Diarmuid Wilson (Fianna Fail)
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Senator Norris had just finished his comments on section 23. I invite Senator McDowell to make a contribution.

Michael McDowell (Independent)
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The Minister has indicated that the Judicial Appointments Advisory Board has estimated annual costs of €50,000.

David Norris (Independent)
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I thought it was €500,000.

Michael McDowell (Independent)
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No, it is €50,000. The Judicial Appointments Advisory Board is the existing body. It is indicated that the Department estimated the new body might cost €1 million per annum, but the Minister has revised this estimate to €500,000 per annum. Whichever way this is looked at it appears to be a tenfold or twentyfold increase in expenditure in this process, depending on whether the explanatory memorandum or the Minister's present estimate proves to be more accurate. Senators are entitled to ask if this money will achieve any significant results, and if the proposed extra cost will be value for money. Are we going to have a better or more defensible, or more publicly acceptable system of appointing judges, or are we not? This goes to the general ambit of the Bill and I will not go there.

As I understand it, and as the Minister has told us, there is an executive officer who is a part-time employee of the Courts Service carrying out the function of the Judicial Appointments Advisory Board under the intermittent supervision of an assistant principal officer, sometimes with clerical support. Effectively, we are talking about a person at a desk who does this work in addition to other work to keep the system going and sometimes supervised by a person at a desk in the same building - presumably the Courts Service building - and sometimes by a clerical officer at another desk depending on the number of appointments that crop up.

I will come back to the start-up costs, this year's token estimate and next year's start-up funding estimate in due course, but when we consider the proposed judicial appointments commission there are a number of aspects I would like to tease out. First, there is going to be a director of the office and I would like to know what the annual salary is likely to be for the director of the office. Second, what is the director of the office-----

David Norris (Independent)
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Is the Acting Chairman satisfied with the attendance in the House? I point out that there are more people on the bench than there are in the House. There is only Senator McDowell on the Opposition seats, two Members of the Government who are busy on their phones and me. It seems inadequate. I am not actually calling for-----

Martin Conway (Fine Gael)
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The Senator is busy talking to himself.

David Norris (Independent)
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Yes, exactly. The Senator has made my point. I will have to call for a quorum.

Diarmuid Wilson (Fianna Fail)
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Senator Norris is calling for a quorum.

David Norris (Independent)
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I am afraid so.

Michael McDowell (Independent)
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I was dealing with the staffing requirements of this new body and pointing out that the present arrangements are remarkably efficiently run with a very small staff. The Minister states the task of the new board will be immensely more elaborate because it will deal with selection and recommendations and with developing its own procedures. I am surprised to hear that the present Judicial Appointments Advisory Board does not actually do that and does not consider its own procedures or regulate itself. I had imagined it would do so to the extent necessary. I notice that under section 11(7), there is to be provision for consultants and advisers to be appointed from time to time in addition to the regular complement of civil servants who will be the staff of the judicial appointments commission. Although I listened attentively to what the Minister was saying perhaps I did not pick up clearly what the entire anticipated staff complement of the commission is to be. I heard him state that he intended that this body should come into existence roughly contemporaneously with the judicial council. I was not clear whether it was being suggested that the judicial council, which presumably will not have a lay member, will be directing the same staff or sharing the same staff as the judicial appointments commission. Will there be a shared staff complement for both bodies? The same applies to their office accommodation. Will there be a shared accommodation between the judicial council on the one hand and the judicial appointments commission on the other? I ask the Minister to indicate, because clearly it is important for us to get a handle on the size of this institution that is being put in place, exactly how many members of staff there will be of a permanent kind. What does the Minister envisage - because he has made statutory provision for it - will be needed in addition to that for appointment as consultants and advisers under section 11(9)? It seems to me that running selection interviews is a complex operation. In particular, the Minister should indicate how expensive it is, for instance, to run interviews in the Public Appointments Service at the moment for jobs. The Minister will have to have some idea of personnel implications and the staffing implications of running selection interviews which, as I understand it, are to be central to the process of appointment from now on.

The Minister has also stated there is a spectrum of fees for chairpersons and members and where the members of this commission fit upon that spectrum will depend on further consultation between the Minister's Department and the Department of Public Expenditure and Reform. I do not think that is satisfactory. It is not a matter of consultation between two Ministers as to whether the chairperson is given €15,000 a year or €30,000 because €15,000 would be wholly inadequate as remuneration for somebody who was to effectively chair a commission that will be involved in each and every judicial appointment in the State, which means running interviews for it, considering all the candidates and getting reports from consultants and advisers on people who might or might not submit their name and the like. This is a very serious job. I indicated earlier in the debate on this legislation my deep disquiet at the thought that this job would, effectively, be done by the director of the office and that a group of people would come into a room, get evaluations of judges carried out by consultants and advisers who are appointed on contract and put them in front of a majority lay body and minority judicial and legal body to be rubber-stamped. We should want to attract people who are willing to give up significant amounts of their time to participate in the interview process to this position of chairperson and ordinary lay membership of the board. To put it all in context, when I was Minister for Justice, Equality and Law Reform, in respect of some vacancies in the District Court bench there could be up to 90 or 100 applicants. That is my memory in retrospect; I hope I am not exaggerating. There was an enormous number of applicants. If they are not all going to be sifted out by unpaid contractors posing as consultants and advisers and if they are all to get an interview for a District Court position, the question that arises then is who will conduct those interviews? How many members of the board will sit in on such interviews? We live in a very politically correct world now where interviews have to be conducted very impartially. The same questions have to be put to virtually everyone. No value-laden questions should be put to them. No prejudicial questions should be put to them.The whole knack of avoiding discrimination accusations when interviewing people for public and private sector positions has become highly complicated. One cannot just breeze in, have people think up random thoughts, as such as might occur to Senator Norris, and throw them at an applicant because one had nothing else to consider.

David Norris (Independent)
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They do indeed. I am a mass of quivering random thoughts.

Michael McDowell (Independent)
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There would have to be strict regulation of what questions were put to an interviewee and whether they were put to all of them.

David Norris (Independent)
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I am afraid I have to refuse the Senator's kind invitation to join the interview board. I would be quite unfit.

Diarmuid Wilson (Fianna Fail)
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Senator McDowell without interruption.

Michael McDowell (Independent)
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I do not think the Senator would be eligible because he is a Member.

David Norris (Independent)
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The Bill has not passed yet.

Michael McDowell (Independent)
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I know. The body in question does not exist yet therefore.

Charles Flanagan (Laois, Fine Gael)
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At the rate we are going with the Bill, Members of the current Seanad will be retired when it is passed and will be eligible for the board.

Diarmuid Wilson (Fianna Fail)
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Senator McDowell without interruption.

Michael McDowell (Independent)
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Those are issues which concern me.

I fully understand the need to open up a subhead in the Estimates. Towards the end of the year, it is conventional and utterly unobjectionable to put in a nominal amount and to thereby create the opening in the public accounts for the expenditure of a greater amount in the year to which the Estimates are likely to have effect. However, what does a start-up funding of €250,000 represent? The Minister will be aware since taking office that the gestation period between the enactment of the former Minister, Alan Shatter's legislation on the regulatory body for the legal profession, its actual taxiing on the runaway and it taking flight, has been very long. It is nearly two years since it has been in the process of formation. I am not sure as to the extent to which it is actually functioning. Will the Minister indicate what office accommodation is anticipated for this body when it is up and running? What is the total staff complement likely to be? Will it be housed in existing rented accommodation or given its own accommodation? Will it be housed in conjunction with the proposed judicial council, a body with entirely different functions? Will there be shared staff between the two bodies? How much is anticipated will be spent on consultants and advisers in a full year?

Paying an annual rate of €15,000 for a board member is inherently unacceptable if those members have to participate frequently in the interview process and the board's other committees. Instead, there would have to be a per diemapproach to make it attractive for a person of quality to participate. With a person having to pay 50 cent to the euro in taxes, USC and the like, a net benefit of €7,500 for such a position would not be adequate if a recipient were asked to tog out for multiple interviews, attend multiple meetings, consider multiple applications and take an active role. It is quite possible that persons who are paid of the order of €15,000 or €20,000 to be on this board, with a net benefit of €7,500 and €10,000, would regard their own input as being of marginal value to the State and one which would compete with their other activities. Unless they had much spare time on their hands, it would disincline people to participate in a body of this kind.

In these circumstances, it is much more reasonable to think that the members of the commission will have to be remunerated over and above an annual retainer with a per diemrate for carrying out specialised functions such as interview processes and the like. The Minister indicated on the last occasion that he would inform us on this occasion how the €500,000 is computed. Of that €500,000, what is envisaged will be spent on the salaries of public servants? What are the pension costs for those public servants as time goes on? What is the annualised real cost of establishing this body? What will the office accommodation needs be, which necessarily reflect the size of the staff to be appointed? What sums will be paid to the consultants and advisers? How much will advertising for such positions come to? How much will the running of interviews and the rental of premises to conduct interviews come to? Will they be held in hotels around the country? Who will attend those bodies? All of these are mysterious amounts about which the Minister says he cannot be absolutely clear. However, when he says the €1 million is an overestimate and €500,000 is more accurate, how can one run a body of this kind on such an annual budget if it is to do its job properly, attend to the work it is supposed to do and have its members involved in face-to-face interviews with applicants for judicial appointment?

David Norris (Independent)
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One could send them a questionnaire.

Diarmuid Wilson (Fianna Fail)
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Is Senator Norris indicating? His hands were moving around.

David Norris (Independent)
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No, I was not actually. I was sitting patiently and quietly, cogitating on wonderful and internal matters. I was wondering if the Minister, in his graciousness, after having replied to Senator McDowell, would answer the two questions I asked in the one minute remaining.

Charles Flanagan (Laois, Fine Gael)
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Yes, I can do it within the one minute remaining. The answer to the question about the payment to the civil servants------

Diarmuid Wilson (Fianna Fail)
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We actually have an hour remaining.

David Norris (Independent)
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Have we an hour? Good.

Diarmuid Wilson (Fianna Fail)
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We actually have an hour and one minute remaining.

Charles Flanagan (Laois, Fine Gael)
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Yes, the payment of the director, who will be a civil servant, will be from the commission's allocation which has yet to be determined. As for the Senator's second question, it is a technical reference to where provision is made elsewhere in the Bill to funding a particular purpose.For example, it is in subsection 11(2) and subsection 30(2) in terms of a support office. It is a provision that is used widely in legislation to ensure a particular purpose for expenditure can be met.

David Norris (Independent)
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I thank the Minister.

Charles Flanagan (Laois, Fine Gael)
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Senator McDowell posed a number of questions to which, because of their inconsistency, it would just not be possible to provide accurate responses. On the one hand, it seems the Senator is making the case that, by comparison with the Judicial Appointments Advisory Board, there is in some way unnecessary expenditure. On the other hand, he seems to be arguing in favour of an increased amount of expenditure, in addition to the approximately €500,000 or €600,000 that I estimate will be the total expenditure in respect of the full year of operation. The reason the arrangement is different from what is anticipated in the explanatory memorandum is that the Bill has changed substantially in terms of the remit of the commission. We no longer have the structures of committees and subcommittees that would require increased expenditure.

The commission will operate very much along the lines of similar bodies that have been established. Senator McDowell acknowledges the similarities between the commission and the Legal Service Regulatory Authority. There is to be a small complement of staff, a handful of people under the direction of somebody at principal officer grade 1, earning approximately €90,000. The remaining members of staff would be earning in the region of-----

David Norris (Independent)
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That is more than a third more than Senators get.

Charles Flanagan (Laois, Fine Gael)
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Salaries are estimated to be in the region of €300,000 to €350,000. I am not in a position to provide Senators with detail as to the office accommodation. If there is to be a directorate or commission with a staff of four, five or six, it is not difficult to work out the accommodation required. No decisions have been made as far as this is concerned. It is most unlikely, however, that the office will be housed in the offices of any other body. The Judicial Council was mentioned in this regard. It is most unlikely that both of these bodies will be housed in the same accommodation. These decisions have not been made with any great accuracy in order to allow me to be precise having regard to the rental market and precise location. There will be an independent office, however; that is for sure.

Senator Norris, or perhaps Senator McDowell, made reference to a possible overlap of staff, with particular reference to a potential overlap involving the Judicial Council and the commission. That will not be the case. They will be separate entities, in separate premises, and they will have separate and distinct staff. I can do no more at this stage than say I would be very happy to keep Senators fully informed as to the outworking of the commission, having regard to the fact that Senator McDowell is right when he says there will be a setting-up period between the enactment of the legislation and the coming into operation of the commission. Experience shows that period to be a number of months, probably in the region of the year, or perhaps a little more. The legislation on the regulatory authority came into operation towards the end of 2016. It is only now becoming fully operational, with a chief executive officer, dedicated premises, a staff and, of course, a very busy and detailed programme of work. In nine months or a year after the enactment of this Bill, we should certainly have the commission functioning in a way that is envisaged in the legislation.

Michael McDowell (Independent)
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Section 23(2) states, "This section is in addition to any other provision made by this Act with regard to the provision of funding for a particular purpose." How does that marry with section 30(2), which we have not yet examined? The latter subsection states, "The Office shall be funded by moneys provided by the Minister with the consent of the Minister for Public Expenditure and Reform." If Senator Norris would allow me to continue for two seconds before he interrupts-----

David Norris (Independent)
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I will certainly allow the Senator two seconds before I call for a quorum.

Michael McDowell (Independent)
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It is stated the advances to the commission under section 23 are in addition to those moneys. Are we talking about the same moneys or different moneys? How is it that payments to the office are dealt with under section 30(2) and the advances to the commission are dealt with under section 23, which states the measure does not apply to other provisions in the legislation for the payment of moneys.

Paul Coghlan (Fine Gael)
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I call Senator Norris.

David Norris (Independent)
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The Leas-Chathaoirleach is very welcome. I am afraid his colleague is just leaving, which means there are only four Senators here. I make that less than 10%. I wonder where the others are.

Paul Coghlan (Fine Gael)
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Is the Senator calling a quorum?

David Norris (Independent)
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I am afraid I am.

Paul Coghlan (Fine Gael)
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Does Senator Norris wish to contribute?

David Norris (Independent)
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I thank my colleagues for their graciousness in attending. It is very good of them.

Paul Coghlan (Fine Gael)
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Does the Minister wish to respond?

Charles Flanagan (Laois, Fine Gael)
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I want to-----

David Norris (Independent)
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Was Senator McDowell in possession?

Paul Coghlan (Fine Gael)
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No. I call the Minister.

Charles Flanagan (Laois, Fine Gael)
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I again assure Senators that there is nothing unique about the funding arrangements for this new body as set out in the legislation. Senator McDowell referred to section 30(2). I point to section 11(1)(b), which stipulates that funding, whether for the permanent members of the commission, lay members of the board or any other expenditure, will be in accordance with accepted practice and agreed by way of consultation between my Department and the Minister for Public Expenditure and Reform. It will not be a case of the colourful picture painted by Senator McDowell of two Ministers deciding how much those people will be paid or otherwise. There are appropriate and accepted scales for the civil servants, part-time board members and board chairmen. All of this will be taken into consideration in accordance with accepted practice.

Paul Coghlan (Fine Gael)
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I thank the Minister. Does that conclude discussion of the section?

Michael McDowell (Independent)
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I was surprised to receive an email during the week from a denizen of Dublin Rathdown who told me that he had received a leaflet through his letter box. The leaflet-----

David Norris (Independent)
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It referred to Stepaside Garda station.

Michael McDowell (Independent)
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Curiously, it did not address Stepaside Garda station, although I only received one side of it. It features pictures of myself and, curiously, my great friend, former Deputy Alan Shatter, and describes us as "the opponents". The point that caught my attention was that it stated that the system for appointing judges in Ireland is tainted by political cronyism. Is it-----

David Norris (Independent)
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The leaflet was issued by Deputy Shane Ross.

Michael McDowell (Independent)
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Indeed. It advocated a swift passage of the Bill and expressed anger at the time being taken to pass it through the Seanad. I am interested by the constant refrain from one member of the Cabinet regarding political cronyism in the system of appointment of judges.

David Norris (Independent)
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He would know all about that.

Michael McDowell (Independent)
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I ask the Minister to reassure me, the Members of this House and the public at large, including the Minister, Deputy Ross, that there is no political cronyism in the appointment of judges and that the present system of appointing high-quality judges is not in any sense tainted.

Paul Coghlan (Fine Gael)
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I thank the Senator. Does that conclude discussion on the section?

David Norris (Independent)
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The Minister has received an invitation. He can hardly decline to respond.

Charles Flanagan (Laois, Fine Gael)
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Senator McDowell quoted selectively from the half of a leaflet which he produced without notice. I do not agree with the comments of my Cabinet colleague, Deputy Ross, regarding our Judiciary. I acknowledge the impartiality of our Judiciary.

David Norris (Independent)
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Hear, hear.

Charles Flanagan (Laois, Fine Gael)
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I acknowledge its total independence. On the current appointments process, I very much resent allegations or assertions of any form of cronyism, which is the word used by Senator McDowell. The Minister, Deputy Ross, is not a member of my political party. I acknowledge his role in Government and that this is a Government-sponsored Bill which will be piloted by me as the Minister for Justice and Equality. It is very important and reforming legislation. Of course, I support it. I very much reject any assertions made in a document that apparently mentions a former Member of the Lower House. It is not appropriate to comment on leaflet drops by certain politicians in their constituencies while debating amendments to the Bill.

Michael McDowell (Independent)
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I am happy to hear those reassurances from the Minister. I do not believe that he or the Cabinet of which he is a member currently partakes in any process involving political cronyism. I say that with sincerity because I have had the chance to observe the appointments that have been made, which I believe to be entirely on merit and above criticism. They cannot be legitimately targeted as representing some form of cronyism.

Section 23 deals with advances to the commission. Perhaps I misunderstand it, but it seems that the terms of section 30(2) are mandatory, namely, that "The Office shall be funded by moneys provided by the Minister with the consent of the Minister for Public Expenditure and Reform", whereas section 23 is a permissive provision to give advances to the commission, possibly for different purposes. The JAC would be a massively over-expensive quango. It would not achieve a better or less political Judiciary or one more acceptable to the people of Ireland than that which we have and which has performed extremely well. There was no sustained criticism of the manner of appointment of the Judiciary until the Minister, Deputy Ross, launched his personal campaign against it.

There are substantive amendments coming up regarding appointments to the superior courts, as the Minister is aware. I ask him to indicate with clarity to the House that the decision to accept or reject such amendments will be taken by the Cabinet as a whole or a majority thereof if there is any division, rather than through a process in which one member of the Cabinet attempts to veto their acceptance. There are some important amendments to be dealt with. There are moments when a Cabinet must function as such. I acknowledge that there are political underpinnings to any Cabinet, including keeping people onside and its members agreed on various propositions.There are amendments I have tabled which do not offend the principles of what was agreed in the programme for Government and which relate to promotion within the High Court, the Court of Appeal and the Supreme Court, as well as to the presidencies of these courts. I would like to be reassured these amendments will receive fair consideration from the Cabinet and will not be subject to somebody who puts out leaflets claiming the current system of appointing the Judiciary is tainted by cronyism.

Charles Flanagan (Laois, Fine Gael)
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Senator McDowell will know from his time as a member of Cabinet that all decisions made by the Government, whether on amendments made to legislation or on the heads of a Bill, are made following due process.

David Norris (Independent)
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In order to demonstrate that I do not wish to hold up this Bill or to filibuster in any possible way, I am resisting the temptation to call for a walk-through vote.

Michael McDowell (Independent)
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Section 24 is a standard and sensible provision. I am not in any way opposed to it. Obviously, there have to be annual accounts if there is to be any such body and it would be futile to oppose-----

Paul Coghlan (Fine Gael)
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Order, please. There are individuals speaking other than the Senator trying to address the House.

Michael McDowell (Independent)
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It would be futile and wrong-minded to oppose accountability through annual accounts furnished to the Houses of the Oireachtas. I believe the wasteful expenditure of this body should be noted by Members of this House, if it ever gets up and running.

David Norris (Independent)
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I am not inclined to oppose this section. However, I am rather curious about certain aspects of it. I know it may be a standard provision. At the same time, however, it states accounts will be kept "in such form as may be approved by the Minister with the consent of the Minister for Public Expenditure and Reform". That is a rather a long way around the houses. What is wrong with ordinary accounts in a way any company provides accounts? Presumably there is a standard way of producing accounts. What is the point that the form has to be approved by the Minister with the consent of the Minister for Public Expenditure and Reform? Is it necessary? While it may be a standard provision, I am just querying it.

Section 24(2) states:

Annual accounts kept in accordance with this section shall be submitted, not later than 1 April in the year immediately following the financial year to which they relate or on such earlier date as the Minister may from time to time specify, by the Commission to the Comptroller and Auditor General for audit and, immediately after the audit, a copy of the accounts, and of such other special accounts (if any) ...

I am just curious as to what these other special accounts are. Is this an umbrella or catch-all provision to provide for any possible hypothetical context? The final subsection states, "...the Minister, after consultation with the Minister for Public Expenditure and Reform, may direct and a copy of the Comptroller and Auditor General’s report on the accounts shall be presented to the Minister who shall, as soon as may be". What on earth does this mean? It could be anything. The phrase "as soon as possible" would be much clearer. As soon as may be what? Maybe I will, maybe I will not; maybe I will publish the accounts or maybe I will just sit on them for a couple of years. It is just terribly loose. It may be a standard provision but it is not a terribly good one. It is not terribly precisely drafted. The phrase, "as soon as may be", is unsuitably vague for legislation of this nature.

Charles Flanagan (Laois, Fine Gael)
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What is intended in the section regarding the accounts is, in standard form and standard practice, a reference to the Minister for Public Expenditure and Reform and the Comptroller and Auditor General. This is important in the context of ensuring prudent management of public moneys. I agree with Senator McDowell that it would be futile to oppose it and, in the circumstances, having regard to precedent, unnecessary to indulge in fantasy queries.

David Norris (Independent)
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I am not sure whether the Minister will answer the two queries I had subsequent to that. He has answered the first one inadequately but still he has answered it. I am curious as to what are the special accounts. I also made reference to the vagueness of the phrase "as soon as may be". Perhaps the Minister does not want to answer these questions.

Paul Coghlan (Fine Gael)
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The Chair is unable to assist the Senator in this regard.

Paul Coghlan (Fine Gael)
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Amendment No. 65, in the name of Senator Higgins cannot be moved as she is not here.

Ivana Bacik (Independent)
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Can I move it in her absence?

Paul Coghlan (Fine Gael)
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No. The Senator must give permission in writing for someone else to move the amendment.

Ivana Bacik (Independent)
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I welcome the Minister to the House. I support Senator Higgins's amendment but seeing as it has not been moved, I will comment on how the section could be improved on in the terms set out in her amendment, in which she suggested the commission should submit a report on its activities as per the provision under the section but, in particular, that the commission should report its progress in meeting the gender, diversity and Irish language objectives set out in section 7. It is a specific reference to items on which the commission should report. This seems a sensible proposal and could easily be included in this section. It would be strengthened given we debated at an earlier date the need for gender, diversity and Irish language objectives. It would be useful to include it in the section by way of providing more clarity on what the commission should report about. Section 25(1) provides, "The Commission shall, not later than 3 months after the end of each year, submit to the Minister a report on its activities in the preceding year". It is a vague provision. Perhaps "vague" is the wrong word; it is a broad provision. It might be useful to include some specifics on what the commission should direct its attention in making its report.

David Norris (Independent)
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I have a number of things to say about this. The first is about section 25(4), which states, "The Minister may, having consulted with the Commission, direct the Commission to provide a report under this section in such form and manner as the Minister may specify." I fail to see any reason at all, in democratic terms, that it should not be mandatory that the report should be laid before the Oireachtas. Why should it not be? What is the point in having an annual report that deals with matters of considerable significance to the Oireachtas and the public? It seems to be odd that we just have a situation where the Minister may direct and that he or she can prescribe the form and manner. That is quite extraordinary. The Minister may say this is general practice but just because practice is general, it does not mean it cannot be held to be bad and inadequate. This is bad and inadequate. If we have an annual report about the doings of the JAC, what better way is there to avoid the charges of cronyism that were made in Minister, Deputy Ross's, recent manifesto or leaflet? What better way can there be to counter these accusations than to publish the report annually? Could the Minister give any indication as to situations in which he would direct that a report not be published? What is meant by "in such form and manner"? I presume it does not mean it will be published in Braille or only in the Irish language.

With regard to the amendment, the House has shown considerable interest in gender diversity and I notice a comma in Senator Higgins's published amendment. I would have thought it was "gender diversity" and not "gender, diversity".

Ivana Bacik (Independent)
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If I may-----

David Norris (Independent)
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I thank Senator Bacik.

Ivana Bacik (Independent)
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They are two different things. Senator Higgins's amendment refers to different objectives in gender balance but also around diversity.

Paul Coghlan (Fine Gael)
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It does not matter because the amendment has not been moved and we are discussing the section.

Ivana Bacik (Independent)
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I was about to pre-empt the Leas-Chathaoirleach.

Paul Coghlan (Fine Gael)
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There is no point in discussing it.

Ivana Bacik (Independent)
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I acknowledge we are not discussing the amendment but I spoke to how the section could be improved through inserting language similar to that in the amendment.

Paul Coghlan (Fine Gael)
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We are on the section, not the amendment.

David Norris (Independent)
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The amendment is being-----

Paul Coghlan (Fine Gael)
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The amendment is gone; we are discussing the section.

David Norris (Independent)
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I know it is gone but presumably it was objected to by the Government.

Charles Flanagan (Laois, Fine Gael)
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No.

Paul Coghlan (Fine Gael)
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It was not moved. I ruled on it.

David Norris (Independent)
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I see.

Paul Coghlan (Fine Gael)
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The Senator was not present and she had not given permission to anybody else to move the amendment. It was not moved and it is gone.

David Norris (Independent)
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Very good.

Paul Coghlan (Fine Gael)
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We are dealing with the section.

David Norris (Independent)
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The Minister has indicated there was no Government opposition, so presumably Senator Higgins can retable it on Report Stage and it will be agreed. That would be wonderful.

Paul Coghlan (Fine Gael)
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That will be her choice.

David Norris (Independent)
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If she does not do so, I will because it is terribly important that the Government should not be seen as an enemy of the Irish language, for example, and one of the principal matters of interest here is the Irish language. These are my concerns about this matter, particularly section 25(4), which states "The Minister may". It is terribly weak.

Michael McDowell (Independent)
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This is a matter on which I have to express some divergence of opinion between myself and Senators Bacik and Norris.

David Norris (Independent)
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Diversity is good.

Michael McDowell (Independent)
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Yes, this is a divergence of opinion. It seems that section 25(1) is mandatory.Senator Norris is misreading the entire section if he makes the argument that subsection (4) gives discretion to the Minister and the commission to publish a report. Subsection (1) makes it quite clear that the commission shall, not later than three months after the end of each year, submit a report to the Minister on its activities and the Minister shall, as soon as may be, cause copies to be laid before the Houses of the Oireachtas. There is a positive duty there.

David Norris (Independent)
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What, then, is the point of subsection (4)?

Michael McDowell (Independent)
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It seems to be to give the Minister some kind of power to tell the commission, once he or she has consulted with it-----

David Norris (Independent)
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It seems to give him or her the power to monkey with the report.

Michael McDowell (Independent)
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He may also provide it in a particular form and manner. I would not have too much objection to that because the Minister is accountable to Dáil Éireann and the body in question is, ultimately, accountable to the Houses of the Oireachtas, particularly Dáil Éireann, in respect of many of the matters with which it deals. The Minister should be in a position to require the commission to deal with issues which he believes it should deal with.

I accept that the amendment put down by Senator Alice-Mary Higgins is not being discussed here but I am of the view that the amendment should not be made. I would not decline to support the section because it did not contain that amendment, and I wish to signal that for Report Stage. I believe it is misconceived and would not add to the section, whether it was made here or is made on Report Stage. Before Senator Norris commits himself to tabling such an amendment on Report Stage, I draw his attention to the reference to the commission's progress in meeting the gender diversity and Irish language objectives set out in section 7. There is a misconception here. The commission is not there to make progress on these issues. It is there to select candidates for consideration by the Government. It is the Government that makes progress on these issues and it is a misconception to think the commission will report annually on the progress it thought it was making with these proposals. I am alarmed that any Member of the House, including Senator Norris, might commit himself to moving such an amendment. If the Government chooses people on merit but under-delivers in respect of diversity, it should not be the subject of a report to this House or Dáil Éireann by the commission. It is a matter for the Houses of the Oireachtas to say if they are concerned. I certainly do not want the commission, through a report of this kind, to second-guess the Government's function and critique it by saying it was not making much progress on social diversity. It is a legal and constitutional impertinence and should not be tolerated.

David Norris (Independent)
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What?

Michael McDowell (Independent)
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The Constitution gives these choices to, and vests these discretions in, the Government. The Constitution trusts the Government to arrive at diversity and does not give a group of other people, or a statutory body, the right to critique the Government's performance.

David Norris (Independent)
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Yes, it does.

Michael McDowell (Independent)
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This amendment completely overblows the function of the commission and I will radically oppose it if Senator Norris tables an amendment on Report Stage.

David Norris (Independent)
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Senator McDowell is giving me great temptation to do so now.

Michael McDowell (Independent)
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There are issues.

David Norris (Independent)
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Travellers' rights is one.

Michael McDowell (Independent)
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One issue is the sexual orientation of members of the Judiciary.

David Norris (Independent)
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We do not want to know.

Michael McDowell (Independent)
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We do not want to know as it is a private matter for any judge. We do not want these things to be matters of debate, or the subject of reports stating there are not enough gay people in one court or too many in another.

Paul Coghlan (Fine Gael)
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The Senator will agree that it does not arise in this section.

Michael McDowell (Independent)
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I was getting worried about Senator Norris. If anybody is tempted to oppose this section-----

David Norris (Independent)
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The Senator should not worry about me. I do not have any sexual orientation at all as I am far too old.

Ivana Bacik (Independent)
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Never say never.

Michael McDowell (Independent)
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This reminds me of the late Deputy Maurice Dockrell in respect of the legislation on contraception, which was famously voted against by the then Taoiseach. The Deputy said he was past it but for it.

Charles Flanagan (Laois, Fine Gael)
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Reference was made to a comedy show on television in a neighbouring jurisdiction. It may be 16 October but it seems the Christmas panto season has come to the Seanad early, and that is regrettable in the context of what we are debating. We seem to have spent the past 20 minutes discussing an amendment which was not moved by dint of the absence of a proposer.

Paul Coghlan (Fine Gael)
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It was not allowed.

Charles Flanagan (Laois, Fine Gael)
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It was ruled out of order by the Chair yet the Chair encouraged people to make contributions on it.

Paul Coghlan (Fine Gael)
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I am sorry, Minister, but Members are entitled to speak on a section. I did not encourage them to discuss something that was not moved.

Charles Flanagan (Laois, Fine Gael)
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Not only were the Senators not speaking on the section, Senator McDowell was speaking on a putative amendment which Senator Norris said he might introduce at some future stage. He did not even attempt to discuss the amendment which the Leas-Chathaoirleach ruled out of order, a ruling on which he then failed to follow up. I have told Senator Norris on other occasions not to misrepresent things I say, either in this House or outside. I did not say I was in favour of the amendment. The Chair had ruled that the amendment was out of order and, as such, was not to be the subject of discussion. I never said I agreed with it nor that I would not oppose it. I am now minded to introduce an amendment on Report Stage in the context of sections 24 and 25. It would have regard to the fact that section 24 specifies the annual accounts to be submitted not later than 1 April. Section 25 deals with the matter of the publication of the annual report which will, of course, be published. In the normal course of events the submission of the annual accounts to the Comptroller and Auditor General would precede the submission of the annual report in order to ensure the report includes the audited accounts and that would give welcome certainty over the annual report.

I have sympathy with the point made by Senator Bacik but the annual reports of the commission will be subject to engagement, on an annual basis or otherwise, with at least one committee of the Houses, and maybe more. It may perhaps, on occasion, be the subject of engagement with a committee of the Seanad. They are the fora in which to include reports of any progress on the issues to which the Senators referred, rather than being expressed in the Bill.

Paul Coghlan (Fine Gael)
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The time has been reached.

David Norris (Independent)
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It is only 7.59 p.m.

Paul Coghlan (Fine Gael)
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I will be the judge of this.

Paul Coghlan (Fine Gael)
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When is it proposed to sit again?

Catherine Noone (Fine Gael)
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At 10.30 a.m. tomorrow.