Month: December 2009

Mr. Mac gets due praise

Congratulations to my uncle and godfather Maurice on the continued success of his teaching autobiography Mr. Mac, A Blackboard Memoir, which received high praise indeed from Tom Humphries in today’s Irish Times:

Mr Mac made me think we’d best not look back in anger but should shuffle on and get old perspectives back. Every Government minister should read Mr Mac because in a world where education, health and sport are being pillaged to pay for the sins of dopes whose suits were sharper than themselves we need a reminder that doing things for the sheer love of doing them, for the intrinsic value and fulfilment that they offer, might be a way forward.

One great teacher is worth more than a boardroom of oleaginous fat cats.

The book was launched on 12 November last by Professor Diarmuid Ferriter, a former history pupil of Maurice’s and evidence of the quality of his teaching.

Mr. Mac, A Blackboard Memoir is available by contacting mrmacbenildus@gmail.com

Light at the end of the tunnel

Santa brought an amazing SLR digital camera for Christmas and while learning to use it I have been tidying up the iPhoto library, trying demos of Aperture and Photoshop Elements and clearing out the memory card of our old digital camera.

&copy Rossa McMahon
Great Southern Trail

The latter activity revealed a few snaps from a sunny September evening walk along the Great Southern Trail.

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Barna railway tunnel

This last one is a terrible photo, taken just beyond the mouth of the old Barna railway tunnel, but with the year we’ve had I like its depiction of the proverbial light at the end of the tunnel.

&copy Rossa McMahon
Light at the end of the tunnel

A Kerry Christmas Childhood

Reproduced below is a nostalgic remembrance of childhood Christmases by my late father and which you might enjoy at this time of year. This was first published in the Sunday Independent on 21 December 2003.

A KERRY CHRISTMAS CHILDHOOD
Now I cannot help remembering those happy days gone by,
As Christmas time approaches and the festive season’s nigh,
I wallow in nostalgia when I think of long ago
And the tide that waits for no man as the years they ebb and flow.
We townies scoured the countryside for the holly berried red,
And stripped from tombs green ivy in the graveyard of the dead,
To decorate each picture frame a-hanging on the wall,
And fill the house with greenery and brighten winter’s pall.
Putting up the decorations was for us a pleasant chore,
And the crib down from the attic took centre stage once more.
From the box atop the dresser the figures were retrieved
To be placed upon a bed of straw on that blessed Christmas Eve.
For the candles, red crepe paper round the jam jars filled with sand
To be placed in every window and provide a light so grand,
To guide the Holy Family who had no room at the inn,
And provide for them a beacon and a fáilte mór within.
The candles were ignited upon the stroke of seven,
The youngest got the privilege to light our way to heaven,
And then the rosary was said as we all got on our knees,
Remembering those who’d gone before and the foreign missionaries.
Ah, we’d all be scrubbed like new pins in the bath before the fire,
And dressed in our pyjamas, of tall tales we’d never tire,
Of Cúchullain and Ferdia, the Fianna, Red Branch Knights
Banshees and Jack O the Lantern, Sam McGee and the Northern Lights.
And we’d sing the songs of Ireland, of Knockanure and Black and Tans,
And the Boys of Barr na Sráide who hunted for the wran.
Mam and Dad, they warned us, as they gave each a goodnight kiss,
If we didn’t go to sleep at once then Santa we would miss.
And that magic Christmas morning so beloved of girls and boys,
When we woke to find our dreams fulfilled and all our asked-for toys.
But Mam was up before us, the turkey to prepare,
To peel the spuds and boil the ham and supply the festal fare.
She’d accept with pride the compliments from my father and the rest,
“Of all the birds I’ve cooked,” she’d say, “this year’s was the best.”
The trifle and plum pudding – oh, the memories never fade,
And then we’d wash the whole lot down with Nash’s lemonade.
St. Stephen’s Day brought Wren Boys with their loud knock on the door,
To bodhrán beat and music sweet they danced upon the floor.
We terror-stricken children fled in fear before the batch
And we screamed at our pursuers as they rattled at the latch.
Like a bicycle whose brakes have failed goes headlong down the hill,
Too fast the years have disappeared, come back they never will,
And our clan is scattered round the world, from home we had to part,
Still we treasure precious memories forever in our heart.
So God be with our parents dear, we remember you with pride,
And the golden days of childhood and that happy Christmas tide.

© Garry McMahon

Liam Doran and employers “breaking the law”

This morning’s Morning Ireland carried a report that some private hospitals are planning to cut the pay of nurses employed by them in 2010. This is not a surprising development, coming immediately after the State has cut the pay of publicly-employed nurses.

Liam Doran of the Irish Nurses Organisation was on the show and was understandably dissatsified that this cut might happen without any consultation or discussion with unions or employees. However, the increasingly bellicose Doran went on to say that the employers, in doing so, would be acting “illegally” and would be “breaking the law”. Is this correct?

Not in my understanding of what the phrases “illegal” and “breaking the law” mean. Murdoch’s Dictionary of Irish Law defines “illegal” as follows:

illegal. Unlawful; contrary to law; in violation of a law or a rule which has the force of law.

The definition of law is, to summarise, the body of rules which are binding on persons but that definition does not encompass private contracts.

Varying an employee’s terms and conditions of employment is a matter of contract between employer and employee. This means, of course, that to vary a core aspect of that contract, such as pay, the agreement of the employee is necessary and unilateral pay cuts are not generally possible.

In reality, many private sector employees (including thousands of solicitors) have had their pay cut, yet we do not see any rash of litigation on the issue. Perhaps some have agreed to the cut as part of a renegotiation package; many others have accepted the necessity of cuts and have acquiesced to unilateral changes.

By imposing a unilateral pay cut, an employer may have breached their contract with the employee. That employee has a range of options available to them (outlined here by Aoife Sweeney of Mason Hayes+Curran). But unliaterally changing the contract does not constitute “breaking the law” or acting “illegally”.

Judges’ pay: an unnecessary, Government-created controversy

The political football of judges’ pay has been thrown back on the pitch by Fine Gael. In today’s Irish Times, Alan Shatter (FG/DSth) makes the argument for his proposed constitutional referendum.

Fine Gael’s front bench spokesperson on children, and himself a prominent solicitor, suggests that the voluntary scheme by which judges can currently volunteer to pay the pension levy is a “slippery slope”, as it cause judges to fear that they will only be promoted if they volunteer to pay the levy. This would run counter to the spirit of Article 35.5 of the Constitution, which says that “[t]he remuneration of a judge shall not be reduced during his continuance in office” and is aimed at protecting the separation of powers and judicial independence.

Deputy Shatter makes a crucial point: “judges should not be perceived as succumbing to political pressure or as an elite living in a financial ivory tower immune from the financial emergency confronting the State.” The Government’s handling of the issue has invited both possibilities, but is Deputy Shatter’s conclusion that a referendum is necessary correct or desirable?

Today’s piece in the Times and Mairead Enright’s post over at Human Rights in Ireland cover the law on this topic. Many in the legal profession were surprised by the Government’s decision not to include judges in the pension levy. Few appear to believe that the pension levy would obviously contravene Article 35.5, though some weight must be accorded to the suggestion that it would, given the authority of the Attorney General and the esteem in which he is held.

Of course, any challenge requires a plaintiff. In practical terms and in the context of Ireland’s current economic and political environment, it would be surprising if a judge were willing to run the gauntlet of public opinion by litigating on this point.

If a referendum is to be held, could the Government adopt Deputy Shatter’s proposal? The proposed wording of his new Article 35.5 reads:

The remuneration of a judge shall not be reduced during his continuance in office save where it is necessary to address a serious threat to the State’s economy, there is a compelling need to stabilise the State’s finances and as a consequence it is necessary to effect a reduction in public service remuneration; in such circumstances any reduction in the remuneration of all public servants or in the remuneration of a class of public servants may be applied to effect a comparable reduction in the remuneration of all members of the judiciary.

The highlighted words and phrases raise immediate questions. What constitutes a serious threat? What, exactly, is the State’s economy and, if it is something other than the State’s finances, how is a reduction in judges’ pay necessary to address that threat? What is a compelling need?

In addition, the wording imposes requirements of necessity and is cumulative: it must be necessary to address a serious threat in the economy and it must be necessary to stabilise the State’s finances in order for judges’ pay to be cut. Granted, it may be unlikely that you would have one without the other, but the wording is less than solid. (To be fair, any opposition PMB is a political, rather than legal, proposal.)

It would be better to have a simpler, clearer statement that could be fleshed out by means of primary legislation. It could be provided that the remuneration of any individual judge shall not be reduced during his continuance in office, save where such reduction applies to each judge of the same court or to State employees in general. This would avoid unnecessarily restricting Article 35.5 should different circumstances arise in the future which do not relate to the economic sky falling in but which equally require public sector pay adjustments.

The Government has arguably created an unnecessary and damaging controversy. Discussion of Article 35.5 is couched in much hand-wringing of the need to protect the independence and authority of the judiciary: exactly what this controversy has failed to do. Had the levy been imposed, judges would doubtless have been as disgruntled as others who have had their pay cut in recent months, but by creating the voluntary scheme they have invited public opprobrium.

In political terms, the correct course of action would have been to include judges in the pension levy and other financial adjustments and make no particular comment in relation to the matter. This is not to suggest that the Government ignore the Constitution; given that the constitutional position of the levy as respects judges is debatable, there is an argument for this course of action and to do so would not be flagrantly unconstitutional.

Instead, we have unnecessary debate on a niche area of expenditure which has been blown out of proportion, leading to calls for wasteful referenda to introduce constitutional amendments which may not be future-proof.

Ban on upward only rent reviews

Sometimes lawyers defend the unpopular. Defending the right of a landlord to seek an upward only rent review in a lease may be one such occasion. Sandeep Gopalan of NUI Maynooth makes such a defence on valid grounds.

As of 28 February 2010, upward only rent review clauses in commercial leases will not be possible. Section 132 of the Land and Conveyancing Law Reform Act 2009 provides for this in a round-about way which imposes a certain interpretation on any rent review clause, but it amounts to a ban on upward only reviews. The ban is a populist move, but bear in mind that it relates to contracts negotiated and agreed by commercial parties.

It can validly be argued that, during the boom, tenants were in a weaker bargaining position than landlords and were powerless to resist upward only rent reviews. But this is surely true of a range of contractual provisions in everyday agreements in respect of which the law does not interfere.

Sandeep concludes:

“If the state gets into the business of re-writing private agreements, it won’t have time to do much else.

Put another way, why stop with rent review clauses? Why not legislate to ban the variety of provisions which might be unfair to one party or the other?

One wonders what might be next for State intervention in private contracts. Many private individuals are seeking to escape from fixed rate mortgages entered into when rates were far higher than today. Purchasers freely entered into these arrangements, believing them to be better than variable rate mortgages at the time.

Having granted commercial tenants this special legal protection, why not make a similar intervention on behalf of suffering purchasers? Such a move would be fiercely (and fairly) resisted by financial institutions, but the Government would find it hard to justify its rush to action on behalf of commercial tenants while residential landowners suffer under the deal they struck.

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