John Curran (Dublin Mid West, Fianna Fail)

The Deputy has raised a matter on the Adjournment that has been the subject of much comment in recent days. There are two aspects to the matter. First, the question of amending the Financial Emergency Measures in the Public Interest Act 2009 to make the Judiciary subject to the deduction, commonly known as the public service pension levy, introduced by section 2 of the Act. Second, the issue of an amendment to Article 35.5 of the Constitution. On the first question the Government's decision not to make the members of the Judiciary subject to the public service pension levy was made on the advice of the Attorney General. The advice had regard to Article 35.5 of the Constitution which is entirely clear. In express terms, it imposes a prohibition on the reduction of a judge's remuneration during the judge's continuance in office. A judge's remuneration has been interpreted in previous decisions as including pension rights. The levy is without doubt a reduction in remuneration and the Financial Emergency Measures in the Public Interest Act 2009 makes clear it is not a tax.

The salary of every judge at the time of appointment is clearly subject to income tax at rates to be determined from time to time. The imposition of income tax does not involve a change in the terms of appointment or an alteration in the remuneration to which a judge is entitled because that remuneration is always subject to tax. The protection in Article 35.5 provides for the financial independence of the Judiciary, a key component of judicial independence. Judges are not employees of the Government or of Government bodies. They are also specifically prevented by the Constitution from holding any other paid appointment.

The second question posed by the Deputy is whether there should be a Constitutional referendum to amend Article 35.5 to allow the Judiciary to be subject to the pension-related deduction. Again, this is an idea that has been well ventilated in recent days. The Deputy acknowledges the importance of maintaining judicial independence. However, it is difficult to see how a referendum on this issue could take place without the risk of doing some violence to that judicial independence.

The independence of the Judiciary is enshrined in the Constitution for very good reason. Financial independence is integral to this independence. The Judiciary ensures that the Constitution is respected and the laws are upheld. To do this effectively, it must be independent of the Executive and of the Legislature. To interfere with that independence in any way would have extremely adverse and unforeseen results and would undermine an essential protection of the rule of law which in turn is vital to the protection of citizens' rights.

The Constitution deliberately does not permit the Executive to reduce judges' remuneration, notwithstanding that, like citizens generally, judges are subject to taxation. It is with this fundamental principle in mind that the Government has no plans to amend the Constitution to provide that the remuneration of judges could be reduced by way of the pension levy.

The Chief Justice has made it clear that he expects strong and continuous participation by judges in the scheme put in place by the Revenue Commissioners. I welcome the Judiciary's initiative in this regard and I am pleased the Chief Justice has high expectations of that scheme. This arrangement with the Revenue Commissioners means the judges can pay an equivalent amount monthly, quarterly or on an annual basis. The Judiciary as a whole is understood not to have been notified of the arrangement until 11 May and any suggestion that judges have refused to make a voluntary contribution is not correct. The Government has always respected the independence of the Judiciary and the constitutional protections provided in respect of that independence. It is essential that we continue to do so.

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