Ivana Bacik (Independent)

I am glad to hear Senator Mullen also agreed. Many of us had agreed on this. I accept the previous Attorney General and, I assume, the present Attorney General did not share this view. I looked again at Chief Justice Maguire's judgment, and all of the Supreme Court judgments, in the O'Byrne case in advance of today. Chief Justice Maguire stated: "To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of Government cannot be said to be an attack on his independence.". This is widely quoted and the Minister quoted it earlier. Chief Justice Maguire's judgment contains extensive quoting from earlier case law, including Judge Holmes's famous dissent in the Evans v. Gore case in the US, which has now been widely approved.

However, having said all that, given that the referendum was viewed as necessary it is imperative that it would be held sooner because we have seen a rather unpalatable development of hostilities between the Judiciary and Government over this. They have been largely calmed by the announcement that the referendum will be held and by the publication of the heads of the Bill and then the Bill and by the new Chief Justice, Mrs. Susan Denham's well publicised and commendable decision not to take the extra allowance on her appointment as Chief Justice.

On the Bill and its wording, misgivings were expressed about the third clause within it being too broad. My colleague, Estelle Feldman, published an article last week in The Irish Times about that. Professor Gerry White also expressed doubts on it. The amendment made by the Minister in the Dáil last week answers much of that concern. I am pleased to see an amendment to include the word "proportionate" in clause 3 of the new Article 35.5. The Minister referred to it as the "to be sure to be sure" amendment. He did not feel it was necessary but it was there to copperfasten the assurances that have been given that no revenge attacks would be made on the Judiciary. He quoted the Beauregard judgment and the idea that reductions in judicial pay should never be capable of being seen as some sort of colourable device to pay back a Judiciary which was seen as over-interventionist in the decisions of the Executive. Tomorrow we will debate whether judges were over-interventionist in curbing the powers of the Oireachtas in the context of the Abbeylara referendum Bill. We will also refer to the Callely case in this House which is a bête noir. That is perhaps a different issue. Certainly issues around the separation of powers were raised about the original wording of Article 35.5.3°. The insertion of "proportionate" was an important and useful safeguard. In particular where a climate of distrust had developed it was useful to include an extra provision and safeguard.

It occurred to me when I was reading some of the material around the debate that the provision stipulates only reductions. No provision is made for increasing judges pay where they are deferential to the Executive. Concerns have been raised that judges can be overly deferential to the Executive. It would be an appalling vista if increases were to be permitted.

One other concern has also been expressed about the wording of 35.5.3°. It is one that was raised by my colleague, Professor Gerry White, about the before or after the enactment into law of the section, the provision that appears to allow retrospective application of the section. The Minister clearly set out the detail in the implementation Bill but that is specifically there to allow the pre-existing public service levy of 2009 to apply to the remuneration of judges so that there is no need to pass a whole new tranche of legislation so that a similar public service levy might be applied. I wonder whether there was another way of doing it. The Minister said in the Dáil there is no unique wording. I thought that the wording he produced in 2009 was good but I wonder whether there was a more elegant way of achieving the same result that would not have required retrospective application. That is a relatively minor point.

A point raised by Senator van Turnhout that has come up in the debate in recent months has been the issue of an independent body to determine judicial pay. I am not sure whether that is necessary. If judges' pay is determined by reference generally to public sector pay scales, I am not sure whether it would be required to have an independent body evaluating it, but where I entirely agree with her - I made the point previously - is the need for reform in judicial appointment procedures to make sure that there is greater independence around those and that they are more immune to political intervention. There may be something in that regard in the legal services Bill. I might be wrong about that but I thought there was a reference to reform of the Judicial Appointments Advisory Board.

Others have pointed out the importance of the Bill. It is relatively rare to have constitutional referenda. The Bill has implications for the separation of powers. In the light of legal advice that has been received by the Government and the previous Government, both sides of the House accept that the Bill is necessary, that the change to enable reductions to be made in line with the public service levy could not have been done through legislation, and it was not being done on a voluntary basis, although it is fair to acknowledge that 85% of judges have made the voluntary contribution. Given that we accept its necessity we must ensure that the wording is right. The technical amendment proposes to delete the words "into law" in the first line of subsection (3) and is in keeping with the desire to make sure the wording is watertight.

To return to the words of Judge Holmes and the language used in the O'Byrne case, clearly, this is not just a money-saving device. The Minister indicated that approximately €5 million is at issue. Much more importantly, it is an issue of fairness to ensure that judges are seen to contribute proportionately and fairly in the same way that other citizens must do. That is important at a time of great financial crisis. I welcome the Bill.