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.
A Clatter of the Law 
I get very uncomfortable when ancient constitutional protections become victims of political point scoring; however, my gut feeling is that the AG’s advice is largely correct: the pension levy, having no relationship to actual final pension payouts is, prima facie, a pay cut. The fact that this levy/cut was also levied on all other public sector employees doesn’t prevent it from falling foul of Article 35.5.
Moreover, despite the politically and constitutionally damaging debate that has grown up over this issue, choosing not to subject the judiciary to the levy was probably a wiser course of action than adopting it and then seeking to uphold its validity in court. If the pension levy was applied to judges, and then challenged under Article 35.5, this would lead to the unusual (and potentially damaging) situation of judges considering a reduction in their own remuneration and would run the risk of a judicial judgment deeming the pension levy to be, in law, simply a pay cut, despite political protestations to the contrary. That would have proven to be acutely politically embarrassing.
Your point about the potentially embarassing judgment scenario is well made, though the chances of a challenge appear slim (though there is always the prospect of a retired judge taking on the issue, for example). And how strictly might the SC interpret Article 35.5? They have been known to come up with some rather “flexible” decisions in recent years (e.g. A. -v- The Governor of Arbour Hill Prison).
The use of a constitutional provision as political football is unfortunate, as the focus is almost always on the wrong provisions. Take the example of the proposed childrens’ rights amendment: difficult to get right and any campaign would likely be far more heated than is appreciated, but that doesn’t stop the opposition jumping up and down on the issue and demanding that “something must be done”.
Meanwhile more pressing constitutional issues require urgent attention (i.e. abortion and reproductive rights, the latter thrown into relief by yesterday’s Roche v. Roche decision), yet most politicians are reluctant to come up with proposals.
The fact is that judicial independence has been compromised by the way this situation has been handled, with public obloquy being unfairly focussed on the judiciary, all of whom have to face the suspicion of being outside the group that has so far volunteered for the pay-cut.
The Government did not intend this result, I believe, but no-one else is responsible.
There are, it seems to me, two options for its resolution.
First, make the pay-cut mandatory and contrive if possible for the President to refer it to the Supreme Court under article 26. Yes, that will require judges to be arbiters of their own situation, but sometimes this is literally unavoidable. I for one do not doubt that they can make a good decision.
The second option, which may be required if the SC gives the wrong result, is the FG suggestion (with which the Government sympathises, I note from today’s “Irish Times” -last sentence of http://www.irishtimes.com/newspaper/ireland/2009/1216/1224260763812.html ).
Are judges a truculent bunch? Would someone really have challenged the Government – with all the attendant bad press that would have brought – if the Government had just announced a pensions levy for judges?
After all, gross pay would not have been affected…
Ronan,
A democratic Government cannot legislate unconstitutionally gambling that no-one will challenge it in court. That way lies (more/worse) tyranny.
This is, on the face of it, a flaw in my first option above: can anyone help ?
If not, then a better designed amendment than that proposed by FG is the only way out.
I’d agree that the possibility of a challenge is slim, though it could not of course be ruled out altogether. I suspect that, at the time, the Government didn’t realise what a political issue this would prove to be, and decided that the best course of action was to avoid placing the levy on the judiciary in light of the questionable and debatable constitutional legitimacy of such a course.
Without the benefit of hindsight, the course of action adopted could be seen as being quite reasonable: Choosing not to levy the judiciary in exchange for one or two hostile comments in the press would seem a more prudent course of action than levying the judiciary and facing the very real possibility of getting constitutional and political egg on their faces, in a judgment that deems the levy to be a pay cut and sees the judiciary exempting themselves from it.
On a pragmatic ground, however, it’s quite depressing to see this much attention being paid to the legitimacy or otherwise of a small pay deduction for a few hundred judges when the state needs to find or cut €20bn to balance the books.
I couldn’t agree more about the constitutional political football. The children’s rights amendment is a great example. Recent developments have made startlingly clear how poor the protection of children has been in this state, yet it remains utterly unclear what benefit simply passing an amendment would have. Again, I’d say the explanation here lies more in politics than law. The Constitutional questions that have been addressed by politicians (citizenship, bail etc…) are all vote getters. Tackling a sensitive issue like abortion is likely to be a vote looser.
Ronan: I don’t think a judge would have come forward to challenge the levy if it were imposed on them.
Fergus: Agreed re blatant violations of the Constitution, but would this be such a case? At least one retired SC judge has said publicly that he does not believe the levy would contravene Article 35.5 (can anyone remember which judge?).
It is interesting, indeed, that the Government appears to have taken on board the Fine Gael suggestion that an amendment be thrown into the childrens’ rights pot. Seems that they are not afraid to confuse voters with unrelated amendments depending on the circumstances (Minister Ahern wouldn’t allow any other issue on the Lisbon II ballot for fear of voter confusion).
Whatever the situation with Article 35.5, the voluntary scheme appears to have been a well-intentioned measure that has backfired by exposing the judiciary to this kind of scrutiny.
@ Ronan
There have been at least two challenges already brought under Article 35.5.
In O’Byrne v. Minister for Finance (1959) a judge’s widow claimed, unsuccessfully, that a paying income tax amounted to a reduction in judicial remuneration. In McMenamin v. Ireland (1996) on foot of an action by a retired district judge, the Supreme Court stressed that the article operates to prevent a reduction in judicial pensions.
While two cases in 70 years might not seem like much, it’s worth remembering (a) that judges make up a tiny portion of the population, so challenges under Art 35.5 would necessarily be quite rare and (b) the Oireachtas has traditionally shown great deference to judicial pay, so this matter has never really come to the fore before.
Getting back to your question – the possibility of a challenging being brought cannot be dismissed as insubstantial.
Rossa,
It was Donal Barrington, and I agree with him.
The fact is, however, that the A-G, who is, as you correctly said, held in the highest regard for his legal acumen by all (including me), has advised the Government to the contrary and the Government cannot reasonably be criticised for taking his advice.
There were “clashes” in the Dáil yesterday about this apparently most grave and pressing issue. http://www.irishtimes.com/newspaper/ireland/2009/1217/1224260838187.html
Fine Gael’s Charlie Flanagan countered a tirade from Labour’s Séan Sherlock, pointing out that judges in no way caused this issue. Sherlock speaks of slaughtering sacred cows, but of course the judges did not write the Constitution.