Alan Shatter (Dublin South, Fine Gael)

A very important principle is involved here. In addressing that principle those of us in this House should be careful about how we approach it. An essential cornerstone of our Constitution is that the independence of the Judiciary is preserved, that the Government does not put the Judiciary under pressure on any particular issue and that the Judiciary is not perceived as giving into Government pressure. A second important aspect is that the Judiciary should not be seen to give in to pressure from Members of this House to do something that is unlawful.

Another very important principle is that the public respect for the Judiciary is maintained. There is a difficulty in this area, which derives from Article 35.5 of the Constitution which states in a very straightforward way: "The remuneration of a judge shall not be reduced during his continuance in office." That provision is not unique to this jurisdiction and reflects constitutional and legislative provisions in place in democracies across the world. The reason is to ensure that a government or Parliament that disapproves of judgments or decisions delivered by members of the Judiciary does not seek to take revenge on the Judiciary by reducing salaries and that it does not seek to reward judges who deliver decisions with which the Government agrees or with which the majority in Parliament agrees.

In addressing this issue we should not deal with it on the basis of any criticism of the members of the Judiciary themselves. However, what is utterly wrong is the manner in which the Government has approached this issue and the pension levy issue, which is related to it. We were equally told that the pension levy could not apply to the Judiciary because of this provision in the Constitution. Arguably, imposition of the pension levy on members of the Judiciary would not have been a reduction in their remuneration. It would have been a levy applicable to them commensurate with the levy applied across the public sector to require them to make a payment towards the pension fund from which they will benefit in future years. There is an argument to be made that the pension levy could have applied to the Judiciary, but because of the manner in which the courts have interpreted this provision in years gone by, I can understand why the Government would have been reluctant to have applied the pension levy to the Judiciary for fear that it would become embroiled in difficult and unpredictable litigation in the courts.

Whatever about the possibility of applying the pension levy, Members of this House should not be under any illusion that it is open under the existing constitutional provision to apply what is a straightforward reduction in remuneration to members of the Judiciary. If applied to the Judiciary, this legislation would do exactly what the Constitution precludes this House and the Government from doing. We should be under no illusion about that.

It is also very dangerous and should not occur that we read in the newspapers either by leaks through the Department of Finance or by express statements by the Revenue Commissioners as to how many members of the Judiciary have contributed to the pension levy. I believe the levy should apply to members of the Judiciary, but there is a problem with possible constitutional difficulty. It is wrong because this suggests it is possible to use public pressure to force members of the Judiciary to make decisions to apply to themselves legislation that this House has not applied to them. That is only a short way from suggesting that this House or the Government can use public pressure to require the Judiciary to deliver decisions in our courts, and the perception on the part of the general public would be that the Judiciary is no longer independent but has become the plaything of Government, the Houses of the Oireachtas, or the political system. That is a dangerous slippery slope which we should not be going down.

Among many outside the House, quite understandably, it is perceived to be grossly unfair that the public sector wage reduction does not apply to members of the Judiciary. I believe it is unfair that they are excluded from it and it was equally appropriate they be included within the pension levy. It is important to maintain public respect for the Judiciary. At a time of economic emergency they should be seen to make a similar contribution towards solving the problems of the State to those made by everyone across the public sector. As the law stands at present, that cannot happen. There is a serious danger that not only will the Judiciary be damaged by being excluded from this, but it will also be brought into disrepute within the public mind. A good point was made by a previous speaker that almost everyone in the courtroom, including members of the Garda Síochána and court staff, will be affected by the legislation, while the judge is immune.

There is only one way in which this issue can be properly addressed. I put this to the Minister of State. Does he believe it would be fair - leaving aside the constitutional difficulties - if the public sector provisions detailed here, which apply, as has been eloquently explained, to the very low paid, applied equally to the highest paid, within which designation falls the Judiciary, from District Court to Supreme Court? The pay of a District Court judge is at least 50% of the pay of a Deputy in this House.

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