It has become very fashionable to tut and shake one’s head at the mention of the word ‘judges’ in Ireland over the past few years. They are, it is suggested, a divided, over protected and selfish elite who refuse to ‘take the pain’ and do not understand what is happening in the (paradoxically mythical) “real world”. They are insulated by the Constitution from having to bear the full brunt of the recession—the story goes—and so we must have a constitutional amendment to make sure that judges’ pay can be reduced and that they can be subjected to the same levels of taxation, pension levies and all the rest of it as everyone else. And so we now have a wording (either proposed or final; it is not entirely clear) from the Department of Justice for the “judges’ pay referendum” which will take place in October of this year. In this post I want to outline a few concerns about the wording, but also a broader concern about the discourse that has recently developed regarding the Irish judiciary; a discourse that I think should be of concern to us all. Let me start this post, however, by acknowledging that my intellectual position is very firmly one that distrusts politics and champions a muscular and non-deferential judiciary; a position that no doubt colours my view on this issue to at least some extent.
According to the Department of Justice, the proposed new constitutional provision is as follows:
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 reductions to the remuneration of judges.
The first two parts of this proposed section are unproblematic and, incidentally, 35.5.2 is really just a statement of already established law. [EDIT: In the comments Cathal Malone rightly points out that on a plan reading proposed Article 35.5.2 allows for more than the current law as it does not clearly prohibit the levvying of a tax on a “class of persons” that comprises of judges alone.] Proposed Article 35.5.3, however, has the air of a freshman constitutional law seminar problem about it. Paul MacMahon has already outlined the possible problems with this here, and really they are immediately obvious. What are “classes of persons whose remuneration is paid out of public money”?? And need the law only “state that those reductions are in the public interest” or must they be bona fide in the public interest? Because here is the thing: if this amendment is done it cannot be found unconstitutional. It is well established in Irish law that an amendment to the Constitution stands provided the amending process outlined in Article 46 is properly followed (there is a copy of the Constitution here). Thus, if a law is passed reducing the pay of, say, departmental managers and judges and is said to be “in the public interest” would any court really be in a position to say that law is unconstitutional based on the new Article 35.5.3? It seems to me to leave entirely too much leeway for uncertainty and for vindictive reductions in judicial remuneration.
I am quite sure that there are those reading this who are rolling their eyes and making the (entirely reasonable) point that as a political matter Irish parliaments are most unlikely to pass a law that reduces judicial pay mala fides, but the point is this: constitutional design is about setting the parameters of governance in such a way as to ensure that these kinds of rupturing scenarios simply cannot arise. Our Constitution is not one that deals with every scenario that can arise, but it is a relatively rigid one inasmuch as the operation of the organs of the state and especially their relationships to one another are relatively clearly delineated. In my view, the proposed amendment threatens to undermine that.
The Broader Point
This then feeds into my broader concern here, not only with the judges’ pay referendum and what, in my view, is the concerning way in which the relationship between the judiciary and the Department of Justice appears to have been managed over recent weeks but also with other proposed changes to the Constitution in the programme for government. To take stock for a moment, we now have confirmed intentions to abolish the Seanad, strengthen the Dáil committees’ investigatory powers, allow a reduction to the remuneration of judges, reduce the number of TDs and (unless this has suddenly dropped off the Labour Party’s agenda) write a new Constitution by 2016.
With the exception of the last of these proposals (which does include, at the moment at least, a participatory element through a constitutional convention) 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 braking the Dáil’s power. This may not be something that concerns everyone, and I readily concede that my intellectual position may make me see this as more problematic than it is, but to some extent at least I find it extraordinary that we are not generally more concerned with the potential for this ‘movement’ to reduce transparency, reduce accountability, increase cabinet power, and radically change our constitutional balance.
My scepticism about politics is shining bright at this point, I appreciate, but the discourse around the judges’ pay referendum suggests to me that this is fundamentally about a kind of rebalancing towards the Dáil. The overwhelming tenor of the “debate” so far has been to present judges as hyper-protected, selfish, divided and elitist and when judges tried to speak back in a collective voice (the only way they can, their constitutional position being as it is) through a memorandum the reaction was scornful. Judges cannot, generally, speak back when political and politicised criticisms are levied against them because they cannot know what they will be asked to adjudicate on in the future. We should be grateful that in this country we have a judiciary that, as Chief Justice Denham said in her statement last week, values and appreciates the importance of judicial silence about some things to preserve the integrity of the system. But this silence comes at a cost; the difficulty is in seeing this is a cost to ‘us’ (the people) rather than to ‘them’ (the judiciary).
There is a reason why the Constitution preserves the independence of the judiciary by, among other things, protecting them from reductions in pay. It is not an elitist conspiracy. It is because an independent judiciary is what protects us as a people from populist, dangerous, unconstitutional actions by the state. If you use contraception, or appreciate your right to have a say in the development of the foundational treaties of the European Union, or agree that a suicidal teenage rape victim ought not to be prevented from having an abortion for example, you should remember that these things are all possible because of an independent judiciary that stepped in where an inert political system would not.
There are legitimate criticisms that can be levied against judges: the judiciary is insufficiently diverse, on occasion judges at District and Circuit court levels in particular say and do callous and unjust things, and, yes, perhaps judges are paid too much. The solution to these things is not a broadly worded constitutional provision of the kind proposed. It is a clearer and more transparent judicial appointments system (which has been blocked by politics), a judicial council for disciplinary and other reasons (again, superior court judges want this), and new pay levels for newly appointed judges (which is entirely possible without constitutional amendment). In my view, the proposed amendment is far too great a cost for us to bear especially in the context of a Dáil that seems determined to achieve a position at the top of the constitutional pile.