THE GARDA Representative Association (GRA) has lost its High Court challenge to the pension levy.
Mr Justice Peter Charleton ruled yesterday that Minister for Finance Brian Lenihan properly considered the GRA’s application for an exemption from the levy and gave “sufficient and adequate” reasons for refusing that exemption. The judge said the levy was introduced as part of austere fiscal measures by the Government in an attempt to control the public finances.
The challenge to alleviate the nation’s problems rested with the elected representatives and the court could have no view in the executive or political sphere, he said. However, any legal error made in the imposition of any austerity measure could be judicially reviewed.
The judge said it was “beyond doubt” those in the public service enjoy pension entitlements which the State agrees to abide by, in contrast to privately-funded pension arrangements “markedly subject to variation in the financial markets”. The levy was implemented under the Financial Emergency Measures in the Public Interest Act 2009, which while specifically excluding certain groups, including the judiciary, the President or a military judge, “expressly includes” gardaí, he said.
A residual discretion was vested in the Minister under section 8 of the Act, allowing him to exempt a particular class or group of public servants or modify how the levy is applied to them, the judge said.
Rejecting arguments the Minister’s decision amounted to a breach of constitutional justice, he said it was not the court’s role to make an assessment of the many competing claims on national resources. He could not construe the Constitution as conferring such a role on the judiciary, which has no special qualification for this purpose, and he was not empowered to make this type of adjudication asked by the GRA.
The Oireachtas had made it clear in the 2009 Act that gardaí were to be included in the levy and it was difficult to argue the Minister had acted improperly by not exempting them, the judge said.