Dáil Éireann debate -
Wednesday, 1 Apr 1998

Vol. 489 No. 4

Courts Service (No. 2) Bill, 1997: Report and Final Stages.

Amendment No. 1 not moved.

Mr. Higgins

(Mayo): I move amendment No. 2:

In page 6, between lines 37 and 38, to insert the following:

"(c) establish and oversee a research and statistical unit".

The purpose of this amendment is to establish and oversee a research and statistical unit. One of the difficulties that has dogged the criminal justice system for a considerable time, and this was acknowledged by the Minister when he was in Opposition, is the lack of hard information, of statistical data, of a clear body of facts for establishing the different elements in the criminal justice system. At a time when we are talking about updating and modernising the criminal justice system, when we are promising radical new proposals on all aspects of it, it is essential to establish, in all the different instruments of the criminal justice system, within the Garda Siochána, a mechanism for accurate up-to-date data in relation to offences and happenings within their remit. In the prison service we should have a modern system of establishing key and crucial statistics on the performance of the service. Also, in determining what is happening within the courts service, we should have an up-to-date research unit which will provide information to the courts and to the Minister on the performance of the courts. Time and again a parliamentary question is tabled to establish some information in relation to an aspect of the courts and the Deputy is told it is impossible to answer given the amount of resources it would take up.

I will give some examples. The Minister for Justice, Equality and Law Reform was asked ". . the number of persons convicted in each of the past five years under the Misuse of Drugs Act, 1977, who had more than £10,000 in their possession. ." The reply reads:

I refer the Deputy to my reply to Questions Nos. 156, 157 and 158 which came before the Dáil on 11 December 1997. The position remains that court statistics are not compiled in such a way as to provide the information sought by the Deputy.

Information was sought here regarding the contentious arbitrary fine and sentence for somebody caught in possession of drugs. The Criminal Justice Bill proposes that anybody caught in possession of an arbitrary amount of drugs — worth £10,000 — can get up to ten years in prison. I query the relevance of this.

An Ceann Comhairle

We are discussing amendment No. 5 with amendment No. 2.

Mr. Higgins

(Mayo): Fundamental information that could defend the Minister's position, with which we do not agree, or which could provide information to support the Opposition view, is not provided. Even if there was no argument on this point, it should be possible to provide an up-to-date record of the last five years.

If information is not available for 1996, what about 1992 to 1995? The Minister is not able to give us one statistic on the number of people who, under the Misuse of Drugs Act, 1977, had more than £10,000 of illegal drugs in their possession. However, people who possess far more than £10,000 worth of drugs are regularly tried in the courts under this legislation. The Minister says there is no mechanism within his Department to give us this information.

The Minister for Justice, Equality and Law Reform was asked ". .if he will establish a system to manage statistics related to the work of the Department to ensure efficient work practices ." The Minister's reply refers to Coopers and Lybrand being commissioned to do an information technology review and goes on to state while some statistics in relation to the courts are currently compiled and collated in my Department, the working group and the Courts Commission have highlighted an absence of adequate statistics in the court system.

The Minister is telling us that the sheer paucity of information in relation to adequate statistics has been highlighted. A Member from his party tabled a parliamentary question to the Minister on 26 March about ".the person with the responsibility to check and police the hackney drivers operating in the greater Dublin area; if it is the function of the Carriage Office in each individual Garda station." The Minister replied about the courts and went on to say, ". the statistics are not readily available and could only be compiled by expenditure of a disproportionate amount of time." The Minister was asked a fundamental question by Deputy Upton, which sought information about the rate of recidivism among persons under 18 years, and who were convicted of criminal offences, for each of the past five years for which records are available. The reply stated that records are not maintained in a way that would allow the provision of the information sought by the Deputy, but that the Deputy might be interested to know that an expert study by Mr. Paul O'Mahony, Mountjoy Prisoners: A Sociological and Criminological Profile, was published by the Department in June 1997. The Department commissioned Mr. Mahony to produce this excellent document, which showed approximately 77 per cent recidivism.

A fundamental part of discussing juvenile crime is the number of people under 18 years who are convicted of criminal offences. However, the Minister's reply states that records are not maintained in a way that would allow provision of such information. Another question seeks the number of officers from the probation and welfare service working with persons under 18 who have been convicted of criminal offences for each of the last five years for which data is available. Again, the exact numbers are not available. The Minister was asked the number of persons under 18 years convicted of criminal offences for each of the past five years for which figures are available, which is a further question to the one I cited earlier. Again, the reply states that the extraction of the information would require the use of an inordinate amount of staff resources which could not be justified.

We could go on. This Bill is welcomed by all Members. It sets up a new and efficient courts service. As this service is being set up to introduce the administrative procedures the courts have yearned for, it is surely now time to insert the requirement for a statistical and research unit in the Department. It need not cost the earth, and I asked the Minister on Committee Stage to indicate the approximate cost. It need not be done now, but let us bring it in. Every other country has this facility. A huge amount is spent on such research in Britain every year, and the number of cases going through the courts here is small in comparison. In addition, there must be a natural necessity for a research and statistical unit so that there is research on what is happening in the courts and hard information on statistics which is now lacking.

Dr. Upton

I support these amendments. In business, progress can be determined to some extent by an organisation's investment in research and development, which underpins progress. Those economies which have done well, such as Japan, Germany and America, invest in research. We do not invest to the extent that we should. If one looks at the Department of Justice as a company, it has a huge turnover but its expenditure on research this year, for the first time, seems to be approximately £250,000. This seems a crazy way to do business.

It is even crazier that the Department does not collect data. I am lost as to how one can make progress without understanding what is effective and what is not. We appear to be thrashing incoherently in the dark. It is a pity the Minister does not give us an estimate as to the cost of a properly equipped statistics unit. Given the normal practices and expenses of these matters, it cannot cost an inordinate amount of money. If it cannot be based in the Department of Justice, Equality and Law Reform, perhaps the Central Statistics Office could provide the necessary expertise. To learn from one's mistakes one must know what is happening. The only way to do that is to collect the information in a way in which it can be accessed.

Deputy Higgins spoke at length about parliamentary questions that have not been answered. Most of those questions are reasonable; they seek simple information that the Minister and the Opposition should have. In that way policy positions can be formulated. Justice policy in Ireland is made up as we go along in relation to the ebbs and flows of public opinion, and nobody was better or more dextrous in sniffing out the public mood than the Minister. He did a magnificent political job for his party on the crime issue. However, as I am sure he has discovered, what one does in Opposition meets one fairly sharply when one enters Government. If we are to make real progress in dealing with crime we must know what will work and what will not. It is regrettable, therefore, that information is not available.

Deputy Higgins referred to a series of parliamentary questions for which answers were not available. It is outrageous that they cannot be answered. What constitutes "an inordinate amount of staff time", a term which informs many of those replies? Does it constitute one minute, one hour, one day or one year and how many people would be involved? While a typical question costs approximately £80 to answer, the cost can vary.

We do not have information on the extent of truancy, yet juvenile crime is a major problem. Those at high risk of engaging in crime are easily identified, but we do not have information on when they opt out of the school system. We do not know how many are prosecuted or the level of intervention in this regard. How can we be expected to make progress if such information is not available?

There is a considerable degree of variation in sentencing policy. I am not proposing that judges should impose a similar level of sentence for all crimes, but we need to know the level of geographical variation and the pattern of characteristics of those being sentenced if we are to solve the crime problem. We must know what is happening before reviewing the effects. There appears to be no answer to the question about the £10,000 drug seizures, yet at the Minister's initiative a body of law is proceeding based on this concept. We do not know the extent of the problem, but we are proposing a major initiative to deal with it. We do not know the number of reoffenders under 18 years. While Paul O'Mahoney's study in that regard is very welcome, we need more information. In the process of modernising the courts system, I hope the Minister accepts these amendments which seek to establish a statistics and research unit in his Department.

What is happening in the Minister's Department reminds me of what used to happen in the Department of Agriculture 30 years ago, when people bleated on incoherently at one another about the values of all sort of farming practices. Subsequently the country invested in worthwhile research to understand the effects of various treatment and how it would modulate the outcome. The Department of Justice, Equality and Law Reform is back in the dark dismal days of incoherence. If we are to make progress, it is essential that we collect data and know what will work. That would put an end to the nonsense we all have to listen to from time to time. I note the Minister is laughing. None of us can escape that nonsense and he could make a great contribution to minimising it by providing proper data.

Ms McManus

I support these amendments. I am sure all Members accept this transforming and innovative Bill will have a lasting impact on modernising our courts system. However, it will not be complete unless due regard is given to gathering statistics and ensuring the procedures and facilities are in place to collect the knowledge that is developed every day through the courts system. That information is not available in a coherent manner to policy makers or to those who administer the various agencies under the remit of the Department of Justice, Equality and Law Reform.

Not long ago we had the most extraordinary spectacle of a judge making a decision in court which he did not have authority to do. Nobody in the court knew he did not have that authority. The officials of the Department did not even know he was not a nominated judge. That is the type of vacuum that exists in regard to proper and adequate procedures for getting information, which would be useful to the Minister, his Department and, more importantly, to the courts system.

When I was a Minister I was rather shocked at the retarded nature of information technology in a number of Departments. While I am not an expert on information technology — I merely know how to plug in a computer — I can identify a problem when it exists. We can acquire the technology to garner the evidence from experience if we start early enough. The Minister will probably say this is part and parcel of the functions described in the Bill, but that is not true. The Bill does not make it a key function of the Courts Service. The Minister is laying down problems for the future. It would be regrettable if, in the future, people realise that, even though it would have saved money in the long term, the Minister was not willing to accept a modest proposal that would have ensured his Department and the Courts Service would have been better equipped to meet the demands of the next century. Surely the Minister must accept his obligation to live up to that duty and accept this proposal.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

These amendments were discussed in great detail on Committee Stage. On that occasion I sympathised with the views expressed by Deputy Higgins about the difficulty in accessing statistics on court business. I recalled that, as Opposition spokesperson on Justice, I found it extremely frustrating that legitimately sought replies could not be given for logistical reasons. Court statistics are, by and large, still manually collated and this limits the level and detail of their compilation. I also stated that, on foot of a major IT scoping study commissioned by the Department of Justice, Equality and Law Reform, I provided an additional £2.5 million for expenditure on information technology for the courts in 1998. A key element of this IT expenditure will be the development of comprehensive systems for collating and interpreting statistical data from the courts. This clearly indicates our appreciation of the need for improved statistical information systems in the area of the courts and to honour commitments made in this area.

Section 5 sets out the proposed functions of the Courts Service, the first of which is to manage the courts. Deputy Upton's amendment would include in those functions the establishment and management of a statistics unit to compile and publish statistical data and research on court proceedings. Deputy Jim Higgins's amendment, which is similar, would include the function of establishing and overseeing a research and statistical unit. These amendments clearly reflect an appreciation of the importance of maintaining comprehensive and up-to-date statistics, something I share. I am convinced, however, that the amendments are unnecessary and would not improve the Bill.

The Bill does not purport, nor should it, to prescribe in detail how the Courts Service should be managed as it would defeat the purpose of establishing the service. If the Bill provides for the establishment of a research and statistical unit, should it not also provide for the establishment of a finance unit, a technology unit or a personnel unit? I believe that the provision of statistical information is comprehended by the functions of managing the courts and of providing information on the courts system to the public, something already provided for in the Bill.

Section 8 requires the Courts Service to submit an annual report to the Minister which will be laid before the Houses of the Oireachtas. These reports "shall include information on the performance of the functions of the Service during the year to which [they relate] and such other information in such form as the Service thinks fit or the Minister may direct". Such reports would include relevant statistical information. The Bill does not set out a comprehensive list of headings under which the reports are to be compiled and I am satisfied this is the correct approach. I am certain that including one specific heading as proposed in amendment No. 5, in this case relating to judicial statistics, would distort the balance of the section. A wide range of information would be expected to be included in the annual report of a State body, but I do not believe it desirable in a Bill like this that it is specified in any great detail what it should be. In those circumstances, the inclusion of the requirement relating to one specific issue, as the amendment proposes, would raise questions as to why a range of other headings are not included. The general approach adopted in the Bill — the correct one — is to provide the broad framework within which the Courts Service is to operate rather the adoption of a very prescriptive approach. The Bill gives the Minister a significant role in that he or she may direct certain information to be included in the annual report. The working group on a courts commission advised that a statistical unit should be established by the Courts Service.

I have no doubt that the development of a unit for statistical and research purposes will be very prominent on the agenda of the service. There is no difference of purpose between myself and the Deputies who tabled these amendments and Deputy McManus, and I hope they will accept my assurances in this regard. For the reasons I have given, the amendments are neither necessary nor appropriate.

If Deputies believe the Courts Service cannot be trusted to maintain proper statistics as part of its management function, fundamental questions regarding the operation of the service are raised.

Ms McManus

That does not apply to the Department of Justice, Equality and Law Reform.

Mr. O'Donoghue

We seek to give the Courts Service the independence and power to run the courts, but Members seem to want to specify, at least as regards this matter, exactly how the service should run its business. The intention of the Department of Justice, Equality and Law Reform is to give the Courts Service a degree of independence to allow it to manage the courts in an effective and efficient manner. It is neither the intention of this legislation nor the philosophy behind it to direct the Courts Service as to how it should do its business.

Deputy Upton asked what constitutes an inordinate amount of time. That is a rhetorical question. The only certainty is that it is not an ordinary amount of time——

Dr. Upton

What is an ordinary amount of time?

Mr. O'Donoghue

——and it would appear it is not an extraordinary amount of time either. I cannot become involved in definitions such as this because it would make my job impossible. If, as Deputy Upton stated, agriculture spokespersons were bleating at each other in the House, it would be obvious they were getting too involved in the job and were getting carried away.

Mr. Higgins

(Mayo): I am mystified by the Minister's stonewalling and the degree of his disingenuousness in, first, trying to imply it is a question of our not trusting the new service or of our wanting to infringe on its independence, and second, using the annual report as the answer to providing these vital statistics. There is no conflict. All we say is that the annual report should contain those statistics and that a vital organ in doing so should be the research and statistical unit.

I recently asked the Minister the number of paedophiles and other sex offenders serving prison sentences who are scheduled for release on 30 June 1998 and also before 31 December 1998. Records are apparently not maintained in a fashion to have allowed the precise information sought by me to be furnished in the available time. Each person in prison is an individual brought before the courts. The court is presided over by a judge, a sentence was handed down, the person went to jail and will shortly be released, either between now and June or between June and December. Nonetheless, the Minister cannot give me crucial information to ensure there is no barbaric recurrence of what happened in my county at Christmas, when a paedophile was released unannounced into the community and was burned out.

The Minister is committed to doubling the number of prison places and yet 77 per cent of prisoners reoffend. Each prison space costs £110,000 to build and £44,000 to maintain. There are more prison officers than prisoners and yet the Minister states he will pour millions of pounds into servicing a system which has a 77 per cent chance of failure. He should cut out the obfuscation and stonewalling and provide a sensible instrument for the provision of statistics and data and the measurement of performance. It is in his interests and those of the Department, the criminal justice system and the taxpayers to adopt this sensible proposal.

Mr. O'Donoghue

I can only reiterate what I have already said. I have indicated to the House that I share the purpose which the Deputies have expressed. There is no doubt whatsoever that matters will improve significantly so far as the provision of technology is concerned. I have indicated how this will occur and the reason the proposal put forward should not be included in the legislation. I cannot go any further than that except to say that I believe the objective being pursued by Members will be achieved without necessarily including it in this legislation. To do so would mean we were singling out one issue which, in turn, would raise questions as to why other matters were not included. I can go no further than that.

Amendment put.

The Dáil divided: Tá, 61; Níl, 71.

Tellers: Tá, Deputies Sheehan and Stagg; Níl, Deputies S. Brennan and Power.

Amendment declared lost.

Tá
Bell, Michael.	McCormack, Pádraic.
Belton, Louis.	McDowell, Derek.
Boylan, Andrew.	McGahon, Brendan.
Bradford, Paul.	McGrath, Paul.
Broughan, Thomas.	McManus, Liz.
Bruton, John.	Mitchell, Gay.
Bruton, Richard.	Mitchell, Jim.
Burke, Liam.	Mitchell, Olivia.
Burke, Ulick.	Moynihan-Cronin, Breeda.
Clune, Deirdre.	Naughten, Denis.
Cosgrave, Michael.	Noonan, Michael.
Crawford, Seymour.	O'Keeffe, Jim.
Creed, Michael.	O'Shea, Brian.
Currie, Austin.	O'Sullivan, Jan.
D'Arcy, Michael.	Owen, Nora.
De Rossa, Proinsias.	Penrose, William.
Deenihan, Jimmy.	Perry, John.
Dukes, Alan.	Quinn, Ruairí.
Durkan, Bernard.	Rabbitte, Pat.
Enright, Thomas.	Reynolds, Gerard.
Farrelly, John.	Ring, Michael.
Ferris, Michael.	Ryan, Seán.
Finucane, Michael.	Sargent, Trevor.
Fitzgerald, Frances.	Shatter, Alan.
Flanagan, Charles.	Sheehan, Patrick.
Gilmore, Éamon.	Shortall, Róisín.
Hayes, Brian.	Spring, Dick.
Higgins, Jim.	Stagg, Emmet.
Hogan, Philip.	Timmins, Billy.
Howlin, Brendan.	Upton, Pat.
	Yates, Ivan.

Níl
Ahern, Bertie.	Fox, Mildred.
Ahern, Dermot.	Harney, Mary.
Ahern, Michael.	Haughey, Seán.
Ahern, Noel.	Healy-Rae, Jackie.
Ardagh, Seán.	Jacob, Joe.
Aylward, Liam.	Kelleher, Billy.
Blaney, Harry.	Kenneally, Brendan.
Brady, Johnny.	Killeen, Tony.
Brady, Martin.	Kirk, Séamus.
Brennan, Matt.	Kitt, Michael.
Brennan, Séamus.	Lawlor, Liam.
Browne, John (Wexford).	Lenihan, Brian.
Byrne, Hugh.	Lenihan, Conor.
Callely, Ivor.	Martin, Micheál.
Carey, Pat.	McCreevy, Charlie.
Cooper-Flynn, Beverley.	McDaid, James.
Coughlan, Mary.	McGennis, Marian.
Cowen, Brian.	McGuinness, John.
Cullen, Martin.	Moffatt, Thomas.
Daly, Brendan.	Molloy, Robert.
Davern, Noel.	Moloney, John.
de Valera, Síle.	Moynihan, Michael.
Dempsey, Noel.	Ó Cuív, Éamon.
Dennehy, John.	O'Dea, Willie.
Doherty, Seán.	O'Donoghue, John.
Ellis, John.	O'Flynn, Noel.
Fahey, Frank.	O'Hanlon, Rory.
Fleming, Seán.	O'Keeffe, Batt.
Foley, Denis.	O'Keeffe, Ned.
O'Kennedy, Michael.	Treacy, Noel.
O'Malley, Desmond.	Wade, Eddie.
O'Rourke, Mary.	Wallace, Dan.
Power, Seán.	Wallace, Mary.
Ryan, Eoin.	Walsh, Joe.
Smith, Brendan.	Woods, Michael.
	Wright, G.V.

Mr. O'Donoghue

I move amendment No. 3:

In page 7, to delete lines 13 and 14 and substitute the following:

(e) at the request of the Minister, or on its own initiative, recommend to the Minister appropriate scales of court fees and charges,".

I was happy to be in a position on Committee Stage to give an undertaking to Deputy Higgins that I would introduce an amendment to meet the objective he was seeking to achieve in his amendment. Section 6(2)(e) provides that at the request of the Minister the service may recommend appropriate scales of court fees and charges to the Minister. The issues relating to court revenue are significant and must been seen in the context of the cost effectiveness of the new service. It is appropriate that the Minister should be in a position to seek the recommendations of the service with regard to the level of court fees and charges. I agree with the Deputy that the power of initiative in this regard should also be at the disposal of the Courts Service. I remind Deputies that the working group on a courts commission recommended that the Courts Service should be in a position to advise the Minister on the question of court fees.

I have pointed out that the manner in which the section is structured could not be construed as precluding the service from recommending appropriate scales of court fees and charges on its own initiative. The reference in section 6(2)(e) to making proposals to the Minister in relation to fees at the request of the Minister was included to ensure that the service would respond to such requests from the Minister. It was not intended and it does not preclude the service from making recommendations on its own initiative.

However, in the light of Deputy Higgins's amendment, I accept that the Bill would be improved by making it explicit that the Courts Service will have the power to make such recommendations on its own initiative. It is important that the Courts Service should also make such recommendations at the request of the Minister and this aspect of the matter is not adequately dealt with in Deputy Higgins's amendment. My amendment will ensure that the service will be in a position, on its own initiative or at the request of the Minister, to recommend appropriate scales of court fees. In the circumstances and since the broad objective of his amendment is being accepted I ask the Deputy to withdraw his amendment in favour of the one I have tabled. I thank him for bringing the matter to my attention.

Mr. Higgins

(Mayo): I thank the Minister for honouring the commitment he gave on Committee Stage. His amendment meets the spirit of what I am trying to achieve, that the board will have discretion to make recommendations without waiting for an invitation from the Minister to so do. His amendment is also very much in keeping with the spirit of what he was trying to achieve in the previous amendment, to ensure the independence and autonomy of the board which should have maximum discretion in relation to the way it operates. The matter of fees is of fundamental importance in this regard.

Amendment agreed to.

Amendment No. 4 not moved.

Mr. Higgins

(Mayo): I move amendment No. 5:

In page 8, line 8, after "period" to insert "including a comprehensive set of judicial statistics for the period in question".

This amendment was discussed with amendment No. 2. I do not want to regurgitate the same arguments but what the Minister has done is unpardonable. He has done damage to something that is of fundamental importance to the welfare of the board. I am not pressing the amendment as I am anxious, in the limited time available, to proceed to other amendments.

Amendment, by leave, withdrawn.

Acting Chairman (Mr. Kirk)

Amendment No. 6 is out of order as it involves a potential charge on the Revenue.

Amendment No. 6 not moved.

Acting Chairman

We now proceed to amendment No. 7. Amendments Nos. 8 and 9 are related. Is it agreed that amendments Nos. 7, 8 and 9 be discussed together? Agreed.

Mr. O'Donoghue

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.

Ms McManus

I am concerned at the Minister's response in relation an amendment I tabled in good faith, although I welcome the fact that he has accepted the first part of the amendment. I have no problem with the idea of taking out the word "particular".

In relation to the board, the Minister can make three nominations. He accepts that under the Bill he will have an obligation to have regard to the need for gender balance in making those nominations, which make up a small part of the total membership of the board.

The Minister said the second part of my amendment constitutes an empty formula. I do not accept this. I do not accept that a Minister asking nominating bodies to have regard to a fundamental policy principle to which all parties in the House subscribe is without meaning. It is an important principle which should not be disregarded in relation to the totality of the Bill. I do not believe the principle of enabling women to reach equality applies to politicians only. Responsibility lies with a much larger spectrum, including bodies and organisations such as the Judiciary, the Bar Council, the Law Society of Ireland and ICTU. Everybody has to play their part if we are to ensure true equality. If these amendments had not been tabled the Minister would not have brought forward proposals concerning gender balance. Despite the genesis of the Bill, whereby an extremely important female judge has done a magnificent job, the principle of gender balance would not have been enshrined in it. My amendment has been emasculated — when I tabled it I made it clear it was modest and did not reach the 40 per cent which is desired and which should be a matter of course due to the large number of judges included in the Courts Service. However, this does not negate the importance of the principle.

The Minister said that under the provision set out in the amendment he will "ask" each nominating person or body to have similar regard. Is it possible to be more modest? Initially he said that what I am seeking cannot be done and then that, legally, it should not be done. However, notwithstanding this, he said he would do so in any event but not through the Bill. The Minister said he will ask nominating bodies to have due regard to such provision, but at the beginning of his speech he said this would not be possible as only one nomination is made. This is not logical. If it is not possible to do so through legislation — if it is a request rather than an imperative — it makes no sense to do so outside it. I do not accept this as I know he can ask the nominating bodies to make such provision. This is the way such things are done and people can be conscious of their responsibilities in ensuring equality. The Minister has an obligation, as a member of a Government which is presumably committed to the principle of equality, to live out that obligation.

The Minister said that such a matter should not be provided for in legislation. I have a difficulty as I am not a member of his Department and am not familiar with his legal advice. However, it is inconceivable that a Minister could be prevented from approaching nominating bodies to a board he has established with a reasonable request. Who can set conditions for organisations, or at least ask them to consider the manner in which they make such nominations, if the Minister cannot? It makes no sense that the Minister charged with introducing a Courts Service, who has drawn up the Bill and has specified those who will be members of the service in terms of individuals and the nominating bodies, cannot ask them to take on board the fact that 51 per cent of the country's population has a right to fair representation. Have we arrived at a point where the Minister's response is feeble, conservative and out of keeping with the response he gave on Committee Stage? At that time he indicated that far from seeing my amendment as radical, which it clearly is not, he could improve it. He has improved on it in one regard, namely, by taking out the word "particular". I am all in favour of plain speaking and support this deletion. However, he has taken out an important aspect concerning the principle of equality, emasculating my amendment by not allowing the Minister, who has the authority and the democratic mandate, to ensure the Courts Service board is based on sound principles, including that of equality for women.

The Minister indicated that he personally felt very committed to the principle of equality. However, the necessary political commitment on this issue is lacking. The Minister is over reliant on the caution and conservatism of civil servants. I have no problem with them doing their job but the Minister also has a task in ensuring fair play. He should do what is modest and reasonable by ensuring the Bill provides that not only will the Minister give due regard to the fact that 51 per cent of the population is female, but that he will expect and request nominating bodies, which have an equal duty to respect the gender balance, to take cognisance of that balance and ensure it is reflected in their decisions.

Mr. Higgins

(Mayo): It is incomprehensible that a Minister and a Department with responsibility for ensuring gender proofing, balance and fair play in representation of State boards should totally disregard the requirement they impose on others in the drafting of this fundamental legislation. I had the pleasure of sitting in Cabinet for over two years during which time I saw a rigid insistence in relation to every board having a minimum 40 per cent female representation. I pay special tribute to the Minister's predecessor, Mervyn Taylor, who was most assiduous in insisting that the 40 per cent minimum representation was honoured in the composition of every board.

It appears that the Department with responsibility for policing this provision has taken no cognisance of the likely fallout in terms of gender imbalance in drafting this Bill. The Minister spoke of the inherent practical difficulty in relation to this matter. Such a difficulty has been created by the Minister and his Department in the formulation of the Bill. It is not necessary to be a mathematical genius to figure out that 40 per cent of 17 is seven.

Concerning the composition of the board, the Chief Justice, the President of the High Court, the President of the Circuit Court and the President of the District Court are men. The other positions provided for include a judge of the Supreme Court elected by the ordinary judges of that court; a judge of the High Court elected by the ordinary judges of that court; a judge of the Circuit Court elected by the ordinary judges of that court and a judge of the District Court elected by the ordinary judges of that court. In each case a near male monopoly has responsibility for nominating a member. There is a strong possibility that without my intervention and that of Deputy McManus the Courts Service Board would be all male. This would have happened without any regard to the obligations of the Constitution, Article 41º of which clearly includes a strong protection of the family. The courts are dominated by family law cases where women are victims of violence and where children find themselves in unfortunate domestic circumstances which ultimately must be sorted out through recourse to the courts. Family law cases, marriage breakdowns, child custody orders, barring orders and so on constitute the daily business of the courts of this land. Yet, no provision has been made for any representative of a family to be appointed to the board. It should surely have been a fundamental aspect of drafting the Bill that at least one place would have been reserved for a representative of the welfare organisations which do such wonderful work. Such a person would have knowledge and practical experience of the welfare of women and children. There is not even a token aspiration to that effect in regard to the composition of the board.

I tabled amendment No. 9 in regard to the 40 per cent female representation objective simply to focus on this issue. One had only to take a cursory glance at the board's composition to see it was virtually impossible for women to be represented on it. What really galls me is that there does not seem to be even a minimal acceptance of the point made by Deputy McManus in amendment No. 8. The amendment seeks that a Minister shall use his or her discretion to advise the various nominating bodies of the requirement for gender balance and shall urge them to give practical expression to it by seeking to ensure that at least some of the people nominated by them are females. The Minister has simply watered down what we thought was a commitment given on Committee Stage to accept the spirit of what Deputy McManus was trying to achieve.

In his amendment No. 7, the Minister informs us that he shall, in making nominations under subsection (1), have regard to the need to ensure that membership of the board includes both men and women. Can the Minister not advise the learned judges of the Supreme, High, Circuit and District Courts and any other organisations that, in view of the fact that the courts of the land now deal with so many family law cases involving women and children, it is fundamental they have cognisance of the requirement to seek to ensure that some gender balance is achieved? The Minister makes the point that it is not possible to enshrine the concept any more solidly than he has done in view of the fact that there is no provision for two representatives from the various nominating bodies. Why was something as fundamental as that not taken into consideration in drafting the Bill? I recall that during my time as Education spokesman, two Bills were introduced to regulate the Dublin Institute of Technology and the regional technical colleges. It was enshrined in the legislation that there would be two representatives on the various boards, at least one of whom would be a woman. In that way, whether the representatives were drawn from students or academic staff, there was no problem in ensuring that the 40 per cent gender balance minimum requirement would be met. The Minister and his Department are responsible for rapping other bodies over the knuckles and insisting on the implementation of the law. It is incredible that the Minister and the Department, who are supposed to be vigilant, without any prodding or probing from the Opposition, in ensuring that minimum gender balance requirements are met, should themselves totally and absolutely disregard them.

The Minister spoke about empty formulas and his party is certainly expert on those. For a Minister with responsibility for equality to dismiss the intention contained in the amendments tabled by Deputy McManus and me as an empty formula sounds very hollow indeed.

Dr. Upton

I agree with the thrust of the comments made by the two previous speakers. I suspect that some of the difficulties the Minister finds himself confronted with are related to the composition of the board. It seems there is provision for an inordinate number of legal people on the board. As Deputy Higgins pointed out, the type of legal people involved means that the objective of attaining anything approximating the 40 per cent requirement becomes exceptionally difficult. It may be possible in theory to appoint seven females because of the way in which the board is weighted but the Minister is faced with difficult options given that the presidents of the various courts are, at present, males and are likely to remain overwhelmingly so for the short-term future.

Deputy McManus's amendment is very modest. As far as I can see, the Deputy is simply seeking that the Minister would request each nominating body to have regard to the necessity to have a board, the membership of which is made up of women and men. That seems to be very basic indeed. I am not a lawyer but I have great difficulty in understanding the legal advice which the Minister obtained although I am sure it was obtained in good faith from highly qualified and learned legal experts. However, I do not understand why a request as basic as Deputy McManus's would create problems down the road. I urge the Minister to reconsider his position on this matter. It seems likely that, in practice, females will be grossly outnumbered on the board and that is highly undesirable. I will not reiterate the arguments made by the previous speakers on the objectives and policies involved and the wonderful paradox of a Department of Justice, Equality and Law Reform leading a fairly well structured attack on equality. That is a curious anomaly.

The spirit of the Deputies' amendments is very worthwhile and I am very disappointed that the Minister seems to be digging his heels in on this matter, particularly in the case of the amendment tabled by Deputy McManus which seems very straightforward and which I would not have expected him to have difficulty in accepting. I accept the objectives of the amendment tabled by Deputy Higgins and his point in regard to the seven people. That goes back to the fundamental structure of the board and is an issue which should have been considered previously but unfortunately was not.

Mr. O'Donoghue

I have listened carefully to the Deputies' comments. Deputy McManus asked why I am not committed to gender balance. My own late mother was a member of Kerry County Council for more than 20 years from 1965 onwards when it was neither fashionable nor usual for women to be involved in political life.

Ms McManus

The Minister should have learned from his mother's example.

Mr. O'Donoghue

I fully understand the need to have gender balance and that is why I accepted the first part of Deputy McManus's amendment. The difficulty with the amendment relates to the second part in regard to the formulation of the Courts Service. The facts are that every Government for some time now has accepted the need for gender balance and that there should be at least 40 per cent representation of women on State boards and agencies in so far as that can be realised. The difficulty involved in this instance is that many of the positions, which are set out for membership of the Courts Service, are those currently held by men who, in turn, become ex officio members of the service. For example, the Chief Justice or a judge nominated by him is an ex officio member of the board. The effect of Deputy McManus's amendment is that I should ask each nominating person or body to have the same regard as I would have to the need to achieve gender balance. What would be the legislative effect of the Minister of the day asking a nominating body to have regard to that? It could not achieve anything directly because it is merely a request. If the request were put into a statute, I am advised by my legal advisers that it could leave the composition of the board open to a legal challenge for the reason I outlined. I said I would ask the nominating bodies to have regard to the need for gender balance as an administrative matter, but there are legal difficulties in imposing a requirement in relation to a nomination of one person, having regard to the desirability of appointing both genders. It could leave the composition of the board open to the possibility of a legal challenge because we would be making something a statutory imperative which in practice could be said to be impractical. It does not arise as a matter of practice because it would not be a statutory imperative if one were, as a matter of administrative function, to ask the nominating bodies concerned to have regard to the question of gender balance.

Deputy McManus was mischievous in suggesting I was trying to say this was an empty formula. I am seeking to achieve precisely the same objective as she, but my difficulty is that the legal advice available to me suggests firmly that if I were to accept the second part of her amendment, it would leave the composition of the courts service open to legal challenge which might be successful. That is not desirable when the same objective can be attained by way of administrative function. Is Deputy McManus worried that the next Minister for Justice, Equality and Law Reform will not ask the nominating bodies to have regard to gender balance? On my own behalf and that of my party, I assure her that whoever holds the position in Fianna Fáil will do that. She may have difficulties with other parties on that and if she does she should take it up with them.

We cannot enforce the 40 per cent rule on gender balance in the Courts Service because people are going on to this board in an ex officio capacity. By virtue of positions they hold, they will automatically become members of this board and if they did not hold those positions they would not be qualified to do so. It is true that many of the major positions in our courts are held by men — from the Chief Justice down to the presidents of the lower courts. There is no woman acting as president. When I raised this matter on Committee Stage Deputy McManus said that will change and I would be delighted to see it. If and when it changes the composition of the Courts Service in respect of gender balance service will axiomatically change.

I guarantee I will ensure that regard is had for gender balance when making ministerial appointments. I am in a position to empower myself to do that by way of statutory imperative. Unfortunately the position is different in so far as ex officio membership of the board is concerned. There is no point pretending the position is otherwise. Deputy McManus is seeking to make a request a statutory imperative. Apart from the question mark over that, surely it must be obvious to everybody that when the nominating bodies are nominating only one person it leaves the entire position open to further questions. The best I can do from a legal perspective is to request the nominating bodies to have regard to gender balance as an administrative function and I will do that. I sincerely hope members of other parties, who may hold this position, will do the same.

Deputy McManus rose.

Acting Chairman

I must remind Deputy McManus we are on Report Stage.

Ms McManus

Does that mean I cannot come back in?

Acting Chairman

A modification to Standing Orders allows a Deputy two minutes to reply, but normally that right is exercised before the Minister replies. At the risk of setting a precedent I will allow the Deputy to make a brief contribution.

Ms McManus

I appreciate that. I am sorry if I have discommoded the Chair but I will be brief. In response to the Minister's question on the possible effect of this amendment, I remind him we are living in a world where only a handful of women exert power and influence. Our Judiciary and political system are dominated by men. I am sure the Minister's mother was a pioneer, but we have not progressed very far since her time on the county council. There is an imperative to ensure that when we have the capability to bring about equality we should do so. That imperative was never greater than with a Minister with responsibility for equality. The Minister said it would create legal difficulty to have regard to this imbalance, but I remind him nominating bodies will need to have regard to whether person being considered for nomination is professionally competent, available, able to articulate requirements and various other considerations in deciding on a nomination.

The Minister said he can have regard to gender balance on an administrative but not on a legal basis. I do not accept that. The Minister has made a bags of this Bill in a way that is deeply disturbing because of his role as Minister with responsibility for equality and law reform. He stated that he as a Fianna Fáil Minister will live up to his obligations in this regard. This Fianna Fáil-PD Government absorbed responsibility for equality and law reform into the Department of Justice. If it had not been for the Opposition, the Minister would have done nothing to ensure there was a female voice in the Courts Service.

Mr. O'Donoghue

Wrong. It was included.

Ms McManus

It would not have been included in the Bill were it not for the Opposition. The Minister is a disgrace to his party and his office.

Acting Chairman

As it is now 12.30 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed.

Question put and agreed to.