The posting of a document on the Courts Service website criticising the Government’s plan for a referendum on judges’ pay is “unusual and unprecedented”, Minister for Justice Alan Shatter has said.
The unsigned 12-page memorandum on the website is dated July 7th – last Thursday. The document had already been sent to the Government by senior judges.
Mr Shatter said he believed it was inappropriate that the statement be carried on the website. When he had learned of it on Friday, he had asked an official from the courts section of his department to communicate this to the Courts Service.
He added, however, that the service was an independent statutory body and it was for it to determine how it dealt with the issue.
Citing the doctrine of the separation of powers, Mr Shatter said he was not aware of any case in the past where the website of a Government department or a State agency carried a critique of government policy by those who may be affected by salary issues.
The memorandum states that the judiciary has not opposed the current proposal for an amendment of Article 35 (5) of the Constitution and that the ultimate decision would be “entirely a matter for the Oireachtas and the people”.
“The issue here is not whether judges’ pay should be 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.
“If judicial pay is cut, this will be the first time that this has occurred in the legal history of these islands since the Act of Settlement 1701.”
Article 68 of the 1922 Constitution provided that the remuneration of judges “may not be diminished during their continuance in office”, the document points out.
It concludes: “This memorandum is not prepared in opposition to an amendment of the Constitution so as to ensure that judges bear a fair share of the burden of pay reductions, but rather proposes that, if this is to be achieved, the essence of constitutional independence must be safeguarded by means of an independent adjudication on what these reductions should be.”
The Government has said pay rates for new judges would be cut by 25-31 per cent if the referendum is passed. The pay of the next chief justice, to be appointed in the months ahead, will fall from €295,916 to €203,425.
Speaking on RTÉ's Morning Ireland programme, Mr Shatter said he did not know how the Courts Service would deal with the matter.
“I think it’s regrettable that the matter is on the website, but to some extent it’s a side issue," he said. “I think it’s very unfortunate that an unnecessary controversy has arisen over the commitment in the programme for government to hold a constitutional referendum to deal with the issue of judicial pay, and essentially to facilitate applying to the judiciary in a manner that’s constitutionally appropriate and protects their independence the same public sector wage decreases that have impacted right across everyone who is in receipt of public pay.”
Mr Shatter said the issue was highlighted by the Review Body on Remuneration in the Public Sector in a 2009 report. The body indicated it would have considered a downward adjustment in judges’ pay in line with those experienced by the wider public service, but was precluded from doing so by the Constitution.
The Minister said the proposed referendum was simply designed to address “the anomaly whereby judges are unable to contribute their fair share in the national interest on the same basis as other public servants”.
He said the reductions were “readily identifiable” in financial terms and had been set out clearly by Minister for Public Service Reform Brendan Howlin.
The proposal to be put in the referendum was to ensure and guarantee the independence of the judiciary.
“There can be never any question of the judiciary being as a group or individually targeted for pay reduction,” Mr Shatter said.
But at the same time, the proposal sought to ensure “that the judiciary contribute their fair share and that the decreases that have impacted right across the public sector are applied to the judiciary”, he added.
“The Government believes this is hugely important to ensure that public respect for the judiciary is maintained and there isn’t a public perception that they’re immune from the financial and economic cataclysm that has hit the State and has affected so many people.”