Enda Kenny (Mayo, Fine Gael)
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There has been a great deal of public comment in recent days about the fact that the 148 members of the Judiciary have been put in a position by a political decision of the Government that they be excluded from paying the pension levy. On what grounds did the Government make a political decision to exclude members of the Judiciary from having to pay a pension levy when approximately 300,000 other public servants have to pay the levy? Many of those public servants are now feeling real pain and difficulty and have to live on less than €100 per week after all the contributions have been made. What are the reasons for the Government exclusion of a particular sector of the public service, amounting to approximately 148 persons in all?

Brian Cowen (Laois-Offaly, Fianna Fail)
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As the Deputy is aware, the Attorney General has given his advice, having regard to the Constitution. As the Deputy is also aware, the case law interpreting that advice is confidential. The decision not to impose the pension levy on judges was made on the basis of that advice. The wording of Article 35.5 is clear. In express terms it imposes a prohibition on the reduction of a judge's remuneration during a judge's continuance in office. The remuneration has been interpreted in previous decisions as including pension rights and the protection in Article 35.5° provides for financial independence on the part of the Judiciary, which is a key component in judicial independence. As we all know, the separation of powers is fundamental to the Constitution. It is not appropriate for one organ of Government to interfere with the constitutionally protected rights of another organ of Government.

Things have moved on. The fact that the Chief Justice has been in touch with the Revenue and has provided for a scheme whereby he and his colleagues can arrange for a voluntary contribution of the order required is to be welcomed. It enables the Judiciary to make that contribution and I believe they will do so.

Enda Kenny (Mayo, Fine Gael)
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I note the comments of the Chief Justice in that regard and I welcome them. The Government and the Taoiseach have placed members of the Judiciary in a very particular position, through no fault of their own. I respect the constitutional provision preventing a reduction in the remuneration of judges' pay. It is necessary that they are seen to be independent from the Executive. That is as it should be. However, the fact is that approximately 300,000 public servants are being told that this is not a pay cut, it is a pension levy.

The advice of the Attorney General is only that; it is only advice. Political leadership, either from the Taoiseach, the Minister or the Government, must make judgments based on the advice given to the Cabinet by the Attorney General, who is the legal adviser to the Government. On a number of occasions in the past that advice has been deemed to be invalid before the Supreme Court, but not from this particular Attorney General. The advice given to the Cabinet by the current Attorney General is only that; it is advice. People are beginning to feel the pinch. Young gardaí, nurses and teachers, who say to me they must live on €90 per week after the contributions have been made, feel a political decision taken by the Government has excluded 148 public sector workers, that is, judges, who must now pick up the traces by way of voluntary contributions. I respect the Taoiseach's comment that judges should be independent but, as the pension levy was made as a result of a political decision in the common good, and members of the Judiciary were included in that common good, they were therefore not being marked out for their independence.

The Financial Emergency Measures in the Public Interest Act 2009 clearly reflects a political decision that the Minister may exclude persons he or she believes should be included in a particular set of circumstances. If the Attorney General advises the Cabinet that judges' pay should not be reduced, bearing in mind that it would be reduced because of the pension levy, I disagree with that. The Taoiseach has placed the judges in a most enviable position. The Cabinet should have thanked the Attorney General for his advice and decided the pension levy was in the good of all public sector workers. For the 300,000 public sector workers who are not members of the Judiciary, the measure is deemed to be a pension levy and not a pay cut, as per the constitutional issue. The Taoiseach should at least publish the advice of the Attorney General so we can see it. He should be up-front by admitting the political decision taken by the Cabinet based on the advice of the Attorney General amounts to a pay cut dressed up as a contribution and that he has placed the Judiciary in a very enviable position by having to follow on the words of the Chief Justice. Has the Taoiseach any intention of reviewing the advice of the Attorney General on the basis that a pension levy applied across the board is in the common interest? Judges share that view.

Brian Cowen (Laois-Offaly, Fianna Fail)
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Deputy Kenny has taken five sides of the argument and I do not know which side he is on at present.

Enda Kenny (Mayo, Fine Gael)
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I am on the side of judges paying the pension levy.

Seán Power (Kildare South, Fianna Fail)
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The most enviable side.

Brian Cowen (Laois-Offaly, Fianna Fail)
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The position of the Attorney General, as I have outlined, is clear. He is the adviser to the Government on the Constitution and legal matters generally. It is not open to the Government to act in a way that it is advised would not be in line with the Constitution. That is a basic procedure of government. The advice was based on the case law and the clear wording of the Constitution itself. I have explained that in my first reply. It applies to pension rights also.

Apart from that, it is incorrect to suggest there was an effort to put anybody in a difficult position. As the Chief Justice said in his statement, members of the Judiciary considered it a matter of duty to seek ways to meet the constitutional inhibition, which is not in any way contested. Both the Judiciary and the Attorney General are ad idem on their interpretation of the Constitution. Members of the Judiciary themselves, on their own judicial initiative, consider it a matter of duty to seek ways to address the constitutional inhibition while at the same time respecting the spirit of the Constitution. As a result, the Chief Justice was involved in detailed discussions with the chairman of the Revenue Commissioners with a view to ascertaining what arrangements could be put in place to enable judges to make an appropriate voluntary contribution. All that has happened in this respect has been on the initiative of the Judiciary. It has dealt with the chairman of the Revenue Commissioners and produced an eight-page document. The arrangements have been approved by the Revenue Commissioners and they have facilitated the making of a voluntary contribution equivalent to the sum that would have been paid in any given year if the levy applied.

The Chief Justice made the statement yesterday because of what he believed were misapprehensions that in turn have led to misleading statements concerning the operation of the scheme for voluntary payments by the Judiciary in respect of the pension levy. The purpose of the statement yesterday was to clarify and confirm the initiative that was taken by the Judiciary. The Judiciary does not contest the constitutional inhibition and it has made arrangements with the Revenue Commissioners for the payment of the voluntary contribution in line with what would otherwise be payable were the pension levy applicable to it.

Eamon Gilmore (Dún Laoghaire, Labour)
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On 29 September last, the Government introduced in the House what became known as the bank guarantee scheme. According to the legislation introduced on that date, the scheme was to last for two years. The Credit Institutions (Financial Support) Bill that was passed stipulated the guarantee would end on 29 September 2010. It stated explicitly that it would not continue beyond that date.

Last Friday week the Government published a Bill called the Financial Measures (Miscellaneous Provisions) Bill, which provides for a number of matters, including the transfer of university pensions to the National Pensions Reserve Fund, a number of technical amendments to the Central Bank Act, a number of provisions affecting insurance legislation and legislation governing the use of credit cards. Buried away in Part 2 of Schedule 2 of the Bill is an amendment to the legislation that introduced the bank guarantee scheme. That amendment lifts the two-year time limit on the scheme and gives power to the Minister for Finance to extend the guarantee by ministerial order for any period.

The Labour Party considered that the bank guarantee scheme introduced by the Government was a disaster for the taxpayer. As we have seen, this has been borne out in that every time the banks have a problem, the taxpayers must put their hands in their pocket. Some €4 billion has been allocated for Anglo Irish Bank and €3.5 billion each for the two main banks.

Regardless of what one thinks about the bank guarantee scheme, extending it indefinitely and giving the Minister for Finance the power to do so by ministerial order is a major step for us to be asked to take. It should at least be the subject of thorough and rigorous debate in the House. However, not only has the Government introduced this far-reaching measure in an underhand way and slipped it into the Schedule of a rather technical looking Bill, it also wants to take all Stages of the Bill tonight. It is proposed to guillotine Second Stage at 7 p.m. and it is proposed to take Committee and Remaining Stages between approximately 8.40 p.m. and 10 p.m. The provision to which I refer will probably not be reached at all by the House for examination.

For how long does the Government intend to extend the guarantee scheme beyond 29 September 2010, as proposed in the legislation to be taken this evening? Why is there such a rush to deal with all Stages in one sitting this evening? If the guarantee as it stands does not expire until 29 September 2010, we have approximately 14 months in which to consider the matter. Will the Taoiseach agree to withdraw Part 2 of Schedule 2 of the Financial Measures (Miscellaneous Provisions) Bill - it is straight out of Sir Humphrey - and allow the House to have a proper, considered debate on what everybody will agree is a substantial legislative measure to be brought before the House?

Brian Cowen (Laois-Offaly, Fianna Fail)
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The provisions to which Deputy Gilmore refers amending the bank guarantee scheme legislation, the Credit Institutions Financial Support Act 2008, in order to facilitate long-term debt issuance by the banks of up to five years, in accordance with the findings of a review of the guarantee, was signalled in the supplementary budget as far back as 7 April. There is no question of something unanticipated or unannounced suddenly arriving in the second Schedule of a Bill. This is being done to ensure that Irish banks have access to this longer-term funding in line with the mainstream approach in the European Union. It will contribute significantly to supporting the funding needs of the banks and to securing their continued stability.

It is true, as the Deputy stated, that the Irish Government was the first to bring forward a bank guarantee scheme. Many governments since have followed that example as part of their response to the need to provide financial stability at a time of unprecedented turbulence in the international banking system. There have been other and further measures such as the recapitalisation of the banks and the National Asset Management Agency Bill which is also being prepared.

This Bill is designed to ensure that Irish banks will have access to the issuance of eligible debt securities for the same length of time as other banks. We set out our bank debt guarantee for two years. In line with developments at EU level and the review in respect of the guarantee scheme it would put Ireland at a disadvantage were we to suggest that our bank guarantee was to extend only to September 2010 when debt securities of up to five years beyond that date are available to others. We would extend it to ensure that Irish banks can compete on a level playing pitch for those debt securities.

Eamon Gilmore (Dún Laoghaire, Labour)
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Yes, the Minister for Finance did indicate in the documentation supplied with the Budget Statement, rather than in the Budget Statement, that there was a proposal to extend the coverage of some categories of debt for five years. With all due respect to the Taoiseach, the way to do that is for the Minister for Finance to come in and explain that to the House,put a legislative measure before the House and provide for it.

We have two problems with this legislation, first, what is being proposed in the Bill is not a provision for five years or for particular types of debt - it is an open-ended provision, stating explicitly that the power is being given to the Minister for Finance to do this by way of order. There is no mention of five years, or of particular categories of debt. The Minister for Finance is asking the House effectively to open the bank guarantee scheme and leave the manner in which it will be exercised to his discretion in future. We have given one blank cheque to the banking system, now the Government is effectively asking the House to provide the system with an undated blank cheque.

Second, what is the rush? As the Taoiseach said, the Minister for Finance signalled something along these lines on 7 April. This is 23 June. Why does the Taoiseach want it done and dusted by 10 p.m. tonight? What is the big hurry? Why can this not be removed? I do not want to have the debate here but I want provision for the House to debate this measure. This is a fairly major departure from the commitment given when the original bank guarantee scheme was introduced. It was brought in for two years and we were told it would end on 29 September 2010 and that it would not be extended beyond that date. That is in the legislation. There may well be a case for changing that for particular categories of debt but it should be done here openly. It should be brought in with an upfront statement of the Government's proposal, the Bill and the conditions attached thereto, debated and decided. The Government is not doing that. What it is doing is underhand. It is slipping in the provision as a Schedule to a Bill, at a point in the Bill where it will not be debated, or will be debated only tangentially, because a guillotine is to be imposed. There is, however, a solution. The Minister could withdraw the Schedule from the Bill and introduce it separately. We can all co-operate with the handling of it and the taking of it. The Taoiseach has not explained why there is such a rush to have it all over and done with by 10 p.m. tonight. At the very least a matter of such seriousness, with so much taxpayers' money riding on it, requires a bit more debate now than being put in as a Schedule to a Bill which is guillotined and put through in one sitting on what is after all a half-day sitting on a Tuesday.

Brian Cowen (Laois-Offaly, Fianna Fail)
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There is a need to deal with this matter because we have limited our bank debt guarantee to September 2010. Five year money securities are becoming available on money markets that we cannot take because we cannot guarantee the banks beyond September 2010. There are other banks in other jurisdictions that can do that because they did not impose the prudent two year restriction that we imposed on ourselves at the time. There are loans that we could take up for five years if we apply the bank guarantee. The best way of ensuring stability in the banking system is to ensure that it has access to funds. Other banks in other jurisdictions are able to tender for these funds because they can apply a bank guarantee to them that we cannot do because we have legislation which restricts it to September 2010.

Eamon Gilmore (Dún Laoghaire, Labour)
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What has the Government been doing since 7 April? The Minister has had since 7 April to do this.

Brian Cowen (Laois-Offaly, Fianna Fail)
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Under section 6(5) of the Credit Institutions Financial Support Act 2006 we will introduce a statutory instrument to that effect for the future. The current time restriction of September 2010 has to be lifted from the Statute Book to allow us to apply for the five year loan security money in a way that we cannot do now. Legally we can provide a loan guarantee only until September 2010. This amendment to the legislation provides us with the means of ensuring that we compete on a level playing pitch with other financial institutions.