Tairgim leasú a 1:
I gCuid 1, leathanach 7, línte 5 go 14 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
"2o Tá luach saothair breithiúna faoi réir gearradh cánacha, tobhach nó muirear eile a ghearrtar le dlí ar aicmí i gcoitinne.
3o Más rud é, an 1 Márta 2009 nó dá éis sin, go ndearnadh nó go ndéantar laghduithe le dlí ar luach saothair aicmí daoine a íoctar go díreach as airgead poiblí agus gur ar mhaithe le leas an phobail an dlí sin, féadfar socrú a dhéanamh freisin le dlí chun laghduithe coibhéiseacha a dhéanamh ar luach saothair breithiúna, i gcás go dtagann na breithiúna sin, nó go dtiocfadh na breithiúna sin, faoi réim na n-aicmí sin daoine murach forálacha an Airteagail seo.",
agus
I gCuid 2, leathanach 7, línte 18 go 27 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
"2° The remuneration of judges is subject to the imposition of taxes, levies or other charges that are imposed by law on classes generally.
3° Where, on or after March 1st 2009, reductions have been or are made by law to the remuneration of classes of persons paid directly out of public money and such law is in the public interest, provision may also be made by law to make equivalent reductions to the remuneration of judges, where such judges come or would have come within these classes of person but for the provisions of this Article.",
I move amendment No. 1:
In Part 1, page 6, to delete lines 5 to 14 and substitute the following:
"2° Tá luach saothair breithiúna faoi réir gearradh cánacha, tobhach nó muirear eile a ghearrtar le dlí ar aicmí i gcoitinne.
3° Más rud é, an 1 Márta 2009 nó dá éis sin, go ndearnadh nó go ndéantar laghduithe le dlí ar luach saothair aicmí daoine a íoctar go díreach as airgead poiblí agus gur ar mhaithe le leas an phobail an dlí sin, féadfar socrú a dhéanamh freisin le dlí chun laghduithe coibhéiseacha a dhéanamh ar luach saothair breithiúna, i gcás go dtagann na breithiúna sin, nó go dtiocfadh na breithiúna sin, faoi réim na n-aicmí sin daoine murach forálacha an Airteagail seo.",
and
In Part 2, page 6, to delete lines 18 to 27 and substitute the following:
"2° The remuneration of judges is subject to the imposition of taxes, levies or other charges that are imposed by law on classes generally.
3° Where, on or after March 1st 2009, reductions have been or are made by law to the remuneration of classes of persons paid directly out of public money and such law is in the public interest, provision may also be made by law to make equivalent reductions to the remuneration of judges, where such judges come or would have come within these classes of persons but for the provisions of this Article.".
My amendment proposes a number of changes. It is clear from it that I have no objection at all to the principle of retrospectivity and the effect of pay cuts which have been imposed on sections of the public sector and the pension levy should apply prospectively from the enactment of the legislation following the referendum. It is retrospective without applying the loss of income retrospectively. However, there is a vagueness about the proposed wording, which is troubling, given this is a proposal to amend the Constitution and the vital issue of the independence of the Judiciary is in play. While I do not doubt the Government's sincerity in saying it had no desire to tamper with the Judiciary's independence, we must proceed cautiously and with great precision in the wording of what we propose to allow, particularly because there is a retrospective dimension to the legislation that will follow the referendum, if passed. That is a rare phenomenon and, therefore, gives all the more reason for caution.
The proposed Article 35.5.2o refers to the remuneration of judges being subject “to the imposition of taxes, levies or other charges that are imposed by law on persons generally or persons belonging to a particular class”. I have concern about the vagueness of this paragraph because it seems to import the notion that judges could be singled out as a particular class and, for that reason, I propose the following wording: “...that are imposed by law on classes generally”.
It is clear from this that we must achieve through this wording the idea that the pay of judges may be cut where they fall into a wider category of people, properly speaking. Although they are constitutional office holders their salaries would nonetheless be pegged to particular public service rates of salary.
I accept that the Minister has set out in legislation what he proposes to do but that should not be enough for us in the circumstances. The referendum should seek to delimit what is permissible so that it is not just a matter of what is chosen in legislation but what must be done in legislation. It would be more happily worded to leave the term as "are imposed by law on classes generally".
Moving on from that, the proposed Article 35.5.3° is very problematic. The wording "classes of persons whose remuneration is paid out of public money" leaves the possibility that cleaning staff under contract with a public institution, for example, might fit into such a class. It seems that a stipulation is required that the persons involved who are comparators be paid directly out of public money; in other words they should be people directly in State employment. That is the reason I am proposing the use of the word "directly" and indicate that the people targeted would be paid directly from public money.
I am not taking these points in the order of appearance in the proposed wording. I will deal with the public interest point, on which I spoke on Second Stage. I will try not to labour it here. If a law is passed reducing the pay, for example, of departmental managers and judges, and it is said to be in the public interest, under what is proposed no court would be in a position to say that the law is unconstitutional based on the new Article 35.5.3°. In effect, judicial review is prohibited and the Executive is bringing about a power grab. Without my amendment, the Legislature has no standard whatever to meet in order to decide that a law in this context is in the public interest and it merely must state it in law, which is unacceptable.
One may argue that it is not at all desirable that the matter of whether a measure which proposes a reduction in judges' pay should go before judges for them to decide upon. However, if we are to maintain trust in the Judiciary and proclaim our belief that there ought to be trust in the Judiciary, matters like this must be left within their purview. It is only in the case of emergency powers that the scrutiny of the Judiciary is bypassed and the alternative is not happy, as it is left to politicians to merely state that an issue is in the public interest for it to be in the public interest. It is no argument to say that politicians are elected public representatives, as the reason we have a separation of powers is to ensure the Executive and Legislature do not overstep the mark.
It is asking too much of people to request that they insert a wording like this into the Constitution. They are being asked to accept the automatic constitutionality and acceptability of legislation simply because the Legislature argues that it is in the public interest. What else would be stated other than the legislation is in the public interest? A negative value is achieved by inserting this into the Constitution, and the value of what is attempted is to take the matter out of the hands of any kind of scrutiny whatever by the Judiciary, which is a problem.
Another issue of serious concern is the potential for the unqualified retrospective act of the Government's proposal to be manipulated and abused. There is no lack of good faith now but in changing the Constitution we must anticipate, embrace and prevent future problems. My amendment stipulates that the Government cannot tie reductions in judicial pay to decreases made to public servants prior to 1 March 2009. In other words, although I am not in any way disputing the principle of retrospectivity, a measure like this is so unusual that we must be crystal clear that what we are dealing with are certain pay cuts which have taken place in recent memory, which we are all agreed should apply to the Judiciary, and similar possible pay cuts and levies that might apply in future.
This is reasonable as judges' pay can be reduced in line with the public service pension reduction levy and the various pay reductions that have come into effect. What I am trying to avoid is an unhelpful vagueness. Is it possible that a future Government could or would identify some nearly non-existent class of persons receiving public money in this regard? As I mentioned, these people may not need to be public or civil servants. On this pretext, extreme cuts could be made to judges' pay, which would certainly be an unacceptable attack on the important principle of judicial independence, bringing the issue of judges' pay within the scope of negative political influence. We must cater for a future where there will be a temptation to populist politics; some would say we have already succumbed to the temptation to point to other classes of people and make them the scapegoats. For that reason we must be precise and we must be clear on what is being permitted.
I am proposing a linkage where reductions have been made to the pay of classes of persons paid directly out of public money. There should be a requirement for an objective test that such a law would be in the public interest. Equivalent reductions to the remuneration of judges should be allowed, where such judges come or would have come within these classes of persons but for the provisions of this article. In other words I wish to make clear that the cuts in judges' pay should be permissible where they would have fallen into that class of pay from which cuts were already made after 1 March 2009, were it not for the fact that this constitutional protection exists to bar reductions in judges' salaries. That is a clearer link between judges and the salary class into which they fall.
All the current wording requires is that some class of people receiving some class of public money need to have had a pay cut; that would justify some cut in judges' pay. The Minister deserves credit for including the word "proportionate" and this is an improvement. There would be further improvement if the term "equivalent" could be used, as it would guard against any attempt to indirectly manipulate judges' pay.
That is a quick summary of one amendment which incorporates a series of proposed changes. It is not a sufficient response to my proposals to say that it is extremely unlikely that a Government will act against the spirit of the constitutional amendment and target judges' pay in an arbitrary or unethical way. As I have already mentioned, constitutional design is about setting the parameters of governance in such a way as to ensure that these kinds of rupturing scenarios, such as mala fides on the part of a future Government, simply cannot arise, notwithstanding the good intentions of the Minister as set out in proposed legislation to follow this referendum. On that basis I ask the Minister to consider carefully the changes I have proposed and I look forward to his response.