Sir, - In order to ensure that an appointments process is non-discriminatory on the grounds of race and sex, the process must be transparent. To achieve transparency, it is at a minimum necessary that the post be advertised, and that objective, publicised criteria be applied in the selection process. One does not have to resort to Aristotle: for example, the Equal Treatment Directive (76/207/EC) has been around since 1976, and all memberstates (including Ireland) are bound to give effect to it.
If a suitably-qualified woman were to sue the Government for damages for indirect sex discrimination in relation to its nomination of Hugh O'Flaherty, the Government would have a case to answer, given the absence of transparency in the process used to appoint him, which is difficult to defend in terms of good equal opportunities practice. It will be interesting to see if such a claimant comes forward.
There have been two comparable cases in England recently. In one, the chairwoman of the Association of Women Barristers sued the Attorney-General for indirect sex discrimination in relation to his system of appointing Treasury Counsel (who act exclusively for the state). The other concerned an action for indirect discrimination by a solicitor, Jane Coker, against the Lord Chancellor, after he had appointed a male partner of a firm of City solicitors as his special adviser, without advertisement. The Attorney-General settled the claim against him, and reformed the appointments process. The Lord Chancellor fought on, and lost at trial. - Yours, etc.,
Barbara Hewson B.L., Extern member, Law Library, Four Courts, Dublin 7.