Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Bill 2011: Committee and Remaining Stages

In accordance with the Order of the House today, Committee Stage will be taken now. Before Committee Stage commences, I would like to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment, which is contained in the Schedule to the Bill. The sections of the Bill are merely technical and, therefore, in accordance with Standing Order 122 and long-standing practice, consideration of sections 1 and 2 is postponed until consideration of the Schedule has been completed. Is that agreed? Agreed.

AN SCEIDEAL

SCHEDULE

Tairgeadh an cheist: "Gurb é an Sceideal an Sceideal a ghabann leis an mBille."

Question proposed: "That the Schedule be the Schedule to the Bill."

Amendments Nos. 1 and 2 are alternatives to each other and must be discussed together.

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 asmala 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.

We are discussing amendments Nos. 1 and 2 together. In amendment No. 2 we will effectively delete the wording "into law". Those words are being deleted in the context of what will be Article 35.5.3°. If that amendment is accepted, it will read, "Where, before or after the enactment of this section, reductions ...", and the words "into law" are therefore superfluous. That is why we are making the proposal. I hope there is no great difficulty about that.

I listened with interest to what Senator Mullen had to say. Before I deal with the specifics of his amendments, I stress that it is important to understand that the Government's proposed change to the wording is only a microscopic element of the Constitution and, if it is successful, what will be the new Article 35. It will be placed within a constitutional architecture that expressly provides for the separation of powers and continues to assert the independence of the Judiciary. The overall content makes it clear that the Judiciary cannot, as a class, be targeted individually. It would be in violation of the overall constitutional architecture, the spirit of the Constitution and the other provisions within it for another Government with malicious intent to follow the route that Senator Mullen suggests might be followed if the proposal we have brought before the House is not amended. I do not believe the problems he foresees will arise in practice. A Government must apply the constitutional provisions in their totality. It is clear how the amendment will be applied and it will work in the manner that I described in my speech on Second Stage.

I appreciate that Senator Mullen has gone to some trouble to tease out the matter and that he proposed his amendments with good intention. I want to give some specific reasons his amendments cannot be accepted. He seeks to simplify the Government's wording of the proposed amendment provided for Article 35.5.2°. I understand what his amendment seeks to achieve, but it would actually have the opposite effect and broaden the provision beyond what is intended. Specifically, it refers to "classes generally". The difficulty with this term is that it is not clear what classes it applies to. The term "classes" requires to be linked to some object. In this instance, the amendment needs to refer to persons, as the Government's proposed text does. An additional difficulty that arises with the Senator's proposal is that even if the term "classes generally" was acceptable, such a broad term would apply to everyone. The article refers to the imposition of taxes and levies, which are not applied to everyone. For example, those on low incomes or social welfare may be exempt from them. It is for this reason that the Government's wording for the constitutional amendment specifically refers to persons belonging to a particular class. As I said, the Government's wording also ensures that a class cannot be picked out in a discriminatory fashion, for example, by virtue of their profession or the fact they are judges. We cannot say: "We are going to target this class for a pay reduction because they are paid out of the public purse". Another group that is paid out of the public purse has to be identified, and the reductions must be proportionate.

Senator Mullen proposes a similar amendment to the proposed wording of Article 35.5.3°. That is the one to which the proportionate issue applies. Again, I understand the intent of his proposed amendment to this article. It is proposed to set out a date from which reductions have been or are made by law. I accept that the Senator seeks to capture the reductions that have been applied since the commencement of the Financial Emergency Measures in the Public Interest Act 2009. However, it would be very unusual to amend the Constitution and insert a specific date reference. It would go against the norms that are generally adhered to in the text of the Constitution. I do not consider such an approach is desirable, nor is it necessary. The Government's text already encompasses the financial emergency measures taken since that date by virtue of the phraseology contained within them. The amendment refers to cases in which "such law is in the public interest". This terminology is ambiguous and would open the section to challenge. If the wording was accepted, it would be a matter for the court to determine whether a law was in the public interest or otherwise. The Government's proposed wording is clear. The section applies only to a law that the Oireachtas has passed and which is stated to be in the public interest. Senator Mullen asked whether the Houses of the Oireachtas could do anything at all simply by stating that it was in the public interest. That would require a serious breach of faith by the Houses, but it would also require both the Government and the Houses to ignore the other provisions in the Constitution that delineate the separation of powers.

The Senator's proposed amendment also refers to "general classes". The use of this term would change the intent of the article, which seeks to apply the same measures to the Judiciary that have been applied or may in future be applied to public servants who are subject to the financial emergency measures. The term "general classes" applies to a much greater range of persons than is intended. It applies to anyone who receives remuneration from the public purse, and not merely public servants. If I accepted the amendment it would mean that a person employed in the private sector who takes any work for which he or she receives remuneration from the public purse would be subject to the provisions of the Financial Emergency Measures in the Public Interest Act 2009. Thus, the private sector electrician who is employed by the Department of Justice and Equality or the Department of Defence to carry out some minor electrical repairs would or could be subject to the provisions of the 2009 Act. I do not think this is what the Senator intended when he proposed his amendments, and it is for that reason that I must oppose them.

I assure the Senator that the concerns he expresses about the possible interpretation or application of the Government's proposed wording are not valid. The Government's proposals are based on acceptance of the proposed changes by the people in the referendum, the specific wording of the amendments that are before the House and the general constitutional architecture into which they are to be inserted. They will be specifically applied to the particular circumstances intended and I do not believe there is any likelihood they will be abused by this Government, any future Government or either or both of the Houses of the Oireachtas.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Question put: "That the words proposed to be deleted stand."

Vótáil.

An Cathaoirleach: Will the Senators claiming a division please rise?

Senators Rónán Mullen and Seán D. Barrett rose.

As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 59, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

Ós rud é go bhfuil sé a seacht a chlog, ní foláir dom an cheist seo a leanas a chur de réir Ordú an lae seo ón Dáil: "Go n-aontaítear leis seo i gCoiste leasú an Rialtais a leagadh síos do Chéim an Choiste ach nach bhfuil curtha de láimh, go n-aontaítear ailt 1 agus 2, an Sceideal, mar a leasaíodh, an Réamhrá agus an Teideal agus go dtuairiscítear an Bille, mar a leasaíodh, don Teach dá réir sin; go gcríochnaítear leis seo an Ceathrú Céim; agus go ndéantar leis seo an Bille a rith."

As it is now 7 p.m., I am required to put the following question in accordance with an order of the Seanad of this day: "That the Government amendment set down for Committee Stage and not disposed of is hereby made to the Bill; that sections 1 and 2, the Schedule, as amended, the Preamable and the Title are hereby agreed to in Committee and the Bill, as amended, is accordingly reported to the House; that Fourth Stage is hereby completed; and that the Bill is hereby passed."

Cuireadh an cheist.

Question put.

Will the Senators claiming a division please rise?

Senators Rónán Mullen and David Norris rose.

As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 59, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question declared carried.