Pensions levy and the judiciary

 

Madam, – It is just plain wrong to claim, as did Ms Mary Wallace, Minister of State at the Department of Health and Children, in the Seanad last week that it would be unconstitutional to apply the pensions levy to the judiciary (The Irish Times, March 13th).

The relevant provision of the Constitution is Article 35.5, which states: “The remuneration of a judge shall not be reduced during his continuance in office.” But this provision is not to be read literally.

We know this from the Supreme Court case of O’Byrne v Minister for Finance (1959) IR 1. In this case, which was brought by a judge’s widow, it was contended that this provision meant it would be unconstitutional to levy income tax from a judge’s salary. Rejecting this argument, Judge Kingsmill Moore stated (at 64): “The object was to secure the independence of the judges and the impartial administration of justice. The legislation was for the protection of the people, not for the interests of the judges. A judge who was subject to removal or to have his salary reduced would be under temptation to be subservient to the wishes of those in whose power it was to ensure his removal or reduce his salary. Any discrimination by tax or otherwise. . .would be equally objectionable. But I fail to see how a tax which is non-discriminatory against judges can assail the judicial independence. . .” The reasoning in this judgment would be broad enough to cover an increased pension levy against a judge’s salary, since such an increase would not amount to a discrimination against judges.

At a time of national turbulence and strife, we are likely to need the principle of independence of the judiciary, when judges are called on to determine difficult (hypothetical) cases such as enjoining nurses to go back to work or clawing back money paid to Mr Fingleton of the Irish Nationwide. It is, therefore, disquieting to see it being abused in this way. Sadly, some of the biggest untruths are prefaced by the formula: “Unfortunately the Constitution prevents us from. . .” – Yours, etc,

DAVID GWYNN MORGAN,

Professor of Law,

University College Cork.