Recent Judicial Independence Seminars: ‘Law, Politics and the Future of Human Rights Act’ and ‘Judicial Independence and Judicial Appointments’

The Judicial Independence Project recently held two seminars for politicians, judges, lawyers and academics, run under the Chatham House Rule. The first, on ‘Law, Politics and the Future of the Human Rights Act’ on 2 February, was jointly organised with Prof Dawn Oliver and Middle Temple. The headline conclusion was that most speakers expected that the Coalition Government’s Commission on a British Bill of Rights would come to nothing, leaving the Human Rights Act (HRA) intact. The nature of Britain’s international human rights obligations – under the Convention but also increasingly, and much more directly, under EU law – entail that Britain cannot really take away from Convention rights but can only add to them. However, some thought that there was still a possibility that the HRA might be weakened after the current process.

Several speakers also argued that the UK courts are not obliged to follow the decisions of the European Court of Human Rights in Strasbourg in every circumstance, and that Lord Bingham’s argument to this effect in the Ullah case was wrong. The UK could make greater use of the margin of appreciation afforded by the Convention to member states. However, there was also positive reference to the dialogue that occurred between the UK Supreme Court in connection with the Al Khawaja and Horncastle cases.

Speakers also acknowledged the phenomenon of public discontent with the HRA. This discontent is based mainly on perception rather than substance and survey evidence reveals very high support for human rights but poor support for the HRA itself, and poor understanding of the Act. But politicians will not ignore this public discontent while it exists.

The second seminar was on ‘Judicial Independence and Judicial Appointments’. Speakers commented on the vulnerability of the Judicial Appointments Commission (JAC). The Commissionis a young organisation but has already been reviewed by the Ministry of Justice (in 2010; the result was positive) and included, and then excluded, from the Public Bodies Bill as part of a list of quangos that were potentially to be abolished. As one speaker put it ‘we’ve planted a daffodil and a number of times we’ve pulled the daffodil out of the ground to review whether or not it’s working’. The JAC needs time to develop and establish itself.

There was some discussion about the role of Parliament in appointments. Some participants (although not all) felt that judges currently have too much involvement in appointment and argued that judicial independence does not require the involvement of judges in the selected of their successors. One suggested that a greater role for the Lord Chancellor and Parliament in appointments would be of benefit to judges. By increasing the legitimacy of appointments and by getting politicians to invest in the process, judges would gain some protection from conflict with politicians. It was suggested that UK Supreme Court justices, in particular, should not be appointed without the approval of a select committee.

You can read short notes of both of these seminars on the Project website:

Law, Politics and the Future of the Human Rights Act

Judicial Independence and Judicial Appointments

Kate Malleson: Taking the politics out of judicial appointments?

[Posted on behalf of Kate Malleson. This post originally appeared on the UK Constitutional Law Group Blog.]

Seven years after the judicial appointments process was completely refashioned under the provisions of the Constitutional Reform Act 2005 (CRA), the system is being looked at again. In November, the Ministry of Justice issued a consultation paper on ‘Judicial Appointments and Diversity: A Judiciary for the 21st Century’ pre-empting the forthcoming report of the House of Lords Constitution Committee inquiry on the same topic. A key issue in both the consultation paper and much of the evidence submitted to the Lords inquiry is the role of the Lord Chancellor in the appointments process. The provisions of the CRA reducing the role of the Lord Chancellor to that of a limited veto over the decisions of the judicial appointments commission (JAC) have been subject to a range of criticisms. The aim of the consultation paper is to address these concerns by achieving ‘…the proper balance between executive, judicial and independent responsibilities’. To this end, it proposes transferring the Lord Chancellor’s powers to the Lord Chief Justice in relation to appointments below the High Court or Court of Appeal while at the same time ensuring that the Lord Chancellor plays a more ‘meaningful role’ in relation to the higher judicial ranks. This would be achieved by requiring the JAC  to consult the Lord Chancellor on potential candidates for the most senior appointments and by including the Lord Chancellor on the JAC  selection panel for the appointment of the Lord Chief Justice and for the appointment of the President of the UK Supreme Court by the ad hoc Supreme Court appointment commission. At the same time, the Lord Chancellor’s current power of veto would be removed.

At first blush, therefore, these proposals look like a sensible attempt to recognise the distinction between the lower and upper ranks of the judiciary, acknowledging what the Lord Chancellor, Kenneth Clarke, has described as the ‘ritual’ element of his involvement in appointments at the lower ranks, while recognising the need for greater political accountability in appointments to the senior judiciary. The consultation paper notes the potential for a democratic deficit if the executive is not involved in the process: ‘We consider that the complete removal of the Lord Chancellor from the entire process would result in an accountability gap and are of the view that this gap increases with the seniority of the appointment being made’.

The first element of the proposed change, the removal of the role of the Lord Chancellor in relation to positions below the High Court or Court of Appeal, has attracted considerable support from those who gave evidence to the Lords inquiry. The Lord Chancellor himself stated in evidence to the Committee that in relation to this aspect of his role he simply ‘goes through the motions’ of reviewing the candidates about whom he knows little or nothing. In contrast, the proposed removal of the Lord Chancellor’s current right of veto in relation to the upper judiciary is far more controversial and it is hard to see that this aspect of the proposed change represents the creation of a more ‘meaningful’ role for the executive. The reason why the JAC was set up as a recommending commission rather than an appointing body, with the Lord Chancellor retaining the final say in appointments, was to provide a potential check on the decision-making of the independent commission in the event of something going wrong in relation to an appointment (whether the error was committed in good faith or bad) and to maintain a meaningful degree of political accountability in the process. The first of these functions would be lost under the proposals and the second would be weakened. In addition, the proposed change is likely to undermine efforts to increase diversity in the judiciary. Experience in other jurisdictions, as well as the UK, has shown that diversity does not automatically improve as the composition of the legal profession changes but requires political will to drive forward proactive changes, some of which are not supported by the judiciary or the legal profession.

A better option for striking the correct balance between the branches of government would be to retain the Lord Chancellor’s veto and for the JAC (and the ad hoc commission in relation to Supreme Court appointments) to provide the Lord Chancellor with a short-list of three names of candidates to choose from for all senior appointments whom the commissions consider to be very well-qualified and appointable. This would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit. It would also maintain the important function of a back-stop in case of error or malpractice.

The Judicial Independence Project recently made a submission to the Ministry of Justice consultation on Judicial Appointments and Diversity. The submission can be read here

Appointments and Diversity: A Judiciary for the 21st Century

The Judicial Independence Project has submitted a response to the Ministry of Justice consultation on ‘Appointments and Diversity: A Judiciary for the 21st Century’, which closed yesterday.

Summary

  • There is a legitimate role for the executive in the appointment of judges. Not onlydoes executive involvement provide a check on the decision-making of the JAC, and the selection commissions responsible for the most senior appointments, it also supplies an important mechanism of political accountability. Above all, executive involvement is critical for fostering the executive’s trust and confidence in the judges. Similar considerations apply to Parliament. If the executive and Parliament are wholly or largely excluded from the appointment process, they might be less inclined to respect the role and independence of the judiciary.
  • The Consultation Paper envisages the reduced involvement of the Lord Chancellorin appointments at the lower ranks of the judiciary, but increased involvement at the higher ranks, through participating in the ad hoc selection panels for the most senior judicial appointments.
  • On appointments to the lower levels of the judiciary, our view is that the goal ofincreasing diversity requires the continued involvement of the Lord Chancellor. Theexperience in a number of overseas jurisdictions, as well as in the UK, demonstrates that improving diversity does not happen automatically as a result of changes in the composition of the legal profession. There is no convincing evidence of a “trickle up” effect. Rather, increasing judicial diversity requires political will to push for reforms, some of which might not be supported by the judiciary or legal profession. Removing the Lord Chancellor from the process of selection to the lower ranks of the judiciary removes the opportunity for the exercise of this political will.
  • On senior appointments, we welcome the impetus to give the Lord Chancellor agreater role. We disagree, however, with the suggested way of doing so. Rather than the Lord Chancellor participating in the ad hoc selection commissions, we favour the commissions providing the Lord Chancellor a short-list of three candidates to choose from, each candidate having been identified by the commission as well qualified and suitable for appointment. This allows for an appropriate degree of executive input by providing greater scope for the Lord Chancellor to promote judicial diversity, whilst also maintaining merit-based selection. It also maintains the Lord Chancellor’s role as a “back-stop” in case of error or malpractice.
  • There should be no serving Justices of the Supreme Court on the panel that selectsany of the Justices (including the President and Deputy President). It is inappropriate for any members of the court to be directly involved in the selection of the other members.
  • A consistent theme in our interviews is that the Constitutional Reform Act is rigidand overly prescriptive. Several interviewees have cited the stipulation of the number of Commissioners in Schedule 12 as an example of this, and hence we welcome the proposal for greater flexibility in determining the composition of the JAC. We agree with the suggested approached to delivering changes to the appointment process.
  • As indicated at paragraph 2, we believe that there are good reasons for involvingParliament in the appointment of senior judges (e.g. the Justices of the UK Supreme Court, the Lord Chief Justice and the Heads of Division). Statements of our views on the scope for parliamentary involvement in judicial appointments and on the dubious strength of some of the arguments made against such involvement can be found in the written evidence we supplied to the House of Lords Constitution Committee as part of its inquiry into the judicial appointment process.

Read the full submission »

Judicial Independence and Parliament

The Judicial Independence Project recently held its third seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence and Accountability: The Role of Parliament’.

The discussion focused on the relationship between Parliament and the courts and reference was made to the idea of ‘comity’ as the basis for this relationship: mutual respect combined with distance. Some worried, however, that comity might freeze relations so that there is little communication between both sides. It was noted that there is no constitutional bar to political criticism of the judiciary. It was generally agreed that criticism (even unfair criticism) does not affect the independence of judges.

Several speakers emphasised also that the high profile breaches of super-injunctions and anonymised injunctions by parliamentarians in 2011 were not breaches of the sub judice rule but rather breaches of court orders which are not captured by that rule. Injunctions of this kind raise different issues to sub judice and a new rule may be required.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Read the seminar note

Catch 22 in the European Debt Negotiations

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One has to pity David Cameron’s position in Brussels last night, with cannons to the left and to the right of him.

The British Government must have known that its request for special protection for the financial industry in the City of London was doomed to fail, and so it did. The crisis context of the negotiations meant that conceding to one special request would lead to 26 others such requests and ultimately to the failure of any deal. In negotiations that are essentially about financial regulation, seeking an exemption from financial regulation was courageous (as Sir Humphrey might have said) as it was guaranteed to raise the hackles of the other participants.

But the decision to veto an EU-level treaty cannot have been easy either, even if it pleased Tory Europhobes (although the decision is also reported to have been approved by Nick Clegg). Britain is now out exactly where British ministers have said in recent weeks that they did not wish to be: looking from the outside at a new international treaty amongst 23 of its fellow EU members. If the Government holds to this position, Britain’s position is likely to becomes like that of Norway and other EEA members in relation to the EU itself: very deeply affected by

policymaking to which it can no longer contribute.  The Government retains some limited options – it can, for example, refuse to allow the new agreement between the remaining countries go ahead within the framework of the EU, although this would scarcely make the UK more popular with other European governments – but it cannot stop the 23 still in the process negotiating a free-standing international treaty amongst themselves. Just how isolated Britain will be in this new environment depends on decisions in a small number of states. Hungary, Denmark and Sweden, in particular, may take the same route as Britain, although they have not been quite so definitive.

If the Prime Minister was faced with Catch-22 last night, spare a thought for those countries Britain has left behind. Britain’s disruptive presence as a sort of curmudgeonly uncle at the European top table can be very useful to other countries that, although not so Eurosceptic, are nonetheless wary of the overweening power of France and Germany within Europe. The dominance of France and Germany in the lead up to these negotiations should be sending alarm bells ringing all over the rest of Europe even if, as the Polish foreign minister put it last week, German inactivity has been more frightening than German action during this crisis. With the retreat of the British negotiators, the deal brought to the table by Angela Merkel and Nicholas Sarkozy will become that little bit more difficult for the remaining nations to resist.

This is unfortunate, because – for the small countries and the indebted countries in particular – it is a bad deal. It is a quixotic attempt to entrench one side of a long debate about economics (that between Keynesians and Hayekians). ‘Balanced budget’ amendments must be inserted into the constitutions of the member states, with the potential for enforcement action to be taken against violators (perhaps by the European Court of Justice and the European Commission). Default on public debt will be prohibited. Austerity will continue not just as economic policy but also as constitutional law. The European Central Bank will not be empowered to directly protect struggling debtor states by buying government bonds. And the Franco-German proposals even try to set up a majority voting rule that would prevent a small country from acting as a hold-out.

This is all very worrying. With the possible exception of Ireland (where there has been a very slight growth in economic activity, although this follows an enormous contraction), austerity has not worked so far and some argue that the insistence on austerity is what has brought us to this pass (c.f. innumerable Paul Krugman columns for the NY Times over the last few years, for example). If, as a famous German once said, the definition of insanity is doing the same thing over and over and expecting a different result, what term should we use for the act of enshrining this methodology as constitutional law?

And in any case, will this constitutional law really be immutable? The 14th Amendment of the US Constitution provides that the validity of the public debt of the United States shall not be questioned. But in the US this does not apply to debt issued by cities or states, which do default on occasion (notably in 2009 when California started issuing IOUs instead of cheques to its employees) and might provide a better analogy with European member states and devolved administrations. And notwithstanding the 14th Amendment the US did effectively default on a small amount of its national debt in 1979 by late payment (although on that occasion the late payment appears, rather comically, to have been an administrative error) and in 1933 when it refused to repay some debt in gold following the collapse of the Gold Standard. The existing deficit arrangements for the Euro area were flouted by numerous states (including notably France and Germany) over the last decade.

All of these arrangements seem to be built up around three premises: (1) austerity will work; (2) the rules will not be flouted; (3) normal democratic politics can survive extreme austerity for up to a decade in the heavily indebted countries. What happens if one of these premises turns out to be wrong?

Judicial Independence 1, Irish Government 1: How not to run a referendum campaign

The voters of Ireland have been busy. On 27 October they elected a new President, Michael D Higgins (who was inaugurated last Friday – more on this election in a moment). They also voted in two constitutional referendums that dealt with the relationship between judges and politicians (the Twenty-Ninth and Thirtieth Amendment of the Constitution Bills respectively). The proposed Twenty-Ninth Amendment sought to introduce a rather complex mechanism by which the pay of judges could be reduced (as the pay of all other Irish public servants has been in recent years). The proposed Thirtieth Amendment sought to create a robust power of parliamentary inquiry.

The Irish electorate voted yes to the Twenty-Ninth Amendment (and by quite a margin – roughly 80%-20%). This proposal was the subject of a previous post of mine (which can be read here). In very brief summary, while I don’t think there can be a problem with the general principle that judges’ pay can be reduced in a crisis, the wording of the amendment is very vague and, for that reason, potentially a threat to judicial independence in future.

By contrast, the electorate voted no to the Thirtieth Amendment (by a narrower 53%-47%). This would have conferred a power to conduct inquiries into ‘any matter’ and allowed the Oireachtas to make findings of fact. It also included what could potentially have been an ‘ouster clause’ excluding these inquiries from the oversight of the courts.*

What explains the differing results? For some, the prospect of more robust parliamentary inquiries in general suggested a move towards a sort of neo-McCarthyism. This is perhaps a little unfair, but given that the government was proposing that one of the first subjects to be inquired into would be the Irish banking crisis (arising out of which criminal prosecutions are still expected) this was not so unlikely as to be dismissed as nonsense.

The results perhaps also disclose a general hostility to authority – particularly to the political and legal elite – in the midst of the current crisis. Whilst the electorate were happy to reduce the pay of the legal elite without bothering unduly about the niceties of constitutional law, they were hostile to the demands of the political elite for additional power in the midst of the crisis, for which politicians are widely perceived to bear the lion’s share of responsibility. As the inquiries amendment was framed, it appeared that this power came at the expense of the rights of the individual citizen.

A lot must be attributed to the nature of the campaign, however. The referendums ran alongside one of the most colourful and controversial presidential election campaigns Ireland has ever had, featuring no fewer than seven candidates. One candidate was repeatedly quizzed on letters of support he had written to an Israeli court on behalf of his former lover, who was convicted of the statutory rape of a teenage boy. One candidate suggested darkly that a minor car accident that turned out to be the result of an accidental tyre blow-out was in fact sabotage and part of a campaign against her. One candidate was Martin McGuinness. Against this lurid backdrop the referendum campaigns competed vainly for attention, and did not indeed get any until the dying days of the campaign. One lesson for future referendum campaigns, then, is to hold them by themselves.

The government’s case was not assisted by delaying publication of the text of the proposed referendums until the last possible moment, just weeks before voting day. It was also not helped by its combative attitude to criticism of the referendums. A late intervention by eight former Attorneys General emphasising the threat to the rights of the citizen and urging a no vote on both proposals was dismissed by the Minister for Justice as ‘nonsense’ spoken on behalf of vested interested in the Courts and the legal profession. Given that the concerns expressed were about the attitudes of the Government this did not inspire confidence.

This mixed result could have been avoided by making the amendment process more open. If members of the public (including lawyers and anyone else interested) had been allowed to participate in the formulation of the text of the amendments, rather than being presented with a badly written fait accompli at the eleventh hour, the resulting text of both amendments would likely have been better and the result for the Government and for the Irish Constitution more favourable. With any luck, these lessons will be taken on board for the Government’s promised, but still elusive, Constitutional Convention.

* This was proposed as a means of overruling a Supreme Court decision that restricted the power of the Oireachtas (parliament) to hold inquiries. In the Abbeylara decision (Maquire v. Ardagh [2002] IESC 21) the Supreme Court held that the Oireachtas has no inherent power to conduct inquiries that make adverse findings of fact against individuals, and can only do so where a specific power is conferred by statute or the Constitution.

The text of the potential ouster clause ran: ‘It shall be for the House or Houses concerned to determine with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry’.

Judicial views on the selection process for senior judges

[Posted on behalf of Kate Malleson]

The President of the Supreme Court, Lord Phillips, gave evidence to the House of Lords Constitution Committee’s inquiry into the judicial appointments process last week. He argued against the introduction of any form of parliamentary hearings for Justices of the Supreme Court or the Lord Chief Justice. In this view, he is joined by most, if not all, the other members of the Supreme Court and senior judiciary who remain to be convinced that there is any role for Parliament in the appointment process of individual judges. More surprising, was Lord Phillips’ view about potential reforms to the role of the Lord Chancellor in the process. He argued that he would like the Lord Chancellor to be on the selection commission for Supreme Court appointments, believing that this would be preferable to the LC having a veto late in the process.

Even more unexpectedly, Lord Phillips strongly objected to the requirement that he must sit on the panel to choose his successor – he said that he had tried to argue that one can interpret the provision to excuse the President when the next President is to be selected but that he had not been successful in persuading others that his interpretation is tenable. Although this is the first time (as far as I am aware) that Lord Phillips has expressed this view publicly, he is not alone amongst the judges in accepting that the current process, whereby the President and Deputy President both sit on the Supreme Court ad hoc selection committee is problematic. There has been a strong groundswell of opinion outside the judiciary that this arrangement is likely to promote self-replication and is inconsistent with all other senior appointments processes in either the public or private sector. It appears from the evidence taken by the Committee that some of the senior judges share this concern. This now, therefore looks like an area in which the Committee is likely to recommend reform.

The last surprise from Lord Phillips was his decision to produce a draft of a provision that might replace the ‘merit’ provision in the Constitutional Reform Act 2005. His amendment read that: “The Commission must select that candidate who will best meet the needs of the Court having regard to the judicial qualities required of a Supreme Court Justice and the current composition of the Court”. Having produced the draft provision Lord Phillips made clear that he himself would object to such a change and would argue against it. What the Committee will make of that position is hard to know.

Human Rights and Judicial Appointments: The Judges meet the Lords

The Lords Constitution Committee took evidence from Lord Phillips (President of the Supreme Court) and Lord Judge (Lord Chief Justice) yesterday. The topic of the meeting was the Committee’s current inquiry into the judicial appointments process but the discussion touched on some broader themes, including the role of the judiciary and of the European Court of Human Rights in Strasbourg.

For watchers of the judiciary the exchange repays watching – you can watch the whole thing here: http://www.parliamentlive.tv/Main/Player.aspx?meetingId=9199

There’s no transcript yet but one should appear on the Committee website soon: http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/.

The most newsworthy part (it received a good deal of press coverage today) was Lord Judge’s opinion that the UK courts are not necessarily bound by the decisions of the Strasbourg court. Lord Phillips expressed the view that the Human Rights Act meant ultimately that ‘Strasbourg is going to win’. Lord Judge appeared to disagree, and suggested that a debate would eventually need to happen in the UK Supreme Court about what exactly the Human Rights Act means when it says that UK courts are required to take account of Strasbourg decisions. It is at least arguable, he said, that having taken account and given due weight to these decisions, the British courts are not obliged to follow them. One might interpret this as a very polite suggestion that the Supreme Court should change its approach to this issue.

(Whether there is an actual disagreement here is open to interpretation, but there is certainly a live issue. At the moment the UK courts treat Strasbourg precedents as binding and a decision that is directly addressed to the UK certainly binds the UK in international law. And while precedent does not formally bind in international law it is generally very persuasive. As such Lord Phillips’ point seems entirely correct. However, traditionally the Strasbourg court has spoken of affording a ‘margin of appreciation’ to states and it could certainly be argued that – again as a matter of international law – Lord Judge is correct to say that there should be some space for disagreement about what the provisions of the Convention mean between domestic courts and Strasbourg.)

On judicial appointments, both judges agreed that the President of the Supreme Court should not have a role in the selection of his successor and both expressed hostility to the involvement of Parliament in appointments. Lord Judge expressed hostility to the idea of a ‘beauty parade’. However, they were open to alternatives, such as the involvement of the Lord Chancellor throughout the process of selection of senior judges (rather than just at the end, as at present) or the involvement of an MP as part of the selection committee. Both judges were at pains to point out that the role of the UK Supreme Court is, unlike some of its peer Courts in other countries, not political and that different considerations therefore apply to selecting judges for it.

Judges and the Media

The Judicial Independence Project recently held its second seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence, Judicial Accountability and the Media’.

Perhaps the most noteworthy part of the discussion was a general acceptance by seminar participants that judges are influenced by the media in their judicial behaviour. The effect is particularly evident in sentencing: sentences have increased significantly in the last 20 years. Opinions differed as to whether this influence is a good thing. Some pointed to the success of media campaigns in overturning injustice, for example in challenging flawed expert evidence in the case of Angela Cannings and Sally Clarke. For others, the media was described as ’emotional, irrational and obsessed with the short term’ and their influence was – or could be – damaging. One example cited was of the change in the law of damages to reflect a ‘compensation culture’ that Government research has shown does not exist.

Participants also expressed concern about the recent use of parliamentary privilege to break court orders and about a more general trend of ambivalence about judicial independence in Parliament. The continuing importance of the sub judice rule was emphasised.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Judicial Independence and the Irish Referendum on Judicial Pay

[This post originally appeared on the UK Constitutional Law Group Blog]

If all goes to plan, this week the wording of a new amendment to the Irish Constitution will be finalised. The amendment is designed to permit reductions to the pay of judges and will be voted on in a referendum on 27th October. The reason for the amendment is well known: the Irish government has no money. In the midst of a general financial crisis, the pay of other state employees has been significantly reduced through levies. Thus far judges have been exempt because of Article 35.5 of the Constitution, which is unambiguous: ‘The remuneration of a judge shall not be reduced during his continuance in office.’ The exemption of judges from a general pay cut was never going to be politically palatable and so a halfway house solution was arrived at two years ago. A scheme was set up whereby judges could voluntarily forego a portion of their salary in line with the cuts to salaries of other public servants. Uptake of this scheme was, not surprisingly, quite slow although by January of this year a significant majority (125 out of 147 judges http://www.rte.ie/news/2011/0106/judges.html) had signed up to the scheme. When it came into office earlier this year, the new government promised to proceed with a referendum to facilitate formal reductions to judges’ pay. This pledge was popular and the amendment is virtually certain to be approved in the referendum.

The core of the new provision (assuming no further amendments) will be Article 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 reductions to the remuneration of judges.”

If passed, the government proposes to reduce the salary of senior judges by 31%. The judiciary are, by all accounts, unhappy about this proposal and let this be known by a memorandum released in July (much to the annoyance of the Minister for Justice, who insisted that it be removed from the Court Service website – an interesting incident for what it suggests about relations between politicians and judges). The judges’ document, available here: http://www.irishtimes.com/focus/2011/judicialpay/index.pdf, was at pains to point out that the judges did not oppose a pay cut as such, but pointed (amongst other things) to the threat to judicial independence created by the possibility of a reduction to judicial pay.

From the way the new Article 35.5.3 is constructed we can surmise that the drafters are trying to manage a difficult juggling act. They want on the one hand to achieve a legitimate mechanism by which reductions in judicial remuneration may be achieved. On the other hand, they want to avoid the challenge to judicial independence that arises if judges’ remuneration can be used as a means of influencing their decision-making. This is a sensible way to approach the problem. If judicial independence is about anything at its core, it is about protecting judges from the kind of very personal worries – around personal pay and conditions, threats to the person and to family, etc – that might create a risk that they would be afraid to make unpopular decisions.

The drafters’ chosen solution is that a reduction in judicial pay must be coupled to a reduction in public sector pay more generally done ‘in the public interest’. Unfortunately because the wording of Article 35.5.3 is rather loose it is not clear that this is what it actually does. The phrase ‘persons belonging to classes of persons whose remuneration is paid out of public money’ seems unnecessarily vague and obtuse. It could mean almost anything. The putative ‘public interest’ test is also too vague. One would hope that most actions taken by the state should be done in the public interest, but the ‘public interest’ concerns that apply to reducing the pay of a civil servant, for example, are not likely to be the same kind of public interest concerns that apply to a judge. Yet as the wording stands it seems that it is the former standard that must be engaged when reducing the pay of judges.

What else could have been done? Three suggestions:

  1. Nothing. In the O’Byrne case ([1959] IR 1) the Supreme Court applied a purposive interpretation to the meaning of Article 35.5, concluding that a requirement that judges pay income tax was not an attack on judicial independence. It might have been something of a stretch for a court that has become more literalist in recent decades, but it could reasonably be argued that a general reduction in the pay of everyone (not just judges) in emergency conditions is not a reduction to the pay of a judge for the purposes of Article 35.5.
  2. A ‘One-Shot’ amendment. The amendment could simply provide for a once-off reduction to judicial pay, leaving the existing Article 35.5 in place.
  3. Just Word it Better. Why not simply state that judges are not exempt from general pay cuts affecting all public servants but nor may they be specially selected for pay cuts, either individidually or as a group? Why not create an independent means for determining what judicial pay should be?

As it stands, the amendment is a classic example of hard cases making bad law. The new Article 35.5 closely addresses a very specific situation but has uncertain application outside of it. It is a shame that a threat to judicial independence in Ireland, even a minor one, should be created just because of bad drafting.