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.

Ireland gets a new Chief Justice…

… and a new barrier broken. Not only will Mrs. Justice Susan Denham be the first woman to lead the Supreme Court, she will also be Ireland’s first Protestant Chief Justice (that the latter point is less remarkable than the former  illustrates that a lot has changed in Ireland in the last 30 years). The soon-to-be Chief Justice’s appointment does not come as a surprise: she has always been very well-regarded and, having been appointed in 1992, is the longest serving member of the Court. Generally regarded as quietly activist on a Court that is more or less ideologically inscrutable (but in practice conservative in recent years), the appointment may give a more liberal direction to the Irish Supreme Court. Two of the most senior Irish law officers are now female. With the recent change of government Ireland also got its first female Attorney General, Máire Whelan SC.

One of the new Chief Justice’s first tasks will be to smooth relations between the government and the judiciary which have been ruffled by a proposed referendum to facilitate the reduction of judicial pay, due to take place in the autumn.

(PS: I am open to correction on this, but I believe Mrs. Justice Denham may also have broken through a somewhat more difficult glass ceiling by being the first Chief Justice to graduate from Trinity College Dublin and not University College Dublin, from whence the vast majority of her predecessors and current colleagues have graduated. There’s hope for us all…).

JI in Ireland: The Case of the Minister, the Billionaire and the Judge

The final report of the Moriarty Tribunal, investigating political corruption, in Ireland last week has led to some trenchant criticism of the presiding judge (Mr. Justice Michael Moriarty). Perhaps unsurprisingly, this criticism emanates primarily from billionaire businessman Denis O’Brien and former minister Michael Lowry, whom the judge effectively accused of corruption in the award of a mobile phone licence to a consortium associated with Mr. O’Brien.

Mr. O’Brien has taken a particularly robust approach to his criticism of Mr. Justice Moriarty. He has set up an independent and official-looking website (www.moriartytribunal.com) which aims to ‘expose the inner workings’ of the Tribunal and refute the claims made in its final report and which should not be confused with the Tribunal’s actual official website (www.moriarty-tribunal.ie). He has also taken to the airwaves, making sweeping statements in TV and radio interviews (for example this one on state broadcaster RTE) about Mr. Justice Moriarty’s competence and independence, and suggesting more broadly that the judiciary in general had closed ranks around the Tribunal despite being aware of its ‘flaws’

The new justice minister, Alan Shatter, has in turn criticised Mr. O’Brien’s statements as an unacceptable attack on the judiciary. And Carol Coulter, writing in The Irish Times on Saturday, suggests that Mr. O’Brien could be prosecuted for contempt of court for his remarks.

The extent to which judges should be protected from criticism is a difficult issue. Mr. Shatter was arguably entirely correct to respond as he did to Mr. O’Brien’s rather wild allegations (interestingly taking on a role that the Lord Chancellor would exercise in Britain). However, given the countervailing concerns we should have for freedom of expression, I’m not convinced that prosecution would be appropriate.

Unit in the News

Some recent mentions of the Unit over the last couple of weeks:

Aiding ministerial achievement, Guardian (14 March 2011)

http://www.guardian.co.uk/public-leaders-network/2011/mar/14/professional-ministers-delegation-whitehall

Calls for merger of Welsh, Irish and Scots offices, Wales Online (10 March 2011)

Goats humiliated by Wolves, Epolitix (01 March 2011)

New Irish government promises sweeping reform that makes British eyes water

As predicted a new Irish coalition dubbing itself “The Government of National Recovery” emerged smoothly from six days of talks to tackle a economic and political crisis far deeper than that which confronted their British counterparts last May. I’ve blogged on the main elements of the key policies here.

Now I turn to the sweeping political and constitutional reforms in the Porgramme for Government, most easily downloaded from this page of the Irish Times, and beginning on p18 of the Programme. These are  substantially based on the work of the Joint Committee of the Oireachtas (both Houses of Parliament) which has been beavering away since 2002.

This work had been undertaken in response to old corruptions and new social change. The context had been transformed by the speed of financial and political collapse of the last two  or so years. Much of the material was cherry picked by the parties in the election campaign. Now the committee’s reports have been dusted down, reshaped and thrust into the wider public arena.  Their weakness is that they appear as a list of measures for which an accessible public case has yet to be made. This will be the job of a year-long Constitutional Convention  to be set up outside the control of the government. Its conclusions will have to be approved first  by Parliament and then by the people in a referendum. This process is mandatory in Ireland. The Constitution requires a referendum for the substantial constitutional changes which political   reform would entail. It also remains to seen what priority  the State and the public will give to such reforms during a period of austerity.  An Irish Times leader summarises:

Constitutional convention will report on possible changes to the PR electoral system, a reduction in the voting age and other issues within 12 months. A referendum will be held on the abolition of the Seanad; a reduction in the number of TDs and cuts in judges pay. The pay, pension and expenses system for TDs and ministers will be changed. The Dáil will sit more frequently. The supremacy of the Executive will be diluted and the power of committees to investigate issues of public importance will be augmented. Freedom of Information legislation, the role of the Ombudsman and local authority reform will move centre stage. These are transformational ambitions.

Pressure for political reform begins in new era for Ireland

Political reform proposals are emerging thick and fast in the wake of the Irish election to try to ensure that never again will such an existential crisis catch the whole country unawares. For outsiders the process just beginning will provide a new and fascinating test  of the relevance of political reform to  real life concerns, rather than a dry as dust theoretical exercise for elites.

It’s quite a  relief to see that the debate so far avoids blue skies constitutional ruminations and focuses instead on practical machinery to strengthen scrutiny and enhance government accountability. The general complaint emerging from the crisis that in a small country like Ireland it was all too easy for a “ golden circle”  of politicians, bankers and businessmen to create the self-regarding and mutually reinforcing nexus that led to disaster. A Dail seminar of former TDs last week made a number of suggestions reported in the well regarded Political Reform.ie  website to improve Dail scrutiny. Some of these will find their echo in Westminster experience. They include:

  • The establishment of  the equivalent of the Office of Budgetary Responsibility
  • Greater scrutiny by the Public Accounts Committee
  • The restoration of Green and White Papers
  • The end of blanket ministerial responsibility for all civil service actions
  • The restoration of the Dail’s power to hold public inquiries (recently curtailed by the Supreme Court).

In a separate list of proposals in the Irish Times, a group of political scientists who edit Political Reform ie  remark that public demand for political reform was “far less foreseeable” than reform of economic and financial management. They submit five specific proposals:

  • The Dail not the government should choose the Speaker
  • The Senate should be used more as a for appointing more experienced and able ministers ( this in the teeth of many calls to scrap the nominated Upper House)
  • Select Committees should be appointed proportionately and legislation placed before them before reaching the floor of the House
  • More power to initiate debate for backbenchers and the curtailment of use of the guillotine (used even more in Leinster House than at Westminster).

These early tranches of reform proposals will by no means be the last.

The British should contribute to the Irish “democratic revolution”

However greatly reconciliation has been boosted by the Good Friday Agreement, Ireland remains a very different country from Britain, certainly in respect of its political system and the currency.  In last week’s election, the annihilation of Fianna Fail “ the natural party of government” has been either hailed as “ a democratic revolution” or dismissed by the radically minded as “a three week holiday from reality.” For Fine Gael, this was the triumph of the non-Obama campaign, casting their lacklustre leader Enda Kenny as  “ the chairman, not the Chief “ and in the certain knowledge that voters would punish those who made promises they couldn’t keep.

What is on everyone’s  mind now is whether the burden of  financial austerity negotiated by the outgoing  government can be eased. Eurosceptics everywhere, not least in the Conservative right at Westminster, will look on in appalled glee as anonymous unelected Brussels bureaucrats damp down feverish expectations of a meaningful renegotiation of the IMF-EU bailout which funds the Irish State to the tune of 18 billion euros a year. So much for a democratic mandate, cry the critics. And of course they have a point. Masochists agree: Ireland has indeed “ surrendered sovereignty.”

Next step, take your partners for the coalition dance.  No three-day pressure here. Amazingly you may think, the exhausted Fianna Fail  rump remains in office; Brian Cowen the outgoing taoiseach did not even stand for re-election.  There is a set interregnum  to March 9 when the new Dail elects the next taoiseach. He then goes to the Park (to the President’s residence,  the old viceregal lodge in Phoenix Park)  to be handed his seals of office by the President. No mystical business here about the shady prerogatives of the head of State.   The written Constitution prescribes the form for Madam President unlike that for Ma’am the Queen (pace the Cabinet manual.)

Noting the growing divergence between them over the balance between higher taxes and bigger cuts, outside observers may doubt the feasibility of a coalition between the centre right Fine Gael and the centre leftish Labour. But Ireland is well used to coalitions. All Fine Gael led governments have been coalitions since 1948 and the last majority Fianna Fail government was elected in 1977. After elections, consensus around the magnet of office quickly asserts itself during the interregnum and awkward pledges tend to be dumped in what is almost a convention of State.  This time, bargaining may be brisk for a day or two as both parties have recorded their best ever results, but Fine Gael, outnumbering Labour by  2 to 1, will win out.

Even the scale of the present challenge and the fate of earlier coalitions will not put them off. In 63 years, none led by Fine Gael has been re-elected. And apart from Labour, all minor party partners have eventually disappeared.
Labour would hope to spared such a fate this time, but the task is daunting and the political  prospects are perilously uncertain. Noone will forget that Labour jumped horses  in midstream from an improbable  coalition with  Fianna Fail to a rainbow coalition with Fine Gael in the mid  1990s. But although charges of  corruption and croneyism were in the air even then, the times were easier overall.  And besides, this time, what other ship is there to jump to, after Fianna Fail’s decimation?

Last week there’s  no doubt that voters compelled  the parties to put the national interest unambiguously first. This pressure was accompanied by a frenzy of media-led demands for reform that featured  in all manifestos. A leading voice is Fintan O’Toole a polemicist who makes a powerful case for reform in his book Enough is Enough and in his Petition for reform. O’Toole and friends balked in the end at standing for election but their onslaught has had an effect. Most parties  favour a year long “People’s Convention “ to go through a long list of suggested reforms – a stronger and less expensive Dail, a tougher and more transparent code of ethics in public life including new rules for  political donations , an electoral commission, wider FoI, independent tax raising powers for local government (all funding is central) and  more accountable planning. Much of  this to be codified  in sweeping reforms to the constitution,  approved by referendum.   Sounds familiar?

PR-STV is identified by many as the bogey which has boosted local clietelism and weakened government. Contrast this with advocates in Britain who see it as the road to the holy grail of better representation.  It all depends where you have reached on your political journey.

Irish political scientists have warned against treating electoral reform as a magic bullet. Much deeeper thought is needed. Their British counterparts are well qualified to make  comparative and prescriptive contributions and alleviate Ireland’s huge anxiety about the future.  Irish experts are almost as familiar with British systems as they are with their own. The British side should adopt two approaches.

One,  they should have the imagination to notice a field of rich endeavour under their noses where they might make a difference. This hasn’t happened yet as far as I know.  And two, they should enter the field by invitation,  free from the ancient taint of  Mother England and  present themselves as  fellow humble seekers after truth.