I move amendment No. 15:
In page 10, subsection (2), lines 21 and 22, to delete ", subject to subsections (3), (4) and (7) of this section,".
This is a technical amendment recommended by the draftsman.
SECTION 16.
Amendment agreed to.
Amendments Nos. 18 and 20 are related to amendment No. 16 and all may be taken together. Is that agreed? Agreed.
I move amendment No. 16:
In page 10, subsection (2), line 22, to delete "the names of".
This is a technical amendment to improve the clarity of the Bill.
Amendment agreed to.
Amendments Nos. 19, 21, 24 and 25 are related to amendment No. 17; amendment No. 17a is an alternative to amendment No. 17; amendment No. 19a is an alternative to amendment No. 19; amendment No. 21a is an alternative to amendment No. 21; amendment No. 24a is an alternative to amendment No. 24; and, amendment No. 26 is an alternative to amendment No. 25. Amendments Nos. 17, 17a, 19, 19a, 20, 21, 21a, 24, 24a, 25 and 26 may be taken together. Is that agreed? Agreed.
I move amendment No. 17:
In page 10, subsection (2), lines 22 and 23, to delete "at least ten" and substitute "not less than three and not more than five".
Amendments put forward by the Minister since Second Stage improve matters. Deputy O'Donoghue and I expressed a degree of surprise at the proposal that the board should put forward a minimum of ten names. The Minister proposes to reduce that requirement to seven. It would be interesting to know where the figure ten came from and why seven is necessary. Three to five is better.
On Second Stage the Minister said unconvincingly that three to five would unduly restrict Government discretion. That is right; it would give more power to the judicial appointments board which is what the Minister does not want. She wants to maintain the maximum level of flexibility and political choice for herself.
This section is closely linked to the previous section about the composition of the board. Having fatally undermined the status, authority and independence of the board by insisting on such a number of political appointees on the board, the Minister has transformed what could have been a non-political body into a body which is weighted down with Government supporters. The Minister now proposes to take its job away from it.
In putting forward amendments the Minister will reduce the damage of the original proposal that the board should come up with ten names for each appointment. I presume that for each appointment there will be a requirement of a minimum of seven which will still cause problems. In ordinary circumstances it will be difficult to come up with seven available, suitable and appropriate names out of the numbers of senior practitioners.
The effect of the provision is that the board's main function will be as a body for receiving applications. Depending on the procedures it sets up it may have to filter out non-starters occasionally, but given the procedures that may be difficult. It will pass on the applications it receives which satisfy basic criteria. If it has to propose seven people for every appointment that will not allow it to consider and evaluate in detail the suitability of the particular applicants. It will not weigh the merits of one candidate against another but will receive applications and pass them on to the Minister. As I said on Second Stage, it might be no more than a glorified post box.
As we debate this matter more we are seeing that in time-honoured tradition the Minister will still pick the person closest to the political allegiance of whoever is in power. Even if the Minister does not find the right person among the names put to her she can make her own decision. I can understand there may be constitutional difficulties in putting such an advisory board into existence. Despite the Minister's intention to reduce the number from ten to seven it still presents difficulties.
Has the Minister considered a proposal from the Law Society made at the time of the 1994 Bill? It made a powerful argument in favour of a totally transparent and open judicial appointments system.
It suggested that while the Government needs to retain a notional power of choosing between candidates so as to satisfy the constitutional requirements, if all parties in the Dáil could give a solemn undertaking to abide by the first choice of the judicial appointments board it would have the effect of depoliticising the Judiciary for all time. A cross party agreement on whoever the board recommends to be appointed might be the only way to do it. Has the Minister considered that? Although I am sure it has difficulties, the suggestion is worthy of political consideration.
The Minister has now recognised that the increase to 12 names was excessive and has diluted the powers of the board to practically the point of non existence. While I welcome the reduction from ten to seven, there is still a certain air of unreality about it.
I said on Second Stage it was proposed to create positions for an additional three High Court judges and seven Circuit Court judges and that, on the basis of that statutory requirement, the board would have to recommend the names of at least 70 members of the Bar, which is slightly less than 10 per cent of the profession. If one excludes the number of barristers with less than ten years experience who are not, therefore, eligible for consideration, the figure of 70 barristers represents about a quarter of those eligible for the bench. By widening the net, the Minister, wittingly or unwittingly, reduced the effectiveness of the board and undermined the spirit of the Bill. However, if the Minister acknowledges that the Bill should be extended to include the possibility of solicitors being appointed to the High Court and Supreme Court, the figure of seven would, in that context, be a fair compromise. It would be churlish and unfair of me to say otherwise.
I am not for one moment suggesting that every solicitor will suddenly decide he or she should be a High Court or Supreme Court judge or Chief Justice. It must be recognised that would only apply to a very small number of solicitors who appear today in the higher courts. I suggested that advocacy alone should not be a sine qua non for eligibility for appointment to the higher courts but neither would I advance the argument that it should be excluded or should not be a paramount criterion when adjudicating upon the suitability of an individual for the higher courts.
There is no need for me to labour the point. If the Minister accepts that solicitors can be eligible for appointment to the higher courts, seven is a fair compromise. Otherwise, it appears the actual number available for recommendation by the judicial appointments advisory commission would be small, relative to the number of barristers practising in the courts.
The number involved is critical to the provision of a board in the first instance. If we provided — I appreciate that this is no longer on offer — for ten, effectively we would deal with it as if it were, as Deputy O'Dea said, a filtering system and there would be no measure of co-decision making involved. We should introduce a measure of co-decision making whereby the board decides that a relatively small number of people are suitable for the job and the Government's role is a blocking one if it decides that X or Y is not suitable. The number decided on affects the balance struck. Ten would make a nonsense of the existence of the board. I would have preferred three or five because that would minimise the effect of party politics on the appointment of the Judiciary, which I would like to see. Seven is too many from my point of view.
I agree with Deputy Derek McDowell but the situation is slightly worse than he envisages because the number is not seven but "at least seven". The original Bill provided for not less than three and not more than five. The number of people who may go forward is now unlimited. I am not saying that, in practice, it will be unlimited, but theoretically it could be under the legislation.
There is another difference between this and the previous Bill, in that under the previous Bill the board would meet and select not less than three and not more than five, and they were the only names which were sent to the Minister. Now, the names of all of those interested are sent and a list of not less than seven is also sent. If the second list is unlimited and members of the board wish to nominate three or four people, the second list could be as long as the first one and the board need not act as a filtering system. Some years ago, an attempt was made to bring some transparency into the distribution of lottery funds and the Government hit on the great idea of letting the local authorities decide and filter. The local authorities just decided that if the application form was in order they would send it straight on to the Minister.
There is a danger of that happening in this situation. As Deputy O'Donoghue rightly said, if solicitors are brought into the equation for the higher courts, a maximum of seven would be a reasonable compromise. I cannot see why it has to be not less than seven. Can the Minister justify it possibly exceeding seven? If solicitors are not brought in, seven appears too many anyway, but not less than seven is ludicrous and I have not heard any justification for it.
I agree that the list of ten suitable names seems ridiculously long, especially when one takes into account that sitting judges may not be evaluated by the board. This is an area in which we can compromise with the Minister and have some agreement. If the Government ignores the list provided by the board in making an appointment, will it be obliged to explain to the board why it did not choose one of the people it nominated?
I listened very carefully to the cases made on Second Stage and gave undertakings which is why I tabled amendments Nos. 17a, 19a, 21a and 24a. The purpose of my amendments is to reduce from ten to seven the number of people whom a board must put forward. One of the issues is that it is somewhat difficult to argue this outside the realms of the legislation. First, a very large number of appointments will have to be made and people envisage queues of solicitors and barristers. Even if this Bill passes in its present form, solicitors will be eligible for the Circuit Court and I understand there are about 4,500 practising solicitors, a good 3,000 of whom are probably practising for over ten years and every one of whom is eligible for consideration. Even if we do not make any changes in the Bill with regard to eligibility for other courts, as things stand there must be some latitude for the board and the Government in having names proposed to them to make selections.
To return to what Deputy O'Donnell said, those who will put their names forward will be fully qualified. Further, it will be publicly known that they have put their names forward. When the Government eventually makes a decision — I cannot say when that will be because I cannot say I will be in Government for the rest of my life — I cannot say what way in practice the Government will make appointments from the recommendations. Suffice it to say we would not set up this advisory board unless we were prepared to listen to what it had to say.
There may be occasions when the board will feel it would be wrong to put forward only seven names to the Government because it feels there are others who are eminently suitable at that time and it would send a message to the remainder that they were not good enough. That is where the risk of a judicial review would lie. It has not been easy — any number could be chosen and people made great play on Second Stage, saying 170 names could be involved. Even with only three to five names, given that there are 17 judges we would need 85 names. With seven names per judicial appointment we have 119 names. This is considerably higher than 85 but there are a lot of names in both cases.
We must try to ensure that those who consider themselves and whom the board consider suitable have a chance to be considered at Government level. To correct one statement, it is not the Minister for Justice who will decide who will fill these vacancies, it will be the Government advising the President as to who should be appointed. This is like arguing about the length of a piece of string — ten or seven may be too many, five may be just enough. I have chosen seven having listened to what Members said. I thought ten was too many and have reduced it to seven.
We are putting in place new arrangements to give eminently qualified people an opportunity to have themselves considered for judicial appointment. These are not people seeking to enter the first rung of their training — they must have a minimum of 12 years practice. The greatest criticism I have heard of this board is from practising lawyers, whether barristers or solicitors, who feel they will be put under the microscope and if they do not get through the board they will be looked down on by their peers. We must also make sure we do not undermine the professions, that people can put their names forward and come away with their dignity and qualifications intact.
We can argue all day about changing the figure to six or eight. I have settled on seven and I believe the board should be able to recommend more than seven if it wishes to bring a variety of experience into the list. The board may be aware of a gap in an area of law and a person putting herself forward may have the required experience. There may be many such considerations and I want to give them the opportunity. It is not a way for the Government of the day to ensure the person of its choice will be on the list, it is an opportunity for the board, if it considers people to be eminently suitable, to allow their names to be considered. Far from this being debilitating for the professions of solicitor and barrister, it will give them a chance to be considered at Government for appointment.
Amendment No. 26 is related to this one.
I want to be sure I understand the Minister's reasoning — she may correct me if I do not. Is there a reason that the board may not select the best of the candidates offering and may merely confine itself to filtering out the unsuitable ones? It seems to be suggested that if someone is suitable his or her name will go forward on a list at some time, rather than if 20 people are offering the board will decide that 18 are eligible but six or seven are better. Is there a selection process involved or is it merely that unsuitable people are excluded? I appreciate there may be constitutional implications.
The board is being asked to recommend not less than seven for appointments. In most cases we will be dealing with one appointment at a time, not 17 or 18, to fill retirements or deaths on the bench. I believe the board will get considerable numbers of applications, as it certainly will for the lower courts where solicitors will be eligible — currently the Department of Justice receives hundreds of applications for the District Court. There will therefore be no difficulty finding at least seven names. The board will make its judgment on those. All those people will be eligible to apply so eligibility is not the only criterion. Anyone with ten or 12 years experience may apply but suitability is also a factor. The board must make judgments on its recommendations. If it decides it wants to recommend more than seven it may do so.
I still have a difficulty with the word "suitability". The implication is that if a person's name is not on the list he or she is not suitable, rather than simply that there is someone better. It is as if the person is being rejected.
This goes to the heart of this advisory board. If it does not propose limited numbers and instead puts forward everyone who is eligible — I know the Deputy does not mean that——
I mean the opposite of that.
Perhaps "suitability" is not the correct word — it is the person who is eligible and whose experience is considered relevant and suitable for the appointment at that time to that vacancy. The person is eligible once she has the qualification and it would be wrong of me to say and wrong of the Deputy to push me into saying, that some would be considered more suitable than others for various reasons. The reality of human nature is that some people present themselves with experience which is more suitable for them to go on a list. This is in the nature of forming Governments and all the other things we do. There must be some way in which people are selected over others.
That is what I want to know. Will the board filter out unsuitable candidates and allow the Government to decide between suitable candidates, or is it starting the process of deciding between suitable candidates? Will the board start the process of deciding between suitable candidates by saying that x is better than y and submitting a short list of the people it thinks are good?
The board will submit a short list but it is not a judgment on the eligibility or suitability of the others. For the job it has been given — to fill a particular post — the board is outlining the people who have presented themselves before it and naming those who have presented best and whom it recommends. It is no more or no less than that and should not be taken as a slap in the face to the others. Those who are not on one short list may be on the next. The board will take into account the vacancy it is filling at that time and the exigencies of the day. There may be a call for a judge with particular experience at that time. It will be the nature of the board to look at the totality of the decision — to use a favourite word of our late colleague, Brian Lenihan — based on the vacancy at the time.
I do not want to get trapped into making a decision on these numbers based on the fact that there will be 17 appointments quite quickly, as that will give a warped impression of the system. Normally, there will be one appointment or at most two.
Earlier the Minister gave the impression that there might be more than seven suitable people for a job. Of course there may well be — there could be dozens of suitable people — but she seemed to suggest it was beyond the competence of the board to narrow it down further, as long as there were several dozen suitable people. From what she has just said I understand it is quite within the competence of the board to narrow it down as much as it wants, provided it is not fewer than seven.
That is right.
It is clear that we will have fun with the vote. I ask the Minister a question which I have already asked. When the Government makes an appointment which ignores the list provided by the board, will it be obliged to give an explanation to the board?
No. It is an advisory board as I have said over and over again. It will pass the names on to the Government. The Government under the Constitution must make the decision as to who they recommend. At another part of the Bill it is stated that it will be indicated in Iris Oifigiúil whether the Government accepted the recommendation. However, the Government is not answerable to the board and does not have to give it an explanation.
Amendment, by leave, withdrawn.
I move amendment No. 17a:
In page 10, subsection (2), line 23, to delete "ten" and substitute "seven".
Amendment agreed to.
I move amendment No. 18:
In page 10, subsection (3), line 26, to delete "whose names" and substitute "whom".
Amendment agreed to.
Amendment No. 19 not moved.
I move amendment No. 19a:
In page 10, subsection (4), line 27, to delete "ten" and substitute "seven".
Amendment agreed to.
I move amendment No. 20:
In page 10, subsection (4), line 30, to delete "the names of".
Amendment agreed to.
Amendment No. 21 not moved.
I move amendment No. 21a:
In page 10, subsection (4), line 30, to delete "ten" and substitute "seven".
Amendment agreed to.
I move amendment No. 22:
In page 10, subsection (4), line 33, after "recommend" to insert "to the Minister for appointment to that office".
This is a drafting amendment the purpose of which is to create more clarity in the Bill.
Amendment agreed to.
I move amendment No. 23:
In page 10, subsection (5), line 39, to delete "that".
This is a drafting amendment which is to create more clarity in the Bill.
Amendment agreed to.
Amendment No. 24 not moved.
I move amendment No. 24a:
In page 10, subsection (5), line 40, to delete "ten" and substitute "seven".
Amendment agreed to.
We will discuss amendments Nos. 25 and 26 together.
I move amendment No. 25:
In page 10, subsection (5), lines 41 and 42, to delete "or such number of names as the Minister shall specify following consultation with the Board".
Where there is more than one judicial vacancy, the Minister can advise the judicial appointments board that she wants more than seven names; she can advise the board that she wants 1,000 names. It appears to me that the Minister is given discretion that where there is more than one vacancy in any given court she can specify to the Judicial Appointments Advisory Board the number of names she wants sent to the Government.
Deputy, in fairness to you in moving this amendment, it is 3.55 p.m. and the Minister has to be at a meeting at 4 o'clock. Would it be better to wait and deal with it fully when we come back?
That would be fine.
Sitting suspended at 3.55 p.m. and resumed at 6.30 p.m.
The Minister has dealt with most of my complaints about the numbers in amendment No. 26. The original provision allowed the Minister to request the Judicial Appointments Advisory Board to submit as many names as she wished. The Minister has now decided in amendment No. 26 to insert "lesser" after "such", which appears to get over the difficulty.
Amendment No. 26 is designed to address the issue where there is more than one judicial vacancy in the same court. It will not happen very often but it will happen at the beginning and then possibly not for some time. My intention in subsection (5) was to avoid imposing an obligation on the board to produce a large number of recommendations running into the hundreds, which could prove to be difficult.
A number of Deputies expressed concern that subsection (5), as drafted, would enable the Minister to request any number of names he or she wishes. This was not my intention, and it has been clarified by the amendment, which will allow the Minister to request a lesser number than seven per vacancy where more than one vacancy arises.
I thank the Minister and withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 10, subsection (5), line 41, after "such" to insert "lesser".
Amendment agreed to.
I move amendment No. 27:
In page 11, between lines 12 and 13, to insert the following subsection:
"(8) In recommending to the Minister the names of persons for appointment to judicial office pursuant to this section, the Board shall ensure that not fewer than one of the persons whose names are so submitted is a woman and not fewer than one of the persons whose names are so submitted is a man.".
The purpose of the amendment is to place on the proposed statute an obligation that at least one of the seven names submitted by the new judicial advisory board be that of a woman.
I fundamentally believe that, if women are under represented, or worse still absent from decision making and policy formulation, either in the Dáil or on State boards, subsequent policy is diminished and its credibility is called into question. We speak of the participation of women in politics, in the House and on State boards, and it is vitally important in the administration of justice that women are represented where they are available and willing to serve, and, of course, similarly qualified to their peers.
Among other things, the Bill establishes an advisory board to evaluate and recommend persons for judicial office to the Government. This is to be a State appointed board established by statute. The Government's 40 per cent rule is applicable to other State boards as to gender equity, where 40 per cent of all appointments to State boards are covered by the rule as it is a stated Government policy, especially so among the direct Government nominees to boards. Will this commitment to gender apply among the direct Government nominees to the advisory board? The Minister did not reply to this.
The second aspect of gender equity which falls for consideration via the amendment is to address it and have it reflected in the list of recommended persons for judicial office. The amendment seeks to introduce such a requirement. At least one out of the seven recommended persons should be a woman. It also provides for the Eldorado situation where, if all women were to nominated to the Government, there should be one man; Eldorado is the perfect world in the future.
This is a modest but important amendment. It is also important that the Bill does not pass without a statutory recognition of a stated Government policy on equality. The Minister will be aware that the present system has appointed women judges and, with all its faults, the present system has given us excellent women judges. There is one female Supreme Court judge, two High Court judges, one Circuit Court judge and several District Court justices. If we are putting in place a new procedure, it is important that we do not overlook the necessity and requirement that gender equity be addressed, all other things being considered, such as qualification, availability, readiness and a willingness to serve. It is a modest proposal and I hope the Minister will be favourably disposed, or at least that she will address the point, perhaps on Report Stage, if she believes the amendment could be improved upon.
I have no difficulty supporting the amendment. In practice, Governments are pleased to appoint women to the Judiciary where they can get suitable appointments. The amendment merely states that at least one of the names from the advisory board would be that of a woman. It would then be a matter for the Government to decide on the suitability of the woman, or the man, concerned.
I have never believed that, whether it be a man or a woman, a person should be appointed because that person had a given gender as opposed to the suitability, capacity or ability of the person for the position in question. However, since the amendment merely seeks to put in place a legislative position whereby a person coming forward would have to be at least a man in what Deputy O'Donnell colourfully describes as a Eldorado situation, there is no need for a gun fight at the OK Corral over it. In such circumstance, the amendment can be supported.
I note that section 17, opposed, is put down as amendment No. 27. Do we address this amendment now?
We are addressing section 16. Consideration of section 17 will follow.
I also support the amendment. It is a modest proposal. As Deputy O'Donnell said, all she is asking is that one of the names put forward would be that of a woman, and in the very unusual situation where all the names put forward would comprise of women, one of them should be that of a man. It will be for the Government to decide which of the names should be appointed. It is not unreasonable to ask that at least one name should be that of a woman. This will be the situation in practice for the foreseeable future.
The amendment has the effect of requiring that, of the names recommended by the advisory board, at least one would be that of a man and one would be that of a woman. I share the comments made here that there are far too few women in judicial appointments. It is very slowly improving and it requires that we take due cognisance of the women who are becoming qualified now. There was a gap in the people qualified because the requirement of ten or 12 years service, created a difficulty. However in recent years more and more women are fulfilling this requirement. It must also be recognised that, when people have the ten or 12 years service, depending on the court, it does not mean they wish to be judges. They may wish to continue practising at the Bar or as a solicitor. Nobody can be forced to take a nomination, which is another difficulty and one that arises in many walks of life.
There is now one woman Secretary of a Department of State, but the difficulty was that, for years, women dropped out at a certain stage because of the marriage bar, and it is only now that they are beginning to come through the promotional system to be available and to go from the ranks of senior officers in the Civil Service and to become Secretaries, Assistant Secretaries and Principal Officers. There is now a very large number of women who are Principal Officers.
The extra number of women now going into the law and working their way through the system will be available and will put themselves forward as possible judicial appointments at a later date. The current judicial office holders who would be members of the board are generally male because all the Presidents of the courts are male.
In considering three nominations, I will take full regard of the Government's policy which requires Ministers to have a 40 per cent female gender representation on the boards. I have been doing this in boards and committees for which I have responsibility. I will also be encouraging and making it known to the Bar Council and the Law Society, in putting names forward, that this is Government policy but I cannot force them in this regard. I have been advised that quotas and provisions for a special listing based on sex may not be consistent with recent judgments of the European Court of Justice on employment equality. This represents a difficulty with the amendment but that is not to take away from the intent which is to increase the gender balance in our courts.
There are other small difficulties with the amendment. Subsection (4) deals with cases where fewer than seven inform the board of their wish to be appointed or where the board is unable to recommend at least seven persons. In such a case the board is required to recommend the name of each person it considers suitable for that particular appointment but if there were only three such persons and they were all male or female, would the board be prohibited from making any recommendations because it would not be able to fulfil the requirements of this section?
I am aware of what the amendment is endeavouring to achieve. In nominating the three people I will take into account the gender balance on the board and the Government policy that 40 per cent of all nominations must be female. I have no doubt that I will be able to do that. It may well be that we can increase that level.
Irish society has reached the stage where any talk that it has never been possible to find women for such appointments is absolute nonsense. There are many fine women who can take their places on boards. I assure the Deputy I will take due regard of that policy, which has been in existence for some time under previous Governments as well as under this one. In view of the legal doubts about providing for preferences with regard to sexes, the best way forward is to ensure that women are appointed to this advisory board.
I am glad to hear that the Government's commitment to the 40 per cent rule will be applied to the new appointments board. I acknowledge that the Minister is committed to this. I would like more information about the Minister's advice on the European Court ruling which would prohibit including a gender determination in the list of people put forward for appointment. The ruling seems to fly in the face of a general recognition in European law that positive discrimination in favour of women for such positions is acceptable if it is properly regulated.
Nearly half the people entering the Bar at present are women and they are quickly ascending the ranks. It is important that we do not allow the Bill to pass without some statutory indication of a commitment to gender equality in the new procedure for judicial appointments. Perhaps the Minister would consider returning on Report Stage with a more expansive outline of the European law or decisions that have been made in this matter which would prevent us including such a commitment to equality. No matter what way one looks at it, only women who are willing, able and qualified would be available. If they were not available there would not have to be a woman appointed, and the same applies in the case of men. It is only men or women who are willing and qualified to serve and who put their names forward who will be evaluated. If there was no woman there it would not matter.
Let us say there were only four names and one was a woman and suppose that the advisory board, having reviewed all four, decided that, on balance, the woman should not be appointed. Should she be pushed forward automatically just because she is a woman?
I accept the point.
There is a risk that positive discrimination could be used in a way that is discriminatory against the other people.
Could the Minister for Equality and Law Reform look at it to see if it would be possible? It is an important principle and stated Government policy. It would be a shame for us not to do our utmost on Report Stage to include a measure which would address the gender issue. The Minister will agree that equality has never happened by chance; legislative or policy provisions have always been required to assist women to be more represented in all areas of public policy making.
We have that opportunity now in the administration of justice where decisions by judges are just as relevant as legislation because the interpretation of the law is vital. The subjective perspective of women, whether they are conservative or liberal, is required in the interpretation of our laws and in the handing down of decisions, particularly in family law areas. I would welcome the opportunity to revisit this on Report Stage and I would be grateful if the Minister would consult with the Department of Equality and Law Reform and get its recommendations for, perhaps, a different proposal but one which would address the principle which I seek to include in the Bill.
I will do so. The ruling was on a German case and it only took place in the last few weeks. I am not saying that it necessarily will preclude a clause such as this being included in the Bill. However, the Minister for Equality and Law Reform is examining the issue because he, at every hand's turn, reminds Ministers when they are making appointments of the Government's commitment to this rule. It is to the forefront and all Ministers were notified on taking office not to forget the policy.
The Minister for Equality and Law Reform is examining whether one can without infirmity include a statutory obligation. For example, I cannot put a statutory obligation on the other nominating bodies. I can notify them of the Government policy when I write to them seeking their nomination and hope that it will stimulate them. I can do it in my own appointments but I cannot say to the President of the High Court: "You will have to step down and let somebody else on the board or put a dress on or something". I cannot do that.
I will come back on Report Stage with whatever information is available. It is still going through the system; I had to raise the matter here because we are not absolutely clear about the impact of that decision.
The Minister might have a difficult job complying with the 40 per cent requirement where there are three Government appointees. You might need a knife to get 33 and one-third or 66 and two-thirds.
Forty per cent applies to the entire board so I might not be required to split somebody in two.
Amendment, by leave, withdrawn.
Section 16, as amended, agreed to.