Human Rights in Ireland

I have a column in the Irish Examiner today advocating a ‘no’ vote in the judges’ pay referendum. Unfortunately that part of the paper is not up on the Examiner‘s website, so I have posted the text I sent to the paper below. Apart from tidying up a word here and there for syntax, the content of the column was not changed. (People might also be interested in fellow HRinI writer, Eoin Daly, arguing for a ‘yes’ vote in an op-ed in yesterday’s Irish Times)

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It is difficult to convince people to take a long-term view of the referendum on judicial pay, but the Constitution will be around long after the economic crisis is over and when we vote on it we should try to make sure that we get it right. In this, as in most other things, the devil is in the detail and not in the easy rhetoric of ‘fairness’ and ‘savings’.

The proposed amendment has three clauses. The first one says that judicial pay can only be reduced in line with the provisions of the Constitution. The second confirms a decades-old finding of the Supreme Court that judges are subject to the same tax liabilities as everyone else. It is the third clause that is of real concern. At the moment the Constitution says that judges’ pay cannot be reduced while they are in office. This is designed to make sure that governments cannot try to influence the judiciary through salary. This is one of the ways in which we try to protect judicial independence, which of course is designed to protect us, the People, because the courts are the ultimate guarantor of our rights against the State. The government now wants us to remove that absolute ban and replace it with a limited permission to reduce judicial pay. If we are going to approve of that, we have a duty to make sure that the proposed replacement has sufficient safeguards built into it.

The third paragraph in the proposed amendment contains four, flawed, limitations. First, Judges’ pay cannot be reduced unless there has been a reduction in the pay of “persons belonging to classes of persons whose remuneration is paid out of public money”. What does this mean? Must the class be comparative to judges, or could the reduction in the salaries of a small ‘class’, like university groundskeepers, be the basis for reduction? Must the reduction be a recent one? I cannot answer these questions because we simply don’t know. Ultimately it will be up to the Courts to decide what this provision really means, but what is clear is that it is not necessarily the guarantee the government tells us it is.

Second, reductions would have to be done “by law”, so an Act of the Oireachtas would be needed. This may look like an effective safeguard, but as the Dáil is almost always controlled by the government how much of a safeguard is it really? And how effective will it be if the Seanad is abolished, as the Government desires? Third, the reductions in pay would have to be “said to be in the public interest”. Of course saying something is in the public interest does not mean that it really is. Have you ever heard a government say it was doing something AGAINST the public interest? Fourth, the reduction in pay must be proportionate to the reductions in the pay of the “class” that we spoke about above. This is probably quite a good safeguard, but—like with the “class” itself—its meaning will again have to be decided by the Supreme Court when the time comes.

If we pass this referendum judges will not stop being independent, but governments now and in the future will have a constitutional card that can threaten that independence. It is true that any reductions could be challenged, and adjudicated on by courts. But would it not have been better to have proposed an independent method—protected in the Constitution—for proposing reductions, so that such a stand-off between the government and the courts would not arise? We might also note the apparent cynicism of the referenda, rushed through the Oireachtas with almost no debate and held on the same day as a Presidential election and a by-election. The timing means that the referenda are not getting the attention they deserve from political parties that are busy campaigning for their preferred presidential candidates instead of explaining the referenda to us.

I believe that it should be possible to reduce judicial pay, but that it must be done within a careful and appropriate framework. Many suggestions to this end were made to the government, but it refused to be moved from its preferred wording. Governments have not been unwilling to put referenda to us a second time before. We will need judicial independence and a separation of powers long after this economic crisis is over. Our economic decimation is doing sufficient damage to our country as it is; we should not be seduced into allowing it to do permanent damage to our Constitution as well. If we vote ‘no’ the Government can always come back to us with a better provision. If we vote ‘yes’ we won’t get a second chance to correct it.

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