Thursday 12 December 2019

Dearbhail McDonald: Judicial salary body would take the heat out of a growing crisis

JUSTICE Minister Alan Shatter got one thing in the ongoing judges' dispute right. This was his acknowledgement that the publication of a 12-page memo sent by the judiciary to the Government on the forthcoming referendum on their pay was a side issue. It is.

Earlier this year the Government, under the guise of unnamed sources who could only have been briefed on a private meeting held between the Taoiseach and chief justice, revealed details of that meeting which included concerns raised by the chief justice about the impact of changes to public-sector pensions on judges.

They also wasted no time in leaking the judges' memo last week when it received what was intended to be a private correspondence between one organ of government to the other.

That the Attorney General Maire Whelan, a member of the Cabinet, gave the go-ahead for the country's judges to publish their controversial memo in full through the Courts Service -- a statutory body whose mission is, amongst other things, to support the judiciary -- only made Shatter's over-the-top attack on the quango look vain and childish.

But that, regrettably, has been the hallmark of Alan Shatter's handling of the judicial pay row. A genuine opportunity for reform has thus morphed into a potentially disastrous constitutional crisis.

The publication of the judges' memo, in circumstances where it had been substantially leaked to the media, is a side issue.

What is a much graver issue is the escalation of the dispute between the executive and the judiciary, who play crucial roles and apply important checks and balances to the rule of law, the absolute bedrock of any democratic society.

There is a reason why there is a constitutional ban on reducing judges' pay: to ensure that the judiciary as an institution as well as individual judges can not be touched by ministers and are free from the pressures of the State whose actions they scrutinise.

Since the inception of the State, judicial independence has been tested by political interference time and time again, not least during the Troubles. But the judiciary (and the State) has never experienced a financial crisis the likes of which we are experiencing now. In the past money didn't matter, especially when Irish judges enjoy some of the best pay and conditions in the common-law world.

Important as their independence is, judges' privileged positions are not immune from the crisis we now face. They know this. By their own admission, they scored a series of own goals since 2009 when the Government announced that only a handful of the country's 147 judges had made a voluntary contribution to the Revenue Commissioners in lieu of the controversial public-sector pension levy. In time, most judges -- some 85pc -- signed up. But the damage had been done when they failed, as a class, to show leadership.

Many judges privately acknowledge they could have averted the current crisis by unanimously volunteering for a cut. Some felt the advice given to the last Government by former Attorney General Paul Gallagher -- that judges' pay could not be cut -- was wrong, was too literal an interpretation of the rule that judges' pay can never be reduced.

Others were happy to hide behind the constitutional shield.

Almost all judges concede their pay and pensions have to fall and acknowledge such reductions are justified by the deterioration of the economy.

But they have argued that this process of fixing pay and salaries should be conducted by an independent body to maintain the separation of powers and the independence of the judiciary.

It is only fair that judges' pay should be adjusted downwards, if needs be in line with those experienced by the wider public service.

But there are ways and means to achieve these reductions which could have avoided the current stand-off between the judiciary and Mr Shatter.

With the Justice Minister facing allegations he overstepped the constitutional line separating the judiciary and the executive and judges accused of failing to shoulder their share of the burden, both sides must surely now wish they had handled the matter differently.

An independent adjudication, even if it yields the same result as that which the Government has proposed (pay cuts of between 16pc and 23pc), is a small price to pay for the unquantifiable cost of arms of the State at war and a non-independent bench.

As the old song goes: it ain't what you do, it's the way that you do it.

Irish Independent

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