Diversity in Judges is on the way, announced the Minister for Justice, yesterday afternoon, confirming the worst fears of binmen everywhere that diversity in their sector will have to wait a little longer:
Launching the Bill, Ms McEntee said she wants to see the make-up of the judiciary reflect the diversity of the population.
“I would like to see that, 50% of our population are women, so I think if judges are going to reflect that, then we should see greater equality,” Ms McEntee said.
“Now we’re starting to see that, I think in recent years, we’re starting to see closer to 50/50 in many of our courts.
“What I’m also trying to make sure is that the commission itself is quite reflective. So, the Chief Justice, obviously I can’t determine who that is, but the appointments to the judiciary, one will have to be a man, one will have to be a woman.
This very much has the feel of one of those announcements that sort of has to be made, these days, without a lot of thought going into it. It certainly won’t be as easy as it sounds: Judges, after all, at least the senior ones, are usually drawn from the ranks of Senior Counsel. There are 325 working Senior Counsel in Ireland right now, and a quick glance through the list of names indicates that men outnumber women in that list by about four or five to one.
In other words, there’s a bit of carts and horses about this one.
But that’s not really the biggest problem. After all, the legal system is ripe for reform. At present, somebody who desires or needs to go to the High Court, for example, requires a minimum of three lawyers: A solicitor, a Junior Counsel, and a Senior Counsel. All billed separately for their time. Unless you can avail of legal aid (and that is only available in criminal matters, as a general rule) the costs of vindicating your legal rights through the Irish courts is potentially bankrupting for all but the richest people in our society.
Cases can drag on for years. In one extreme example, a case first taken against the Irish Government in 2000 has been trawling through the courts for two decades, without resolution. Civil cases can drag on for years, piling up costs along the way. Chances are, if you take a civil case of any kind today, and it does not settle, it will be 2024 or 2025 before it is actually held. Though there will be plenty of cost-sucking “motions” and so on well in advance.
More Judges would go some way to fixing that problem. But that’s not what we’re getting. We’re going to get more diverse Judges, which, presumably, means more female Judges. That’s the Government’s priority.
And there’s nothing wrong with it, of course. It’s just that it raises questions. Questions like this: If more female Judges are a priority, are we to assume that if two candidates for a vacancy are equally matched in every respect, Government will appoint the woman? And what if the woman is the slightly less qualified candidate, but the other candidate is a man? Which takes priority?
Are we going to appoint the best Judges, in other words, or the ones with the correct bits and pieces attached? And if the latter is the case, how does that square with the Government’s own equality act, which reads:
6.— (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
Since that law is pretty clear, and since we know that the ranks of qualified candidates are disproportionately filled by men, what to do?
This new proposal, remember, requires that a woman be nominated for each vacancy. But, since there are few enough women in the ranks of the most qualified lawyers, it might be difficult for the female candidate to be better on merit 50% of the time.
Which means, no doubt, that in a few years Helen McEntee will find herself accused by activists of having broken this promise.
In other words, what we have here is the classic Irish Government scheme: A proposal that does not actually solve any problem of note to an ordinary person, does not seem to understand what the real problems are, and probably won’t even work on its own terms.
But sure look, the Irish Times will love it.