Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Bill 2011: Second Stage

Tairgeadh an cheist: "Go léifear an Bille an Dara hUair anois."
Question proposed: "That the Bill be now read a Second Time."

I thank the Members for agreeing to consider this legislation at an early stage. The terms of the 1994 Referendum Act require that a referendum Bill pass both Houses of the Oireachtas no later than 30 days prior to polling. I am grateful to the Senators for their co-operation. I published the Bill at the beginning of August with a view to everyone having adequate opportunity to consider it ahead of our debates in the Oireachtas. This facilitated a full debate on the Bill last week in the Dáil when I was glad to note the significant degree of support on all sides. It is a relatively rare occurrence to seek to change the Constitution so I very much look forward to today's debate and to listening to the views of contributors.

It is important to say that all the Deputies who contributed to the debate supported the need to ensure that the independence of the Judiciary as the cornerstone of our constitutional democracy is vindicated and upheld. I was glad to provide reassurance that the proposed amendment is designed to ensure that there is no erosion in this fundamental principle and I will repeat that assurance here today.

As Senators will appreciate, this Bill honours a commitment in the programme for Government. I am happy that we are in a position to proceed with this referendum at this early stage of the Government's term and at the same time as the presidential election. The Government's main objective in bringing forward this proposed amendment to the Constitution is to put before the people an option which would allow the pay of judges to be reduced on the basis of certain conditions and in very exceptional circumstances. The proposal will protect the independence of the Judiciary whilst also maintaining its good public standing following a period during which, through no fault of their own, judges have found themselves in a very difficult position.

As I have previously observed, the safeguarding of judicial independence is of value to every citizen. It means that people can be assured that judges' decisions are taken solely on the basis of law, independent of any fear or favour, whether personal, political or media driven. The power of judges to uphold the Constitution and strike down aspects of our law is a fundamental bulwark against the risk of tyranny and oppression which we have seen too often in other jurisdictions. Impartial judicial decision making and public confidence in that impartiality when disputes occur between the State and-or State agencies and individual citizens is an essential corner stone of our constitutional democracy. Guaranteed this independence, the judicial system in a democracy serves as a safeguard of the rights and freedoms of all the people. We have been well served by our independent Judiciary and I have not, nor will I ever be, found wanting in ensuring its independence is strengthened and secured.

In early 2009, the Fianna Fáil-Green Party Government introduced legislation to apply a public service pension levy on all public servants. The Judiciary was specifically exempted from this levy or deduction, because, it was stated, of the constitutional ban in Article 35.5 on reducing their salaries. In November 2009, when Fine Gael spokesperson on justice, I tabled a Private Members' Bill to amend the Constitution which, had the then Government seen fit to accept it, would have ensured that judges were in a position to accept the same pay reductions which had then been imposed on the public service.

The Fianna Fáil-Green Party Government did not accept my Bill and instead specifically excluded the Judiciary from a levy applied to everyone else paid from public funds. This action put the Judiciary in a difficult position, not of its own making. It resulted directly from the previous Government's interpretation of the terms of Article 35.5 of the Constitution, an interpretation with which I always disagreed. I do not believe that this interpretation was the original intention of the protection afforded by the Constitution to the Judiciary. Such a total blanket protection is inherently unfair and this unfairness has been dealt with by some other common law countries by allowing judicial remuneration decrease in real terms by not applying increases afforded to others paid from the public purse. This, of course, has not been the case in this country and partly as a consequence Irish judges are among the best paid judges internationally. However, given the importance of the Judiciary to our constitutional democracy, this in my view is not a valid approach. Instead, it is more appropriate to take a measured and coherent approach to judicial remuneration.

While the proposed changes will result in savings of approximately €5.5 million per annum, this amendment is not primarily about money. It is all about fairness and the need to ensure that judicial independence is no longer undermined, through no fault of its own, by the perception of judges as an elite group who are not contributing their fair share at a time of unprecedented economic difficulty. I firmly believe the proposed amendment will strengthen and uphold judicial independence while also striking a proper balance between the traditional protection afforded to judges' pay and allowing for the very difficult position in which Ireland now finds itself.

The Bill is short and contains just three short subsections. It proposes that Article 35.5 of the Constitution be amended by the substitution of the following:

35.5.1° The remuneration of judges shall not be reduced during their continuance in office save in accordance with this section.

35.5.2° The remuneration of judges is 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.

35 5.3° Where, before or after the enactment into law of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges.

As is evident from the proposed wording the general protection afforded the Judiciary in most countries is retained. The proposed Article 35.5.1° restates the existing general constitutional protections afforded to judges' remuneration while allowing for certain constitutionally based exceptions to this protection. It is important that this measure be retained. As I have noted, judicial independence exists, not for the protection of the Judiciary but for the protection of citizens. This proposed wording will continue to afford judges full constitutional protection from arbitrary or maliciously motivated reductions by any Government. It was argued in the O'Byrne case in 1959 [IR 1] that the constitutional protection in Article 35.5 extended to exempting judges from the payment of income tax. This argument was rejected by the Supreme Court, with the Chief Justice Maguire noting, "To require a judge to pay taxes on his income on the same basis as other citizens and thus contribute to the expenses of government cannot be said to be an attack on his independence." The proposed wording of Article 35.5.2° simply acknowledges that judges are, like any other citizen, subject to the imposition of taxes and levies.

The substantive change is contained in subsection 5.3°, which is drafted to allow that when, and only when, reductions have been made or are in future made by law to public service pay on the basis of the public interest, these reductions can be applied "by law" to judges' remuneration. Any such reduction must be proportionate. The provision clearly limits the reduction in judges' pay to cuts applying to others paid from the public purse. It also guards against any danger of successive reductions being made to judges' pay alone as it can only be done where reductions are being made to public service pay. I included the term "proportionate" as a Dáil Committee Stage amendment to ensure that no misunderstanding of any nature whatsoever as to the purpose of this provision can arise, and that its intent is clear.

It is important to understand that the proposed amendments will allow for the application of the reductions which have already been imposed on the public service on serving judges. The draft wording adheres, in effect, to the test outlined in a leading Canadian judgment, Queenv. Beauregard 1986 2SCR 56, in which it was stated that:

If there were any hint that a federal law dealing with these matters was enacted for an improper or colourable purpose, or if there was discriminatory treatment of judgesvis-à-vis other citizens, then serious issues relating to judicial independence would arise and the law might well be held to be ultra vires.

There is nothing punitive or excessive envisaged in the draft text. Instead it is proposed that the pay of serving judges will be reduced by the same percentage as public servants on equivalent earnings. To that extent their salaries will be treated proportionately in the same way as the lowest paid officials. In effect, the Judiciary cannot be targeted for reductions and any such reductions can only be made in exceptional circumstances. If the referendum is carried, the reductions will apply from the date the legislation is enacted, it cannot be applied retrospectively.

On Committee Stage I will be bringing forward a minor technical amendment to the text of the proposed Article 35.5.3°. This amendment, which proposes to remove a superfluous expression, that is, "into law" from the first line of that section, is being introduced in order to preserve the norms generally adhered to in the text of the Constitution and to ensure no possible confusion.

The Minister for the Environment, Community and Local Government, Deputy Phil Hogan, has made orders establishing a Referendum Commission for both this referendum ballot and the Abbeylara referendum. The eminent retired High Court judge, Mr. Justice Bryan McMahon has been nominated as Chair for both commissions. As with previous referenda, my Department is required to make a budget available to the commission for the necessary public information campaign. The provision up to a maximum of €750,000 will, if necessary, be the subject of a technical Supplementary Estimate later in the year.

I will outline why this amendment is being put before the people by the Government. Judges are not public servants, they are constitutional office holders. They are, however, paid from public moneys and operate within the public service environment. As the Chief Justice has observed, judges are daily witnesses to the difficulties which the current economic crisis brings — whether in family law, criminal proceedings or civil and bankruptcy cases. I believe it is essential that they themselves are seen to be subject to the very different circumstances which now prevail. The Judiciary itself recognised this through the arrangement entered into by the then Chief Justice with the Revenue Commissioners, which facilitated judges to make a voluntary contribution equivalent to the pension levy introduced in the first of the Acts to which I have already referred. I understand a majority of judges have made this voluntary contribution in respect of the pension levy deductions. However, I am not aware of any judge making a voluntary contribution in respect of the pay cut. There was however, considerable leadership shown by the new Chief Justice, Susan Denham in foregoing the pay increase due upon her recent appointment.

The current provisions of Article 35.5 have, in effect, led to an anomaly that puts judges' pay out of line with pay in the public sector at a time when that pay has been the subject of financial emergency measures that have been approved by the Oireachtas. It is worth noting that the 2009 report of the review body on remuneration in the public sector, which recommended pay cuts for higher paid public servants, stated that the review body would have considered a cut in judges' pay in line with those borne by senior public servants but was precluded from doing so by virtue of the provisions in Article 35.5 of the Constitution. This objective and independent report recognised the duty of judges to contribute proportionately, that is to say, on the same basis as others paid from the public purse, to tackling our financial emergency.

In view of the inequity of the situation and cognisant of the difficult position in which judges found themselves, this Government, as part of our agreed programme committed to hold a referendum at the earliest opportunity on this matter so as to allow the people determine whether the Oireachtas should have the power to cut judges pay on the same basis as it has cut the pay of others paid out of the public purse. By enabling judges to pay their fair share I believe public confidence in the administration of justice will be maintained and enhanced in the eyes of many of our citizens.

I wish to turn to the draft implementation Bill. The proposed wording will facilitate the application to serving judges of the reductions provided for under the two Financial Measures in the Public Interest Acts of 2009. It allows for the type of reductions that have been made or are made "before or after the enactment into law of this section".I have published and circulated informally to all Members of this House the draft heads of an Implementation Bill which, if the referendum is passed, the Government intends to publish with a view to applying the provisions of the two Acts of 2009 to the Judiciary.

In order to be clear about the implications of the referendum, the draft Bill sets out the percentage reductions — replicating exactly the provisions of the 2009 Acts — which would be applied to serving judges. For the convenience of Members I have appended to my script a table setting out the effect of these reductions to serving judges' pay. As Senators will see, the effect of the reductions would be to reduce the pay of the Chief Justice from its current authorised level of €295,916 to a new salary level of €227,168. This level is net of the pension levy which is applied to gross pay. Proportionate changes are proposed for the other serving judges. For example, the level applicable to a judge of the Supreme Court would decrease from €257,872 to €198,226. The salary level of the President of the High Court would reduce from €243,080 to €186,973, a reduction of 23%. Reductions of 20% would be applied to the salaries of the President of the District Court and ordinary judges of the Circuit Court while District Court judges would see a reduction of just over 16% from €147,961 to €123,881.

The referendum will be about the pay of serving judges. However, the Government is also moving to reduce the salaries of future judges and my colleague, the Minister for Public Expenditure and Reform, Deputy Howlin, will shortly publish legislation to impose a further 10% pay reduction in respect of future members of the Judiciary.

The draft implementation Bill includes all the provisions and protections that have applied to the public service. For example, the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 introduced at section 3(1)(b) a grace period for public servants who retired before 31 December 2010 or a later date set by ministerial order. This provision means that pay reductions will be disregarded for the purpose of calculating pension entitlements, including gratuities, for persons retiring before the relevant date. This provision will be applied in an identical manner to members of the Judiciary.

Two ministerial orders have since been made in respect of members of the public service to fix the operative date now applying as 29 February 2012. This means that judges who choose to retire prior to that date may do so unaffected by the proposed reductions.

The approach we have adopted with regard to judges' pay in the context of the substantial fiscal difficulties that confront the Government is fair and proportionate. The fundamental constitutional safeguards of judicial independence that the Government and I, as Minister for Justice and Equality, hold central to our democratic constitutional architecture as prescribed in Bunreacht na hÉireann remain and the proposed amendment does not in any way impinge on them. The amendment will, if the people approve it, make a small but important contribution to the reduction in State expenditure, which we must all achieve to ensure the country is put back on a firm and stable economic footing.

I hope Senators will support the Bill and the constitutional amendments proposed. I commend the Bill to Seanad Éireann.

I remind Senators that the motion pursuant to section 23 of the Referendum Act 1994 on the prescribing of a formal statement for the information of voters to be included on the polling card will be debated in conjunction with Second Stage of the Bill and will be formally moved when the debate on the Bill is concluded.

Ba mhaith liom fáilte a chur roimh an Aire chun an Bille tábhachtach seo, a dhéanann leasú ar Bhunreacht na hÉireann, a phlé. Aontaím le móran den mhéid atá ráite ag an Aire mar gheall ar an leasú seo.

Presumably, this Bill has arisen because of a failure by some judges. Some 126 of 147 judges accepted the voluntary scheme set up by the Judiciary and the Revenue Commissioners to meet the pension levy and the reduction in public service salaries. In principle, I concur with the constitutional amendment, which is necessary to ensure an across-the-board equalisation of these measures. No one, no matter how privileged his or her position, can avoid the imposition of a necessary Government policy, given the poor state of the public finances.

It should be recognised that the Judiciary has served us well since independence. It has acted with impartiality, which is essential under the Constitution. As the Constitution recognises the separation of powers, anything that might infringe upon this separation deserves careful and thorough consideration.

I have two complaints. The first concerns the speed with which these important issues are being pummelled through both Houses. Members on the Government benches were right, when on this side of the House, to be strong advocates of ensuring that all legislation received thorough and careful scrutiny by the House and that superior numbers are not used to sideline the input of others.

Second, this is an important issue and could be seen to impinge on the independence of the Judiciary. There should be a meeting of minds between the parties, yet it is my understanding that there was no consultation on the wording of the amendment between Government and Opposition parties. This is all too reminiscent of the partisan politics seen in particular in the Lower House. I am not pointing a finger at the current Government but this approach does nothing for democracy. We can attribute some of our economic difficulties to the failure of a more mature approach to politics, in particular where issues of national importance are concerned.

The impartiality and freedom from influence of the Judiciary is essential. In this context and returning to my reservation regarding the wording of the amendment, the protection of judges' pay is an essential part of the separation of powers and their independence. The Minister referred to the former Attorney General. I am familiar with his opinions on the necessity of the referendum. I have no legal qualifications but I probably share his opinion. The former Attorney General was of a certain view and advised the Government of the day that it could not unilaterally reduce the remuneration of judges without a constitutional amendment.

Reference has been made to a 1958 case in which the widow of a former Supreme Court judge took a case against the deduction of taxes from her pension. The Supreme Court found that the purpose of the Article was to safeguard the independence of judges and that 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". This is an important point.

In 1996, the Supreme Court held that a judge's remuneration also included his or her pension entitlements. While we are correct to realign judges' remuneration with adjustments made in the public service, other areas of the judicial package should be examined, in particular the pension entitlements of judges. Many of those who assume judicial office are in their late middle ages and have already accumulated considerable personal wealth due to the failure to have an effective competitive system within the legal profession. In just 15 years, they can acquire attractive pension entitlements that do not apply to anyone else in the public service. This situation should be fairly and equitably examined. The Minister said that, under the Constitution, the Oireachtas shall regulate the number and pay of the Judiciary. This fails to take account of the fact that our system of democracy in these Houses has a very rigid Whip system. Any Government, not just the current one, with a majority that imposes the Whip imposes its own view on the Houses. This should be examined. Our Houses' system is very rigid by comparison with that in other countries. Our democratic decision-making process is affected as a consequence of the rigidity. A very small proportion of Members of the Houses, in the order of 7%, can effectively make the decisions of the Houses. This should be examined.

Let us consider the changes to salaries. I referred in this House on a number of occasions to the exorbitant salaries paid to members of the Judiciary. The Chief Justice of the US Supreme Court is paid €130,000 less than the Chief Justice in Ireland. Even after making our adjustments, our judges will be remunerated well in excess of those in the United States.

Some members of the Government to whom I have spoken are concerned that reducing salaries across the board at higher levels may lead to some difficulties in recruiting people to various positions. I do not know whether that will turn out to be the case. Salaries are so high because of the State's failure to control legal fees properly. The failure over many years of successive Governments to tackle the issue is almost unconscionable. It is interesting that the Competition Authority, of which I would have been critical for being so dilatory and slow in dealing with this area, did not produce its recommendations much earlier than December 2006. They have still not been implemented.

There are many issues that could be examined. I have been critical of the failure to set up a judicial council. The Minister is on record as saying this will happen. There has been some dragging of feet within the Judiciary in this regard. It is absolutely essential that it be set up. Consider the case of a High Court judge who had to resign. While most fair-minded people believed that he may have deserved some admonishment for his action, they did not believe it warranted resignation. In another case, a judge who was in the process of being impeached has lumbered the taxpayer with a bill of approximately €3 million for his legal expenses. This is absolutely atrocious in the current climate. In good times, it would have been bad; in bad times it is absolutely appalling. There are a number of issues such as this to be addressed.

On the wording of the referendum, the Minister was at pains to mention the proportionality of the reductions. While I have no difficulty with clauses one and two of the referendum wording to be put to the people, I must draw attention to the third, which states clearly:

Where, before or after the enactment into law of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons [I presume this means public servants, although "classes" is not defined.] whose remuneration is paid out of public money and such law states that those reductions are in the public interest [There is nothing to say it is proportionate.], provision may also be made by law [It is discretionary rather than mandatory.] to make proportionate reductions to the remuneration of judges.

Will the Minister address that specific point? In so far as we will support this, it is essential that any changes made be proportionate and do not discriminate against judges. If they are not proportionate, it would certainly fly in the face of the Constitution.

I welcome the Minister to the House once again. It is almost becoming a second home for him. He would have been interested in the debate this afternoon on the Private Members' Bill in the name of Senator Crown, the Reporting of Lobbying in Criminal Legal Cases Bill 2011. One of the central arguments running through that legislation concerned the need to be absolute in our protection of the separation of powers and the rights of the Judiciary to act independently of the Legislature and others. We must keep this to the fore in our thoughts when we debate the Minister's legislation and the proposed referendum wording. Many speakers said we have been served very well by our Judiciary since the foundation of the State. We must ensure this level of service continues.

It is important that the Judiciary always be respected. It is not important that it be popular with the citizens but it is in everybody's interest that the people have full confidence therein and respect therefor. Unfortunately, over the course of the past 18 months, the debate on judges' pay and the pension levy caused some disquiet among the public, as far as I could learn. The Minister referred to it as unfortunate. Perhaps the status of the Judiciary has fallen to some degree as a consequence of that debate. The referendum, if passed, will bring into law a provision that will, once again, show clearly that the Judiciary is treated no differently from anybody else. That will help to address any difficulties that may have arisen unintentionally.

The Minister highlighted the fact that he had originally published the Bill at the beginning of August, thus giving people an opportunity to reflect on the legislation. I commend him in that regard. He would, I am sure, be the first to concede that August is a pretty silent month where politics and political debate are concerned. The timescale could have been different. It is obviously very opportune, appropriate and correct that the referendum, or referenda, take place on the date of the presidential election. The latter is required to be held before the end of October and, therefore, the referendum will occur on the same day. It would have been preferable had there been more time and had the Minister been in a position to wait another month or two, but it is not practical on this occasion. It would make no sense whatsoever to have a presidential election in October and ask the people to go to the polls again in November or December to vote in one or more referenda. I accept that the timescale has been forced upon the Minister. The little opportunity to reflect in August and September was useful.

The Joint Committee on Justice, Defence and Equality is currently holding hearings on the national vetting bureau Bill. The Minister's approach of sending legislation to the committee in advance is good and I hope we will all benefit from it.

Let us consider the provision to allow for the referendum. I support what the Minister is doing and what he said. It was a suggestion he made when he was in opposition and it was not accepted by the Government at the time. Judges' pay cannot be treated in any sense as being different from the pay of any other public servant. We have a profound, deep and unprecedented economic crisis in the country and huge difficulties with the public pay bill. Nobody has highlighted this more often or more stridently in the House than the previous speaker, Senator Walsh. The problem is being addressed through levies and pay cuts, but it will take some time before it is resolved. It would not be appropriate for one group of people to remain beyond pay reductions or the imposition of levies.

The wording of the proposed amendment mentions proportionate reductions and this is the appropriate language to use. It will send a clear message that this is not an attack on the Judiciary; it is simply putting in place legislation to allow for the Judiciary to be treated no differently — no better or no worse — from any public servant.

I read the submissions we received from the Oireachtas Library and Research Service and I commend it on its work. I also saw the interesting comment from the broadcaster, Vincent Browne, who challenged us to take the simple response of the Oireachtas passing an Act to provide for a reduction in the pay of judges under precisely the same terms as enactments on the reduction of pay of other public servants and only change the Constitution if this is challenged in the High Court or the Supreme Court, and the Supreme Court decides judges are immune from pay cuts to which other public servants are subject. This is one argument, but the constitutional amendment will put to bed the issue once and for all and is the more careful way to resolve the problem.

My party supports what the Minister is doing and we look forward to the Bill being passed and the referendum taking place. It would be ideal if the referendum campaign was engaging and constructive and grabbed the attention of the public. Another referendum will take place on the same day, as will the presidential election. Unfortunately, we will not have a major national debate on this issue but the referendum commission will be obliged, and no doubt will fully comply with the regulations, to ensure both sides of the argument are put before the public by way of documentation and information, and the referendum will be carried out in a fair fashion. I expect it will be carried and, once carried, we will have one law for all in the country, be they judges or other members of the public service.

The Minister also addressed the issue of future salaries and this is also worthy of reflection. The Minister outlined the current pay and the prospective pay of the Judiciary after this change is made. It must be stated that judges are not badly paid. It is important that we recognise the quality of the work required of judges. We need our very best legal minds seeking positions in our courts and even with this proposed reduction, the salaries, incomes and pensions remain very strong and positive. I support the Minister's proposals.

I thank the Minister and greatly appreciate the openness in his approach to his work. I will make a brief point on the national vetting bureau Bill, which was mentioned by Senator Bradford. I welcome the Minister giving us some holiday work and I welcome his office being so open with regard to the questions I have had on the Bill. I thank the Minister.

To turn to the Bill before us, I welcome the Minister's initiative to introduce constitutional and legislative mechanisms through which judges' pay can be reduced in line with that of other public sector employees. It very much echoes public feeling, which the Minister has caught, and it is good that we will put this to a vote of the people. I wholeheartedly agree it is imperative to ensure that no echelon of the public sector or Irish society is immune from contributing to the betterment of the public finances. I hope a similar principle of fairness and proportionality is adopted by other Departments in their considerations for the budgets for 2012 to 2016.

Like the Minister, I commend the recently appointed Chief Justice, Susan Denham, for her decision to forego the €38,000 pay rise she is entitled to as Chief Justice until the issue of judges' pay has been resolved. Nevertheless, I echo the concerns of a number of leading academics, practitioners and the Judiciary itself with respect to the implications of the proposed amendment as formulated on judicial independence, which forms part of the bedrock of the doctrine of separation of powers in Ireland. In its recent response to the Bill, the Judiciary maintained it is not opposed to the holding of a referendum on judges' pay but rather with how the salary reduction should be achieved with the least interference with the principle of judicial independence. Presuming, and with no doubt about, the sincerity of this contention I ask the Minister to explain why the Bill does not incorporate a safeguard whereby a decision regarding judicial remuneration and a reduction in judicial pay is taken at least on the advice of an independent body.

In light of the debate raised about judicial independence, I also ask the Minister whether he intends to move on his previous commitment to review the system of judicial appointments.

These are the two questions I would like to put to the Minister. I will support the Bill but I ask that the Minister addresses my questions.

I welcome the Minister to the House. As Senator Bradford stated, he is spending much time here and he is always very engaging in debate with us, which I welcome.

Like other speakers involved in the Joint Oireachtas Committee on Justice, Defence and Equality I also welcome the opportunity for the committee to hear submissions from organisations on the national vetting bureau Bill. We heard a series of submissions today which were hugely informative. I learned a great deal about how the Bill could be improved. What we learned is that organisations such as the GAA, Swim Ireland, the ISPCC and Barnardos already have in place vetting procedures which are ahead of the procedures set out in the statutory framework provided by the Bill. There will be a good deal of improvement to be made to the Bill following submissions to the committee. It is a very good model for working on the heads of a Bill and improving a Bill.

I will now turn to an issue raised by Senators Bradford and Walsh on the Bill before the House, which is timing. It is important that the referendum be held soon and I am glad it will be held in October, because this debate has gone on rather too long and has been damaging to the relationship between the various wings of power in the State, namely, the Judiciary, the Executive and the Legislature. It is time it was put to rest. I am one of the lawyers who did not believe this referendum was necessary, and I think the Minister outed himself as another member of this group. A large number of lawyers thought there was authority in the 1959 case, O'Byrnev. Minister for Finance, to which the Minister referred and in the wording of Article 35.5 of the Constitution which would have allowed for the imposition of a general public service levy on judges in the same way that income taxes are allowed.

I am glad to hear Senator Mullen also agreed. Many of us had agreed on this. I accept the previous Attorney General and, I assume, the present Attorney General did not share this view. I looked again at Chief Justice Maguire's judgment, and all of the Supreme Court judgments, in the O'Byrne case in advance of today. Chief Justice Maguire stated: "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." This is widely quoted and the Minister quoted it earlier. Chief Justice Maguire's judgment contains extensive quoting from earlier case law, including Judge Holmes's famous dissent in the Evansv. Gore case in the US, which has now been widely approved.

However, having said all that, given that the referendum was viewed as necessary it is imperative that it would be held sooner because we have seen a rather unpalatable development of hostilities between the Judiciary and the Government over this. They have been largely calmed by the announcement that the referendum will be held and by the publication of the heads of the Bill and then the Bill and by the new Chief Justice, Mrs. Susan Denham's well publicised and commendable decision not to take the extra allowance on her appointment as Chief Justice.

On the Bill and its wording, misgivings were expressed about the third clause within it being too broad. My colleague, Estelle Feldman, published an article last week inThe Irish Times about that. Professor Gerry White also expressed doubts on it. The amendment made by the Minister in the Dáil last week answers much of that concern. I am pleased to see an amendment to include the word “proportionate” in clause 3 of the new Article 35.5. The Minister referred to it as the “to be sure to be sure” amendment. He did not feel it was necessary but it was there to copperfasten the assurances that have been given that no revenge attacks would be made on the Judiciary. He quoted the Beauregard judgment and the idea that reductions in judicial pay should never be capable of being seen as some sort of colourable device to pay back a Judiciary which was seen as over-interventionist in the decisions of the Executive. Tomorrow we will debate whether judges were over-interventionist in curbing the powers of the Oireachtas in the context of the Abbeylara referendum Bill. We will also refer to the Callely case in this House which is a bête noir. That is perhaps a different issue. Certainly issues around the separation of powers were raised about the original wording of Article 35.5.3°. The insertion of “proportionate” was an important and useful safeguard. In particular where a climate of distrust had developed it was useful to include an extra provision and safeguard.

It occurred to me when I was reading some of the material around the debate that the provision stipulates only reductions. No provision is made for increasing judges pay where they are deferential to the Executive. Concerns have been raised that judges can be overly deferential to the Executive. It would be an appalling vista if increases were to be permitted.

One other concern has also been expressed about the wording of Article 35.5.3°. It is one that was raised by my colleague, Professor Gerry White, about the before or after the enactment into law of the section, the provision that appears to allow retrospective application of the section. The Minister clearly set out the detail in the implementation Bill but that is specifically there to allow the pre-existing public service levy of 2009 to apply to the remuneration of judges so that there is no need to pass a whole new tranche of legislation so that a similar public service levy might be applied. I wonder whether there was another way of doing it. The Minister said in the Dáil there is no unique wording. I thought that the wording he produced in 2009 was good but I wonder whether there was a more elegant way of achieving the same result that would not have required retrospective application. That is a relatively minor point.

A point raised by Senator van Turnhout that has come up in the debate in recent months has been the issue of an independent body to determine judicial pay. I am not sure whether that is necessary. If judges' pay is determined by reference generally to public sector pay scales, I am not sure whether it would be required to have an independent body evaluating it, but where I entirely agree with her — I made the point previously — is the need for reform in judicial appointment procedures to make sure that there is greater independence around those and that they are more immune to political intervention. There may be something in that regard in the legal services Bill. I might be wrong about that but I thought there was a reference to reform of the Judicial Appointments Advisory Board.

Others have pointed out the importance of the Bill. It is relatively rare to have constitutional referenda. The Bill has implications for the separation of powers. In the light of legal advice that has been received by the Government and the previous Government, both sides of the House accept that the Bill is necessary, that the change to enable reductions to be made in line with the public service levy could not have been done through legislation, and it was not being done on a voluntary basis, although it is fair to acknowledge that 85% of judges have made the voluntary contribution. Given that we accept its necessity we must ensure that the wording is right. The technical amendment proposes to delete the words "into law" in the first line of subsection (3) and is in keeping with the desire to make sure the wording is watertight.

To return to the words of Judge Holmes and the language used in the O'Byrne case, clearly, this is not just a money-saving device. The Minister indicated that approximately €5 million is at issue. Much more importantly, it is an issue of fairness to ensure that judges are seen to contribute proportionately and fairly in the same way that other citizens must do. That is important at a time of great financial crisis. I welcome the Bill.

Ba bhreá liom fáilte a chur roimh an Aire, an Teachta Shatter. The Minister is very welcome to the House. I note his gratitude to us for our co-operation in facilitating the debate at this time and pace. I understand the Government's need to get the Bill through the Houses in time for the referendum. I agree with what Senator van Turnhout said on the approach taken with the national vetting bureau Bill and the fact that we have had early sight of that and a chance to discuss it. Given that this is about a constitutional referendum, it is regrettable that the Bill is being pushed through quickly. The fact that it is a constitutional referendum Bill is all the more reason for us to give careful consideration to it. Giving careful consideration means time to allow people to change their minds. I do not say the Minister's mind is closed but it is more likely that a governmental mind will be closed if legislation is put through at this rate and pace. That must be said.

Article 35.5 of the Constitution appeared to be about judicial pay. It says that the remuneration of a judge shall not be reduced during his continuance in office. However, as Estelle Feldman has pointed out, and our own constitutional jurisprudence testifies, it is not in fact about judges pay; it only seems that way. Article 35 of the 1937 Constitution is about judicial independence. Senator Bacik has mentioned the case of O'Byrnev. Minister for Finance. In that case Chief Justice Maguire held that the purpose of the article is to safeguard the independence of judges. He further stated that requiring 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 upon his independence.” Unfortunately, the former Attorney General and Government did not appear to have accepted that as a statement of law and they excluded the Judiciary from the general income levy citing the article as a constitutional barrier. That is of course the reason the Minister is seeking to remedy that by way of a constitutional amendment.

I have concerns about the wording that is proposed in the referendum. I have drafted an amendment which offers a clearer wording that is less open to misunderstanding and possible abuse in the future. It has been said that the majority of judges have accepted cuts. I note the comment in the Minister's speech that they have accepted one cut but they have not necessarily accepted the other. An issue arises about how the reduction is to be imposed on judges as a class. The Minister set out the legislation that will apply not retrospectively in terms of cutting back into the income already received, but in terms of applying reductions which were decided and imposed on others previously. In the case of public sector unions, they have long-established mechanisms for meeting Government and making submissions in respect of their remuneration either through a formal multilateral process such as the Croke Park negotiations or through meetings with the relevant Minister.

The Minister has ruled out the use of an independent commission to examine the issue. It is understandable that the Government may not wish to overly complicate the matter by setting up yet another independent body when it would be easier to treat judges like senior public servants but as the Minister said himself there is a difference between judges and other public servants in that those working in the Civil Service are working directly for the Executive branch of Government while judges are constitutional officeholders. This must be addressed where there is no such mechanism to consider any judicial submissions. It was this matter that led the supreme court of Canada to consider that any reduction of judicial salaries had to be referred to an independent body. The Canadians have held that if this condition is met, judicial salaries can then be reduced as part of an overall economic measure affecting all of those paid from public funds, much in the same manner as the Government is considering here.

According to the eminent Australian judge, Sir Anthony Mason, "The principle is increasingly accepted that direct negotiation by the judiciary with other branches of government over judicial remuneration is open to manipulation and is incompatible with judicial independence". I cite that in light of what the Minister said in his speech and what was said in the previous debate over Senator Crown's Private Members' Bill, concerning the importance of the independence of the Judiciary. Everybody seems to want to say how much value they place on the importance of judicial independence, but we must examine what is being proposed and consider its implications for judicial independence.

Since no independent commission is being proposed, where does that leave the possibility for judges to have an input into any future decisions on pay? Earlier this year, the Chief Justice met with the Taoiseach to discuss various matters, but it was not long before certain concerns of the Chief Justice were leaked. That was very embarrassing to the Judiciary, as well as being inappropriate. I suggest that it contributed to a certain poisoning of the atmosphere between the Government and the Judiciary. What will happen in future when the Chief Justice meets with the Taoiseach? Will that be the Chief Justice's only opportunity to make certain submissions about pay? Could discussions about pay therefore become some part of aquid pro quo arrangement in which the Executive seeks certain things from the Judiciary and vice versa? There is a real need for transparency and the only way one can achieve that is by having some class of independent body.

I will now turn briefly to the wording of the Government's proposed amendment to the Constitution. I hope we will get a chance to discuss it in more detail on Committee Stage. I note that the Government has already amended its proposal by introducing the word "proportionate". The Minister is to be congratulated for doing so, as that clearly improves the proposal. I consider, however, that other amendments are necessary and that without them this proposed constitutional amendment would be seriously flawed.

The first two parts of this proposed section are unproblematic. The proposed Article 35.5.2o is mostly a statement of already established law. On a plain reading of what is proposed, however, it allows for more than the current law. The entirety of the clause does not clearly prohibit the levying of a tax on a class of persons that comprises judges alone. Therefore my amendment to the paragraph, proposing to delete the phrase “persons belonging to a particular class”, is necessary. It is not a question of any suspected mala fides on the part of the Minister — it is a question of setting out clearly what is to be the position in future, regardless of what future Governments might propose.

I also wish to mention the wording in this proposed amendment which states that the law in question proposing a reduction must state that such reductions are in the public interest. I regard this as a very worrying constitutional development. If the Legislature and the Executive says that the law is in the public interest, then there is no appeal to say that it is not. That is the effect of the proposed wording. It is basically to avoid the possible supervision of the courts. I wonder whether there has ever been a piece of legislation which did not say, implicitly or otherwise, that it was in the public interest. That is a serious problem.

We now have confirmed intentions to abolish the Seanad, strengthen the investigatory powers of Dáil committees, allow a reduction in the remuneration of judges, and reduce the number of Deputies. These changes have one thing in common: they strengthen the hand of the Dáil and weaken the hand of those with an essential role in acting as a brake on the powers of the Dáil. This trajectory reduces transparency and accountability, while increasing Cabinet power and radically changing our constitutional balance.

Judges have been paid too much but the solution to this is not a baldly worded constitutional provision of the kind that is proposed. New pay levels for newly appointed judges are possible and I have no problem with an element of retrospectivity. I seriously believe, however, that because of the importance of judicial independence the wording that we put into the Constitution needs to be much tighter than it is. I hope to discuss that further with the Minister on Committee Stage.

I again welcome the Minister to the House. I also welcome this legislation. Previous speakers have already covered many of the issues I wanted to raise. Earlier today, I referred to the independence of the Judiciary. In my experience over the years, I have found that at all times judges have ensured a clear line is drawn as regards their independence and how they arrive at their decisions.

I have checked the figures concerning the number of Supreme Court appeals that have been lodged. The current Chief Justice published a paper in 2006 on the need to establish a court of appeal. Rather than raising the matter on the Order of Business, the Minister might indicate where we are going on that issue. In the last three years, for instance, the numbers of appeals to the Supreme Court have been as follows: 443 in 2008, 499 in 2009 and 466 in 2010. The number of cases dealt with in the respective years are as follows: 230 in 2008, 228 in 2009 and 233 in 2010. Therefore, only half the cases appealed are being dealt with in any one year.

I am raising this issue because not too long ago I was involved in a family law matter which involved a judicial review of a Circuit Court judge's decision to the High Court, with an appeal to the Supreme Court. Being a family law case it went on longer than it should have. The problem of delays in the Supreme Court process needs to be examined. In particular, when one looks at the figures I cited it appears that there will be no improvement on how appeals will be dealt with in the Supreme Court because of the volume of appeals.

The paper produced by the current Chief Justice in 2006 concerned the need for a court of appeal. We have a Court of Criminal Appeal, but many other issues go to the Supreme Court which raise serious questions of whether they should ever come before that court. We should have another process for dealing with them. At the time, Mrs. Justice Susan Denham was of the view that there was not a need for a constitutional amendment to deal with the issue. The question is, however, whether or not we should have examined that and catered for a change in this area involving the establishment of a court of appeal, rather than all matters going on appeal from the High Court to the Supreme Court. The time factor involved is also important. That issue is relevant now due to the volume of commercial law that is ending up in the Supreme Court. As a result, there are many other areas which, unfortunately, cannot be given the same priority.

There is specific provision that constitutional issues must be dealt with in a particular period of time, but some matters are being put back and not dealt with within the required period. I know that the main issue before us is the constitutional amendment on judges' remuneration, but perhaps in his reply the Minister could touch on the issues I have raised.

I welcome the Minister to the House. I do not claim any expertise in legal matters but I do have some questions to pose. Could the legal advice that the referendum is necessary be placed in the Oireachtas Library, as constitutional lawyers may wish to consult it at some future stage?

The Minister said he was not aware of any judge making a voluntary contribution in respect of the pay cut. That is surprising. I thought there was a response. Apparently they were willing to accept the pension deduction but nothing — subject to confirmation by the Minister — as regards the pay cut. I note the cost of the referendum at €750,000. I ask the Minister to clarify if this is the cost per referendum. How much will be saved by holding the presidential election and the referenda on the same day? I thank the Minister.

I welcome the Minister back to the House. I have a question for the Minister and then I wish to make some comments. I was somewhat confused earlier when the Minister said that if the constitutional amendment is passed, the reductions in payments could not be made retrospectively. I assume from what the Minister said that the pay cuts applied to the public service in 2009 will be applied but that the money cannot be clawed back. If this is the case I am quite happy with the provision. I was leaning towards supporting Senator Mullen's amendment but I will await the Minister's response. Some of what the Minister has said in his contribution has already reassured me regarding some of my concerns.

The constitutional amendment is targeted at equality between the judges and other public servants and I support such a provision. The Minister rightly points out this is not just about saving money, but rather achieving equality in how pay cuts and levies are applied across the public sector. I refer to the 2009 Acts which provided for these pay cuts. Many argued at the time, including the Labour Party and I also supported the view, that those pay cuts were not applied fairly because those at the top of the public sector did not take the kind of share of the pain they should have taken. The conditions set down in the budget for some very senior public servants were subsequently changed in the Finance Bill. This decision annoyed and shocked many people.

We are discussing judges' pay today but there is also a public concern about the levels of pay for very senior public servants. I refer to the recent revelations that county managers across the country stand to receive pension packages of between €340,000 to €500,000. We also know that many former Ministers who lost their seats in the general election walked away with very generous pension payments of between €350,000 and €500,000. People on low pay see these kind of payments being made and they ask why can the Government not take action regarding these kind of payments not just to politicians, but also to those at the very top of the public service who still earn very significant salaries. I would also include the senior bankers who were in receipt of very generous lump sum payments, so-called bonus payments and performance-related payments. There was understandable public anger when bankers in nationalised banks were still receiving significant payments from the State in the form of salaries and other payments.

I hope the Minister and the Government will look at all of these issues. We cannot say to low-paid workers who are working under the JLC, joint labour committees, systems that they should take pay cuts to bring them into line with similar workers in Europe while not making the same comparisons in the case of politicians, senior public servants and judges. Senator Mooney hinted at this when he made the point that judges in this country were overpaid compared with their counterparts in the US, Europe or anywhere else.

In today's economic climate it is essential that leadership is shown. Before the election Sinn Féin proposed that no public servant should be in receipt of a salary in excess of €2,000 a week or €100,000 a year. I do not see how anybody can take any more than three times the average industrial wage, given the current circumstances.

The Minister's party suggested a pay limit of €200,000. I support the Minister in his attempts to deal with judges' pay and it is a very welcome initiative. However, much more needs to be done if the public are to have confidence that those at the top, both in the public and private sector, will take their fair share of the pain which others are taking. If the Government and the Minister and his Cabinet colleagues, including those in the Labour Party, are going to take money from the pockets of those on very low pay by way of changes to the JLCs, then the start should be made with those at the top. I support the Bill and my party will support the referendum. I am sure if Paddy Power were taking bets on the referendum being passed it would be a significant odds-on bet. I do not think the referendum will pose any danger for the Government. It is an important amendment and I hope the Government will go much further. The programme for Government was specific that this legislation was required and many people will be watching to see the action the Government will take to cap the pay of very senior public servants and chief executive officers of semi-state bodies and of those in the banking sector.

It has been reported in the media that a number of judges have indicated their intention to retire although this is not to say this will be as a result of the referendum. Has the Department received any indication of the number of judges who are due to retire between now and next February? Are the media reports true? Following on from the point made by Senator Cullinane, how will the Referendum Commission deal with this referendum considering it is required to put the argument equally for both sides. The commission might be hard pushed to find people who will argue against this amendment.

Like the referendum on the death penalty.

I thank Senators for their contributions. In response to Senator O'Brien when he said he does not think anyone will oppose the amendment, I have no doubtThe Irish Times will find a couple of people to write articles in opposition, whether those articles are well informed or ill-informed.

I will deal with the specific issues raised by Senators and I hope they will forgive me if I do not necessarily deal with them in the order in which they arose but there is a conjunction of some issues.

I thank Senators for their general support for the measure and I appreciate this support. Senator Mullen has an issue with the wording which perhaps we can deal with on Committee Stage. However, in my view, there is general support for the wording of the amendment. Some Senators raised the issue of the need for the judicial council and what might be happening in that regard. I confirm that this is part of the programme for Government and legislation will be enacted to provide for the judicial council. Legislation was drafted within my Department and the previous Government had some engagement with the Judiciary on the issue. I hope the legislation will be published next year as the Government has other priorities ahead of it. However, work is being done on that legislation.

It is most unfortunate that legislation to establish the judicial council was not enacted many years ago. There is a range of reasons this legislation is needed but because of limitations on time today I will not deal with them now. However, I reiterate it is part of the programme for Government.

As regards the issues that have been raised, I wish to be very clear on what is the basic principle behind the Bill and which I have repeated in different ways in the course of my speech. The provision will apply to members of the Judiciary similar salary reductions as have been effected by persons within the public service on similar salary levels paid out of public funds. This measure is to ensure there is no remaining issue about the pension levy. Senator Bacik accused me of coming out on the pension levy. Indeed, I came out on that issue a long time ago when in opposition when the previous Government said there was a constitutional obstruction to applying the pension levy, by legislation, to the Judiciary. I disagreed and still disagree on that issue. However, there is clearly a constitutional prohibition on applying a salary reduction. The O'Byrne case eloquently describes why I believe the previous Government was wrong on the pension levy, but able lawyers can argue each way on that issue. In the context of it being clear that we need a referendum to deal with the remuneration issue, it is important that we remove any doubt about these matters.

The form of wording we propose deals with the two areas. It deals expressly with the income tax issue, which was dealt with many years ago in the O'Byrne case by the Supreme Court, and with the levy issue about which there are differences of opinion. While the majority of the Judiciary has voluntarily contributed to the pension levy, a minority has not and that minority cannot be required to do so other than by the referendum being successful to remove the doubt about it, followed by the application of the legislation.

Senator Barrett asked about the legal advice with regard to remuneration. Mention was made of the view expressed by a well known broadcaster that we should just legislate and ignore the Constitution. We cannot ignore the Constitution. No Government can stand over publishing legislation that is unconstitutional and we cannot simply enact legislation without a constitutional change to reduce the salary of judges, even if the reduction is, as intended, confined to similar reductions to those of others paid out of the public purse. That would, under the current Constitution and no matter how one looks at it, be a clear violation of Article 35.5. It does not take a legal scholar to know what the current Article says. All one need do is read it. It is clear that we cannot reduce the salary of judges in any circumstance during their period of holding judicial office. This is paraphrasing it, but that is what it says.

The idea that a Government can, gung-ho, enact legislation through both Houses and apply it to the Judiciary is nonsense. Should a Government attempt to enact such legislation, the President would be right to refer it to the Supreme Court under Article 26 of the Constitution. Then, after the expenditure of large sums of money for a solicitor and counsel to argue the toss either way before the Supreme Court, the case would be lost and we would be back to the first stage. I find it extraordinary that people who engage in public commentary should propose such a way of approaching matters. I assure Senator Barrett that there is no detailed piece of legal advice that needs to be laid before the House on this issue. The Constitution is clear. The Senator should read the seminal work by John Kelly who deals with the issue and some of the works by others who have written about the Constitution.

Senator van Turnhout and others suggested we should set up an independent group to assess what the salary of the members of the Judiciary should be. If we do that, we do the exact opposite of what we intend. Setting up an independent group to assess what the salary of sitting judges should be would seriously violate judicial independence. We would be appointing a group that was unaccountable to anyone, including Parliament, to pronounce from a height on what we should pay judges. The judges could not be part of that group because they would not be independent. Who could be part of that group? If the group reached a decision that judges currently in receipt of "X" should now be paid "Y", on what basis could that be explained other than that the Judiciary was being targeted separately from everybody else? This is not about targeting anyone. It is about ensuring that we continue to protect judicial independence, but it also provides for a system that is fair and applies readily identifiable criteria to ensure the Judiciary has applied to it the same salary reductions that have applied across the public service.

What is the litmus test of this being an independent, non-targeted approach? The litmus test is the provisions contained in the 2009 Act and the financial figures I have provided which are readily, independently identifiable as not targeting the Judiciary in some separate way rather than being the decision of some body conducting a value judgment on what we should pay sitting judges, which would be undesirable and would be an attack on judicial independence. I was surprised that was a proposal contained in a document that appeared on the Courts Service website.

It is important that we are very careful how we proceed on this issue and we must be careful to ensure that we recognise the huge importance of judicial independence. In an economic crisis, it is important that judges are not immune from the impact of that crisis and that the public do not perceive them as inhabiting a world different from that of the rest of us and different from the world inhabited by those on whose lives they adjudicate. It is also important that in so far as there are fiscal problems being experienced by the State at a time of economic crisis, the reductions in salary that have applied to others paid out of the public purse apply to the Judiciary proportionately and fairly, no more and no less. That is the intention of the legislation before the House.

I was asked about the costs involved in the referendum. There are savings in having two referenda and a presidential election on the one day. Some of these savings are obvious, such as, the personnel involved in counting. The personnel are assembled on one rather than on three occasions. Perhaps the counting will go into a second day on some issue, but this happens in general and by-elections on occasion. Also, the ballot takes place in a location that holds the boxes for the presidential election and for two referenda.

I will refer now to my note on the finances of the matter. The position is that the Minister for the Environment, Community and Local Government, has made an order establishing the Referendum Commission. This means the same commission will act for both referenda and we will not need two separate commissions, the workings of which incur some expense. It also means the costs will be split proportionately between the two referenda.

As I mentioned, my Department is making available a budget of up to €750,000 for the judicial referendum. It is a matter for the commission in its independent judgment to determine how to present the case. Senator O'Brien wondered how anyone would present the case against us. No doubt, someone will and there will be arguments to be included. It is for the commission to decide on the necessity to spend all or a portion of the moneys in the context of the manner in which it believes and determines the public should be informed.

There are also some costs associated with running the poll. These refer to the printing of ballot papers or referenda papers, the circulation of the Bill and the printing and distribution of the statement furnished to voters as to the nature of the referendum taking place, which is normally furnished by the State. The estimated cost charged to central funds in that context is approximately €430,000. It might be of interest to note that some of the staff costs associated with distribution of ballot papers and boxes for the second Lisbon treaty referendum amounted to approximately €800,000. That was for a far more complicated issue than the judicial referendum. I am hopeful that communicating the message as to what this referendum is about — dealing with judges' pay — will prove to be a good deal less expensive and controversial.

The estimated cost of the referendum is between €1.1 million and €1.3 million but the savings in a full year will be €5.5 million. Members can see it might be a small sum in the overall realm where we now no longer talk in millions but in billions but, nevertheless, within my Department, a saving of €5.5 million in a year would make available funding for other purposes that may assist groups and organisations for which money is tight at the moment or could release moneys to be put into the legal aid system in circumstances where the Legal Aid Board and the law centres are under huge pressure. It may be a small sum in the overall scale of the world but it is an important sum and it will introduce a sense of fairness into the system.

I hope I have largely covered issues raised. The issue of the backlog in the Supreme Court was raised by Senator Burke. It is a concern that a substantial backlog has developed. It can take in excess of two years for an average appeal to be heard unless there is a reason for the court determining an appeal has exceptional and particular urgency, in which case it may be advanced. A number of years ago, the membership of the court was increased by the Government with the Courts Service allowing for additional appointments and it was envisaged at that time that there would be a development whereby the court, which must operate independently of Government and politicians, because of the number of judges appointed to it, would identify appeal cases that could appropriately be heard by a division of the court.

The court, in hearing appeals when I started off as a lawyer, had five members and, frequently, cases that were not seen to be particularly onerous were determined by a three-person court and the five members would only preside over cases of particular difficulty or public importance. When the number of judges in the court was increased, it was anticipated that would facilitate two divisions of the court. We might have had two courts of three judges able to hear appeals in respect of which there were not major, complex legal issues to be addressed but, in practice, that has not emerged. It is a matter for the Chief Justice as to how she orders the court in the new legal term but there is a concern at the time it is taking for appeals to be processed.

It is part of Government policy that we provide for a civil court of appeal. Legislation is necessary for that and serious consideration is being given to provide constitutionally for a court of civil and criminal appeal in order that important courts such as this should be referred to in the Constitution. That may be an issue for the next round of referenda in the context of the substantial constitutional reform agenda of the Government, which has been signposted in the programme for Government. A public consultative process will be undertaken in respect of other constitutional issues which people have concerns about and believe might be addressed. It is something we will come to. As Minister, I have to be conscious, again with limited resources, from the legal perspective, that the establishment of a civil court of appeal would be of great benefit. I believe many cases that would otherwise go to the Supreme Court could finish at that level. It may ensure appeals are heard a good deal sooner and ensure only cases of great complexity go through an appellate system to the Supreme Court.

However, establishing a new court structure would generate additional expense. Within the context of the justice envelope, I have an obligation to reduce the spend by approximately €340 million by 2014. There will be a difficulty reconciling the establishment of a new court, which I favour with the fact that I am restricted regarding resources. I would also like to see a separate, independent family court structure, which will also generate expense. Some of these developments will happen in the second part of the Government's term rather than the first part, during which we hope to further stabilise the public finances and be in a position to implement some of the reforms to which additional costs attach. We can proceed with many reforms now, which either do not give rise to additional costs or which are in the public interest and will reduce costs. I put this referendum in that context.

I hope I have responded to all the various queries raised by the Senators. Some more may arise as we take Committee Stage but I am conscious we are having a restricted exchange. I thank Senators for their contributions.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.