Brian Lenihan Jnr (Dublin West, Fianna Fail)

In the Courts of Justice Act, wherein the retirement ages of judges are specified. In the Supreme and High Courts, retirement age is 72 and in the Circuit Court it is 70. In the District Court it is 65 but there is a statutory provision enabling the Minister for Justice, Equality and Law Reform to extend the tenure of a District Court judge from year to year after the age of 65. All these arrangements are set out in the Courts of Justice Act and there would be a major question about whether we could even embark on amending them given the constitutional position of the members of the Judiciary, who are independent in the exercise of their duties. They can be impeached but not removed from office otherwise than for stated misbehaviour if the Oireachtas adopts appropriate resolutions. For that reason it is not suggested that they are not public servants but simply that they are not so for the purposes of this legislation. Their legislation, enacted under the Constitution, regulates their position regarding tenure of office.

The tenure of office of members of the Judiciary goes back in constitutional history to the Bill of Rights in England in the 17th century. It is a constitutional fundamental, reflected in our Constitution, that the terms of office of members of the Judiciary are a matter with which the legislature cannot interfere. It would not have been open to us to pursue that course.

The President must be 35 years of age to be eligible for election to the office and the view has been taken that if a person serves as first citizen he or she should be entitled to a pension regardless and irrespective of the age of retirement. This might have interesting implications were the people to elect a 35 year old President, which has not yet happened. It is a constitutional office and it was also decided to include with those offices the quasi-judicial positions of the Taxing Master of the High Court and county registrars. This is true also of the Master of the High Court who for many though not all purposes has the position of a High Court judge, and while not a High Court judge exercises many judicial functions.

The Schedules are a tribute to the Parliamentary Counsel because the primary provision, which the Senator mentioned, was contained in section 3 setting out the abolition of the obligation to retire on age grounds, and section 10, which deals with pensionable age generally. Instead of simply enacting the core provisions of this measure as an express provision, the principle is contained in each of those sections, namely, the removal of the compulsory retirement age in section 3, and the 65 year old pensionable age in section 10. Rather than rely on the doctrine of implied repeal, the Parliamentary Counsel has catalogued the previous enactments which this repeal affects and has set them out in extenso in the schedule. The measure cannot be criticised on the basis that the Parliamentary Counsel went back through the Statute Book and identified the items with which those core amending provisions dealt. All the bodies excluded are listed in the schedule.