I move amendment No. 7:
In page 10, between lines 5 and 6, to insert the following:
"(2) The Minister, in making nominations under subsection (1), shall have regard to the need to ensure that membership of the Board includes both men and women. ".
Deputies will recall that we debated the important issue of gender balance on the board of the Courts Service at some length last week at the select committee. Amendments were tabled by Deputies McManus and Higgins. If I recall correctly, Deputy Upton and others were in broad support.
Deputy McManus's amendment seeks to ensure the membership of the board of the Courts Service will include both men and women. The Bill provides that three members of the board are to be nominated by the Minister — an officer of the Minister, a person to represent consumers of court services and a person representative of commerce, finance or administration interests. Deputy McManus's amendment would require the Minister to have regard to the need for gender balance in nominating these three members. It would also require the Minister to ask all other nominating persons or bodies to have the same regard.
Deputy McManus was prepared to withdraw her amendment on the basis of my commitment that I was in favour, in principle, of inserting a provision in the Bill to reflect our concern with regard to the need to promote gender balance on the board. I indicated that acceptance of the amendment would be subject to drafting approval.
I have had the amendment carefully considered in the interim. As I mentioned, there are two aspects to it. The first would require the Minister, in making his or her nominations, to have regard to the need to have both men and women on the board. I have no difficulty with this aspect of the amendment. The Minister of the day would have latitude with three nominations to take into account the issue of the gender composition of the board.
My problem is with the second aspect of the amendment which would place a statutory requirement on the Minister to ask other nominating bodies or persons to have similar regard. I am advised, following careful consideration, that there is an inherent practical difficulty with this approach. Each body or person concerned is enabled to make one nomination only. It would be impractical to impose a legal obligation to have regard to the need to nominate both men and women in nominating one board member. It would be a different matter if each nominating person or body nominated two or more members to the board. I am advised that imposing a requirement that was impracticable could carry with it the danger of a subsequent legal challenge to the composition of the board. I am sure everybody will want to avoid such a challenge.
For practical and legal reasons, therefore, it would not be possible to impose the requirement comprehended in the second part of Deputy McManus's amendment. At best, it would constitute no more than an empty formula. At worst, it could throw the entire process of the formation of the board into legal uncertainty.
The amendment I have tabled is, effectively, the same as the first part of Deputy McManus's amendment. For the reasons outlined it is impractical to legislate further. I have been advised, however, that there is no obstacle to my raising formally the need for gender balance on the board of the Courts Service with all the nominating persons or bodies concerned. I give an undertaking to the Deputies that I will take the opportunity to impress on those persons and bodies the need to have both men and women on the board.
On a drafting point, I am advised that the inclusion of the word "particular", requiring the Minister to have particular regard to the issue of gender balance, adds nothing of substance to the provision. The word does not appear in my amendment. I am satisfied my amendment reflects the importance we all attach to the gender aspect of representation on the board of the Courts Service. I hope Deputies can accept my approach.
Deputy Higgins's amendment, which was motivated by similar considerations, seeks to ensure the board of the Courts Service would comprise a minimum of 40 per cent female representation. Deputies accept that the issue of gender balance is not straightforward in the context of the board of the Courts Service and the way it is structured under the Bill. Section 11 establishes the board. As I explained on Committee Stage, in view of the composition of the board it would clearly not be practical to provide that a certain number or percentage of members must be men or women as this would be a matter over which the Minister of the day would not have control.
I thank the Deputies for tabling the amendments. I sincerely hope they can accept, in the context of the proposed structure of the board, the amendment I have tabled.