Although it’s not clear when exactly it was drafted, and by whom (the PDF’s author is unhelpfully shown as “User”) and who exactly put their names to it, on Thursday last the Irish Courts Service published onits website – http://www.courts.ie – the complete statement by the Judiciary in response to what is understood to be the proposed wording to be used in the planned referendum to reduce judges’ pay. The 12-page statement by the Judiciary (I used the capital “J” for judiciary to indicate the Irish judiciary and assume there was some degree of consensus as to the content and wording of the statement by all the judges) is available from the courts.ie website here. (UPDATE: 13th July, 2013. The statement has now been removed from the courts.ie website but you can still access it here) You might want to look at it sooner rather than later because it is today reported that the Minister for Justice and Equality and Minister for Defence, Alan Shatter had sought, presumably on Friday last or yesterday, to have the document removed. It seems the minister felt it inappropriate for the document to be published on the courts.ie website. Where he did feel it appropriate to be published is not clear. Boards.ie perhaps, or maybe Twitter machine expert, Vincent Browne might have helped the judges set up a Facebook page? In a display of judicial independence, it seems that the minister has been told to get the lost, for the time being at least, and the Courts Service is, for now, continuing to display the document.
It’s a pretty peculiar story but it seems (it “is understood” according to an article in today’s Sunday Independent) that the reason the Judiciary decided to publish the document in full was in response to what are believed to be selective (or as the judges might say “tendentious”) leaking from the document in the Irish Times last week. Certainly the Irish Times reporter, Paul Cullen was able to correctly claim that the judges’ document was 12-pages long and it seems that the quotes used are indeed taken from the document. The Irish Times further reported that the document was “drawn up by four senior judges at the request of the Chief Justice, Mr Justice John Murray, and the President of the High Court, Mr Justice Nicholas Kearns” and that it was handed by the Judiciary to the new-ish Attorney General, the €169,475-a-year Maire Whelan who is then understood to have passed it on to Minister Shatter. It is not immediately clear from the Irish Times report what passage the judges might have felt was “selective”. There is a second article from the Irish Times last week which reported an interview with Minister Shatter where a number of matters, including the planned referendum, were discussed. Perhaps the judges just wanted to make sure their side of the story was in the public domain to ensure there was an informed debate on the wording to be used in any referendum. That being the case, one would wonder what the appropriate forum was for the publication of the judges’ views. Hardly the Department of Justice and Equality’s website. At 12-pages, it’s too long for a letter to the Irish Times.
The document itself is an interesting argument in favour of an independent body to determine judges’ pay. The judges state that it is not the principle of a pay-cut that is at issue, but instead how a pay-cut is to be effected. Mind you, the judges do set out over at least five of the 12 pages why pay is so important and particularly highlight restrictions on judges which might justify high rates of pay eg inability of judges to practice after retirement, exclusion of certain roles after retirement, inability of judges to secure income from other offices (didn’t stop some of them speculating on the property boom though)
There are extensive references to constitutional judicial independence elsewhere – theUSA,Canadaand the EU for example. And the judges say “many judges dealing with asylum and immigration cases have encountered country of origin information dealing with the position of judges in developing countries where the independence of the judiciary is parlous and where such judges have limited institutional independence”
The document is remarkably illiterate eg “The ultimate decision on would, of course, be entirely a matter for Oireachtas and the People” but its main defect is the omission of any real detail on how to ensure the independence of the body advocated to determine judges’ pay. Or indeed the rules to be adopted by such a body. The judges do make the case well that pay is an important part of the role and that political interference in the setting of ongoing pay must be resisted, lest the independence of judges be put in jeopardy. The judges have particular issue with the indeterminate effects of the proposed wording which they see as exposing the judiciary to, perhaps unintended, ongoing political interference.
And again, the judges’ document is available here. (UPDATE: 13th July, 2013. The statement has now been removed from the courts.ie website but you can still access it here)
UPDATE: 11th July, 2011. The Department of Justice and Equality has provided the Minister’s statement issued yesterday evening, and it is reproduced below.
“Statement by Alan Shatter TD, Minister for Justice, Equality and Defence relating to Referendum on Judicial Salaries.
Our Constitution is based on the doctrine of separation of powers which delineates the separate responsibilities of the 3 major institutions of State, Government, Parliament and the Judiciary. A central principle of the separation of powers is that each of these institutions respects the independent role of each and exercises its function as prescribed by the Constitution. Put at its most simplistic, it is the obligation of the Government to govern, the Parliament to legislate and the Judiciary to adjudicate. The roles of each also on occasion interact, in that the Government is accountable to Parliament and laws enacted by Parliament can be struck down by our courts where they violate constitutional principle.
It is crucial to the functioning of our democracy that each of these institutions show due respect to the roles played by each and avoid entering into areas that go beyond constitutional propriety. In this context, the independence of our Judiciary is crucial in the hearing and determination of cases that come before the courts and neither government nor parliament has any role in the adjudicative process. For its part, in a variety of court cases, the courts have recognised that there are crucial areas reserved to government and parliament in respect of which the courts and the judiciary should play no role and that it is for those democratically elected to office, carrying out the duties of government with the support of parliament, to make decisions about fiscal and social policy and to propose and enact legislation. Moreover, our Constitution details the procedure applicable to the holding of a referendum on any issue. It reserves to the Houses of the Oireachtas the legislative process to initiate the Bill required to ultimately facilitate the people determining in a referendum whether to support or oppose any proposed amendment to the Constitution.
The courts, quite rightly, jealously safeguard their independent adjudicative function from interference by Government or the legislature and the courts’ right to do so is given full respect. That concept of respect and judicial independence also requires that the judiciary do not engage in political advocacy and show due respect for the role of government and parliament.
It is in the public interest that we maintain public respect for each of the 3 major institutions of State which operate under our constitution and that each is seen to fully play their constitutional role in harmony. Unnecessary controversy has arisen over the commitment in the Programme for Government to hold a constitutional referendum to facilitate application to the judiciary of reductions in salaries which reflect those reductions already imposed across the public service. This measure poses no threat of any nature whatsoever to judicial independence in that it is merely concerned with ensuring judicial salaries are treated in the same manner as the treatment of similar salaries across the public service. There is no question of the judiciary being treated differently to others or of being individually or collectively targeted either now or in the future. The measure is intended to ensure continued public respect for the judiciary and to remove any public perception that the judiciary are immune from the unprecedented economic and fiscal difficulties confronting the State which have impacted on the salaries of all who are paid out of the public purse.
It was brought to my attention on Friday that a memorandum on the issue of judicial pay critical of the governments approach to this issue had been placed on the website of the Courts Service, courts.ie. I was surprised to learn of its posting on this website which is essentially provided at State expense to facilitate the publication of court judgements and information about the courts and court services. I can confirm that I asked an official in my Department to inform the Chief Executive of the Courts Service that I did not believe this posting to be appropriate. At all times, I was conscious that the Courts Service has an independent statutory role and it was ultimately for the Courts Service to determine what action to take. I was also conscious of the regular interaction between my Department and the Courts Service in addressing issues in the public interest in relation to courts matters. I am disappointed that this memorandum continues to be posted on the Courts Services website. I am not aware of any similar publication being posted in the past on the website of a Government Department or a State Agency in circumstances in which an issue arose concerning the salaries of individuals paid through such Government Department or State Agency. I believe that this event, which was not sanctioned by anyone associated with the government, is most unfortunate and it remains my hope that corrective action will be taken.”
UPDATE: 4th September, 2011. The Department of Justice has published the text of the amendment to the Constitution. The intention is to replace article 35.5 which presently states
“The remuneration of a judge shall not be reduced during his continuance in office.”
with
“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.”
A “typo” illustrates illiteracy ?
Oh, dear.
@Fergus, new sentence as opposed to clause in existing sentence, omission of word “which” after “on”, omission of article before “Oireachtas”, Standards are usually better here, the drivel you sometimes get from the courts in Belfast is jaw-dropping.
Rajdip,
I haven’t read the document yet.
Your example is of typos.
I gather that the boys and very few girls of the Bench are threatening mass retirement if there is any effort to tamper with “their rights”.
Many of course are also serious landlords and participants in various tax based property consortia. With declines in rents and capital values, prospective pay cuts might have their lenders getting very worried. The sight of some of these po faced old men being dragged through the Commercial Court would be a delight.
Hopefully they will carry out such a threat as it will allow for the appointment of younger and more progressive faces in their place
I’d be pretty wary of “progressive” judges.
There is a serious point at stake on judicial independence. It would be a bitter development if people’s outrage at high salaries paid for from taxes resulted in even greater power for state cronies.
Personally, I favour much more use of juries in our justice system. But apparently that’s too expensive. Or inconvenient!
Hear hear, so the international confidence in the constitutional independence is not only a bulwark -giggles- but and I quote, an essential bedrock of economic confidence on which our recovery from the ordeal to which the state is at present subject is completely premised.
Oh well… I better not comment here, it is Sunday.
However I did pay attention to the footnotes on each of the 12 pages, with references from 1930, 1932, and 1937.
Perhaps all citizens should start to question how this Constitution safeguarded them in the process of this heist performed by financial Institutions and a state that operated in murky waters, as it is obvious that the judges feel that the essence of the constitutional independence must be safeguarded by means of an independent adjudication on what these reductions should be.
Perhaps one day the citizens of Ireland wake up to the fact that we are governed under a Constitution that fails to safeguard citizens.
Dissonance is the truth about harmony.
Hear hear, so the international confidence in the constitutional independence is not only a bulwark -giggles- but and I quote, an essential bedrock of economic confidence on which our recovery from the ordeal to which the state is at present subject is completely premised.
Oh well… I better not comment here, it is Sunday.
However I did pay attention to the footnotes on each of the 12 pages, with references from 1930, 1932, and 1937.
Perhaps all citizens should start to question how this Constitution safeguarded them in the process of this heist performed by financial Institutions and a state that operated in murky waters, as it is obvious that the judges feel that the essence of the constitutional independence must be safeguarded by means of an independent adjudication on what these reductions should be.
Perhaps one day the citizens of Ireland wake up to the fact that we are governed under a Constitution that fails to safeguard citizens.
Dissonance is the truth about harmony.
The comparative international figures on judges’ remuneration in this table are old but the context is clear and the rank order is unlikely to have changed very much.
http://crimson-observer.blogspot.com/2011/05/grounds-for-review-of-irish-judicial.html
I have previously seen very detailed international comparisons for judges’ salaries on the Net but have been unable to find them just now. Maybe someone else could find them.
I have now read the document. To describe it as illiterate in any sense is fatuous, sorry.
Nor can I see it as objectionable in any way, actually.
The document identifies a flaw in the proposed amendment wording, and explains why it is a flaw, very soberly and reasonably.
There is no suggestion, implicit or explicit, that the Judiciary/judiciary will collectively resist either the amendment or a reduction in pay. Shatter, never a friend of the judges (they’ve never liked him,either) wanted, like all politicians to have it all ways: leak selectively and tendentiously from a document, and then protest when the full document is made available.
Incidentally, is 85% a high proportion or not ? Bear in mind that, even adding Fianna Fáil, the proportion of voters backing government policy is considerably less than that.
@Fergus, perhaps there’s a presumption of better standards of literacy from the Judiciary. Perhaps we’ll agree to differ on that point.
But I would take issue with characterising the entry above concluding the statement was “objectionable”. We should value a separation of powers in this country. As we saw during the week with Denis Naughten losing the FG whip when he voted against the government, in effect we don’t really have any separation between legislature and executive – if you’re in FG or Labour and vote against the executive, you’re out. So that makes the separation between the judiciary and legislature/executive all the more important. So the judges are right to promote their independence. And publicising restrictions on judges that don’t, for example, apply to politicians who can have second jobs is perfectly correct. The judges might however have added more flesh to what was meant by “an independent body” – appointed by whom, removed by whom, rules for independently determining judges’ salaries. That is a criticism, but to be clear the document is not at all objectionable.
@Georg
No-one has ever suggested that a Constitution has divine powers.
By the way, unlike many lawyers, I will be voting for the amendment, even if the wording that the judges do not like is preserved.
@Georg
I don’t understand your position.
Do you think that the courts should be independent or not ? Do you disagree that states whose legal systems are not independent are less pleasant to live in ?
Just what is the state of affairs that you are suggesting is preferable, constitution-wise ?
Hi Fergus,
perhaps you remember the charade of the second referendum on the Lisbon treaty, perhaps you find it preferable that after a 100% legitimate NO vote, apparently the Irish Government was able to just wipe it of the table as if this vote never happened, then engaged in a campaign of lies and fear to coerce the public into a yes vote.
Do you think the public was made sufficiently aware about the true character and implications of Lisbon? I doubt it!
Article 344 of this treaty that ‘we’ now signed, will tell everyone that from here on a national constitution can write and amend whatever the Hell they want, it just does not count, what counts is only the court in Luxembourg, nothing else. Declaration number 17 gives further food for thought.
As for the judges text, I think I indicated how risible such a statement on the economy really is. I might be on my own with this view, but I find it remarkable that they create a 12 pager very quickly on the matter, but in the past four years, if memory serves Judge Kelly was so far the only one who expressed what he thinks about the state of affairs concerning the investigations into banking matters.
Then again, I guess we would agree that a blog is entirely insufficient to discuss in greater detail why the Irish Constitution in particular would be best ditched and written from scratch.
Georg,
The statement is not “a statement on the economy”. The courts have no relevant function in that regard. Judge Kelly was commenting on a case before him.
As for the Lisbon Treaty, I voted against it twice, but I fail to see why you have dragged it into this discussion.
Jagdip,
I followed the link you gave for “(didn’t stop some of them speculating on the property boom though)”.
I didn’t find even one fact justifying the remark. Instead, a lot of ignorant nonsense about NAMA (by others, and corrected by you).
This is poor.
@Fergus, in fairness I think the involvement of Ms Justice Fidelma Macken in Quinlan Private (now Avestus) is well reported, for example in this reporting from Property
Week
http://www.propertyweek.com/quinlan-private/3047488.article
I have not seen any suggestion that she has any loan with a NAMA Participating Institution or any other institution, and that consequently she would be eligible for transfer to NAMA. But it appears to be a fair statement that she was involved in property, based on reporting such as that in Property Week.
Of course, it’s fair to say that Judge Macken is or was “involved in property”, but the phrase in the post is less neutral than that.
It’s not that I am attempting to deny that many or even most judges are similarly “involved” – it would be surprising if they were not – or even that some were indeed engaged in reckless speculation. I just felt that the link to a fairy innocuous story did not justify the phrase used, and tended to be unfair to Judge Macken on the face of things.
@Fergus, well we’ll have to disagree then. The phrase used in the post was
“didn’t stop some of them speculating on the property boom though”
and the linked story – https://namawinelake.wordpress.com/2011/06/16/who-are-the-judges-in-nama/
contains a quotation from the Irish Independent “it is understood that a small number [of Irish judges] are to [sic] trying to prevent loans being transferred to NAMA”
If judges were “trying to prevent loans being transferred to NAMA” then is it not a fair statement that “some of them [speculated] ..on the property boom”
I think it is, but we may have to just differ.
Yeah guys, you’re not helping your case here.
What a shower of money grubbers! The judges want permission to retire into one of those lucrative arbitration jobs for private industry in exchange for going quietly on the proposed referendum! The same Private Arbitration industry that allowed the monstrosity of the Jamie Leigh Jones sexual assault scandal to take place.
Expect a clause entitling judges to retire into private industry to be added in due course to the amendment. Expect the Irish judicial system to be affected dreadfully by the result over the coming years, as the US one has. Our judges will all be effectively bought and paid for over the next few years by the prospects of post retirement arbitration positions.
This is still a democracy and the judges are entitled to put forward their point of view.
The judges themselves could solve this very quickly by ALL volunteering a 10% pay reduction and save the country the expense of a referendum. Otherwise the government will get the referendum passed – the wording will be irrelevant.
I think that it’s too late for voluntary solutions – the legal/constitutional position has to be clarified.
A one-off pay cut at a time when the contry is on its knees
does not equal
an attack on Judges’ independence.
@Rob, if you read the 12-page document, and I recommend it as a good read, then you’ll see that it is not (apparently) the cut that’s at issue (which mighn’t be one-off by the way), it’s the wording of the proposed amendment to our Constitution which the judges feel allows too much potential for political interference in the judicial system. What was disheartening about the judges’ statement was that it failed to propose an alternative form of words or indeed detail how an “independent” salary body might work. So cynics might claim that the judges are just trying to kick the issue into the long grass and frustrate a 2011 referendum.
But the statement makes some strong points, in my view, on judicial independence and again, is worth 20 minutes to read.
By the way, the DoJ was asked this morning for a copy of the Minister’s lengthy statement which was apparently released last night but not posted on the DoJ website. There has been no response as yet. And as of a few minutes ago, courts.ie was hosting the document.
http://www.courts.ie/Courts.ie/library3.nsf/pagecurrent/3F7D5483CA1D6AD7802578C6005BF206?opendocument
What I find interesting is that the Judges had no problem with independence when their salaries were increasing. As we all know the increases were fuelled by the Celtic Lunacy.
If judges independence can be compromised by salary decreases surely they are equally swayed by salary increases?
Your thoughts!
@Paddy19
Put all judges back on the salary they were appointed at. Perfectly logical. No decreases. No Increases.
@NWL
After a more detailed reading of the judges statement, I believe that this is more than a direct challange to the government.
It is a direct challenge the constitutional right of the people to determine how they are to be governed. An ignorant, abrasive attack on the right of the Irish people to determine how they will be governed.
How Dare they.
How would people react if the the Department of Defence website publicly attempted to rubbish a proposed government decision to deploy the Army for a stated purpose?
I hope the government immediately gets rid of this new quango that is the COURTS SERVICE.
I also hope that the proposed wording of the constitution takes the opportunity to set judicial salaries by reference to European/ US judicial pay scales.
And of course as @OMF correctly discerns, a special plea to be able to compensate themselves by taking on further work post retirement.
@Joseph, as we live in a republican democracy, there is a separation between those that make laws and those that enforce them (the latter being the judiciary). There should also be a separation between the government that enforces laws (the executive) and the Dail and Seanad that make laws (legislature). The army and Gardai are subjects of the executive, though in Ireland I see that the executive is at pains to separate itself from the day-to-day operation of the Gardai. This is a model of democracies around the world, the UK and US being most familiar to us. The idea is to have checks and balances by separating out functions of running the country, It will never be perfect but its accepted as a decent model.
So I think you should carefully consider what the judges say. You mightn’t like what the judges say but remember the judges act independently under the Constitution and that protects you and me from the whims of politicians and I don’t think you sacrifice that independence easily.
Personally I’d have no problem in an independent body setting judges’ salaries bny reference to the financial means of the country. Love to know how the independent body would be appointed and removed and what rules they would comply with, with setting salaries but those details apart, I think the judges have a point, though they certainly labour the justification of high salaries in at least five of the 12 pages.
@Joseph
I don’t know where to start or end with you.
Where is the challenge ? Both the opening and closing paragraphs make clear that there is no such challenge, in my reading of them.
Even if a challenge was involved, how could the judges win it ?
The judges’ memo states on the first page:
“Article 68 of the 1922 Constitution provided that the remuneration of judges “may not be diminished during their continuance in office”.”
On the second page, it quotes Article 35.5 of the current Constitution:
“The remuneration of a judge shall not be reduced during his continuance in office.”
There is a clear difference between the two clauses. To my non-legal mind, the AG’s advice to the Government about reducing the remuneration of judges as a class was wrong. Maybe he was mistakenly reading the 1922 Constitution which talked about ‘judges’ and ‘their’ when he offered that advice.
Have you seen the text of the former Attorney-General’s advice, then ?
@NWL
I have to strongly disgaree with you on this. Like other posters have hinted, I feel this is simply a last-gasp attempt to avoid pay cuts.
I would go as far as to say it is disgusting to use the excuse their independence is being threatened in this situation. It is extremely hard to take seriously.