Judiciary warns State over pay

 

The judiciary has warned the Government that the proposed constitutional amendment on judges’ pay “would compromise the substance of judicial independence” and could have serious implications for Ireland’s international reputation.

A memorandum sent to the Government by senior judges states that the principles of judicial independence require that any decision on a reduction in judicial pay must be taken by an independent body. Otherwise “one of the essential features of a constitutional democracy and the rule of law would be compromised”, it says. If such a finding was made by an international court, it “would have huge reputational implications for Ireland and for confidence in our legal system”.

The setting of pay reductions by an independent body was ruled out by Minister for Justice Alan Shatter at the weekend. This followed the Government’s receipt of the memorandum from Attorney General Máire Whelan SC, who was given it by the judiciary on Thursday last. According to senior legal sources, communication between the judiciary and the Government traditionally takes place through the Attorney General.

The memorandum states that no one doubts for a moment the seriousness of the economic crisis facing the country, and that the judiciary has not opposed the proposal for amendment of Article 35.5 of the Constitution, which prohibits the reduction in their remuneration.

“The issue here is not whether judges’ pay is reduced, but rather how that reduction should be achieved, while effecting the least interference with the principle of independence of the judiciary which that provision of the Constitution is designed to protect,” it states. It says this principle is contained in a number of international documents and is part of constitutional arrangements in the common law world.

Referring to the need for an independent mechanism, the memorandum says: “Mere knowledge that the Oireachtas has the power to legislate to reduce salaries may be perceived, even if it is not so in fact, as having the potential either to pressurise judges on the one hand or, alternatively, make them more liable to view the other branches of Government with suspicion or even hostility.”

It points out, in contrast to others in receipt of public remuneration, judges are constitutionally prohibited from taking on any other paid employment. This is not the case in Europe, where judges may serve as legal academics, arbitrators or mediators.

The memorandum criticises the proposed wording, as published in the media, for providing that the bodies who would decide on the reduction in remuneration are the other branches of Government, the executive and legislative branches.

“At a minimum it might be thought that any amendment should closely and specifically identify the circumstances in which any deviation from the historic principles set out in Article 35.5 could be contemplated, such as a financial crisis involving the public finances, accompanied by the mechanism by which any salary reduction should be calculated, which should itself be independent of Government.”

The document adds that the proposed wording is extremely loose. “It would provide no limitation on the circumstances in which a reduction should be made; the Government’s view of the public interest . . . would suffice. There is no method of calculating the reduction identified.”

It also points out many judges hearing asylum cases receive information on developing countries where judges have limited institutional independence. “A finding by a reputable international court or observations by an international organisation that these fundamental guarantees of constitutional independence have been – even unwittingly – compromised, were the suggested wording to be adopted, would have huge reputational implications for Ireland and for confidence in our legal system.” Such confidence was an essential bedrock for our economic recovery, it says.