Courts (Supplemental Provisions) (Amendment) (No. 2) Bill, 1990 [ Seanad ]: Second Stage.

Thursday, 18 April 1991

Dáil Éireann Debate
Vol. 407 No. 2

First Page Previous Page Page of 86 Next Page Last Page

Minister for Justice (Mr. Burke): Information on Ray Burke  Zoom on Ray Burke  I move: “That the Bill be now read a Second Time.”

The object of the Bill, which has passed all Stages in Seanad Éireann, is to amend [407] the law relating to the pensions of the Judiciary and certain court officers, i.e. Master of the High Court, Taxing Masters and county registrars, so as to apply to the pension terms of these two groups certain limited changes in line with similar changes already introduced in the superannuation codes generally applicable throughout the public service.

The main provisions of the Bill, which are broadly similar to those contained in a Bill introduced in 1984 but which lapsed with the dissolution of the 24th Dáil, are as follows.

Section 2 of the Bill proposes in the case of the Judiciary that temporary service as a judge of the Circuit Court or as a district justice prior to permanent appointment will reckon for pension purposes. This change does not apply to court officers as temporary service does not arise in the case of court officers.

Section 3 proposes that periods of less than a complete year, such as odd days and so on, would be included when calculating pension benefits for the Judiciary and for the court officers, respectively. At present, pensionable service is reckoned only in completed years.

Section 4 proposes to give power to the Minister for Finance, after consulting with the Minister for Justice, to make regulations providing for a statutory spouses' and children's pension scheme for the Judiciary and court officers on the lines of the voluntary scheme which has been operating on an administrative basis since 1969. The scheme, which would be self-financing, would be similar to the schemes operating already for other public service groups.

Sections 5 and 6 propose to give power to the Minister for Finance, after consulting with the Minister for Justice, to make regulations, first to enable preserved pension benefits to be paid to a member of the Judiciary or a court officer, who retires voluntarily after five years' service or more, on conditions to be specified in the regulations. The regulations will prescribe the details of a scheme for preservation of pension benefits in cases of voluntary retirement on [408] the lines of the scheme already operating for civil servants and, secondly, to enable a scheme for the purchase of additional years of service for pension purposes, at full cost to themselves, to be introduced for the Judiciary and the court officers— again on the lines of the scheme operating for the Civil Service. The cost of purchasing service for pension purposes will be worked out on an actuarial basis.

Section 7 provides for the laying of regulations, when made under sections 4 and 5 of this Bill, before the House of the Oireachtas.

Sections 8 and 9 propose to abolish the qualifying period of service, five years, at present required to enable a death gratuity to be paid in respect of a member of the Judiciary or a court officer who dies in service.

Provision is made at section 10 for an element of retrospection in applying some of these changes. The dates applied are broadly related to the dates of implementation approved in the application of similar changes for the Civil Service and for other groups in the public service.

It is not the intention in this Bill to make any fundamental changes in the pension terms of the Judiciary. The proposed changes represent the application to the Judiciary and the court officers of quite specific changes which were introduced for the Civil Service as long ago as 1973 and which have long since been extended to other groups. These particular matters have been the subject of representations to my Department from the Judiciary and the court officers over a period of years and previous administrations also have been committed to their implementation.

The statutory provisions governing pension benefits for the Judiciary and the court officers are contained in the Courts (Supplemental Provisions) Act, 1961, and the Courts of Justice and Court Officers (Superannuation) Act, 1961.

The Courts (Supplemental Provisions) Act, 1961, contains the basic provisions relating to pension entitlements. Those for the Judiciary are laid down in the Second Schedule to that Act. It provides [409] for a maximum pension of two-thirds remuneration, but this is subject to a reduction of one quarter — I will come back to that. Pension is based on, in the case of judges of the Supreme and High Courts and the Circuit Court, 15 years' service, and, in the case of district justices, 20 years' service. There is also provision for proportionate pension in cases of vacation of office on grounds of age or infirmity. The provisions for the court officers are at section 57 of the Act. They provide for a maximum pension of two-thirds of remuneration based on 20 years' service and, also, for a proportionate pension. The pension terms for the court officers are very similar to, though not identical in all respects with, those for district justices.

The Courts of Justice and Court Officers (Superannuation) Act, 1961, provides, inter alia, for a reduction of the pension by one quarter, for example in the case of maximum pension, from two thirds to one half remuneration, and, consequentially, for payment of a retirement gratuity equal to one and a half times the pension as reduced. It also provides, in the case of death in service, a death gratuity equal to one year's remuneration at the time of death. Payment of the death gratuity, however, is at present subject to a statutory qualifying period of five years' service.

I should now like to come back to the changes proposed. The principle of having full-time temporary service reckonable for superannuation purposes was conceded in the Civil Service as far back as 1967. Temporary service in the case of the Judiciary arises under section 14 and section 51 of the Courts of Justice Act, 1936. Section 14 provides, where it is necessary to prevent the work of the court getting into arrear, for the appointment of one or more persons to act as a judge or judges of the Circuit Court.

Section 51 makes similar provision in relation to the District Court. In both cases persons thus appointed on a temporary basis are required to have the same qualifications as for a permanent appointee, and, during the period for which they are appointed, have all the [410] privileges, powers and duties of permanent judge or justice. Circuit Court judges and district justices are frequently appointed on a temporary basis prior to being given a permanent appointment, but such temporary appointments may be renewed. It is anomalous in these circumstances that a judge or justice who does not qualify for a full pension and who may have as much as two or more years' temporary service in addition to his permanent service should be deprived of the benefit of that temporary service for pension purposes. Section 2 proposes to rectify this anomaly.

At present, the concept of “service” for pension purposes is, in the cases of both the Judiciary and the court officers, reckoned by reference to completed years only. In the Civil Service, and elsewhere, for many years now, service is reckoned on the basis of years and days, so that any period of less than a year is taken into account.

In the course of my Second Stage speech in the Seanad I gave an illustration which would be worth repeating for the benefit of Members of this House, of the extent to which the superannuation benefits of a member of the Judiciary or a court officer can be adversely affected by the present arrangements. A member of the Judiciary retired with total service of 13 years and 362 days. His temporary service accounted for 115 days. These did not reckon for pension. He also did not get credit for the remaining 247 “odd” days. Accordingly, his pensionable service was taken as 13 years only, thus reducing the value of the superannuation award by some 7 per cent. The proposals at section 3 allow for the reckoning of service in years and days. These, when combined with the proposals contained at section 2, with respect to temporary service, would serve to resolve this situation.

The formal spouses' and children's pension schemes to be set up under regulations made by the Minister for Finance under section 4 would be self-financing. Benefit would be in consideration of the payment by the member of the appropriate contributions by periodic reduction [411] from salary and, in certain situations, by a reduction in the amount of the gratuity payable on retirement or death. The scheme, which would have retrospective effect, would be on the lines of the informal voluntary scheme which has been operating on an administrative basis since 1969 and similar to that operating already for other public service groups. Basically, the scheme provides that in the event of death in office of a contributor a pension becomes payable to the deceased's spouse and children based on the number of years' service the deceased would have given, had he survived to normal retirement age. It also provides for payment of a pension on the death, subsequent to retirement, of a person who was a contributing member while in office. A deduction is made from the lump sum of appropriate contributions for any notional years' service and for any years for which no contribution had been made, for example during temporary service. For all persons appointed to office subsequent to the making of the regulations membership will be compulsory.

The proposals at section 5 are designed to enable the Minister for Finance to introduce regulations to do two things. The first is to enable pension benefits, in the case of a member of the Judiciary or a court officer who retires voluntarily with at least five years' service, to be preserved and brought into payment on demand when he reaches the appropriate age. The second will allow members of the Judiciary and the court officers, if they wish to do so, to purchase added years of service for pension purposes at full cost to themselves. The cost of purchasing additional service will be determined on an actuarial basis. Section 5 provides also that regulations made thereunder may have retrospective effect.

Determination of retirement age is dealt with in section 6. Preserved benefits would be payable in no case earlier than at age 65 except in the case of death or permanent disability. In the case of High Court judges, the age could be anywhere between 65 and 72, in the case of Circuit [412] Court judges between 65 and 70, and in the case of district justices and court officers, at age 65.

Section 7 provides for the laying of regulations, when made under sections 4 and 5 of this Bill, before the Houses of the Oireachtas. Subsection (1) is confined to judicial regulations and, in accordance with normal practice, does not provide for power of annulment. The provisions at subsection (2), which will apply to court officers regulations, are the usual ones requiring that regulations be laid before each House of the Oireachtas for 21 sitting days during which they can be annulled by a resolution of either House.

Sections 8 and 9 propose, in relation to the Judiciary and the court officers respectively, that the qualifying period of five years' service necessary to enable the grant of a death gratuity in cases of death in service, be abolished. The qualifying period of service for payment of a death gratuity was abolished on an administrative basis in the Civil Service with effect from 1 June 1973. A similar change was not practicable, at that time, for the Judiciary. In view of hardship caused by this it was decided to have this change applied in the case of the Judiciary with retrospective effect to 1 July 1973. No retrospection is called for in applying this change to the court officers.

I will be proposing on Committee Stage a number of amendments designed to alleviate the hardship which occurs where a person appointed to act as a temporary Circuit Court judge or as a temporary justice of the District Court, under sections 14 and 51, respectively, of the Courts of Justice Act, 1936, dies before receiving a permanent appointment.

Sadly, within the past year or so, two justices of the District Court died within a period of being appointed in a temporary capacity. Had their appointment been of a permanent nature their spouses would have received a death gratuity under section 2 of the Courts of Justice and Court Officers (Superannuation) Act, 1961, as amended by section 8 of this Act. Also, they would have been eligible for membership of the contributory spouses' and children's pension scheme and their [413] widows and eligible children would have benefited accordingly. Therefore, I consider it desirable to make legislative provision to cover these cases, and similar cases in the future.

In conclusion, may I say that this short Bill seeks to do no more than extend to the pension terms of the Judiciary and the court officers certain limited changes already introduced in the superannuation codes generally applicable throughout the public service. Accordingly, I commend it to the House.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  This is my first time to be asked to carry this kind of responsibility for my party and of course I am very happy to do so. I am also happy that this is non-contentious legislation.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Hang around.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  It is entirely right that members of the Judiciary should have the same entitlement to pensions as others in the public service. I discovered while doing some research that some of the changes now being made in respect of the Judiciary were introduced in 1967 and 1975 for other members of the public service. It has taken quite some time to make these changes for the Judiciary.

The Minister has accurately described the details of the Bill. I assume we will be putting through all Stages today.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  No.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  We will deal with that when we reach the appropriate questions.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  That is a pity. It could be dealt with fairly quickly but it is not my prerogative to bring that about. Section 2, which allows temporary service as reckonable for pension purposes, was agreed with members of the public service as far back as 1967. I have no objection to it. Section 3 allows for part of a year of service to be reckoned for pension. That was agreed for the general public service in 1975.

Section 4 (a) provides for a contributory pension scheme for the spouses and children of judges and court officers. Is that section applicable where the judge [414] is female? I understand that the law in that area in general is not in good shape. I assume that this would be subject to the provisions of other legislation and that female judges would be in a different category. Perhaps the Minister will deal with this point when replying. PAYE contributors can be in very difficult circumstances following the death of a wife who has been in permanent employment for years. If the husband and family are not covered by the widows and orphans scheme, the husband does not receive a pension. I assume that will be rectified.

The terms of the Bill are equitable and in so far as they allow members of the Judiciary the same conditions that apply in the broader public service, I accept the Bill fully. This should have been done years ago. I understand a promise was given by a former Taoiseach to a member of the Judiciary in particular circumstances quite a number of years ago and he has been patiently awaiting a resolution.

The Minister mentioned that during the past year the death occurred of two members of the Judiciary who were temporarily employed and their families were not entitled to pension rights. This is entirely unsatisfactory. The Minister will be proposing amendments to rectify that.

I hope the Chair will permit me to refer to the broader areas of the Minister's responsibilities.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  The Chair would mind terribly. If the Deputy refers to something which should be in the Bill but is not, that would be in order.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  I know you will be lenient with me today.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  The Chair does not respond to blandishments of that kind.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  The Minister said at the Ard Fheis that he would introduce wide ranging reforms and——

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Deputy Cotter appreciates that if he rehashes the Fianna Fáil Ard Fheis or any other Ard [415] Fheis, inevitably it will lead to excitement.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  There will be no excitement. I have been asking for a new Criminal Justice Bill and I hope the Minister will prepare such a Bill as a matter of urgency. White collar crime——

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  The Deputy, if he wished, could give a litany of Bills which he would wish to have brought forward, but he may not elaborate on the reasons. That is all that would be in order. We should never create a precedent which, in the atmosphere of the House today, might be acceptable but which would lead to difficulties. We have to live within the orders imposed on us.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  I accept your judgment. You are entirely right in what you say. What I was about to say is quite irrelevant to the Bill before us. A Criminal Justice Bill has nothing to do with this Bill. The fact that the fraud squad are unable to deal with sophisticated crime also has nothing to do with the Bill. I hope the Minister will move quickly in such areas in order to bring in better and more effective laws, particularly in view of the growth of financial services and the parallel growth in sophisticated crime.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Deputy Cotter is pushing his luck a little too far. I would ask him to desist.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  I am happy to accept the proposals in this Bill, without contention.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  The Workers' Party have no difficulty with the general approach of seeking to equalise and harmonise the provisions in law with regard to pensions generally for those who work in the public service. Equally, we have nothing but the highest regard for members of the Judiciary, their independence and the excellent work they do on our behalf. We are very fortunate to have such a committed, independent and [416] hard working body of men and too few women working in this area as judges.

The difficulty is that in the context of such praise for the Judiciary we are being asked to address what is in fact outrageous legislation.

I welcome Deputy Cotter's contribution to this debate. I hope he is successful with this portfolio. It is unfortunate for him that he has been given the hard job of trying to address this legislation because, frankly, more senior spokespersons in his party have run away from it. He has been asked to come in to this House to defend the indefensible.

This is extraordinary legislation not alone with regard to its content but more particularly its origins. I will remind the House that this legislation was first produced by the Fine Gael-Labour Coalition Government in December 1984. That Government let it sit for the next three years without making any progress whatsoever, for reasons that Deputy Cotter cannot or will not tell us and there is no member from the Labour Party present to illuminate us as to why this “non contentious” legislation, the words Deputy Cotter used, could not progress one iota during the three years of the Fine Gael-Labour Coalition Government from 1984-87. The legislation lapsed with the fall of that Government in 1987, was reintroduced by the Fianna Fáil-Progressive Democrats Coalition Government in 1990 but was subsequently withdrawn for some odd reason and we now see the republished document before us today. The Minister offered no explanation as to why the Bill was taken on board by the Government they not being party to any of the discussions that took place in 1984; or why the original Bill as published and circulated was withdrawn and this new document is now before us.

It is very difficult to determine precisely the impact of the legislation. The explanatory memorandum is vague in the extreme and the Minister's speech was somewhat uninformative. It mirrors what he said in the Seanad debate. Deputy Cotter, and I am sure the Minister, would have hoped that today's debate would [417] have been on the same lines. However, if I can do anything I hope to upset that smug and cosy arrangement. The Minister for Social Welfare, Deputy Woods, when he was Opposition spokesperson in 1984 made the point that the Bill did not have an explanatory memorandum. When he complained about it, the then Taoiseach, Deputy Garret FitzGerald, told him that the Bill was so self-explanatory that it did not need an explanatory memorandum. The implications of the legislation seem to have been missed entirely during the debate in the Seanad and are being trivialised in this House.

The Minister suggests that the legislation does no more than bring the law in this area with regard to members of the Judiciary into line with the position in the public service generally. That may be so in respect of sections 2, 3 and 4 and we have no difficulty with the principle of harmonising provisions for the Judiciary and bringing them into line with the public service. However, in fundamental ways, the legislation goes beyond this, particularly the provisions relating to retrospection, which I will deal with later. The implication of the retrospective provisions potentially and real represent a vastly different scenario. In fact the then deputy Leader of Fianna Fáil, Deputy Brian Lenihan, had the following to say in 1984:

In this time of economic crisis it is nothing short of insanity to introduce a five years pension qualification for judges — especially when one of the first beneficiaries is a former Fine Gael Minister and present Chief Justice whom it is now proposed to send on a further salary and pension hike to the European Court of Justice.

That was the response of Deputy Lenihan to a similar proposal. This House deserves some explanation on this. Is the Minister for Justice suggesting that the economic crisis of 1984, which Deputy Lenihan was so conscious of, has disappeared? Is the Minister trying to suggest that the lot of the unemployed, those who are living in poverty — the numbers have increased — and those in receipt of [418] social welfare who proportionately are no better off than they were in 1984, has changed to such an extent that we can be asked to deal with this extraordinary legislation to commit, as Deputy Lenihan said in 1984, “this act of insanity”. What has changed? Why have Fianna Fáil and the Progressive Democrats taken on board legislation which was correctly dismissed by the then Leader of Fianna Fáil only a short few years ago?

This morning I asked the Taoiseach when we could expect the legislative proposals in response to the Martin Commission which published a report in March of last year. Shortly after the publication of the report he was looking at the proposals as a matter of urgency with a view to bringing forward legislation. This morning the Taoiseach told us that there was such a queue of legislation that it was not likely that that Bill would be published let alone debated in this House in the next three months, yet we can find time in the queue of urgent pressing legislation to deal with this Bill today. If I interpret what has been said, it is Deputy Cotter's desire that all Stages be dealt with and that the legislation be nodded through without question. It is extraordinary that when there are important issues to be dealt with and outstanding commitments of a year or more from the Minister on his own portfolio, let alone all the other promised legislation, we can find time to deal with this legislation so conveniently and easily and that the so-called Opposition Party suggest it is non-contentious legislation which can be put through on the nod.

The Minister said during the Seanad debate that this Bill was broadly similar to that introduced by the Government of 1984. Let me repeat that it is worth remembering what the Fianna Fáil Party had to say about it and I have quoted Deputy Lenihan already. What has happened since 1984 to bring about such a dramatic change in attitude on the part of Fianna Fáil? Are they suggesting there is now no economic crisis? Have they decided that it is now acceptable to introduce a five year pension qualification for [419] judges? As I said we are entitled to an explanation on this.

The Minister tried to suggest that the provisions of this Bill are designed to bring the pension arrangements of judges into line with arrangements already in force for most other groups in the public service. That is true with regard to some of its provisions, many of which are non-controversial. Under the provisions of this Bill a judge, who has served a minimum of five years, will be able to have his or her pension rights preserved until reaching retirement age. It is true that this arrangement is now available to most other workers following the enactment of the Pensions Act last year, but there is a major difference between the provisions of this Bill and the Pensions Act.

In the treatment of judges and other public sector workers the difference is that the provisions of this Bill are being backdated on a scale I have never observed before in this House. For example, sections 2 and 3 come into effect from 1 August 1978 and section 8 would appear to come into effect from 1 June 1973, almost 20 years earlier. Even more extraordinary, the regulations the Minister will make under section 4 and the controversial section 5 shall come into effect “on a date prior to the date on which they are made”. Presumably if the Minister wanted, he could decide that the regulations would come into effect from the date of the establishment of this State. This is special legislation for the privileged élite and must be opposed.

Prior to the enactment of the Pensions Act many public sector workers were in a position similar to that of judges, that is, if they left employment to take up a better paid position they forfeited their pension rights. That was very severe on them, but when the Pensions Bill was going through the Dáil, there was no question of backdating its provisions to 1978, 1973 or any other earlier date; its beneficiaries lost and had to endure that loss. Why should some of our most senior judges, who earn substantial amounts of money, be treated in a different manner? This difference of treatment gave rise [420] to much reaction within the trade union movement in 1984. I should like to quote briefly what some of them had to say about it. As reported in The Irish Times of 13 December 1984 the then Secretary of the Association of Scientific, Technical and Managerial Staffs said he was astounded by the proposals. He said his members had to work 40 years to qualify for a pension and it was scandalous that the Government, which pleaded inability to pay its own public service workers, could now find the money to pay handsome pensions to their friends in the Judiciary. The then General Secretary of the Irish Municipal Employees Trade Union was quoted as saying the decision was outrageous, that his members averaged £130 a week and those in Dublin Corporation had been offered a pay increase of £7 a week over 19 months; yet the Government were proposing to pay pensions to the Judiciary after only five years service. He said some members of the Judiciary already qualified for pensions in excess of what his members were earnings for a week's work. The then General Secretary of the National Busworkers' Union — a man due to retire shortly whom I wish well — described the provisions of the then Bill as absolutely scandalous. He is quoted as saying it would only encourage his members to fight on for improved pensions and wages.

I wonder where is the trade union movement today? For example, is their silence in the face of this Bill a result of the gagging of the trade union movement during the negotiations that took place on the recent Programme for Economic and Social Progress? In the course of those negotiations, I wonder whether they were reminded that these very provisions were in the offing on the part of Government and, hopefully, would be nodded through this House if the Fine Gael Party and the Minister had their way without any controversial debate? For example, I wonder whether the very wide ranging implications of this Bill were brought to their attention and debated by them. I do not perceive any change in [421] economic circumstances, I do not perceive any change in any conditions prevailing since 1984, if anything, they have deteriorated. I believe that the remarks of the then various union leaders are as appropriate now to the provisions of this Bill. I am surprised that the provisions of this Bill were not drawn to their attention in the process of negotiating that recent programme. Perhaps that is the reason there is not the same reaction now.

An interesting omission from the Minister's introductory remarks today — alluded to by Deputy Cotter and mentioned by the Minister in the Seanad — is any explanation for the more extraordinary provisions of this Bill being included on two grounds. The first was that the then Taoiseach, Deputy Garret FitzGerald, had given a commitment to a senior member of the Judiciary then contemplating departing to a job in the European Courts of Justice. The first point to be made about that is that there was some perceived idea that the person particular to that arrangement, in going to the European Courts of Justice, in some way was making a personal sacrifice or one on our behalf, which is far from being the truth. Indeed the scale of pay, the perquisites, the supports and facilities available to the person in question were increased enormously so that any notion of sacrifice was more than adequately covered by those increased facilities.

The other point made by the Minister in the Seanad was that there was legal action pending. None of this has been explained in the Minister's introductory remarks in the House today. Perhaps he might be prompted to deal with these matters because this House warrants such explanation. For example, was the arrangement between the then Taoiseach, Deputy Garret FitzGerald, a personal one or were the Government of the day party to it? Are we to understand that, because some cajoling discussion took place between the then Taoiseach and the individual in question, we must now legislate, or was this a matter which was discussed and agreed in Cabinet? I doubt if it were the latter because the legislation, for some extraordinary [422] reason, while being introduced on foot of that undertaking, could not be progressed one jot in the three years available to the then Coalition Government.

The other issue that arises here is must we legislate every time someone threatens legal action? Government performance in this respect clearly demonstrates quite the opposite. For example, in the area of welfare entitlements, akin to pensions, in respect of which the Irish Government have been brought to the European Court they have been found wanting in regard to equality provisions, they have been found to be in breach of the law of Europe. Clearly it will be seen that the Government cannot even respond, not when they are being threatened with legal action. Even when they have been brought to court and found wanting, they are not prepared to respond. One must ask why. The answer is that it is not a collection of judges or one judge who has been inconvenienced or found to be in need but rather because ordinary citizens who should have been properly paid under the social welfare code have not been.

There is no movement on the part of Government to ensure that those who were entitled to proper payments under the equality provisions of the social welfare code are accommodated. Rather this Bill was introduced because of some discussion, some chat, some cajoling pressures having been brought to bear on the then Chief Justice to take up an enormously well remunerated position in Europe which, when one examines the relevant figures, will put its provisions in proper context. Because of that these Houses have been assembled to nod through some cosy Bill to accommodate discussions which took place then. We have not been told about them. The Seanad was told in passing by the Minister, when introducing the Bill there, but nobody there was prepared to inquire what had been going on.

The contributor in the Seanad, on behalf of the Fine Gael group there, responded very much in the same way as Deputy Cotter has done here today. A simple straightforward Bill was how the Leader of the Seanad group described [423] this legislation when dealing with it last month. It is anything but simple in its conception and in its inception. It is certainly not straightforward for those many thousands of people out there who are now being told that if they want to get anything approaching equity under the social welfare code they must go to litigation. They are wondering why the Seanad and the Dáil can assemble and hopefully nod through provisions, which were described by Fianna Fáil in 1984 when they were first produced as verging on insanity by Deputy Brian Lenihan, that have been condemned out of hand by all the major trade union leaders representing workers saying that they are scandalous, unacceptable and unfair. This is an extraordinary day in the life of this legislative Chamber and we will all stand condemned for the way in which we are seeking to abuse our authority with this legislation and suggesting that things can be nodded through and that matters are straightforward and simple and not controversial when they are otherwise.

I demand to know on behalf of everyone outside who will want information about this legislation, what was the nature of the discussions that took place between the then Taoiseach and the then Chief Justice? Were they a matter of Cabinet? Were they agreed to at any level or was it just some cosy discussion between a current member of Fine Gael and a former Fine Gael Deputy in this House as he departed to a very cosy appointment at the European Court? We have a right to know what those discussions were about.

Acting Chairman (Mr. Doyle): Information on Joseph Doyle  Zoom on Joseph Doyle  Or if they took place at all.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  We know they took place, it is a matter of record. For anyone to suggest otherwise is adding to the disingenuity of this whole process and I am surprised that it comes from the Chair. It is a matter of public record that those discussions did take place and were [424] referred to by the Minister only last month in the Seanad debate.

Acting Chairman:  You have satisfied the Chair.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I will satisfy the record of the House now by reminding Members of the words of the Minister on Second Stage in the Seanad, Official Report volume 128, No. 2 of Thursday, 14 March 1991 at column 128, when he said:

The Bill, which is broadly similar to one which was introduced in 1984 but which lapsed with the dissolution of the 24th Dáil, would honour a commitment made by the Taoiseach of the day, Deputy Garret FitzGerald, to a Member of the Judiciary who vacated office for the purpose of taking up a position with the European Communities. The commitment has since led to threats of legal action if not put in place.

The second point on which this House deserves some explanation if we are to legislate and put into place this legislation — which I hope we will not — is what are those threats of legal action all about? From whom are they emanating? What form do they take? Has correspondence been issued and to what extent has the litigation been progressed? I accept that if we are found wanting and if the Government have a commitment of Cabinet or otherwise enforceable by a member of the Judiciary or anyone, it is proper that that litigation be compromised, that matters be settled and, if necessary, if legislation is required, it is proper that we should be here.

However, we deserve to know the extent of the threat, how likely it is to succeed or is it just a bit of bluster and bluff arising from some cosy discussion between the former Taoiseach and the Chief Justice which would be utterly unenforceable at law? If we are asked to legislate and this is what the Seanad was told — we have not been told, although Deputy Cotter mentioned it — we have a right to know and I would ask the Minister to elaborate.

[425] The Minister also suggested that there is the threat of legal action if the commitment allegedly given by the former Taoiseach was not acted on. Is the Dáil now to legislate on each occasion on which legal action is threatened? When injustices have been highlighted in the social welfare code the Government have never legislated under the threat of legal action. On the other hand they have fought every legal attempt to reform the social welfare code through the courts of this country and often into the European courts. Again, some of the wealthiest and most privileged legal big wigs are being afforded special treatment and we should know the reason.

The next question that must be answered in the course of this debate is the cost to the Exchequer of this legislation. I have searched in vain through the explanatory memorandum and cannot find any mention of the cost. The Minister made no reference to it in his contribution. On every occasion on which the social welfare recipients on the other hand receive a few extra bob we are told from time to time the great cost to the State, but why are we not told this kind of information in the context of this legislation? It is simple straightforward legislation, non-controversial so far as the major parties in the House are concerned but those of us who have a different view of the matter are concerned.

The newspaper reports published in 1984 identified the main beneficiary under this legislation as the former Chief Justice, Mr. Thomas F. O'Higgins, who left this position to take up what was presumably a much better paid post in the European Court. Can the Minister inform us of the salary level paid to Judge O'Higgins in his present position and what his pension from Europe will be? According to my estimates, and those published in 1984, he will benefit from a judicial pension approaching £30,000 per year — now it will be more because of increments in the meantime — this, backdated, as promised under the provisions of the legislation, will offer the recipient, the person central to this whole issue, something in the order of a minimum of [426] £250,000 lump sum on his retirement. That is what we are legislating for. That is why Deputy Lenihan described this legislation as an act of insanity in 1984 and it has not changed. If anything the degree and level of insanity, if there is such a thing, is growing because the amount of money to be paid is growing. Nonetheless, in this area not only do you have to add to the £250,000 lump sum which the person will receive, but to add his pension from his position in the European judicial post which he now holds and his Dáil pension, which at present stands at £14,500 per year. Can the Dáil be generous to those who really need it? It is nice to know that the distinguished former judge will never have to use his bus pass or to trudge down to his local sub-post office — if it has not been closed in the meantime — to collect his old age pension. The scale of the figures we are talking about here are staggering and are unacceptable if not immoral. The scale of what the Minister proposes to pay to the particular individual, unfortunately brought into the centre of this legislation because it is his position that has prompted the legislation in the first place, helps to illustrate how grossly out of line and how grossly unjust the legislation, once operated, particularly in regard to the retrospective proposals, will be. This House must stop and think again before we accept this legislation in its entirety. The Bill is an outrage and an insult to those who have been told repeatedly by this Government and by previous administrations that there is no more money for social welfare, that health cuts must go ahead, and to those whose communities are collapsing because of the lack of spending on facilities. I should like to say very succinctly that The Workers' Party will not co-operate with any smug arrangement by the other parties to nod this Bill through.

Mr. Ryan: Information on Seán Ryan  Zoom on Seán Ryan  The Labour Party feel that this is a minor and routine Bill and in that respect we are prepared to support Second Stage. There is no reason why persons who have served with distinction in the courts over a long period should [427] be discriminated against by technicalities in the matter of their pensions and pension entitlements. However, as the Bill is designed to remove such anomalies and promote fairer treatment for public servants we say very clearly that it is relevant.

Sections 5 and 6 propose to give power to the Minister for Finance, after consulation with the Minister for Justice, to make regulations to enable pension benefits to be paid to a member of the Judiciary or a court officer who retires voluntarily after five years' service or more. This concerns us. If we look at the population at large we will realise that many workers in the public and private sectors who have given 30 or 40 years' service receive no pension on retirement. People in semi-State organisations who have worked for 30 years, perhaps from the age of 20, and may have to leave either due to sickness or on early retirement before they reach the age of 55 are not entitled to a pension.

The 250,000 people unemployed here find it very difficult to raise their families on the money they receive. Working people who are just over the income limit for a medical card also find it very difficult to live on their income. It is almost impossible to get legislation enacted in this House to provide the necessary services for these people and give them a normal standard of living. We have talked about the Irish Shipping workers and dealt with their problems over the years. Those workers protested outside the Dáil and in the Gallery here in order to get the Government to enact legislation that would give them justice and equality.

This legislation proposes to give pensions to people who retire voluntarily after five years' service. It is this issue that concerned us. The Bill, as drafted, provides for additional pensions for senior lawyers who may already have a substantial income by way of pension. I am not saying that those people, on the basis of their qualifications, service to the country and so on are not entitled to [428] a proper salary but, without wishing to personalise this matter, it appears from the debate in the Seanad in 1984 that the Bill provides for a substantial pension to a person who receives a pension already as a former Member of the Dáil in addition to a pension as a former member of Government and, in all probability, a pension as a retiring member of the European Court of Justice. I have no idea what all these pensions add up to but I imagine the income involved is quite considerable. When people who are finding it difficult to exist hear this debate they may ask how relevant is Dáil Éireann to their needs or how relevant is this legislation. They may wonder why when a problem arises for them legislation cannot be pushed through to meet their needs.

The Labour Party accept that a reasonable case has been made for increasing the income of the people involved. Accordingly, on behalf of the Labour Party I am serving notice that while we do not object to this Bill on Second Stage we want to see it amended to ensure that there is an abatement of pension entitlements in the case of persons who already enjoy a substantial income from the State whether in terms of pension or from any other source. Legislation enacted should be fair and the people in need should also be considered. There are many groups who would say they are forgotten about. When problems arise for people with power and people who are financially well off legislation can be put through very quickly to meet their needs.

Nobody in the community could object to reasonable pensions being paid to public servants who have carried out their duties over many years, but the point will reasonably be made by many people that the same sense of urgency does not prevail in ensuring that widows, elderly people and those on small and, in many cases, fixed pensions are as well treated. That is the kernel of this legislation. From our point of view there is no equality in this area. There is certainly no case for supporting the granting of very large index-linked pensions to boost the [429] incomes of people who are already very well off. That is the bottom line. The Labour Party want the Bill amended on Committee Stage because at the end of the day justice will have to be seen to be done. While saying that in general terms the Bill is a minor and routine one, at the end of the day we are talking about general principles, principles of equality and justice, and this legislation does not treat all people equally. It is on that basis that we put down our market at this stage.

Mr. M. Kitt: Information on Michael P. Kitt  Zoom on Michael P. Kitt  I welcome the opportunity to speak on this Bill. I really want to speak about the sympathy that I — and most people — have for those in temporary positions. I welcome the fact that the position of justices and court officers in temporary positions who are not entitled to full pension will be regularised.

I have been a Deputy for over 15 years and before that I was a Member of the Seanad. During that time I met many people, particularly in the teaching profession, who had temporary service and did not get their full entitlements when they reached retirement age. Why do the Government not bring in legislation to cover people in this situation? The first sentence of the explanatory memorandum says that the purpose of the Bill is to extend to members of the Judiciary and specific court officers certain pension benefits which are already available to most other groups in the public service. I am glad that the memorandum refers to “most other groups” but we should identify the groups which do not get the full pension benefits to which they are entitled. Temporary service is no use to a person unless he or she is made permanent before reaching retirement age. As I understand it, a temporary worker can buy service or, under a complicated system, can buy notional service. However, you cannot do that until you become permanent and this is one of the problems that many people are facing. Why do we not have a Bill to deal with the pension benefits of junior doctors? The same applies to student nurses and [430] substitute teachers; there is a very serious case to answer in that regard. This Bill deals with members of the Judiciary and specific court officers and I welcome the fact that their position will be regularised but we should not forget people in other professions who, for one reason or another, have temporary service.

There are pension schemes covering local authorities, the Civil Service and the Oireachtas and they have all been discussed from time to time. There is the normal 5 per cent superannuation scheme and the 1.5 per cent spouse's and children's scheme which apply only when people are permanent. If you spend your life working in a temporary position you will certainly not get the benefits. This matter should be addressed by the Government; it is not the responsibility of the Minister for Justice to deal with the areas I mentioned. The Government must take on board this group of people who work in a temporary capacity for a long time. I agree with Deputy McCartan that, if we bring in legislation for these other groups, it should be backdated as is the case in relation to this Bill. The Government should identify groups of people who are losing out because they are not made permanent.

It was not until 1975, when I became a Member of this House, that teachers were able to tell their boards of management that they were entitled to put in a fully qualified trained teacher. Before that substitute teachers could be employed provided they had a leaving certificate. Indeed, a teacher remained temporary even when replacing a Member of the Oireachtas. Many teachers work temporarily and do not qualify for full pension benefits.

Many vocational teachers did not opt for the pension schemes which were available in the past for themselves, their spouses and families. I hope that even at this stage they could be allowed, under new legislation, to become permanent full-time teachers and that the benefits would apply to their spouses and children as envisaged for the people covered in this Bill. While I have no difficulty with the principle of this Bill it should be [431] pointed out that many groups and professions feel discriminated against; many of these people expect the Government to legislate for them and to bring in the benefits to which they are entitled. I hope that the Government will, through general legislation, cover the categories I have mentioned and other professions. In that way we will be seen not to be discriminating in favour of one profession but covering those who had been unfairly and unjustly treated in the past.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  I did not intend to contribute to the Bill because, as many people said, it is almost a technical Bill rectifying something that probably should have been rectified a number of years ago before the situation became so controversial.

I must criticise Deputy McCartan for his implication — he did not say it in so many words — in regard to the former Taoiseach, Deputy Garret FitzGerald. He used the words “cosy hat”, the implication is that something untoward happened, perhaps even smacking of illegality, hints of bribery or a friendship clause. I deny that anything of the kind happened, I was not present, of course, at the discussions which Deputy Garret FitzGerald would have had with Mr. Tom O'Higgins but the implication——

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  How does the Deputy know?

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  I do not know but neither does Deputy McCartan. The implication in regard to a very fine Deputy, who was Taoiseach for a number of years, should not go by without somebody denying it. I believe that what happened at that time was that a very senior member of the Judiciary, who had given very good service to this country, was selected to give further prestigious service on our behalf in the European Court of Justice. A few short weeks ago I was lucky to be a member of the EC legislation committee which travelled to the Court of Justice. I met Mr. O'Higgins there and I was really proud that an Irishman was treated with [432] such respect — and commanded such respect — from all his peers in all the other countries which participate in the Court of Justice. There is no truth in the implication that Mr. O'Higgins, somehow or other, was not representing this country in the finest way possible.

Deputies have pension rights after five years' service. We are allowed to receive a pension when we reach 60 years of age after we have served for five years.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  That is wrong.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  It is not wrong. I do not see The Workers' Party giving up that right. They may well have opposed it but they will sit here very happily and, when they have done their five, eight or 12 years' service, I have no doubt they will take their pensions. Maybe I should not pre-empt what some of them will do but I am quite sure they will take their pensions when the time comes. That is as it should be if that is what the system is but what I find inherently sick is Deputy McCartan's argument. If a thing is just and equitable it is so whether the figures be large or small, and two wrongs do not make a right. Of course there are huge injustices throughout our pension schemes for very many poor people but that is not to say that we should penalise other people because the sums of money are bigger. Of course Mr. O'Higgins and Mr. Andreas O'Keeffe, and Mr. Justice Donal Barrington who, I believe, will also benefit from this Bill, will benefit from this Bill and from their time in Europe which they got compliments of some Government because it happened to be in the remit of a Government to make those appointments. They will benefit, and they will benefit generously, but it does not diminish the inherent justice and equity in the case of all other public servants that judges and justices should get the benefit themselves or that their widows and dependants should get it. Why should they be penalised because of some sort of ideological hang up on the part of The Workers' Party that because one is earning a certain amount of money one should not in turn get one's just rewards [433] from that work? These men and women who will serve this country abroad in these courts, the Court of Human Rights, the Court of Justice or the Court of First Instance where Mr. Donal Barrington is now serving — again I was proud to meet him there and see with what respect and honour he is viewed by his colleagues all over Europe — are entitled to their pension rights in the same form as all other public servants are entitled to them.

There are certain elements of justices' rights etc. that one might query, but the appointments of men and women to these positions tend to happen in the later years of their lives and it is only right that some system be in place to allow them to be paid their pensions and to contribute to their pensions up to a certain age. As Deputy Kitt said, there are many instances where other sections of our population and our workforce should also be getting rights like this or having their existing rights extended, but that is a different matter. That is an area that this Minister or some future Government should be tackling, but it is not a good enough reason for imputing some kind of sleight of hand here or implying that somehow these men are getting something they are not entitled to and that they do not deserve. I understand Mr. O'Higgins has threatened legal action. He has retired with 12 years' service and not the necessary 15 that he needed to get his pension when he would eventually reach retirement age. That is not why this Bill is here. I do not believe that the Bill is here only because of the threat of legal action. I believe the Minister when he says this Bill is here to rectify an anomaly that was there. If we want to send our best and our brightest and our most relevantly experienced people to represent us in the various institutions and fora in Europe and elsewhere it would be sad if we could not see our way to ensuring that they would not suffer because of that. Deputy McCartan might say that it is some suffering with the kind of pensions they get. That is not the issue here. The sense of justice that is being brought in in this Bill is the same whether we are talking about [434] somebody on a salary of £10,000 a year or £100,000 a year. It is a matter of equity and justice. I am surprised that The Workers' Party who purport to represent people in an equitable and just way find it so difficult just because the figures are so big. I remember reading a few years ago that the same Deputy McCartan had earned a very vast sum of money from the free legal aid system. That was written up in the papers, but nobody denied him the right to do that. He was doing a job. He was also a public representative and he was running a legal practice. It was his entitlement to earn that and nobody said that he should not get that money. We have to be equitable and fair in the system. Of course there are other things that this Minister and others can do. I was moved to anger by the implication against Dr. Garret FitzGerald, against Mr. O'Higgins and against the Fine Gael Party, as if Mr. O'Higgins was the only beneficiary. I hope the Minister will clarify that there are other men — at this stage I do not think there are any women involved — who will benefit from this and whose families, whose widows and orphans or dependants, will benefit as they are entitled to. I think that some of the things Deputy McCartan has said should not go unanswered in this House.

Minister for Justice (Mr. Burke): Information on Ray Burke  Zoom on Ray Burke  The first contribution to this debate was from Deputy Cotter who was speaking for the first time as spokesman in this area on behalf of his party. I would like to take the opportunity of wishing him well in his new role. I hope he will have a long career in that position and I look forward to debating with him from this side of the House.

He mentioned that the existing spouses' and children's pension scheme applies equally to both male and female members of the Judiciary and female court officers. The amounts of the contributions required are the same for both males and females. The benefits payable are also the same for both men and women. The statutory scheme proposed in the Bill will be based on the existing administrative scheme.

[435] Deputy McCartan spoke at the outset about the importance within our system of the independence of the Judiciary. We have been served loyally and well and honourably by men and women who, since the foundation of the State, have been nominated by Government and appointed by the President to act on our behalf in the various courts. They have upheld our Constitution and have been the bullwark of our rights and liberties as citizens and we should acknowledge that here today. What is proposed here and which is also in the main welcomed by Deputy McCartan is the tidying up of some anomalies within their pension schemes.

The Deputy then proceeded to section 5 of this Bill and asked for the background to this legislation. The Bill is broadly similar to one which was introduced in 1984 but which lapsed with the dissolution of the 24th Dáil. It will honour a commitment made by the Taoiseach of the day, Deputy Garret FitzGerald, to a member of the Judiciary who had vacated office for the purpose of taking up a position with the European Community. The commitment has since led to threats of legal action if not put in place. I was asked by Deputy McCartan if there had been an exchange of letters from legal representatives of the former Chief Justice. Yes, there has been an exchange of letters and there has been a threat of legal action as I already outlined in the Seanad.

In regard to the other points that were raised by Deputy McCartan they will undoubtedly be debated at some length on Committee Stage. Specific undertakings were given in 1984 not just on behalf of the Taoiseach of the day but on behalf of the Government of the day.

This brings me to the contribution made by Deputy Ryan on behalf of the Labour Party. He said that there were difficulties in relation to pensions being available to people who have done 30 and 40 years work. I share his concern in relation to that. Obviously we all want to see a situation where there is equity in our society and where people have pension rights.

[436] If the Labour Party feel as strongly about section 5 as Deputy Ryan said they do it is a great pity they did not do something about it when they were in Government and had the power to do it. They were members of the Government who published the 1984 Bill and gave that commitment. Deputy Ryan also referred to the Irish Shipping workers. This issue arose during the term of office of a Government in which the Labour Party were actively involved. The Minister for Transport at that time was involved in making the decision which gave rise to the demise of Irish Shipping. It is easy for Deputy Ryan to speak now from the Opposition benches about being seen to be fair and no groups being forgotten about. However, when the Labour Party had the power to do something about these issues they failed miserably. To be fair to Deputy McCartan, The Workers' Party had no such powerful position at that time.

With regard to the point raised by Deputy Kitt, as I have already said I share his concern about pension rights for other groups. We are changing the situation as rapidly as possible. I will bring the views he expressed so strongly here this afternoon to the attention of my colleague, the Minister for Finance, and other relevant Ministers. The Deputy also referred to education. I will bring the concerns he expressed about the position of temporary teachers to the attention of the Minister for Education.

It would appear that the points raised by Deputy Owen should more appropriately be replied to by Deputy McCartan than by me.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  Can the Minister confirm that other people will benefit?

Mr. Burke: Information on Ray Burke  Zoom on Ray Burke  I have no doubt that we will have a long and detailed debate on Committee Stage when I will answer the individual points that are made. I look forward to having that debate at an early stage. Many decent people have served this country well on the bench. The families of temporary district justices who gave up their practices but who were not [437] made permanent have found that they have no pension rights. These people deserve to be treated by the State in an equitable manner. That is what this legislation is about. This is one area of controversy and, as Deputy Owen rightly said, there will be others. I think it is fair to say that this legislation would not have been brought forward if it were not for the threat of legal action and the commitments given in regard to that particular section. In so far as the families and other people who will benefit from the Bill are concerned, it is only right and proper that we recognise the service given by these district justices to the State and its citizens. I have no hesitation in recommending the Bill to the House.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  Is the Minister saying that the Bill would not have been brought forward if it were not for the threat of legal action and that he would have left the other justices without their pensions also?

Mr. Burke: Information on Ray Burke  Zoom on Ray Burke  I did not say that.

Acting Chairman:  Is the Second Stage Reading of the Bill agreed to?

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  No.

Question put and declared carried.

Acting Chairman:  When is it proposed to take Committee Stage?

Mr. Burke: Information on Ray Burke  Zoom on Ray Burke  Next Tuesday, subject to agreement between the Whips.

Committee Stage ordered for Tuesday, 23 April 1991.


Last Updated: 23/05/2011 03:58:19 First Page Previous Page Page of 86 Next Page Last Page