Why I will be voting 'yes' in the referendum on judges' pay

The Irish electorate will be asked to vote on the proposed 29th amendment to the Constitution - to allow the pension levy and public sector pay cuts be extended to judges - in a week's time. Below, Eoin Daly explains why he will be voting 'yes' to the amendment, while Fiona de Londras explains why she'll be voting 'no' here.

The legal world, academic, professional and judicial, has worked itself into a minor kerfuffle over the next week’s referendum on the proposed 29th amendment of the Constitution. If passed, it will allow for the pension levy and public sector pay cuts to be extended to the judiciary, who were exempted from these on the grounds of existing constitutional provisions. The fear amongst some lawyers is that the wording of the proposed amendment is too vague and may allow for abusive, vindictive reductions to judicial pay essentially aimed at undermining judicial independence. This, it is argued, may ultimately undermine the rule of law and the safeguarding of constitutional rights against the political organs of the State. On Monday, the former Chief Justice Ronan Keane observed that the wording of the proposed amendment was “quite remarkably vague”. However, I think these concerns have been vastly overstated and on balance, I believe the amendment should be passed.

First, I will briefly explain the background to the amendment.

The existing article 35.5 of the Constitution provides: “the remuneration of a judge shall not be reduced during his continuance in office”. The purpose of this rule is to prevent the political organs of the State from undermining the decisional independence of judges, this being necessary to the impartial administration of justice.  Although it was held in Byrne v Minister for Finance that article 35.5 does not prevent the imposition of a generally applicable income tax on judges, the previous Government concluded, in 2009, that it precluded the imposition on judges not only of the public sector pay cuts, but also, the pension levy. The Government then established a voluntary mechanism whereby judges could surrender an equivalent proportion of their salaries to the public purse. This was a disastrous idea, because it entailed politicians, including the then Taoiseach, publicly reproaching any recalcitrant judges – a rather ironic turn of affairs, because a scheme which was ostensibly implemented to preserve the principle of judicial independence ended up miring the judiciary in public controversy, thus undermining this very aim it was intended to serve.

The current Government resolved to extend public sector pay cuts to the judiciary by means of a constitutional amendment which, it claims, will allow for the proportionate extension of generally-applicable reductions while safeguarding judicial independence against any abusive reductions. The proposed amendment to 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 concerns surrounding the wording of the amendment centre primarily on its vagueness, and consequently, the fear that it may allow for vindictive pay reductions, passed by the Oireachtas, essentially aimed at undermining judicial independence. Ss3 provides that the only permissible reductions must be “proportionate” to reductions imposed by law on the remuneration of “classes of persons whose remuneration is paid out of public money”, in other words, other public sector workers. The purpose of the wording is clearly to ensure that judicial pay may not be targeted for reduction as such, but rather that generally applicable reductions, also imposed on comparable classes in the public sector or on the public sector as a whole, may also be imposed on judges on a non-discriminatory basis.

That the measure will be popular does not make it ‘populist’

The primary concerns have focused on the meaning of “classes of persons”.  The fear is that this is vague enough to allow a future Government to abusively target judicial pay by reducing the pay of a relatively obscure comparator class – such that if, say, the pay of hospital consultants were reduced, judicial pay could also be targeted, with this  being used to improperly pressurise judges. On this view, a future Government could get around the constitutional limits by selecting an obscure comparator “class” for reduction for the purpose of vindictively targeting judges’ pay.

However, I think there is no real risk that the current amendment will allow for oblique, “vindictive” cuts. The amendment refers to “classes of persons”, as a plural, which means that a valid judicial pay reduction must be a generally applicable reduction imposed on a plurality of comparator classes across the public sector, possibly the entire public sector. This, I believe, would rule out the possibility of a “targeted” cut. Importantly, any literal ambiguity in the meaning of this term would fall to be resolved with reference to the broader principle of judicial independence which is, and will remain stated in article 35.2 – “all judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”. This is a clear, general principle of judicial independence and it is rather uncontroversial to suggest that such constitutional principles, whether enumerated or latent, should inform the application and interpretation of more specific or technical constitutional rules.

In the Paperlink case, Costello J. held that the nature of the Constitution as “a political instrument as well as a legal document” means that a “purposive” rather than a literal approach is appropriate to its interpretation. Set against the broader principle of judicial independence, the purpose of the amendment in requiring the proportionality of judicial reductions to broader “classes of persons” is to ensure that any reductions are simply the extension of generally applicable reductions, rather than being specific, whether obliquely or directly, to the judiciary itself.  Alan Shatter was clearly correct when he stated: “Any attempt to reduce judges’ pay to pressure judges to conform to a government’s view of how cases should be decided would plainly offend this guarantee [in article 35.2]”. Accordingly, I think the concerns voiced have focused on an excessively literalist approach to constitutional interpretation, whereas it is well established that constitutional provisions invite a more “purposive” or values-oriented approach. This was evident in the Byrne v Minister for Finance case, where the Supreme Court eschewed any excessively literalist approach to the existing article 35.5, privileging the purpose and value of the literal rule. The Court held that “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 upon [a judge’s] independence.”  A similarly purposive approach would govern the interpretation of the proposed amendment.

It is imperative that judicial pay be cut in line with existing reductions to public sector pay

Therefore, I believe that Estelle Feldman’s fear of a hypothetical reduction to student nurses’ pay, deliberately engineered to allow an targeted punitive cut on judicial pay, could never come to fruition, given the reference to a plural “classes of persons” shored up by the clear purpose of the amendment in reconciling the general applicability of public sector reductions with the imperative of judicial independence. I agree that the amendment is clumsily worded and I would prefer if the requirement of equivalent reduction to an appropriately broad comparator class were made a little clearer, but inelegance, I believe, is an insufficient reason for opposing an amendment whose practical outcome almost all citizens would welcome and which, for reasons I have outlined here, would pose no real threat to judicial independence and the rule of law.

With this established, I think it is imperative that the amendment be passed and that judicial pay be cut in line with existing reductions to public sector pay. The former Chief justice Keane commented that little will be saved by the measure, but I think this misses the point. The point is rather that a certain category of citizens have been exempted from a legislative measure on grounds which are impossible to publicly justify. As David Gwynn Morgan pointed out a couple of years ago on Morning Ireland, it is reasonable, in a republic, to expect that the general and equal applicability of such legislative measures should be the norm, and any exception tightly justified with reference to the common good.  Moreover, in the longer run, in fact, it may actually be harmful to judicial independence if the State allows the fostering of a public view of the judiciary as a privileged elite, exempt from the sacrifices recently imposed on the citizenry at large. Ultimately, such a perception would have the potential to undermine public confidence in the judiciary, which in itself, is an important but overlooked sanction of judicial independence (Mairead Enright made a similar point here).

This relies on a much thicker sense of constitutionalism that ordinarily prevails; the idea being that incursions on judicial independence will be prevented and curtailed not only by formal legal means, but also by popular vigilance against any over-reach by the political organs. Ultimately, political and social conventions along with public opinion remain important sanctions of constitutionalism, a fact which lawyers’ often elitist warnings against ‘populism’ overlook. That the measure will be popular does not make it ‘populist’, and it is all too easy to descend to the lazy cliché of a grubby, voracious political class cynically implementing a ‘populist’ measure with the collusion of an ignorant public.  A reflexive lawyerly defensiveness of judges against the ‘political’may unwittingly accentuate this danger of judicial independence being indirectly undermined over the longer run.

It is too often overlooked that much of our strong tradition of judicial independence is not based in formal positive laws at all, but in conventions embedded within the polity at large, in the political class, the legal professions, and the judiciary itself. For example, judicial independence is constituted partly by the traditions of the legal professions, and by the convention against public ministerial criticism of unwelcome judgments. In the same measure, it is partly, at least indirectly, rooted in popular sanction. Judicial independence is surely irreducible to law alone. It is a delicate and organic resource which cannot be abstracted to constitutional formalities and which, I believe, has already been damaged by the last Government’s shambolic handling of the judicial pay issue, which saw politicians publicly pressurise judges into participating in the ‘voluntary’ reduction scheme, thus fuelling an unfair perception of judges as self-interested and partial.  

Fiona de Londras has opposed the amendment on the grounds of preserving a “muscular and non-deferential judiciary”, but in the long run, I believe, this is difficult to safeguard through formal constitutional means alone. It is not unrealistic to hope for a popular understanding, acceptance and endorsement of the simple and attractive idea of judicial independence, but this popular acceptance, which may supply an ultimate bulwark of the principle against political encroachment, might easily be diminished through the weakened public esteem which ultimately resulted from the pay debacle and its inept handling.

This must surely rank as a candidate for the Irish judiciary’s first ‘GUBU’ moment

Finally, this danger has arguably been accentuated by the judiciary itself in the form of the extraordinary, unprecedented and ill-advised public intervention it made in the matter of the referendum, by publishing a memorandum essentially opposing the amendment on the courts website. It opened with the extraordinary observation that “If judicial pay is cut, this will be the first time that this has occurred in the legal history of these islands since the Act of Settlement 1701” – intimating that somehow, upwards-only judicial pay, come what may, is as fundamental to the common law tradition as habeas corpus. The memorandum was extraordinary on a number of levels. First, the separation of powers seems to implicitly prevent the judiciary from commenting on the merits of the wording of proposed amendments. It has been repeatedly asserted in constitutional adjudication that the wording of amendments lies in the political and popular province alone, and that it would be improper for the judiciary to assess their merits. This rationale would appear to apply equally to public interventions by sitting judges on the merits of amendments. It is clearly an abuse of judicial authority to employ an official or quasi-official channel to intervene in a matter that in our constitutional system is reserved exclusively to elected representatives and the people through the amendment process. This impropriety was compounded by the inevitable perception of self-interest and special pleading, as evident in the frankly cringe-inducing observation that judges in Ireland were prevented from obtaining other forms of remuneration – no nixers here! – and the intimation that many sacrificed the promise of higher rewards in practice, at least implicitly intimating that such considerations might justify current levels of judicial pay (Sandeep Gopalan skilfully disassembled some of these protestations here).

This must surely rank as a candidate for the Irish judiciary’s first properly ‘GUBU’ moment, with the judiciary being so anxious to disavow any interference in the political sphere in relation to say, mandatory orders for upholding the educational rights of children with intellectual disabilities, but prepared to abuse a public, extra-judicial forum to comment – just once – on the merits of a single amendment which also happens to be an amendment directly affecting judges’ financial interests. It mixed substantive arguments against the amendment, itself a problematic form of intervention, with more oblique arguments surrounding the justification of judicial pay levels. Fiona de Londras has defended the memorandum, arguing that is was the only channel available to judges to respond to unfair criticisms made of them. Sandeep Gopalan also implored: “given the kinds of shots being taken against them by politicians in the media and their reluctance to engage in unseemly public spats, publication of the memorandum sets out their position in public in a dignified manner.”

Tread softly, for you tread on my pension

But in reality, its content far overstepped this bona fide purpose. David Gwynn Morgan’s quip of a judge who reportedly said “tread softly, for you tread on my pension” – may have been tongue in cheek but touches upon a crucial and overlooked problem - namely the danger posed to judicial independence by any reasonable public apprehension of judges acting from self-interest in this matter. Tom O’Malley described the Government’s request that the memo be removed from the Courts website as “utter scandal and deserv[ing] the strongest possible censure”, and that “it would scarcely be tolerated in any other constitutional democracy.” However, although he may well have a point, the same can be said of the memorandum itself. This overzealous lawyerly defensiveness of judges bears out, I think, David Gwynn Morgan’s appraisal of a “judicial-o-centric” conception of the separation of powers in Ireland, jealous of the judicial function but less eager to defend an appropriate autonomy for the political organs as well. Lawyers always inveigh against political attacks on the judicial realm, but are less keen to recall ideologically motivated judicial assaults on politics conducted from politically unaccountable plateaus – for example, the brazen ideological assault by conservative judges on Roosevelt’s New Deal.

O’Malley also wrote that “Constitutionalism calls for more than observance of the constitutional text itself” – and I agree – but I think this idea should also be translated as a consciousness of judicial independence as an organic tradition resting partly on public and political opinion, as well as on positive law itself. This recent intervention brought into focus not only the rather abstract question of the legitimacy of judicial intervention in political questions, but also the deeper problem of how such interventions might, in the long run, ultimately damage the organic, informal fabric of judicial independence. Ultimately, the perception of self-interest and privileged status for the judiciary is a greater threat to the tradition of judicial independence than is the misplaced and far-fetched fear of the 29th amendment being mendaciously exploited to undermine it.

Eoin Daly is a lecturer in the School of Law and Government at Dublin City University.

Originally published on Human Rights in Ireland under a Creative Commons cc-by-nd license.

Image top: John & Mel Kots.