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Seanad Éireann debate -
Wednesday, 12 Oct 2016

Vol. 247 No. 10

Judicial Appointments and Threatened Industrial Action by An Garda Síochána: Statements

I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald.

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

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

A process involving a wide-ranging review of all aspects of the law on the system concerning judicial appointments was commenced under the previous Government and has been referred to by me in previous contributions in this House and the Dáil. A consultation process on the system of judicial appointments was conducted by my Department in 2014 and it was acknowledged that the Judicial Appointments Advisory Board process was a model of best practice in its day but that it was time, after almost 20 years, to review the operation of the judicial appointments system to ensure it reflected current best practice having regard to international standards, that it was open, transparent, accountable and that it promoted diversity.

There was an encouraging response to the call for submissions. A total of 27 submissions were received from a range of interested persons and bodies, including the Judicial Appointments Review Committee which is a committee of the Judiciary, the Bar Council, the Law Society of Ireland, the Irish Council for Civil Liberties and other civil society groupings, former judges, public representatives, university-based lawyers and private individuals. The submissions remain available to us and are of direct relevance in moving to the delivery of new legislation in this area.

A number of reform themes emerged from the consultation process which, with the programme for Government commitment, are informing the preparation of the new legislation. Among the strongest ideas to emerge is the idea of the importance of ensuring the Judiciary retains the independence essential for discharging its constitutional function. I believe Ireland has a proud record in that regard. Another important idea is that the Judiciary should reflect, as far as possible, the diverse nature of society from which it is drawn, as is the idea that judges should be appointed on merit. I imagine the House will agree that our reforms must have regard to these important principles. Significant further work and critical consultation will be necessary in finalising the scheme for a new judicial appointments commission Bill. This is a priority for the Government and I look forward to bringing this legislative reform to the House at the earliest opportunity.

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

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

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

As Senators will be aware, the agreement reached between my Department and the GRA addressed in a positive way the issues raised by the GRA in the course of negotiations which took place over a number of months. In particular, the agreement sought to address the concerns articulated about the pay of new recruits, the additional hours gardaí were required to work, access to pay determination and dispute resolution bodies and the completion of the review of An Garda Síochána. The agreement we had reached included significant benefits, including the restoration of the rent allowance, worth over €4,000 annually, to new recruits, as well as lifting the increment freeze that had been in place since 1 July. It would be most unfortunate if, rather than engaging further, action was to be contemplated that would not be in the best interests of communities or An Garda Síochána. I have mentioned this on a number of occasions and imagine Senators will agree with me. Like all public servants, members of An Garda Síochána played a significant part and role in stabilising the public finances and bringing about the economic recovery. They were subject to the same pay reductions as all other public servants over the course of the financial crisis years and similarly have benefited from the partial restoration of pay commenced on foot of the Lansdowne Road agreement. In working with them I am keen to find a way forward towards pay restoration that can be managed within the parameters laid down.

The Government is conscious that the associations, as is the case with many public sector representative bodies, are frustrated at the pace of pay restoration. However, I imagine many Senators agree that the Government must take a sustainable and prudent approach to public sector pay. We are committed to the Lansdowne Road agreement as the framework for industrial relations and pay determination within the public service. Within this framework, the programme commits to the establishment of a commission for public sector pay to examine pay levels across the public sector, including entry levels of pay, and to the gradual negotiated repeal of the Financial Emergency Measures in the Public Interest Acts. As the Minister for Public Expenditure and Reform, Deputy Paschal Donohoe, said in his Budget Statement yesterday, the public service pay commission will report to him by the middle of next year and provide inputs on how the unwinding of the financial emergency measures in the public interest legislation should proceed. We will ensure all those represented do so on an equal footing. The resolution of outstanding issues of concern to the GRA or the AGSI can only be addressed through engagement between the parties and I urge them to engage in discussions before contemplating any action that, as I have said on numerous occasions, would not be in the best interests of communities or An Garda Síochána.

Senator Lorraine Clifford-Lee is next. I understand she wishes to share time.

I wish to share time with my colleague, Senator Robbie Gallagher.

I thank the Minister for coming to the House to address these two important issues.

The decision of An Garda Síochána to strike is not one with which Fianna Fáil supports or agrees. However, it shows that there is rampant demoralisation and anger within the force. We need a commitment from the Government that it does not intend to allow a stand-off between the Garda Representative Association and the State. It is essential that we see the Government re-engage with Garda representatives. We learned on 28 September that the Garda Representative Association had voted for industrial action for four days in November. Fianna Fáil immediately raised this issue in the Dáil. This is an unprecedented development which would have serious consequences not just for the Garda but also for the public. As we know, unlike other workers, gardaí do not have the right to strike. An Garda Síochána has always served the State with great pride and its members take an oath to defend the public and the State. However, as I said, the decision to strike, with which Fianna Fáil does not support or agree, nonetheless shows a rampant demoralisation.

The Government has been aware that industrial relations issues have been brewing in the Garda for some time. It has been in place for five months and among the major issues on its agenda are public service pay and industrial relations problems within the public sector.

In recent months deals have been done in respect of low grade entry level nurses and teachers and on allowances for firefighters, yet the Government only entered into what it thought would be an agreement with the GRA late on Friday, 23 September. It is to be regretted that it has stumbled and stalled in dealing with the challenges facing An Garda Síochána. It must recognise that reports by GSOC, the Policing Authority and the Garda Inspectorate will be meaningless unless An Garda Síochána has good morale within its force and believes its members are being respected and valued by the State and the Government. Morale is low because of the terms and conditions of gardaí. It is clear their grievances are not being treated seriously by the Government.

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

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

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

I welcome the Minister.

On the issue of Garda pay, I am very disappointed by the decision taken by gardaí to engage in industrial action on four Fridays in November. There is a strong possibility that the AGSI will join them. It will be a very sad day for the country and the Garda. It is regrettable and disappointing that the issue has been allowed to develop to this point, although I fully appreciate that the Minister has only been in office a short period of time. We have to be aware that pride and morale in the Garda are probably at an all-time low. It is important to send a message as a country that we need to protect the people who protect us. We need to protect those who, when they go out to work in the morning or the evening, may not come back home alive. There are very few workers who have those working conditions in their daily lives. We need to accept and appreciate that and acknowledge that gardaí are different for the reasons I have outlined. They are also very reasonable. We all know them in our everyday lives. I call on the Minister to engage fully with gardaí and use all of her resources to adequately address the outstanding issues that need to be addressed. I welcome the tone of her comments and have no doubt that if she engages fully, a solution can be found to this problem in order that we can move on and remove the threat that hangs over the Garda and communities.

Senator Michael McDowell is sharing his time.

I am sharing time with Senator Victor Boyhan.

I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald. I thank her for coming om response to a suggestion I made that this debate should happen. I thank the Leader of the House for arranging it.

The particular issue about which I was concerned was the question of judicial appointments in view of media reports that a moratorium on the appointment of judges had been put in place at Cabinet level pending the passage of the legislation outlined in the programme for Government. I note what has been said about the Fianna Fáil Bill. I have had an opportunity to look at Deputy Jim O'Callaghan's Bill and it seems that the principle is preferable to that adumbrated in the programme for Government. I am deeply concerned that the model proposed in the programme for Government of an inexpert majority on the appointments commission would lead to poor rather than good results. The principle in Deputy Jim O'Callaghan's Bill is better; it would provide that the advice of people who knew what they were talking about would be made more focused and available to the Executive. It strikes me that Senator Victor Boyhan has been advancing the proposal to have the judicial council legislation brought forward and considered at an early date. The Minister will know that it is a long-standing chestnut in her Department. I was recently interested to see judicial impatience at the level of progress made. There was a time when the impatience was all in St. Stephen's Green and it was the Judiciary who were on the receiving end of correspondence from impatient Ministers.

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

Reference has been made to the Garda pay issue. I do not want to put any further political pressure on the Minister. I understand completely the circumstances in which she finds herself. Everybody, including her, will agree with me that An Garda Síochána needs to be treated as a special case because its members carry out special functions and are deprived of certain rights which others in the community enjoy in negotiating their own wages and conditions. The idea of a two-tier wage structure within An Garda Síochána is unacceptable. Across Ireland there are people who believe they are being policed by gardaí who live 50 or 60 miles away and are driving to work and going home to wherever they live. Will the Minister confirm whether the Garda Reserve which could serve to establish local roots for An Garda Síochána in every community will be expanded and have its numbers increased? It is no threat to Garda status or pay, but it would be a huge bonus in linking members of An Garda Síochána with communities in the way they were in the past when it was common for the local sergeant to live above the Garda station.

I welcome the Minister for Justice and Equality.

I want to make a number of comments on judicial appointments with reference to what is contained in the programme for Government.

I welcome the Minister's comments on the judicial council. There is no mention of it in the programme for Government, only three paragraphs on judicial appointments.

Articles 34 and 37 of the 1937 Constitution of Ireland regulate the courts and outline generally how judges are to be appointed. The President of Ireland appoints judges on the advice of the Government. In practice, the decision to appoint a person to the Judiciary is made by the Minister for Justice and Equality. He or she is under no legal obligation to accept a person recommended by the Judicial Appointments Advisory Board, JAAB. These are facts. The JAAB is a statutory body. It has no role in appointing a person who is already a judge to a judicial appointment such as a higher court than the one in which he or she sits. This critical point is somewhat lost. The JAAB creates a list of at least seven people whom it recommends for appointment. The Government is under no obligation to accept any of these recommendations. In practice, there is no review of a decision on the appointment of a judge. The JAAB does not have the power to rank the names on the list in order of preference or merit. Neither is the Government obliged to select any one of those recommended by the JAAB. The JAAB has no role in the appointment to a judicial office of a person who is already a judge. If a judge of the Circuit Court is to be appointed to the High Court, no provisions of section 16 of the 1995 Act apply.

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

I, too, welcome the Tánaiste and Minister for Justice and Equality.

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

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

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

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

Go raibh maith ag an Tánaiste as an chur i láthair atá déanta aici.

There is a degree of unity in the Chamber on the Tánaiste's proposal regarding judicial reviews. We all acknowledge, as the Tánaiste did in her contribution, that the process is outdated and no longer fit for purpose. Going back many years, it has been Sinn Féin's position that the issue of judicial appointments needs to be reviewed and the position changed to become compliant with a more independent ethos. It is right for the Judiciary and those who find themselves engaging with it. Given that it has been our position, I remind the House of the Reform of Judicial Appointments Procedures Bill 2013 which my colleague, Senator Pádraig Mac Lochlainn, brought before the previous Dáil. Unfortunately, the Government opposed it. However, it is not the time to look back.

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

The Tánaiste is very welcome.

I will deal with the impending Garda strike. Week after week public sector workers are making the difficult and, in certain instances, unprecedented decision to take industrial action. We have had the Luas and Dublin Bus drivers make that decision. Now it is gardaí who have made it and soon it will be the teachers and nurses who will make it.

We are seeing a mass movement across the public sector demanding fair pay and proper working conditions. These workers endured austerity budget after austerity budget in which the State took rights from them year on year and now they are telling it: "Pay us what we are worth, or else we'll down tools and leave you to it.” It has got so bad that today we are debating the unprecedented move by gardaí to vote to take industrial action. We need to recognise this anger and frustration over public sector pay will not go away any time soon but is gathering momentum. The Tánaiste needs to get to grips with this soon because the vote by gardaí to take industrial action is serious. It is a reality check for those among her civil servants or her ministerial colleagues who seem to be playing hard ball on these issues.

We are seeing recently recruited members of An Garda Síochána on starting salaries of €23,500. To put the matter in context, that is about one third of what we earn before we get our expenses and they have a much tougher job than we have. They sleep in cars because they are unable to afford spiralling rent costs. They drive all the way from places such as Tipperary to Dublin every day, from their parents' homes, just to turn up for work because they cannot afford to live in Dublin.

On the broader morale front, given the continuous issues about whistleblowers, gardaí do not feel safe to make protected disclosures. When new gardaí starting on a salary of €23,500 read the Comptroller and Auditor's General's report on a €150,000 slush fund to buy presents for senior gardaí in Templemore, how does the Tánaiste think that will affect the morale in the workforce? Yesterday the Government gave Deputies a very generous €5,000 annual pay increase, but it still has not restored the rent allowance for gardaí. We begin to get a clearer picture of the choices we make and the choices the Tánaiste's Government has decided to make.

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

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

I welcome the Tánaiste and Minister for Justice and Equality. I also welcome the opportunity to have this debate.

As other colleagues said, a consensus has been breaking out across the House on the need for reform of judicial appointments. As the Minister said, this is very much an ongoing issue on which there has been extensive consultation. At the justice committee last year, at my instigation, we conducted a hearing on the subject of judicial appointments. I hope we forwarded the transcript of that hearing to the Tánaiste and her Department to inform the consultation process and the discussion on reform.

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

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

Another point made concerns the need to extend the power to the promotion of judges where existing judges seek promotion. There are some issues with reforms, but the failure to implement or use existing powers in legislation must also be noted.

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

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

Turning to the proposed strike by gardaí, this is the second cause of a crisis in policing. In recent weeks we read the revelations about the treatment of whistleblowers in the force and await the report from the retired High Court Judge Mr. Justice Iarfhlaith O'Neill on that issue. Clearly, the proposed strike is very much a second cause of a crisis in which rank and file gardaí are planning to take industrial action in November. Other colleagues have talked extensively about the issue of Garda pay which is one of the issues that has prompted the 95% vote in favour of industrial action. I want to focus on another issue, that of access to State negotiations, in particular to national negotiations such as those on the Haddington Road and Croke Park agreements. The issue of gardaí and the right to negotiate is not new. While section 18 of the Garda Síochána Act 2005 prohibits members of An Garda Síochána from joining trade unions, they can join associations, but their representative associations are not privy to the national negotiations on pay and conditions. We know that in 2013 the European Committee of Social Rights issued a decision that Ireland was in breach of its international obligations under the European Social Charter, among other things, because of the prohibition on the representative associations from joining national employee organisations such as Irish Congress of Trade Unions, ICTU. I draw attention to the Industrial Relations (Members of the Garda Síochána and the Defence Forces) Bill 2015, introduced in the Dáil in 2015 by my then Labour Party colleague, Michael McNamara, which, among other things, would have provided for the right of Garda representative bodies to join umbrella groups such as ICTU.

Mr. McNamara pointed out that provisions like ours that were in place in France had resulted in judgments against the French Government by the European Court of Human Rights. He also pointed to the need for us to comply with the European Social Charter. This year the Tánaiste indicated that she would seek a resolution of the issues concerning the charter and that the findings of the European committee had been referred for consideration as part of an independent review under the Haddington Road agreement. Has that review been concluded or will the Tánaiste be in a position to accept a Bill such as Mr. McNamara’s which was not accepted by the Government at the time, given the context of a speech in which she stated there was an ongoing review of these issues? This is a significant bone of contention because it leads directly into issues of low pay, conditions of work, sick leave, hours of work and so on in An Garda Síochána that have given rise to the 95% vote in favour of strike action. I ask that we see our way to resolving this issue, being mindful of the finding against us at European level and the fact that Private Members' legislation has been introduced that proposes reasonable propositions in terms of the rights of gardaí. It was anomalous that, in the Haddington Road agreement negotiations, representatives of the Garda and the Defence Forces were barred from participating, while representatives of prison officers and firefighters rightly participated.

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

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

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

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

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

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

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

Turning to judicial appointments, we have received some advice and are seeking more on the matter. Complex legal and constitutional issues are involved. Senator Michael McDowell has written about them, while Senator Victor Boyhan has raised a number of concerns. The roles of the Judicial Appointments Advisory Board, JAAB, and the Government are distinctive. As I have often stated, neither the Government nor its predecessor ever went outside the JAAB's recommendations. That is important. We have an appointments process, but it is in need of change. We will have interesting discussions on the format and type of change necessary, but we all agree on some of the key principles - that appointments should be made on merit and that there should be a maintaining the strong constitutional issues that arise in that regard. Senator Victor Boyhan made suggestions concerning the scope available to the Government. The advice I have received is in agreement with him in that respect.

Deputy Jim O'Callaghan does have a Bill which I will certainly examine very carefully to see what progress we can make because it is a priority for the Government, as is the judicial council Bill. I again recognise what has been said about delays in the past. Delays were caused by a variety of factors and we are committed to dealing with the issue. A lot of work has been done on that Bill and it will be published this term. Both pieces of legislation are on the A list and we are putting on the A list only those Bills that will be published. It is not like in the past where there was a very long list of A Bills. The last time we reached ten of the 11 pieces of legislation on the A list. It is the absolute intention that the Bills will be published this term and that as much progress as possible will be made on them.

No doubt we will have interesting discussions on whether there should be a lay or a legal majority, an issue on which there will be different points of view. International practice suggests there ought to be some lay members. What the proportion should be will be a subject for discussion, but many jurisdictions have lay chairpersons. For example, the new Legal Services Regulatory Authority which we have just established has an independent lay person in charge. They are the decisions we will be teasing out and I look forward to hearing what Members will have to say about it.

They are the main points raised in both areas and I will leave it at that.

I thank the Minister. When it is proposed to sit again?

Ar 10.30 maidin amarach.

The Seanad adjourned at 7.05 p.m. until 10.30 a.m. on Thursday, 13 October 2016.