Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 11 to 13, inclusive, are related and may be discussed together. Would the Minister of State like to conclude his response?

James Browne (Wexford, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 4, 6, 11, 12 and 13 are being taken together. It was agreed that amendment No. 4 would be included in the group. They all seek to amend section 9.Section 9 provides for the membership of the commission. It provides that the commission will be chaired by the Chief Justice. It provides for an equal number of lay members and judicial members, that is, four of each. Judicial membership comprises the Chief Justice, the President of the Court of Appeal and the two nominees of the Judicial Council. The Attorney General is a non-voting member.

As has been stated, the purpose of amendment No. 4 is to increase the number of Judicial Council nominees to the judicial appointments commission by one from two to three. I cannot support amendment No. 4. There is no particular basis for increasing the number of Judicial Council nominees by one. While I would accept the intention is that this is read with the Senators’ separate amendment No. 6 to remove the Attorney General from the commission, amendment No. 4 would pose significant difficulty within section 12 for the process of nominating the judges in question. To have two nominees is balanced and this is critical in the context of the requirements for a nomination: one is to be male and one is to be female; one is to be from the higher courts and one from the District Court or Circuit Court; one is to be a formerly practising barrister and one is to be formerly practising solicitor. Membership is balanced, taking many things into consideration, including the nominee that is advanced by the council. I cannot support this amendment.

Amendment No. 6 would remove paragraph (d) of section 9. This would delete membership of the commission of the Attorney General. Amendment No. 11 would presumably in a consequential way delete subsection (3), which provides for the status of the Attorney General on the commission. Separately, amendments Nos. 12 and 13 would restrict the Attorney General's role on the commission to particular functions or appointments.

The concern the Senators appear to have is not shared by me. In respect of this group of amendments, I would say that the Attorney General will sit on the commission in an ex officio, non-voting capacity. I would point out that the Attorney General is a constitutional officeholder who has a particular role in upholding the independence of the Judiciary. He or she does not represent the Government on the new commission. The Attorney General is independent of the Government and this position has been recognised and confirmed in the decisions of the Irish courts. The Attorney General also has a role in upholding the Constitution, including a duty to ensure the independence of the Judiciary. In that context, there is no reasonable basis, in my view, for removing the Attorney General from this process or, indeed, any part of it as some of the later amendments propose.

The Bill in all its elements, including in particular those relating to the composition of the commission, was drafted on the basis of careful legal consideration of the relevant committee, the Minister’s recommendations and the jurisprudence of the Court of Justice of the European Union and of the Constitution. This is the case notably in its inclusion of a substantial number of judges and an equal number of laypersons, along with the Attorney General. This approach will serve to strongly underpin the independence of the Judiciary.

Amendment No. 11 would also have the effect of amending section 9 by removing the voting provision relating to the Attorney General. Several Senators subscribed to this for different reasons, as they have explained. The provisions of the Bill have been very carefully designed to provide a balance of membership on the commission between judicial members and lay members. The role of the Attorney General on the commission will be an extremely important one and, of course, the Attorney General has been a member of the advisory body, JAAB, since its inception. I would be concerned about putting, and it may be invidious to put, the Attorney General in a position whereby his or her vote might be a casting vote. That could be the effect of these amendments. This would, of course, happen in circumstances where there was an equivalence of votes between the judicial and lay members. I believe the commission will be a consensus-based body and I indicated as much on Second Stage. I would not wish to speculate on precisely how the commission will operate its procedures as that is a matter for the commission to regulate. However, I am not in a position to put the lay members of the commission in a minority position by providing for five votes against the judicial members and the Attorney General. This would change the nature of the Bill substantially and I am not prepared to provide for that. On that basis, I cannot support the amendment.

Let me address amendments Nos. 12 and 13. The approach of Senators Higgins and Ruane is perhaps innovative but, nonetheless, in paring back the involvement of the Attorney General, the amendments are still unacceptable. Amendment No. 12 prohibits the Attorney General’s involvement in the appointment of judges to any court in the State and amendment No. 13 prohibits his or her involvement in appointments to the superior courts. The former amendment would allow for his or her involvement in nominations to courts outside the State and the other functions of the commission under Part 5. The latter amendment would allow for that and for a remit in respect of appointments only to the Circuit Court and District Court. I cannot support these amendments. I agree with what would appear to be the understanding here, which is that the Attorney General is eminently suitable to have a function in regard to Part 5 matters and the development of selection statements. The thinking would seem to extend to his or her suitability to have a function in regard to nominations to the European Court of Justice and other courts outside the State. I agree. It extends in amendment No. 13 to his or her suitability for the function of the commission's recommendation of persons for appointment to the District and Circuit Courts. I agree. For all of the roles that the amendments appear to envisage the Attorney General being suitable to discharge, I would simply add that of selection and recommendation, as a non-voting member of the commission, of judges for appointments to the High Court, Court of Appeal and Supreme Court. This is where the understanding and knowledge of the Attorney General will apply just as suitably as to all other court positions and commission powers. This is what the Bill provides for. Therefore, I cannot support the amendment.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

The question is not the suitability of the Attorney General as part of the process. The question is where he or she fits in the process and that danger and concern of him or her being involved twice in the process, as we heard in the debate. There is a role for the Attorney General in the second part of the process where nominations have been suggested but not made, with the names of nominees having been put to the Government. The Attorney General has that role in advising the Government and will, of course, exercise that role. The concern is not about the suitability of any individual Attorney General. It is that there are two parts of a process and, effectively, there is an actor who is acting in both parts of that process. That is the nub of the concern.

I thank the Minister of State for recognising the innovation of some of the amendments. In particular in regard to some of the very senior roles around the Supreme Court, the High Court and the Court of Appeal, it would seem that while there may be a role for the Attorney General in advising between three candidates that have been put forward, there is a concern if he or she is taking part in the recommendation or search for candidates at the early part as well. It also creates a dynamic where there is an actor within the first process, then a formal process of recommendation and then another process that comes out of it, so somebody has full access to what is meant to be an independent process but is then not necessarily accountable in terms of how he or she represents what has happened in the process going forward. It is almost that there are two representatives coming out of the judicial appointments commission in that there are the recommendations from the judicial appointments commission and then one of the actors within the judicial appointments commission indirectly and privately goes and gives advice to the Government in that respect.

The concern is when we look to the process in the round, not just at the judicial appointments commission but the wider process. That is why I regret the Minister of State is not able to accept the amendments, although I will press them.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

The Senator is pressing amendment No. 4.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I understand the Government is not accepting any of my amendments to this section.

James Browne (Wexford, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

We are opposing them.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Then I am not going to press amendment No. 4. Amendment No. 6 is consequential on this and it might miraculously pass.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 5:

In page 10, between lines 31 and 32, to insert the following: “(d) 2 practitioner representatives appointed in accordance with section 13,”.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 6:

In page 10, to delete line 32.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 7 and 9 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I have amendments Nos. 10 and 26. They may not all be in order but it seems to me they are all related to the same material and should all be discussed together.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

Amendment No. 10 has been deemed out of order.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I heard that but I am sorry to say I was not notified personally, despite the fact it is in my name.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

It might be somebody else that the Senator needs to contact.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Senator Emer Currie and I submitted that amendment. I understand Senator Currie was notified that it was ruled out of order.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

With respect, we are not on that amendment.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I am proposing that all four would be taken together because they are all related.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

It is out of order so it cannot be taken but the Senator can speak to the section.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I can speak to the section. To my mind, it would make the whole process more streamlined if we dealt with all of them together. That is what I am proposing.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

We cannot include it because it is out of order. The Senator can speak to the section.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

How is it out of order? Surely, if I am making a proposal, the amendments will be dealt with together?

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

Amendment No. 10 is out of order.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Amendment No. 26 deals with the same matter. I propose that it be dealt with at the same time as amendments Nos. 7 and 9. I have something to say about amendment No. 10 being out of order but I accept what the Acting Chair is saying.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

As Senator Ward said, it seems that this has been ruled out of order on the basis that it might impose a charge on the public if an extra member is added to the commission.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

That is correct.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

That being the case, if the Senator says on Report Stage that no expenses shall be paid to any such member, he will be able to get the amendment back in.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

I thank Senator McDowell for his wisdom. Amendment No. 26 is due to be discussed with amendment No. 19. Amendments Nos. 19 to 28, inclusive, are being discussed together. Is Senator Ward asking for one of those amendments to be taken out of that grouping and put into this grouping?

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Yes. It is consequential to the decision on amendments Nos. 7 and 9.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

As I understand it, amendment No. 26 is consequential to amendment No. 19, which is why they are coupled, and, therefore, they cannot be discussed separately. Is that all right?

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Amendment No. 19 can be dealt with as well.

Pauline O'Reilly (Green Party)
Link to this: Individually | In context | Oireachtas source

With respect, I think we need to move on. They will all be discussed. We are on amendment No. 7. Amendments Nos. 7 and 9 will be discussed together.

Mark Wall (Labour)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 7:

In page 10, to delete line 33 and substitute the following: “(e) 4 lay members of whom—

(i) 1 shall be nominated from time to time as required by the Irish Human Rights and Equality Commission and appointed by the Minister, and

(ii) 3 shall be appointed under section 13.”.

It is our understanding, based on the heads of Bill, that the Irish Human Rights and Equality Commission, IHREC, was to be incorporated in the legislation as it stood at that stage. Its expertise was valued as part of that. It now seems, under the Bill as presented to us today, that it will no longer be a nominating member, although that expertise is to be protected. As our amendment suggests, we are looking for a member to be nominated by the IHREC to be appointed by the Minister. We ask that the amendment be accepted.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Senator Currie and I tabled an amendment, No. 9, which is on the same lines as this. As my colleague has outlined, in the original iteration of the legislation, there was a provision to allow the IHREC, an important State body with important functions, to be involved in the decisions of the commission about who would be proposed to Government for appointment. It was originally included specifically as nominating a member of the commission. In this iteration of the Bill, that has been amended so that there are now four lay members. It is possible that one of those lay members might also be a member of IHREC. We are trying not to leave that up to chance and for the Minister to decide that he or she may, when appointing people to the commission, appoint a person from IHREC.

The other difficulty that arises is that the legislation provides for the Public Appointments Service, PAS, to make recommendations to the Minister. He or she is quite hamstrung about how he or she can approach the recommendations of the PAS with regard to who might be appointed to the commission. The danger is that somebody from IHREC, for whatever reason, might not come through that process. I have a great difficulty with this process. It is the subject of other amendments that I have tabled. I cast no aspersions on the PAS as a body because it has a particular function that it carries out in a particular way, but that particular way does not necessarily suit everybody who might be coming through that process or who might apply. The reality is that the PAS must have measurable targets in its system to assess the suitability or otherwise of a candidate. It ignores the fact that not everybody will fit into the metric provided for by those Civil Service systems. I would much rather see the Minister having much greater flexibility and autonomy with regard to who he or she appoints to the commission than is provided for in this legislation.

That all amounts to the fact that it is harder and harder for a member of IHREC to get onto the judicial appointments commission and, therefore, have a bearing on who is recommended to the Government for a judicial appointment. The Irish Human Rights and Equality Commission correctly perceives that it has a role to play here. The judicial appointments commission would benefit from its expertise. I have tabled other amendments about reordering the criteria that would apply for appointment to the commission, for example. What is most important is that we have an opportunity in this legislation to say that it should have the right to be part of the commission and to have its say. It will not necessarily be determinative because, at the end of the day, one member out of nine will not necessarily hold sway, but having somebody from IHREC who has perspective on human rights issues to have his or her say is tremendously important. I am concerned about the way that section 9, which provides for the membership of the commission, is phrased. It does not mean that there will necessarily be any consideration for those issues.

Section 13(4) has other definitions for how it would decide or what criteria would be applied. Experience in business, finance, public service, corporate governance and human resources appear to be foremost among the criteria, which, to my mind, have little to do with the assessment of skills, criteria, expertise or the skill set that an individual might have that would make him or her appropriate for appointment to judicial office. Notwithstanding that, the point of this is that judges, in their day-to-day business, will have to grapple with human rights issues. The benefit of having somebody on the commission who has seen things through the prism of a human rights perspective, that is, a nominee of IHREC, though it does not have to be a member of the commission but could be somebody who it chooses, is that he or she would be able to represent that perspective at commission meetings when looking at a nominee to send to Government. There is an opportunity to put that person on the commission. The way the Bill is phrased at the moment totally ignores that. It sidelines IHREC. I do not believe that is the intention, but it is the reality of what happens. IHREC will no longer have direct input into the commission's output, which is the shame. It will also degrade the quality of the representative or nominee that the commission will send to Government, which is a shame.

This group of amendments would amend that so that we have a specific reference to IHREC and a place for it. We are not adding an additional person. I tabled alternative amendments that would have done that. We are saying that one of the four lay members should be nominated by IHREC rather than the Minister because the reality is that the Minister has been hamstrung by the legislation since he or she cannot choose people beyond the recommendations that come from the PAS.

I suggested in amendment No. 10 that we would add an additional person who would be appointed by IHREC. That is apparently out of order. The point that I was going to make is that it is regrettable that when Senator Currie tabled that amendment, she received an email that she was asked to pass on to me, stating that my amendment had been ruled out of order. I do not understand why there was not a provision in the Houses of the Oireachtas whereby that email could not also have been sent to me or I could at least have been copied on it. I did not know about it until that information was shared with me by the Senator. I do not agree with it being ruled out of order but that is another day's work. The point I am making with these amendments is that there is a space for IHREC and it has a role to play. It should be entitled to play that role and it should not be left to chance.

Michael McDowell (Independent)
Link to this: Individually | In context | Oireachtas source

On this matter, I have to respectfully disagree with Senator Ward. I do not believe that IHREC should be represented on the judicial appointments commission. The legislation that established IHREC states that one of its functions is to develop law and to make proposals on the development of law on the protection of human rights.One of its functions is to develop law and to make proposals on the development of law on the protection of human rights. It is a quasi-political body. I do not believe it is appropriate for somebody who has membership and a part to play in law development from a particular perspective, which is the human rights perspective, to be brought in to the process with a view to vetting candidates, interviewing candidates or exerting influence on the identity of people to be appointed. There is an element of ideology to the human rights community. There are other attributes that judges need to uphold. One of these is to be guided by the Oireachtas on these matters rather than the Irish Human Rights and Equality Commission. I am against the amendments of Senators Ward and Wall.

Emer Currie (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I support my colleague Senator Ward. Representatives of IHREC were in Leinster House recently to update us on the public sector duty. This is to ask public bodies to have a positive provision on equality and diversity. This does not line up when I compare the general scheme with the text of the Bill. The Bill does not have a specific provision for a nominee from IHREC. We need to listen to the commission on this. It is an independent body. Diversity has featured throughout the Bill. There is a diversity statement. As I said, it is a positive provision. As Senator Ward said, it does not have to be a member. It is a nominee rather than someone specifically from the commission. Four positions have to be shared between nominees from the justice system, business and corporate governance. I am afraid the human rights and equality element would get lost. I strongly believe we need to reconsider this and listen to IHREC.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

Amendment No. 9 is in this grouping. It also makes it clear that one of the laypersons appointed should be nominated by the Irish Human Rights and Equality Commission. This is fundamental. It was fundamental in the understanding we had during pre-legislative scrutiny. It was in the original heads of the Bill. When I do pre-legislative scrutiny I look to make sure that all of the relevant voices and bodies are there. The heads of Bill as presented to the committee provided that a nominee from IHREC would be included in the lay membership. IHREC understood that it would be a nominating body. It might not nominate an employee or a commissioner but it would be a nominating body because of the very specific expertise it can bring in identifying a voice on human rights and equality or expertise in human rights and equality that will be pertinent to any particular situation. This was to copper-fasten and guarantee there would be in-built human rights and equality expertise in the process and in the judicial appointments commission.

This approach was largely welcomed. It was not criticised or opposed by the committee. It seems to have been removed from the draft Bill. The legislation as it now stands states human rights and equality should be protected in the process but there is no mechanism for doing so. There are many areas of expertise considered in respect of laypersons. There is no guarantee that human rights and equality will be carried through. It is one among a series of broad selection criteria. This is not like any other area. Human rights is not an ideology issue in this sense. We have passed that point. It is very well established and is now part of the international legal structures within which we all operate and in which Ireland has played an active and leading role. We look to our record. Síofra O'Leary is leading the European Court of Human Rights. Three Irish individuals have been appointed as special UN rapporteurs. Human rights is an area where Ireland has hung its hat internationally. It champions this as international law. It has a perspective that is international but also belongs to every individual with regard to those international human law instruments that we have ratified as a country and made part of our legal architecture. One of the crucial elements will be judges who understand this, are able to engage with it and have shown a good understanding of it.

This is not an opinion on some industry. There are relevant legal aspects to this. There is also relevant law on the Irish Human Rights and Equality Commission Act 2014. That legislation specifically sets out the public sector duty on equality and human rights. There is a duty on public bodies such as the new judicial appointments commission to ensure they are acting in a constructive way in terms of human rights and equality. We do not have a guarantee. There is no mechanism without IHREC being given a nominating role to ensure the human rights and equality duty is reflected. This is a statutory obligation for the judicial appointments commission. A very elegant and simple way to address it is to ensure IHREC will, as promised and expected, have a role in nominating the other layperson.

It is notable that in the text of my amendment, that of the similar amendment tabled by Senator Wall and that of the similar proposals made by Senators Ward and Curry, the Minister of State is hearing this from across the House. It is consistent with other legislation. For example, the text of the Legal Services Regulation Act 2015, in establishing the Legal Services Regulatory Authority in section 9(4)(a)(iv), states that of the persons to be appointed to be members of the Legal Services Regulatory Authority, one shall be nominated for appointment by the Irish Human Rights and Equality Commission. We have a clear precedent in this legal area of regulation that a particular useful expertise would be added by the Irish Human Rights and Equality Commission.

We have legal precedent, statutory obligation, the strong expectation and understanding of the relevant Oireachtas committee, the fact it was in the original heads of Bill, the importance of international human rights law and Ireland's stated commitment on international human rights law. All of these point to the importance of making sure we have an IHREC nominee as one of the four laypersons. If it is felt that we need to expand to have one more person, so be it. An additional layperson is something the Minister has indicated she is open to. This is an amendment that only the Government can table. None of us as individual Senators can do so given how the Standing Orders are interpreted. It is open to the Minister of State to do this on Report Stage. I urge him to accept one of the amendments today or to commit to coming back on Report Stage with a proposal to ensure a nominee from IHREC is part of this new commission.

James Browne (Wexford, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Section 9 provides for the membership of the commission in line with the Government's programme that the commission would be chaired by the Chief Justice. It provides for an equal number of lay and judicial members, with four each. Judicial members comprise the Chief Justice, the President of the Court of Appeal and two nominees of the Judicial Council. Section 12 provides for a more detailed prescription for the nominees of the Judicial Council. All four lay members will be recommended by the Public Appointments Service nominated under section 13. The Attorney General is a non-voting member. Amendments Nos. 7 and 9 appear to have a collective objective of providing that one of the four lay members shall be nominated by the Irish Human Rights and Equality Commission. I considered carefully in the drafting of the Bill the most equitable approach to take to the appointment of lay members. The Senators will be aware that a draft provision had originally been made for one of the members to be nominated by IHREC. On consideration of the matter, it appeared to me that many organisations and bodies in our community and society might have a positive contribution to make in this respect. It did not appear to me to be the best option to designate one body above all others as the only nominating body in the selection of lay members. On balance, therefore, I decided that all nominations in this context should be made through PAS. I believe that it is critical that expertise and knowledge in the area of equality and human rights are brought to bear on the functions of the commission. I have included that requirement in section 13 as objectives PAS must bear in mind in the determination of selection criteria, that is, in the selection of all four lay members. I believe that the service is the most appropriate model to employ for this purpose.

A person associated with a body or organisation that may have an interest in this area can come forward, as, indeed, can any individual who has expertise and knowledge in the areas set out under section 13, including human rights and equality. The section provides for the selection and recommendation of lay members of the commission by PAS for appointment by the Minister and stipulates the categories of knowledge and experience to which the service shall have regard in selecting lay members. As I have indicated, amendment No. 26, in the names of Senators Currie and Ward, reflects what they seek to achieve in the earlier amendments.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

It is not that there are a lot of bodies and that it would be nice to have them represented. This is quite different. Yes, there are lots of different interest groups and expert groups, but we have outlined the fact, that, with respect, has not been addressed, that the public duty and equality and human rights are a statutory obligation. The Irish Human Rights and Equality Commission is the point at which many different areas of interest and expertise have their intersection with the law. For example, there are many disability organisations with a significant perspective and expertise, but where they intersect with, for example, the UN Convention on the Rights of Persons with Disabilities, IHREC is able to provide a connection point in that regard. In lots of specific areas across civil society there are expertises and perspectives, but what IHREC has is that cross-cutting perspective as to how these rights issues in the wider sense and the multifaceted sense intersect with the question of international human rights and national human rights law. That is why IHREC has been given key advice not just in respect of international human rights but also in respect of constitutional law and other matters. It, therefore, has significant expertise. It is not simply a matter of an interest. It is an expertise that IHREC can bring and that cuts across rights in the widest sense. Again, this is a statutory obligation.

As for what the Minister of State has outlined in respect of section 13, there is no guarantee in that section that there will be an expertise on human rights and equality brought to play in respect of this important task of identifying potential judicial roles. There is no structure in place for that. There is every possibility that we may have somebody with human resources expertise, which is of narrow relevance to this, somebody else from the field of finance, somebody else from the field of corporate governance and somebody else with experience of the operation of the courts and nobody in the fields of human rights or equality. There is no mechanism to ensure that would not be the case. Even if there were to be a guarantee under the section, the Public Appointments Service would not necessarily be best placed to identify who might best carry forward that expertise.

Again, this is different, and I worry about the idea of human rights being treated as merely one of the things we would like to see represented. It is cross-cutting. It has legal weight. It is not simply that there are lots of bodies. This is not the same as saying that, for example, education and training boards and Teagasc would all love to be represented on the commission, asking why not and saying, "Sure, everybody could be on it." There is a specific reason IHREC was expected to be represented on it and was originally placed as such, as in other Acts, such as, as mentioned, the Legal Services Regulation Act. There is a strong precedent in that regard. This is not simply not doing a nice thing; it is a backwards step from the heads of Bill and a backwards step from previous legislation in this area. It is a downgrading of the focus we give to human rights and equality in respect of these legal matters. Since 2015, we have been on an upward curve. I worry that this will become legislation whereby we start on a downward curve.

Pat Casey (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendment No. 8 has been ruled out of order because of a potential charge on the Revenue.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 9:

In page 10, line 33, after “13” to insert “of whom one shall be nominated for appointment by the Irish Human Rights and Equality Commission”.

I will withdraw the amendment and bring it back on Report Stage, when I will call "Vótáil" on it. I hope the Minister will reconsider the matter in the meantime.

Pat Casey (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendment No. 10, involving a potential charge on the Revenue, has been ruled out of order.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 11:

In page 11, to delete lines 5 and 6.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 12:

In page 11, between lines 6 and 7, to insert the following: “(4) The Attorney General shall not, as a member of the Commission, play a role in the selection or recommendation of persons for appointment to judicial office in the Supreme Court, Court of Appeal, High Court, Circuit Court or District Court.”.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 13:

In page 11, between lines 6 and 7, to insert the following:

“(4) The Attorney General shall not, as a member of the Commission, play a role in the selection or recommendation of persons for appointment to judicial office in the Supreme Court, Court of Appeal or High Court.”.

I will withdraw the amendment. I reserve the right to bring it back on Report Stage.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 14:

In page 11, after line 38, to insert the following: “(5) The Commission shall not appoint a person as a consultant or advisor where—

(a) that person is a member of the Houses of the Oireachtas, or has been a member in the preceding 2 years,

(b) that person has served as a Minister of the Government in the preceding 5 years,

(c) that person has served as Attorney General in the preceding 5 years, or

(d) that person has served as the Secretary General of a Department of State in the preceding 5 years.”.

The amendment tries to be in line with best practice and mirror the cooling-off period we have for certain other politically-sensitive activities with regard to the commission's appointing of a person as a consultant or adviser and provides that we make sure there is no possibility of a perception - let alone a reality - of any cross purposes or previous relationships influencing the giving or appointment of such a role.It is simply saying that a person will not be appointed as a consultant or adviser where that person has been a Member of the Houses of the Oireachtas in the preceding two years and, because these roles are very sensitive in particular to the work of the commission, where that person has served as the Attorney General, a Secretary General or a Minister in the five-year period prior to such an appointment. The purpose of the amendment is to ensure the independence of the judicial appointments commission and ensure that persons who may have held positions of relevant power in the Oireachtas, the Government, a Department of State or Cabinet in recent years do not have undue influence.

I note that in section 11(2) there are some provisions already there that seek to limit the role that a person appointed as a consultant may have in relation to the selection process. I welcome that there is some level of safeguard already there under section 11(2), which suggests that the consultant or adviser would not be part of the function of selection and recommendation of persons for appointment. However, this is an area where we want to illustrate the clear separation of powers and best practice would be to reflect that. I would note there is perhaps almost an excessive period later - I think it is 12 years - in terms of the requirement for a cooling-off period from having engaged in practising law. I will come to that at ten years. I think a five-year period here and a two-year period in respect of ordinary Oireachtas Members is reasonable.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

This amendment is absolutely and utterly misguided. It preposterously presupposes that it is appropriate for this House to rush headlong, as it has done in lots of other legislation, towards excluding former Members from any kind of operation after they leave this House. Oftentimes, in fact perhaps most of the time, people leave this or the other House without very much notice and find themselves in a situation where they have to get a job. I am not sure necessarily that the Judiciary is a place that they are likely to bet on ending up. However, the notion behind this amendment excludes four different categories of person: former Members of the Houses of the Oireachtas; former members of Government, which obviously have an overlap; the Attorney General; or persons who have served at a certain level within the Civil Service. Again, it presupposes that these people are in some way inappropriate-----

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

For limited periods of time, just to clarify.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

There are different units of time for each of them - absolutely. It is two years for Deputies and Senators, five years for a member of the Government, five years for the Attorney General and five years for somebody who served at the Secretary General level in a Department of the Government. The notion that that somehow debars people from the appropriateness of serving in judicial office is wrong.

First, what is much more important than qualifying somebody to serve in judicial office is their actual qualifications. For any person to even fall into this category they would already have to have served for more than ten years in a legal practice role or the other things that are provided for in the Act. This person will already be an accomplished legal professional who has a considerable amount of experience. That is the first thing.

Second, in proposing her amendment, the Senator talked about cross-contamination and the notion that if one has served as a Member of the Houses of the Oireachtas, in the Government or whatever the other categories are, somehow one is no longer fit to hold that office. It presupposes there might be some kind of cross-contamination, instead of looking at the job that is done in these Houses and in government and acknowledging someone has a wealth of experience or an expertise that might lend itself very well to being an effective judicial figure or recognising that when a person works in here for a number of years, they develop a skill set that can be of benefit to the country, be it at judicial level or wherever else it might be. There are so many other areas of legislation where we have told people that if they have been a Deputy, a Minister or even an adviser to a Minister, they must wait a year before they can do jobs in an area where they have built up an expertise and a skill set. I know that there are reasons that might exist. However, I do not understand why, on the one hand, we say we want to encourage people into politics, and on the other hand, we spend all of our time telling people that if they get into politics, they will be hamstrung in getting into any other area of work. I do not think we should be doing that. It is not necessary. This amendment is totally misguided.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

It is important to clarify that I never used the phrase “cross-contamination”. I talked about the separation of powers, which is quite different. I have huge respect for the work that we do in the Oireachtas and the political work the Government does. It is because of that respect and recognising that it is a separate role that it is important for it to be able to be done, and have the confidence of the public that it is done in a way that is clearly separate from the other arms of the State.

I would note that this amendment is not in relation to who is eligible for judicial office, rather, it is in relation to who is eligible to become consultants, advisers or enter into contracts with and work for the commission. It is around the independent functioning of the commission. In general, there are excessive measures, particularly in terms of local authority members, most of whom cannot solely work as local authority members. Some of us are lucky enough to be able to be full-time Senators, but that is not something that is viable for many local authority members. In that context, there have been overly restrictive measures. However, in this case, it is appropriate because it is around the functioning of a commission that is appointing people. There is a situation whereby this very important function of the commission needs, by its nature, to be seen to be completely separate from Government because it gives these independent recommendations to Government. For the commission’s clarity of independent function and others, it is an appropriate period. Two years and five years are not excessive.

I regret that we have sadly seen an excessive number of very senior members of Government who have gone into roles too quickly for the public confidence. I will not mention them, but we have had situations where we have been discussing an area of legislation with a Minister and then that person goes on to represent an interest group in that area a month or two later. I do not think that is good practice. There is an onus on all of us. It is not around the individual examples. There is an onus on us to restore confidence in the public and that is why I am suggesting these safeguards.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I apologise if I misunderstood what the Senator said in terms of cross-contamination. I thought she had used that term. I absolutely agree with her in terms of what she said about local authority members. In fact, if one looks at any State board, for example, one of the things that will more often than not debar a person from membership is membership of local authority. That is another short-sighted move by successive Governments, including my own, that have precluded often very talented, experience and qualified people from local government, as much as from these Houses, from holding offices where they could be of benefit to the public.

In fairness, the proposal the Senator made is consistent with the other amendments that have been submitted in relation to, for example, the Attorney General. The difficulty I have with it is that is presupposes that there is a crisis of confidence and there is somehow some public lack of confidence in the Judiciary when, in fact, I think the opposite is the case. All of the objective evidence in relation to the operation of the Judiciary in this country is that it is the opposite. People have confidence in the Judiciary for good reason. The Judiciary operates at a level that is fair and transparently legal and it applies the rule of law.

I contrast this with the British judiciary, for example, and I said this during the Second Stage debate and when I spoke earlier during the Committee Stage debate. I recently read a book in which a practitioner in the UK was extolling the virtues of the British judiciary and how it has been very effective in establishing the rule of law. According to her, that is why so many people choose the UK as a jurisdiction for international law. There may be some truth to that but, unfortunately, we can also look at a judiciary in the UK that has an appalling history, in particular in terms of our countrymen and dealing with them in legal processes. In fact, an article in the Guardianlast week referred to a survey that found the judiciary in England and Wales was found to be institutionally racist, for example. I do not think that could ever be said of our Judiciary. We have a coterie of men and women who serve in the Judiciary in this country who are beyond compare globally. They stand above people, particularly in the common law world. It is certainly not true of the United States and I do not think it is true in the United Kingdom. In other common law jurisdictions, there are problems with the judiciary that we do not have. There is a consistently high performance here.

The difficulty that I have with this amendment is that we can talk about independence but, again, we are talking about a body that is making a proposal to Government. The notion that people who are advising or are members of that body have experience of Government at whatever level that might be is not a bad thing. The other thing is that when people get involved in judicial issues, they separate themselves from their former lives. I have no difficulty excluding sitting Members from being involved in that; that is a given. In my experience of individuals who, let us say, have been politically active or, in the case of some judges, have been Members of these Houses or a member of Government, once they have achieved judicial office, they separate themselves from that past life. I understand the Senator's point that this is not what we are talking about but I think the same is true of people who leave these Houses. They are often very happy to leave politics behind and move on with a normal life where they can be home in time to eat dinner with their families. However, they also separate themselves from the policies that are involved in that and take on the role with the dedication and independence that is required of them. This amendment presupposes that they either do not or cannot do that. That is not true and that is why I think it is misguided.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

While I do not think there is an issue of confidence in relation to the Judiciary, there has been an issue of confidence and concern in relation to persons in senior roles in Government moving into other roles of influence. That is the concern. We have also had senior former members of Government telling us they are not answerable to the Standards In Public Office Commission, SIPO. In those contexts, there is an understanding that we need to work collectively. I say that with absolute respect for colleagues from all parties and right across the Oireachtas. Those who want to contribute to the world through politics may well want to go on to contribute in many other different ways but we need to make that separation clear. This is not about any individuals. Individualising the issue is probably not useful.

I will press the amendment because this is an area on which we could be clearer. Having a two-year wait period and, in the case of former Attorneys General or Ministers, a five-year wait, before working in such a role is probably a lesser evil when compared with the danger of a misconception arising.

James Browne (Wexford, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

This is a proposed amendment to section 11, which deals with the power of the commission to appoint consultants and advisers and enter into contracts. The effect of the amendment would be to provide that for the stated number of years, the commission shall not appoint a person as a consultant or adviser where the person has been a Member of the Oireachtas, a Minister of the Government, an Attorney General, or the Secretary General of a Department of State.

The proposed power of the commission in section 11 has been carefully drafted to reflect a policy intention that a consultant or an adviser shall have the role of assisting the commission rather than adding to, or even replacing, it. In particular, section 11(2) provides that a consultant or adviser shall not be enabled to do anything for the purpose of the performance by the commission of the function of selection and recommendation of persons for judicial office. I am not in favour of prohibiting, for the periods of time suggested in the amendment, these former officeholders unless a compelling argument exists that such a prohibition is necessary to achieve an important objective in relation to the operation of the commission. I am not convinced that there is such a compelling argument. Accordingly, I am not in favour of the proposed amendment.

Pat Casey (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 15 to 17, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 15:

In page 12, to delete lines 4 to 12.

Section 15 deals with the nomination of members of the Judicial Council and their appointment as members of the commission. The section 12 provisions provide for the appointment, essentially of judges, to the proposed judicial appointments commission. There are three amendments in the group. Amendment No. 15 deals with section 12(2), which provides for two nominees from the Judicial Council, one of whom shall be from the Supreme Court, Court of Appeal or High Court and one of whom shall be a judge of the Circuit Court or the District Court. In addition, one of the nominees shall be a former practising solicitor and one a former practising barrister and one must be male and one female. Amendment No. 16 deals with subsection (4), which provides again for having a certain number of practising barristers and solicitors. Amendment No. 17 is to subsection (6), which provides that where a judge appointed under the section ceases to be a member of the commission, the person who replaces that member must fulfil the same criteria in terms of gender and former practice.

I spoke about this matter on Second Stage and earlier on Committee Stage. The gender quota is one thing. Gender diversity is tremendously important but can be achieved in different ways. I am less concerned about that than I am about the notion that judges, no matter how long they are in judicial office, somehow remain former practising solicitors or barristers. This section proposes to essentially divide judges into those two categories and qualify or disqualify them, as the case maybe, on the basis of their former practice. That might have been yesterday or, more likely when dealing with the Judicial Council because by virtue of practicality, it is unlikely that new judges will be in a position to be appointed under this section and nominees will usually be judges of some experience, it may have been up to 20 years since they practised in that area. I have said on many occasions that I do not believe once a person achieves judicial office that he or she continues to represent one profession or the other. I am not saying that is what the Department or Minister of State is saying, but there is a presupposition in this section that somehow they are never just a judge; they are a former solicitor or barrister in a judicial role. This fundamentally misunderstands the role that judges take. It also ignores the fact that in reality, different courts are made up predominantly of one profession or the other. A greater proportion of barristers will be found in one court and a greater proportion of solicitors in another.

In these circumstances, judges who occupied one former profession are effectively being hamstrung from moving into the commission through membership of the Judicial Council. More importantly, judges are not former solicitors or barristers but judges who have sworn an oath to uphold the law and to apply it as it applies in this jurisdiction. As I said on the previous amendment, they do so very well and diligently. This section starts from the view that they do not do that and it is wrong to place them in that category.

The other issue with the section is that it makes the re-appointment or replacement of a member of the commission incredibly clunky and awkward. Instead of just leaving it up to the Judicial Council to appoint the people it believes to be the appropriate persons to represent them on the commission, this section is, incorrectly and erroneously, dictating to the judges the type of person they should chose from the Judicial Council to be on the commission. That is misguided as well.

I put forward these three amendments essentially to undo these provisions and put back in the hands of members of the Judicial Council, the right and, perhaps more importantly, discretion to appoint the person or persons, from whatever background, that they think best represent them. That is what is important. The starting point in section 12, particularly in subsections (2), (4) and (6), is that we somehow need to dictate to the Judicial Council what the background of that person is when in fact that person is simply a judge, irrespective of his or her gender or whether he or she was a practising barrister or solicitor, how long he or she has been practising, whether he or she was an academic or whatever the case may be. My respectful submission to the Minister of State, to use legal parlance, is that we should do away with this provision and leave it up to the discretion of the members of the Judicial Council.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I will speak to amendment No. 17. While I am in favour of clear measures on gender equality in general in legislation, and we have been waiting a very long time for incremental progress, there is a problem with the way in which section 12(6) is worded. That is the subsection Senator Ward is proposing to amend. It is possibly inadvertent but it addresses the fact that a number of intersecting criteria are being applied. The subsection provides that when somebody stops being a judge, or when a judge ceases to be a member of the commission, the Judicial Council shall nominate a judge of the same gender as the judge who has ceased to be a member and of the same set of courts. If that judge who has ceased to be a member was in the Supreme Court, Court of Appeal or High Court, it would be a judge from one of those courts. If it is a judge from the Circuit Court or District Court, he or she would be replaced by judge from one of those courts. Given the small number of appointments to be made, these two criteria will create a situation, which I do not imagine is the policy intent, whereby if the judge is a man from the Supreme Court, Court of Appeal or High Court, he must be replaced by a man from the same courts.Similarly, if you have a woman from the Circuit Court or the District Court, the subsequent appointment must be a woman from the Circuit Court or the District Court. You could end up in a situation where there will never be a woman from the Supreme Court, the Court of Appeal or the High Court, or a man from the Circuit Court or the District Court, which means you would end up reifying the genders into court groupings. I do not believe that is the intention. The intention is to ensure there will be a balance from all the courts and a gender balance.

As a result of the decision to tie it so closely to the role held by the previous member of the council, however, there is a danger of having a situation whereby if there is once a man from a certain set of courts, it will always be a man from that set of courts, and vice versa. That is not good in terms of progression or gender equality and parity. It might need to be examined by the Government between now and Report Stage. A simple way to do it would be to remove section 12(6)(b), which is part of what Senator Ward is seeking to do in his amendment. His amendment is wider and seeks to remove a number of subsections. The question of the appointee needing to be from the same court grouping could be removed. If there was simply a separate provision to the effect that the Judicial Council in its appointments under section 12 should endeavour to have a balance from the various court groupings, that could be addressed as a separate point. By tying it to the previous appointee, we are potentially creating a trap that might lead to a lack of diversity and a lack of movement. That is not what we want to have in that context. Section 12(6)(c), which provides simply that the appointee must qualify as a judge "on the same basis as the judge who is being replaced", seems to be wide enough without specifying that they have to have served in the same court, as section 12(6)(b) does. Sections 12(6)(a) and 12(6)(c) seem to be enough. I do not really know what section 12(6)(b) adds, but I suggest there is an inadvertent consequence there which is a danger.

James Browne (Wexford, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 15, 16 and 17 seek to amend section 12, which is a comprehensive provision setting out the arrangements for the nomination by the Judicial Council of members of the commission. It is important for me to be clear about these arrangements. The Judicial Council shall nominate two members of the council to be members of the commission. These nominees shall be appointed to the commission by the Minister. Three criteria are set out in respect of the nominations. First, section 12(2)(a) provides that one of the nominees "shall be a judge of the Supreme Court, of the Court of Appeal or of the High Court" and one "shall be a judge of the Circuit Court or the District Court". Second, section 12(2) further provides that one nominee shall be male and one shall be female. Third, section 12(2)(b) provides, regarding the two nominees, "one of whom shall be a judge who, at the time of his or her appointment as a judge, was qualified for such appointment by virtue of having been a practising solicitor and one of whom shall be a judge who, at the time of his or her appointment as a judge, was qualified for such appointment by virtue of having been a practising barrister". Amendment No. 15 proposes to delete section 12(2) and therefore would eliminate the three separate criteria I have mentioned that pertain to Judicial Council nominees.

Amendments Nos. 16 and 17 are consequential. Amendment No. 16 would delete section 12(4), which is a technical qualification under a provision related to the prior practice qualification. Amendment No. 17 would delete the provisions of the section that provide for replacement nomination of the Judicial Council nominee when the member ceases to be a judge. It would delete the three criteria also in that context and it provides necessary text in substitution.

I cannot support these amendments. It is reasonable that nominations bring the perspective of both the higher and lower courts to the work of the commission. It is essential in my view that there is a gender balance on the commission. It is provided for in the lay members. I believe it can also be provided for in the Judicial Council members.

Senators will be aware that the Bill does not provide for representation of nominees of the Law Society of Ireland or the Bar Council of Ireland on the commission. Judge members can bring a perspective reflecting prior practice in the two areas of legal practice. That is a good thing and I am of the view that it is adequate to achieve that purpose.

Apart from the matter of legal profession representation on the commission, which we will discuss separately, it is reasonable and desirable that there is some certainty in the Bill in regard to what we are asking the council to do. Additionally, the considerations I have mentioned in regard to participation are important for different court experience and gender balance. Therefore, I am not in a position to support the changes proposed to section 12.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the Minister of State for his response. I do not agree that there needs to be clarity about what we are asking the council to do. It is being asked to appoint two people. I do not believe any clarity beyond that is required. I reiterate the point I made earlier on the previous experience issue: the reality is that you just have judges; you do not have judges for former solicitors and former barristers. The danger is that when you talk about judges who are former solicitors and former barristers, you do two things. First, you ignore the fact that decades may have passed since they practised in that area. Second, you tell them that they should be batting for, or having consideration for, one or either of those professions, and they should not. They should be acting as judges, which I believe they do. That is why I think it is misguided. However, I do not propose to press the amendment.

Pat Casey (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I welcome the guests of Senator Frances Black to the Gallery.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

The Minister of State has not addressed the concern I highlighted. Under section 12(2), there is one nominee who is coming from the Supreme Court, the High Court or the Court of Appeal, and one who is coming from the Circuit Court or the District Court. One these is female and one is male. The danger in how the Bill is set out at the moment relates to what happens at the beginning. If it happens that the initial appointees are a female from the Circuit Court or the District Court and a male from the Supreme Court, the High Court or the Court of Appeal, when each of them is replaced he or she will be replaced by a person of the same gender from the same court grouping. Therefore, there is a danger of gendering forever. This is an inadvertent consequence of the way that section (12)(6) is worded. However, I would appreciate the Minister of State's thoughts on it or at least an indication from him that he is going to examine this issue. There is a real danger here of an inadvertent consequence.

James Browne (Wexford, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I would say in response to Senator Higgins's point that a replacement nomination is just that - a replacement meeting the same criteria for the same period only of the unexpired term occasioned by the vacancy itself.

On Senator Ward's point, I fully agree that once on the Bench, a judge is not acting in the capacity of a former solicitor or a former barrister. He or she is simply a judge. However, a particular judge will have experience from his or her previous profession, and that insight will add to the commission's process of selection, which could be important.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 16:

In page 12, to delete lines 16 to 22.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 17:

In page 12, to delete lines 27 to 34 and substitute the following: "judge to replace him or her.".

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 18:

In page 13, between lines 16 and 17, to insert the following: “(4) In developing such criteria under subsection (3), the Minister shall demonstrate regard to section 42 of the Irish Human Rights and Equality Commission Act 2014 and the United Nations Convention on the Rights of Disabled Persons.”.

I urge the Minister of State to consider between Committee Stage and Report Stage the strong cross-party call for the Irish Human Rights and Equality Commission, IHREC, to be asked to nominate one of the lay persons to the board. Failing that, it is important that section 12 would explicitly ensure the public duty on equality and human rights would be reflected. Amendment No. 18 provides that when agreeing criteria for lay members the Minister would need to demonstrate specific regard to section 42 of the Irish Human Rights and Equality Commission Act 2014 and - as I have also mentioned - the UN Convention on the Rights of Persons with Disabilities, UNCRPD. I reserve the right to bring an amendment solely focusing on IHREC in that regard. I pulled up the UNCRPD as an example of international law. I believe that if IHREC had a nominating role, it would be able to incorporate and reflect the UNCRPD. However, I do not believe the Public Appointments Service will necessarily have the qualifications to do so. As I have said, the fundamental part is section 42 of the Irish Human Rights and Equality Commission Act 2014. I have mentioned the UNCRPD as well.Ireland is due to ratify the optional protocol of the UNCRPD. There may well be cases taken on breach of rights under the convention. There has been significant case law on human rights and disability. This is to ensure there is an appointments process that appoints judges who have the relevant expertise and ability to engage with an evolving international human rights legal structure and with the fact that Ireland's own ratifications are evolving all the time. Ireland is signing up to various bodies of law in this regard. The UNCRPD is interesting because it is relatively new but the case law is rapidly evolving in many countries. This wider international case law becomes relevant for how the law is put into effect in Ireland. This is one example but, to be honest, I do not know whether we necessarily need to name the UNCRPD. It is an example of international human rights law being real law. It needs real decision. It is relevant for our Judiciary. A number of Brazilian judges have taken part in environmental law and environmental human rights law as an area of evolving work.

There is a statutory obligation regarding the public duty on equality and human rights. We can allow this to be fulfilled through the role of IHREC. If it is not fulfilling that, we need to find another place in the Bill to build in a mechanism that ensures the statutory obligation is being reflected. A potential area is through section 12.

James Browne (Wexford, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

This is a proposed amendment to the section that deals with recommendations for the appointment of lay members. Effectively, the amendment would require the Minister for Justice in developing the selection criteria applicable to a selection process under the section to demonstrate regard to section 42 of the 2014 Act, which deals with the obligations of public bodies to eliminate discrimination to promote equality of opportunity and to protect human rights and the UN convention generally.

Section 13(3) specifies that the Minister for Justice shall agree with the PAS the selection criteria and procedures applicable to a selection process for the recommendation of persons who are suitable for appointment as lay members of the commission. The subsection specifies a number of key elements to have regard to in this task. In particular, it specifies that the recommendation should reflect the diversity of the population of the State as a whole. I am satisfied it is not necessary to enumerate other provisions of Statute law in section 13 for those other provisions to be effective with regard to the performance by the Minister for Justice of functions under the section. Accordingly, I am not in favour of the proposed amendment.

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

There are several issues and I reserve the right to table further amendments in this respect on Report Stage. Even the wording of section 13(4)(d) is weak. It refers to matters concerned with the importance of the protection of human rights and equality. There needs to be expertise and persons who can properly represent these issues. Simply stating somebody can say it is important is weakly worded. It is not consistent, even with the language of the legislation, which is not just about protection but also promotion. It is a positive duty in respect of the public duty on equality and human rights. This is constrained and limited. This subsection does not even mention the protection of human rights and equality; it refers to the importance of the protection of human rights. It is quite a dilute provision. There is no guarantee as to how it will be reflected. Will it be reflected in a way, for example, that demonstrates expertise and understanding of the relevant international law in this regard?

This legislation is not clear on the public duty on equality and human rights. It is not robust enough. It is a dilution of what we have seen in similar legislation from 2015 on the Legal Services Regulatory Authority. I am curious regarding the decision to move away from what was in the heads of the Bill. Perhaps this is something on which the Minister of State can elaborate. Moving away from strong measures on human rights is a concerning decision. It is not a matter of failing to do a good thing. We are moving backwards in this regard.

Joe O'Reilly (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Amendments Nos. 19 to 28, inclusive, are related. Amendment No. 26 is consequential on amendment No. 19. Amendments No. 19 to 28, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Barry Ward (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 19:

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

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

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

(c) business, finance or public service, and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alice-Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

I have tabled a number of amendments to section 13 which are in this grouping. I think the point in amendment No. 19 about the ranking is interesting. If it is construed as a ranking, then that becomes an issue, because having business and finance placed above the operation of the justice system seems strange if that is the case.

I am concerned about the tension in subsection (4) with the aspirations in subsection (3). Subsection (3)(b) contains an idea of reflecting "the diversity of the population of the State as a whole", but the grounds as set out in subsection (4) are strangely narrow and quite skewed towards one section of the population. It includes business, finance and public service. My amendment No. 20 would delete section 13(4)(a), which refers to people involved in business, finance or public service, and would replace it with a broader provision, stating, "commerce, finance, administration, public service, civil society or trade unions". If we have a goal of reflecting the diversity of society, simply having those who have a business or finance perspective would include business owners and those in finance. Having people with international finance backgrounds being the laypersons on the judicial appointments commission is questionable when there is no option for it to be somebody with a civil society or trade union background.

Joe O'Reilly (Fine Gael)
Link to this: Individually | In context | Oireachtas source

The House now stands adjourned until 10.30 a.m. tomorrow in accordance with the order of the House of 20 October.