THE GOVERNMENT could have included judges in the pension levy legislation, according to a former judge of the Supreme Court, Mr Justice Donal Barrington.
Their exclusion from the legislation, on the advice of the Attorney General, Paul Gallagher, led to an arrangement being made between the Chief Justice and the chairman of the Revenue Commissioners for the payment by judges of a voluntary contribution equivalent to the levy.
Mr Justice Donal Barrington, a former judge of the Supreme Court and of the European Court of First Instance, told The Irish Times that the exclusion of the judiciary from the levy legislation was “puzzling”.
“The present Attorney General is one of the most brilliant lawyers ever to hold the position, and one hesitates to disagree with him,” he said. “But one would have thought that this issue was decided by the Supreme Court in the O’Byrne case. It was very widely debated at the time, and was also debated in the US.”
Mr Justice Barrington was referring to a case decided by the Supreme Court in 1959, in which the widow of a judge called O’Byrne brought a case claiming he should not have paid income tax, as this amounted to a reduction in his remuneration. The Supreme Court found that the payment of income tax was not a reduction in remuneration.
The then chief justice, Mr Justice Maguire, said: “The purpose of the article is to safeguard the independence of judges. To require a judge 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 on his independence.”
Mr Justice Barrington said that what had now arisen was that the judges were told they should not pay, but told they should make a voluntary contribution, and if they did not they would be held up to hatred and ridicule. “It’s a very bad way to run the country,” he said. “Its bad for the judiciary and bad for society as a whole.”
Article 35.5 of the Constitution states: “The remuneration of a judge shall not be reduced during his continuance in office.”
It emerged at the weekend that so far 19 of the State’s 148 judges have paid the levy, and that the arrangements with the Revenue Commissioners allow for a variety of ways of paying up to the end of the financial year. Prof Finbarr McAuley, of the UCD law faculty, agreed that judges could have been included in the levy. Referring to the pension levy, he said: “It’s a tax by another name.”
He also said it was likely the judges themselves would have preferred to be included, as the controversy around the voluntary contribution was a “PR disaster” for them, and could have been avoided. “This is going to go away as more comply,” he said. “There will be a small rump of people who won’t comply, but most will,” he predicted.
The maximum amount of money that could be raised if all members of the judiciary paid the pension levy this year is €1,842,133. This is based on the fact that the annual total for the combined salaries (exclusive of expenses) of the 148 judges comes to €27.632 million for a full year.
The suggested voluntary contribution is 10 per cent of salary, which comes to €2,763,200 for a full year. The arrangements with the Revenue only came into being last month, leaving eight months to the end of the financial year, so the amount collected this year can only come to two-thirds of the annual maximum amount.