Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Bill 2011: Committee and Remaining Stages
Wednesday, 14 September 2011
Dáil Éireann Debate
An Leas-Cheann Comhairle: Before Committee Stage commences, I would like to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment which is contained in the Schedule to the Bill. The sections of the Bill are merely technical and, therefore, in accordance with long-standing practice, the sections are postponed until consideration of the Schedule has been completed.
These are a series of technical amendments to the Schedule. Amendments Nos. 1 to 5, inclusive, and amendment No. 7 propose to replace the word “tuarastal” meaning salary, which appears throughout the Bill, including in the Title, with the phrase “luach saothair” meaning remuneration or reward.
I am grateful to Rannóg an Aistriúcháin, the official translators office, which has advised that although “tuarastal” is used in the original constitutional provision, it would be more accurate to use the phrase “luach saothair” which has been the accepted Irish legal term for remuneration since 1950. Obviously, a different term was being used in 1937.
Amendment No. 6 is similar but refers to what is the now accepted phrase for in the public interest which has also evolved since 1937. The phrase now being adopted “ar mhaithe le leas an phobail” is used elsewhere in the Constitution — for example, Articles 40.6.1 and subhead 1 of that and throughout the Irish translation of the Financial Emergency Measures in the Public Interest Act. These are essentially technical amendments based on advices we subsequently received in regard to the translation.
Amendment No. 6a represents the only substantive change I propose to make to the Schedule. Section 5.3 is drafted to allow that when and only when reductions have been made or are in future made by law to public service pay on the basis of the public interest, these reductions can be applied by law to judges’ remuneration. That is to say it can only be done by way of primary legislation passed by the Oireachtas. The provision clearly limits the reduction in judges’ pay to cuts applying to others paid from the public purse. It also guards against any danger of successive reductions being made to judges’ pay alone as reductions can only be effected where reductions are being made to public service pay. Indeed, I referred to this in my speech on Second Stage.
It has been suggested that the text of the proposed Article 35.5.3 be amended to address concerns that have been the subject of some comment. The Attorney General has recommended that the wording of that provision be changed to state that any reductions made by law to the remuneration of judges should be proportionate to the reductions made by law to other classes of persons paid out of public money. Such an amendment would remove any possible suggestion that the Judiciary could be discriminated against or targeted as a group for pay reduction in circumstances where no such reductions would apply to any other group paid out of public moneys.
I made reference to this in my Second Stage speech, so Deputies will be aware of it. Again, for the record of the House, the effect of this amendment would mean that Article 35.5.3 would read as follows: “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 proportionate reductions to the remuneration of judges”. The word “proportionate” is inserted.
It is important to understand that the proposed amendment will allow for the application of the reductions already imposed on the public service and serving judges. What the amendment does is more explicitly state what was already implicit in the original proposal and I suppose it is what I would describe as the “to be sure, to be sure” amendment so that no one can suggest, with any credibility, that this proposal does anything other than what we state it is intended to do which is simply to apply to the Judiciary any reductions that occur in other commensurate sections of the public sector as opposed to any possibility of the Judiciary ever being targeted.
In the context of this issue, Deputy Calleary raised some concerns about the draft Bill we published, which I did not have the opportunity to address on Second Stage, and said that we might publish something different after the referendum or that some other Government might publish something different. Of course, the protection there is a constitutional one. No one can do anything different in the sense that one can only apply to the Judiciary the proportionate reductions that relate to persons paid out of the public purse in the public sector at the levels as detailed. I deliberately provided the detail to the House in a form that I hope made it readily understandable in the context of the different levels from the Supreme Court down to the District Court and also the heads of the different courts and how it would impact on the Chief Justice all the way down to the President of the District Court. I hope the House will support the amendment proposed.
Deputy Jonathan O’Brien: The “to be sure, to be sure” amendment reinforces the independence of the Judiciary and, as Deputy Calleary said, it is one word but as we sometimes know one word makes a difference. We welcome the amendment also.
Deputy Alan Shatter: I thank Opposition Deputies for their support for this Bill. I reiterate what I said at the start, that it is of crucial importance that we continue to maintain and protect the independence of the Judiciary. On Second Stage, Deputies referred to the importance of the separation of powers between the Executive and the Judiciary. When this proposal goes to the people in a referendum, it is important — particularly for Members of this House, including members of the Government — that we have a respectful public discussion. We should show due respect for the independence of the Judiciary. We need to deal with this issue in the way intended, which is to provide for fairness in the context of those who are paid from the public purse at a time of great fiscal difficulty for the State. It is right that in this discussion we should recognise the integrity and independence of judges at all levels within our courts system.
I would go further in citing the bravery that is exhibited with that independence on occasions in the context of some of the more difficult issues that judges have to address in the area of criminal law over the years. On occasion in decades gone by, judges may, in hearing particular cases, have feared that they were placing themselves at risk. As far as I am aware, however, no judges have ever shirked their responsibilities, obligations or constitutional oath to uphold the law. It is my hope that, as we move forward with this particular issue, whatever small amount of heat that seemed to be generated around it back in July, will not reappear. We should have an open discussion in so far as the public may wish to hear what we are doing and be informed. On this particular issue, we will do it on a co-operative basis across both sides of the House.
Deputy Alan Shatter: Tairgim leasú a 1:
I move amendment No. 1:
Aontaíodh an leasú.
Amendment agreed to.
Aontaíodh alt a 2 mar a leasaíodh.
Section 2, as amended, agreed to.
Aontaíodh an Réamhrá.
Preamble agreed to.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille le leasuithe, glacadh é chun an breithniú deiridh a dhéanamh air agus ritheadh é.
Bill reported with amendment, received for final consideration and passed.
An Ceann Comhairle: The Bill will now be sent to the Seanad.
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