Sensitive issue of judicial pensions requires calm discussion

The matter of judicial pay and pensions should be dealt with by careful constitutional amendment and not through vitriolic public…

The matter of judicial pay and pensions should be dealt with by careful constitutional amendment and not through vitriolic public attacks, writes DONAL K COFFEY

THE DEBATE about judicial pensions has given rise to depths of ill-feeling which risk undermining the independence of the judiciary. The debate scaled new vituperative heights recently with the publication of an editorial in the Sunday Independententitled "Manners must be put on judges" (May 1st). The editorial claimed the judiciary "begins to pose a problem to the good running of the State". It further asserted that judges appeared to believe they held office in a similar manner "to those medieval kings who ruled by divine right".

The background to this acerbic editorial is the revelation that Chief Justice John Murray met the Taoiseach and raised the issue of tax relief on pension lump sums ( The Irish Times, April 27th). The minutes of this meeting have not been released, and it is not clear exactly what concerns the Chief Justice raised – was it the fact that tax relief was to be withdrawn, the manner in which the relief was being withdrawn, or the possibility of a constitutional challenge to any such measures?

The Taoiseach has stated that the Chief Justice “did give a couple of examples of a general nature of what the implications are” but also confirmed that the Chief Justice did not raise his own pension situation (The Irish Times, May 5th).

The Taoiseach has ruled out making a special exemption for judges, which suggests that the possibility was raised, but this may have been raised by the Chief Justice as a result of perceived constitutional difficulties.

It is unfortunate that this meeting has been the subject of attack as it has been an accepted fact of Irish life that the Chief Justice would act as a conduit for representations between the Government and judiciary in matters relating to pay since the foundation of the State.

On December 26th and 27th, 1953, for example, meetings were held between then chief justice Conor Maguire and taoiseach Eamon de Valera about a claim made by Cecil Lavery, a Supreme Court judge, before the Special Commissioners for Income Tax that his income was not liable to income tax.

The issue was ultimately decided by the Supreme Court in O’Byrne v Minister for Finance, which held the view espoused by Lavery in private was incorrect.

These informal meetings help avoid possible constitutional crises such as might occur if, for instance, the terms of employment of the judiciary became so injurious that the judiciary felt the only response would be a mass resignation.

Resignation is the only tool which the judiciary can employ in such circumstances. Seosamh Ó Longaigh has described the impact of a threat of judicial resignation on the passage of the Public Safety Act 1927. In that case, Gerald Fitzgibbon and James Murnaghan threatened to resign if they were forced to sit on a special court which would try specific offences without a jury. The Government dropped this requirement from the final Act.

The circumstances which surround the pension debate are, of course, different, but the ultimate sanction is the same, and one can imagine the international and internal damage the State would suffer if a number of senior members of the judiciary were to resign as a result of this amendment process.

It is unhelpful that the Sunday Independent has sought to direct its vitriol towards an issue which should be regarded as a matter of simple housekeeping. The Supreme Court decided in the mid-1990s that judicial remuneration included pension entitlements.

This extended the guarantee of Article 35.5 – which provides that judicial remuneration “shall not be reduced” during their term of office – to pensions. However, Article 36 makes it clear that such judicial remuneration was not originally understood to include pensions. Article 36 (i) provides that the Oireachtas shall regulate “the remuneration, age of retirement and pensions of such judges”.

It is clear from this text that judicial “remuneration” and judicial “pensions” are regarded as two separate things, and the guarantee of Article 35.5 should never have extended to judicial pensions.

There are, therefore, two issues that should be addressed in any constitutional amendment: judicial remuneration and judicial pensions.

The first issue is to cleave judicial pensions from judicial remuneration; this could be done by a simple declaration that “judicial remuneration shall not be taken to include pensions accrued by virtue of judicial office”.

The second issue, and the more troublesome of the two, is that of whether a reduction in judicial salary should be possible when the State is in straitened financial circumstances. The difficulty is that any such provision must not undermine the independence of the judiciary.

One possibility suggests itself from the existing case-law. In District Judge McMenamin v Ireland, Geoghegan J and O’Flaherty J held the constitutional protection of remuneration of judges could be breached if the remuneration was eroded in real terms by inflation. The corollary of this point is surely that judicial independence would not be undermined if judicial remuneration decreased in times of economic deflation. A constitutional amendment to Article 35.5 should at a minimum incorporate this principle.

The danger of vitriolic institutional attacks on the judiciary is that they may turn straightforward and necessary constitutional amendments into a witch-hunt against the judiciary.

This will benefit nobody, and may, in fact, precipitate a mass resignation. This should be avoided at all costs.

Donal K Coffey has recently completed his PhD in Irish constitutional history at University College Dublin