Dáil Éireann - Volume 685 - 23 June, 2009
Adjournment Debate. - Fiscal Policy.
Deputy Thomas Byrne Deputy Thomas Byrne
 Deputy Thomas Byrne: Judicial independence is a critical feature of any democracy. The independence of the Judiciary is enshrined in Article 35.2 and subsequent articles of Bunreacht na hÉireann. Article 35.5 provides that a judge’s remuneration should not be reduced during his continuance in office. In light of this when the Oireachtas enacted the Financial Emergency Measures in the Public Interest Bill we specifically excluded judges, military judges and the President from the provisions relating to the pension levy. At the time there were widespread calls for judges to be included in the pension levy. I welcomed the announcement at the time by the Chief Justice that a voluntary scheme would be agreed between the Revenue Commissioners and the Judiciary. However, it was revealed recently that apparently, only 19 of the 148 judges have thus far agreed to voluntarily take part in the scheme. I presume this number does not include military judges. Nevertheless it is most disappointing from the point of view of the Oireachtas. It is also damning to the Judiciary. Failure to sign up unanimously to the voluntary agreement will affect the independence and respect of the Judiciary a good deal more than any forced pay cut.
I fully acknowledge the Judiciary cannot be in hock to anyone and especially not to the House. It must be completely independent. However, it must also have due regard, as it does on a daily basis, for the economic circumstances in which we find ourselves. I acknowledge and welcome the statement by the Chief Justice that he fully expects more judges to join the scheme. The Chief Justice further stated not much time had elapsed since the scheme details were sent to judges. It is critical from the point of view of democracy and the Judiciary that judges sign up fully to the scheme.
The Constitution does not foresee the introduction of a pension levy, such as that recently introduced, as an attack on judicial independence. It is similar to an income tax in that it has broad application. However, I condemn the comments of Deputy Enda Kenny today in which he made a similar argument but stated that the Government made a political decision to exclude judges from the levy. That was a disgraceful remark reminiscent of his allegations about an Anglo Irish Bank golden circle. He was against the pension levy at one stage but now it seems he is for it. If the advice from the Attorney General is absolute, as the Taoiseach today acknowledged, surely there is a case for a constitutional referendum, not to allow judicial pay cuts — I do not believe we should have these — but to allow broad based levies, such as the pension levy to apply to judges if they apply to everyone else in a particular sector.
Deputy John Curran Deputy John Curran
Deputy John Curran: The Deputy has raised a matter on the Adjournment that has been the subject of much comment in recent days. There are two aspects to the matter. First, the question of amending the Financial Emergency Measures in the Public Interest Act 2009 to make the Judiciary subject to the deduction, commonly known as the public service pension levy, introduced by section 2 of the Act. Second, the issue of an amendment to Article 35.5 of the Constitution. On the first question the Government’s decision not to make the members of the Judiciary subject to the public service pension levy was made on the advice of the Attorney General. The advice had regard to Article 35.5 of the Constitution which is entirely clear. In express terms, it imposes a prohibition on the reduction of a judge’s remuneration during the judge’s continuance in office. A judge’s remuneration has been interpreted in previous decisions as including pension rights. The levy is without doubt a reduction in remuneration  and the Financial Emergency Measures in the Public Interest Act 2009 makes clear it is not a tax.
The salary of every judge at the time of appointment is clearly subject to income tax at rates to be determined from time to time. The imposition of income tax does not involve a change in the terms of appointment or an alteration in the remuneration to which a judge is entitled because that remuneration is always subject to tax. The protection in Article 35.5 provides for the financial independence of the Judiciary, a key component of judicial independence. Judges are not employees of the Government or of Government bodies. They are also specifically prevented by the Constitution from holding any other paid appointment.
The second question posed by the Deputy is whether there should be a Constitutional referendum to amend Article 35.5 to allow the Judiciary to be subject to the pension-related deduction. Again, this is an idea that has been well ventilated in recent days. The Deputy acknowledges the importance of maintaining judicial independence. However, it is difficult to see how a referendum on this issue could take place without the risk of doing some violence to that judicial independence.
The independence of the Judiciary is enshrined in the Constitution for very good reason. Financial independence is integral to this independence. The Judiciary ensures that the Constitution is respected and the laws are upheld. To do this effectively, it must be independent of the Executive and of the Legislature. To interfere with that independence in any way would have extremely adverse and unforeseen results and would undermine an essential protection of the rule of law which in turn is vital to the protection of citizens’ rights.
The Constitution deliberately does not permit the Executive to reduce judges’ remuneration, notwithstanding that, like citizens generally, judges are subject to taxation. It is with this fundamental principle in mind that the Government has no plans to amend the Constitution to provide that the remuneration of judges could be reduced by way of the pension levy.
The Chief Justice has made it clear that he expects strong and continuous participation by judges in the scheme put in place by the Revenue Commissioners. I welcome the Judiciary’s initiative in this regard and I am pleased the Chief Justice has high expectations of that scheme. This arrangement with the Revenue Commissioners means the judges can pay an equivalent amount monthly, quarterly or on an annual basis. The Judiciary as a whole is understood not to have been notified of the arrangement until 11 May and any suggestion that judges have refused to make a voluntary contribution is not correct. The Government has always respected the independence of the Judiciary and the constitutional protections provided in respect of that independence. It is essential that we continue to do so.
Dáil Éireann 685 Adjournment Debate. Fiscal Policy.