Cutting pay of judges could be a simple Act
The Oireachtas should legislate on this issue as they did for other public servants – and that should be that. By Vincent Browne.
This government and the last government have made a thorough mess of the judicial pay issue. The judges have made a thundering mess of it too.
There was, and is, a simple resolution: the Oireachtas should pass an Act providing for a reduction in the pay of judges in precisely the same terms as enactments on the reduction in the pay of other public servants, and that should be that.
If this is challenged, then let the High Court and then the Supreme Court decide. If the Supreme Court decides judges are immune from pay cuts to which all other public servants are subjected, then change the Constitution, but only then.
I don't think they would dare.
I assume the reason the previous government did not do this was because of advice from the then attorney general, Paul Gallagher, that to do so would be unconstitutional because of Article 35.5 of the Constitution, which states: "The remuneration of a judge shall not be reduced during his continuance in office."
This simple statement might suggest to readers that it means what it says, but if language meant what it said there would be no need for lawyers, so, clearly, this cannot be so.
For instance, another section of the Constitution says: "All citizens shall as human persons be held equal before the laws", and we all know this couldn't mean what it says.
But actually, there is genuine spin to the section on judges' pay. The part of the Constitution dealing with this deals generally with the independence of judges. It provides that judges shall not be members of the Oireachtas, or be paid for holding any other office – in case their independence would be compromised. It also provides that they cannot be removed from office except through an elaborate procedure, and then only for stated misbehaviour or incapacity.
So the point of the section has been to copperfasten the independence of judges, and the section about remuneration is to ensure a government cannot single out an individual judge for a pay cut because of, for instance, unhappiness with judicial decisions that go against the government.
The point of the provision on not reducing the pay of a judge is to copperfasten the independence of the judiciary – not to guarantee a stream of income which might impress a bank manager.
There was a case on this very point. It was brought by Marjorie O'Byrne, widow of a former Supreme Court judge, John O'Byrne, who had died in office in 1954, having previously been the country's second attorney general and having played an important part in framing the State's first Constitution.
Ms O'Byrne claimed because the State had deducted income tax from the pay of her late husband, it had acted unconstitutionally, in breach of Article 35.5. The Supreme Court found by a majority of three to two that this was not so.
The then chief justice, Conor Maguire, said: "To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of government cannot be said to be an attack on his independence."
This is precisely the issue in the present controversy. Judges are being asked to pay the same taxes and levies and to accept the same reductions in pay as every other citizen in the same category as themselves. By no stretch of even judicial imagination could this be seen as an attack on the independence of judges.
So why Paul Gallagher advised otherwise is not at all clear, and many lawyers and former judges think he was wrong. I would be surprised if there were not serving Supreme Court judges who think likewise, including the current Chief Justice, John Murray. Incidentally, I have not spoken to any serving judge about this matter.
So why the last government did not simply cut judges' pay in the same way they cut everyone else's pay in their bracket in the public service is hard to understand. Ditto why the present Government has not done so.
Of course, if the issue was challenged (and who would have the nerve to do so?), and if, ultimately, the present Supreme Court found the pay cut was unconstitutional, then there could be a constitutional referendum to correct the anomaly, but that hasn't happened.
Instead, we have had the unseemly lobbying by judges to protect their privileged status, under the guise of protecting their constitutional independence. Worse, we have had special pleading on the part of their vested interest, based on contrived legal arguments, while claiming they are prepared to pay their contribution to the national rescue.
They have claimed the other provisions of the Constitution protecting their independence are in fact restrictions upon them, for which, it is implied, they deserve special consideration in terms of remuneration.
There is even the ludicrous claim that because there is a Bar Council prohibition (note: not legal prohibition) on them returning to the practice of law, having served as a judge, this too is a consideration relevant to their remuneration.
I intend returning to this debacle next week.