Why I will be voting 'no' in the referendum on judges' pay
Fiona de Londras on why she will be voting 'no' in the judges' pay referendum. Read Eoin Daly on why he will be voting 'yes' here.
On October 27th the electorate will vote for a new President and on two constitutional referenda. I have previously outlined some broad concerns about the judges’ pay referendum in the broader context of proposed and actual constitutional reform. In this post I want to look a little more closely at the wording, and outline what I consider to be some areas of ambiguity or uncertainty that, to me, justify voting no in the forthcoming referendum.
I want, at the outset, to make it clear that I do not object to the proposition that there ought to be some way of reducing judicial pay in limited and exceptional circumstances. The reason I will be voting no in the forthcoming referendum is primarily because the amendment does not, in my view, put in place sufficient safeguards to ensure exceptionality of reductions; a situation that is only exacerbated by developments that suggest the Dáil will become ever more powerful in the near future. I want to start, however, by addressing a simple question that has arisen time and again when I have been speaking to people about the proposed amendment: “What is the big deal with judicial pay anyway?”
At present Article 35.5 of the Constitution lays down the absolute principle that, “The remuneration of a judge shall not be reduced during his continuance in office.” This is only part of a broader web of provisions in the Constitution that is intended to ensure judicial independence. This is done along three tracks: first we have obligations on judges themselves about their own behaviours and allegiances; second we have the broader architecture of the separation of powers; third we have provisions that are intended to limit the capacity of the government and parliament to interfere with judges. The protection of judicial pay falls into the third category. It is intended to ensure that judges’ pay cannot be reduced to protect judges from retribution from the government and, as a knock on, to protect us from political interference with judicial decision-making.
There is no provision to prevent increases in judicial pay, which could also be used as a means of political interference, but the proposed change also fails to deal with increases in judicial pay. The approach taken in the 1937 Constitution, then, is to prevent reductions in pay absolutely. The proposal now is to allow reductions in limited situations. There is no question that this weakens our mechanism for protecting judicial independence; the question rather is whether that weakening is acceptable to us, which is a question we must ask by looking at the proposed safeguards. These safeguards exist both in the Constitution generally and in the proposed amendment. The proposed new Article 35.5 reads:
1° The remuneration of judges shall not be reduced during their continuance in office save in accordance with this section.
2° The remuneration of judges is subject to the imposition of taxes, levies or other charges that are imposed by law on persons generally or persons belonging to a particular class.
3° Where, before or after the enactment of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges.
The first part reiterates that judges’ pay cannot usually be reduced; it can only be reduced when the requirements of the rest of Article 35.5 are met. The second part outlines that judges are subject to the same taxes, charges and levies as others. This allows for the imposition of the pension levy on judges (the former Attorney General had felt the levy could not be imposed, although there are divided views on this). The third part outlines the ways that judges’ salaries can be reduced. In my view, proposed Article 35.5.3 is the problematic provision here. It is worth going through the provision in some detail.
Where, before or after the enactment of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges.
I have underlined here the four phrases that are intended to put in place safeguards for judicial independence in the process of reducing judicial pay. The four safeguards can be summarised thus: (1) the pay of a comparator class must have been reduced, (2) the reduction must be said to be in the public interest, (3) the reduction must be done by law, and (4) the reduction imposed in judicial pay must be proportionate, taking into account the reduction of pay of a comparator class. On the face of it, these look like appropriate and effective safeguards, but as always the devil is in the detail.
The pay of a comparator class must have been reduced
Although it is clear that a comparator class of some kind is required before judicial pay can be reduced, there is some broadness in this wording. First of all there is no time limit imposed; on the face of it a reduction in the pay of secondary school headmasters in 2012 might be used to justify a reduction in judicial pay in 2020, for example. Secondly, in spite of what some (including bizarrely the advertisements from the Referendum Commission) have been saying, it is not limited to comparing judicial pay with the pay of other “public servants”; the wording is others “paid out of public money” which could include those paid on contracts from state bodies. Third, the idea of “classes of persons” here is broad and ill-defined. On the face of it, again, there could be a small group of people determined to be a class (school janitors, for example) who have their pay reduced and whose reduction then spurs on a reduction in judicial pay.
The reduction must be said to be in the public interest
The difficulty with this safeguard, in my view, is twofold. First of all the reduction need only be “said to be” in the public interest, rather than objectively being in the public interest as a matter of fact. Secondly, any reduction in expenditure from the public purse can be said to be in the public interest, putting into question the value of this safeguard.
The reduction must be done by law
This safeguard suggests that an Act of the Oireachtas must be used to reduce judicial pay (although arguably an Act could delegate that power to a Minister within the wording). This suggests that any proposed reduction should attract parliamentary debate and be liable to being rejected by the Oireachtas. However, in reality the proposal would emanate from the Government and the government almost always controls the Dáil through a majority that can be directed to vote with the government through the use of the whip. If, as is proposed, the Seanad is abolished in the near future, this will mean that the law in question is made by the Dáil alone, which would act under the direction of the government. This safeguard is weak at present and would, in my view, be extremely weak if the Seanad were abolished.
The reduction must be proportionate
This is intended to ensure that any reduction in pay is proportionate taking into account the reduction in pay in the comparator class. This seems a very sensible safeguard. We cannot know exactly how proportionality will be interpreted in this context; that will be a question for the Supreme Court to answer if and when the time comes.
This is a constitution and this provision will be there long after the current economic crisis has passed
I am therefore cautious about the proposed amendment because I feel there is a broadness or ambiguity there that leaves the effectiveness of the safeguards in some question. The proposal should be seen in its broader constitutional context, of course. The remainder of the constitution does include a separate statement of judicial independence (Article 35.2: “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”), which is an important safeguard. In addition, the courts will most likely be able to deal with these ambiguities and to identify appropriate comparator classes. However, this does not take away from the fact that on the face of it this proposal is problematic in its text. In my view, indeed, it is sufficiently problematic to justify rejecting it.
There has been much talk in recent weeks about the ‘fairness’ of the provision and the savings that will be realised (€5.5 million per annum, we are told). It is no doubt fair that judges’ pay could be reduced in limited situations, but the saving is relatively small and we ought to be cautious in approving of permanent constitutional change in a situation where our exigency, and our frustration with continuing economic difficulties both national and personal, might make it difficult for us to insist on careful and cautious drafting of constitutional changes that are put before us. This is a constitution and this constitutional provision will be there long after the current economic crisis has passed.
We do not know how this €5.5 million has been calculated, but we might ask ourselves whether we value our judicial system that little? We should bear in mind that there are 147 serving judges and as judges are replaced new judges can be appointed at a lower salary level reflecting reductions imposed on public servants, so the saving is a short-term one, while the constitutional change is long-term. We might also reflect on how easily and quickly we seem to have been able to come up with this proposal and put it to the people while other required referenda (such as the children’s rights referendum) have not yet appeared and (arguably more important) questions pertaining to the judicial system (such as appointment and discipline) remain on the shelf. Taking all this into account, it behoves us to think carefully about our vote; to think, if we can, beyond the current state of extremis and to try to foresee what this will do to our constitutional balance in the long-term.
The broader point
The discourse around the judges’ pay referendum suggests to me that this is fundamentally about a kind of rebalancing towards the Dáil. The overwhelming tenor of the “debate” so far has been to present judges as hyper-protected, selfish, divided and elitist and when judges tried to speak back in a collective voice (the only way they can, their constitutional position being as it is) through a memorandum the reaction was scornful. Judges cannot, generally, speak back when political and politicised criticisms are levied against them because they cannot know what they will be asked to adjudicate on in the future. We should be grateful that in this country we have a judiciary that, as Chief Justice Denham said in her statement last week, values and appreciates the importance of judicial silence about some things to preserve the integrity of the system. But this silence comes at a cost; the difficulty is in seeing this is a cost to ‘us’ (the people) rather than to ‘them’ (the judiciary).
There is a reason why the Constitution preserves the independence of the judiciary by, among other things, protecting them from reductions in pay. It is not an elitist conspiracy. It is because an independent judiciary is what protects us as a people from populist, dangerous, unconstitutional actions by the state. If you use contraception, or appreciate your right to have a say in the development of the foundational treaties of the European Union, or agree that a suicidal teenage rape victim ought not to be prevented from having an abortion for example, you should remember that these things are all possible because of an independent judiciary that stepped in where an inert political system would not.
There are legitimate criticisms that can be levied against judges: the judiciary is insufficiently diverse, on occasion judges at District and Circuit court levels in particular say and do callous and unjust things, and, yes, perhaps judges are paid too much. The solution to these things is not a broadly worded constitutional provision of the kind proposed. It is a clearer and more transparent judicial appointments system (which has been blocked by politics), a judicial council for disciplinary and other reasons (again, superior court judges want this), and new pay levels for newly appointed judges (which is entirely possible without constitutional amendment). In my view, the proposed amendment is far too great a cost for us to bear especially in the context of a Dáil that seems determined to achieve a position at the top of the constitutional pile.
Fiona de Londras is a lecturer at the UCD School of Law and founder of the Human Rights in Ireland blog.
Originally published on Human Rights in Ireland under a Creative Commons cc-by-nd license.
Image top: Xenoc.