancies that currently exist in the courts, one vacancy in the Supreme Court, two in the Circuit Court and one in the District Court. One of the complaints most frequently made to me by stakeholders or clients, people who come into contact with the legal system, is the delay in judgments. I know of some appalling delays in the handing down of judgments; there are currently outstanding judgements in particular cases. It is a matter of real concern that we do not see a delay in the appointment of judges leading to delays in the judicial process for individual litigants and for people appearing before the courts. That is one concern.

A second issue regarding reform is to acknowledge the current model, as pointed out by Dr. Jennifer Carroll MacNeill in her extensive research on judicial selection procedures. She pointed out that the current model, the Judicial Appointments Advisory Board, JAAB, is not using the powers available to it to the extent that was originally anticipated when it was established in 1995. It has taken a very narrow view of its own powers, particularly since the early 2000s. Dr. Carroll MacNeill has clearly documented this and this is well known in the public domain as Dr. Elaine Byrne and others have written about this. The JAAB could, for example, put forward for nomination to the Minister only seven names under the legislation. Senator Boyhan pointed out that it does not have power to rank, but to put forward only seven names would itself send forward a message to any Minister. Instead we are seeing, routinely, well over that number being put forward to Ministers and that is documented in that book. The power of interviewing or of putting forward candidates is not used and has never been used by the board. Therefore, there are some issues that need to be examined. If legislation seeks to reform, the legislation must be implemented and any new body or a reformed JAAB must be properly resourced in order to be able to implement powers such as the power to interview. Certainly those powers would circumscribe the process of appointments more. Another point that was made is the need to extend the power to promotion of judges, where existing judges seek promotion and that power clearly currently is not there. There are some issues with reforms but the failure to implement or use powers already existing in legislation must also be noted.

We need to guard against any sort of affinity bias. I know the judges' submission to the Minister called for more of a role for the Judiciary. There is an issue where members of the Judiciary are self-appointing but that becomes hugely problematic. I believe all Members would agree that in any reformed judicial appointments body, there should be less, and not more, of a role for serving judges. This affinity bias, where people tend to promote or appoint people who are like them, tends to stifle diversity in appointments.

We should be critical of problems and flaws within the system but we should also note that there are some ways in which our judicial appointments process has been very effective, for example, in having an increased gender diversity in the Judiciary. In 2003 we published a study on gender discrimination in the legal professions in Ireland. At that point there were low numbers of women in the Judiciary at all levels. That position has significantly improved since 2003 and that is to be welcomed. We are seeing a more representative Judiciary, at least in terms of gender, and that is to be welcomed. Some elements are working well in the appointment process and that also should not be overlooked in any debate on reform. Ruadhán Mac Cormaic's recent book on the Supreme Court makes that point, namely, that judicial independence has been well established in this State and that whatever the flaws in the procedure, we have been well served generally by our Judiciary. I am aware we will have a debate on judicial independence in the House next week, at the behest of Senators Boyhan and McDowell, and we will be able to say more about that.

Turning to the issue of the proposed strike by gardaí, this is the second cause of crisis in policing at present. We read in recent weeks the revelations about the treatment of whistleblowers in the force and we await the report from the retired High Court Judge, Mr. Justice Iarfhlaith O'Neill, on that issue. Clearly, the proposed strike is very much a second cause of crisis in which rank-and-file gardaí are planning to take industrial action in November. Other colleagues have talked extensively about the issue of Garda pay, which is one of the issues that has prompted this 95% vote in favour of industrial action. I want to focus on another issue, that of access to State negotiations, in particular to national negotiations such as those on the Haddington Road and Croke Park agreements. The issue of gardaí and the right to negotiate is not new. While section 18 of the Garda Síochána Act 2005 prohibits members of An Garda Síochána from joining trade unions, they can join associations but their representative associations are not privy to the national negotiations on pay and conditions. We know that in 2013 the European Committee of Social Rights issued a decision that Ireland was in breach of its international obligations under the European Social Charter, among other things, because of the prohibition on the representative associations from joining national employee organisations such as Irish Congress of Trade Unions, ICTU. I draw attention to the Industrial Relations (Members of the Garda Síochána and the Defence Forces) Bill 2015, introduced in the Dáil in 2015 by my then Labour Party colleague, Michael McNamara, which, among other things, would have provided for the right of Garda representative bodies to join umbrella groups like ICTU.Mr. McNamara pointed out that provisions like ours that were in place in France had resulted in judgments against the French Government by the European Court of Human Rights. He also pointed out the need for us to comply with the European Social Charter. This year, the Tánaiste indicated she would seek a solution to the issues concerning the charter and that the findings of the European committee had been referred for consideration as part of an independent review under the Haddington Road agreement. Has that review been concluded or will the Tánaiste be in a position to accept a Bill like Mr. McNamara’s, which was not accepted by the Government at the time, given the context of a speech in which she stated there was an ongoing review of these issues? This is a significant bone of contention because it leads directly into issues of low pay, conditions of work, sick leave, hours of work and so on in An Garda Síochána that have given rise to the 95% vote in favour of strike action. I ask that we see our way to resolving this issue, being mindful of the finding against us at European level and the fact that Private Members' legislation has been introduced that proposes reasonable propositions in terms of the rights of gardaí.

It was anomalous that, in the Haddington Road agreement negotiations, representatives of the Garda and the Defence Forces were barred from participating while representatives of prison officers and firefighters rightly participated.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I thank Senators for their contributions to this debate. I will address the issue of Garda pay, on which the House focused, first. We want to negotiate and use every opportunity possible to deal with the concerns that have been raised by the GRA and AGSI. In a ballot of AGSI members several weeks ago, the ratio was 70:30 in favour of accepting the work done by officials on the Lansdowne Road agreement. That matter was agreed two weeks ago. There were areas of consensus and progress was made, but when the GRA team reverted to its executive, the executive expressed a range of concerns and the association was not in a position to go further with the agreement. I regret that. I met the GRA recently to discuss its concerns. It has stated it wants to continue working with us on how to chart a path forward. This is in the context of the 285,000 public sector workers who have accepted the Lansdowne Road agreement and the 21 unions that have worked with the Government on unwinding the FEMPI legislation. Everyone knows how important it is that we manage the economy well. We are reaching out to address people's concerns as much as possible, but there are constraints. It would not be realistic of me to claim otherwise.

I take the point made by many Senators regarding the important role An Garda Síochána plays in defending citizens against criminal elements. Gardaí are on the front line. As Senator Conway mentioned, Tuesday was the anniversary of the death of Garda Tony Golden, who was doing his job and responding to a call. My thoughts this week are with his family: Nicole and his very young children. It was an appalling tragedy and act of criminality. We must be conscious that gardaí put their lives on the line.

Senator Bacik asked about mechanisms. After the European Confederation of Police, EuroCOP, found that the State was in breach of certain aspects of the charter, I referred its finding to the review that was then under way in the context of the Haddington Road agreement. There was a change in personnel and the process under Mr. Ray McGee, who had done some of the work, did not continue, but Mr. John Horgan is now working with the Garda to finalise the review. I expect it will be finalised by the end of December. We are agreeable in principle to the Garda associations having like access as other public sector representative bodies to future pay determination mechanisms and statutory dispute resolutions, for example, being able to use the Workplace Relations Commission and the Labour Court. This will be helpful. I take the point that being outside of the Haddington Road agreement process was not helpful. I hope the progress we can make through the review will chart a roadmap towards having access to these mechanisms.

Senator Clifford-Lee asked about the public sector pay commission. The Minister, Deputy Donohoe, will table recommendations on the establishment of that commission in the coming weeks. I hope it will be established early in the new year. The timeframe for the body's first report has been brought forward to the middle of the year. Senators referred to public sector unions and workers and I hope the commission will be a useful mechanism for examining contrasts in public sector and private sector pay and giving a voice to the various stakeholders.

A number of Senators mentioned the anger within the Garda. As I have acknowledged, gardaí are like many workers, in that they have been through a difficult period. There were high levels of overtime, but overtime was stopped, as was recruitment, and there was no investment for a period. All of this has impacted on morale, as have the ongoing pay issues. Thankfully, the economy can now support investment. The previous Government restarted that investment, which I am continuing. I hope that this will make a difference to morale. I accept that pay issues are front and centre and we will do everything possible to address them.

Various options are available as regards protected disclosures. I have taken a decision on how the two most recent disclosures should be handled. For the various whistleblower complaints that have crossed my desk and that of GSOC, there is also the option of a GSOC investigation. I do not want to do anything that would interfere with GSOC's investigations and it is important that they proceed at GSOC's pace.

As part of the agreement, there was a commitment to restore rent allowance to the 700 or 800 gardaí affected. I would be concerned by any irregularity in audits and accounting at Templemore. The Garda Commissioner is Templemore's Accounting Officer. Some of the issues are historical, but they will undoubtedly be addressed and appropriate action will be taken. It was Templemore's own audit that found the difficulties.

Turning to judicial appointments, we have received some advice and are seeking more on this matter. Complex legal and constitutional issues are involved. Senator McDowell has written about them and Senator Boyhan has raised a number of concerns. The roles of the Judicial Appointments Advisory Board, JAAB, and the Government are distinctive. As I have often stated, neither this Government nor its predecessor ever went outside JAAB's recommendations. That is important. We have an appointments process, but it is in need of change. We will have interesting discussions on the format and type of change that is necessary, but we all agree on some of the key principles - appointments on merit and maintaining the strong constitutional issues that arise in this regard. Senator Boyhan made suggestions concerning the scope that is available to the Government. The advice that I have received agrees with him in this respect.Deputy O'Callaghan does have a Bill which I will certainly examine very carefully and see what progress we can make because it is a priority for the Government, as is the judicial council Bill.

I again recognise what has been said about delays in the past. Delays were caused by a whole variety of factors and we are committed to dealing with this issue. A lot of work has been done on that Bill and it will be published this term. Both pieces of legislation are on the A list and we are only putting on the A list those Bills that will be published. It is not like in the past where there was a very long list of A Bills. The last time we reached ten out of the 11 pieces of legislation on the A list. It is the absolute intention that those Bills will be published this term and as much progress as possible made on them.

No doubt we will have interesting discussions as to whether there should be a lay majority or a legal majority. There will be different points of view on that issue. International practice at present would suggest that there ought to be some lay members. Quite what the proportion should be will be for discussion but many jurisdictions do have lay chairs. For example, the new Legal Services Regulatory Authority which we have just established has an independent lay person in charge. Those are the kinds of decisions we will be teasing out and I look forward to what Members have to say about it.

Those are the main points raised on both areas so I will leave it at that.

Denis O'Donovan (Fianna Fail)
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I thank the Minister. When it is proposed to sit again?

Martin Conway (Fine Gael)
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Ar 10.30 maidin amarach.