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.