Rónán Mullen (Independent)

Ba bhreá liom fáilte a chur roimh an Aire, an Teachta Shatter. The Minister is very welcome to the House. I note his gratitude to us for our co-operation in facilitating the debate at this time and pace. I understand the Government's need to get the Bill through the Houses in time for the referendum. I agree with what Senator van Turnhout said on the approach taken with the national vetting bureau Bill and the fact that we have had early sight of that and a chance to discuss it. Given that this is about a constitutional referendum, it is regrettable that the Bill is being pushed through quickly. The fact that it is a constitutional referendum Bill is all the more reason for us to give careful consideration to it. Giving careful consideration means time to allow people to change their minds. I do not say the Minister's mind is closed but it is more likely that a governmental mind will be closed if legislation is put through at this rate and pace. That must be said.

Article 35.5 of the Constitution appeared to be about judicial pay. It says that the remuneration of a judge shall not be reduced during his continuance in office. However, as Estelle Feldman has pointed out, and our own constitutional jurisprudence testifies, it is not in fact about judges pay; it only seems that way. Article 35 of the 1937 Constitution is about judicial independence. Senator Bacik has mentioned the case of O'Byrne v. Minister for Finance. In that case Chief Justice Maguire held that the purpose of the article is to safeguard the independence of judges. He further stated that requiring 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 upon his independence." Unfortunately, the former Attorney General and Government did not appear to have accepted that as a statement of law and they excluded the Judiciary from the general income levy citing the article as a constitutional barrier. That is of course the reason the Minister is seeking to remedy that by way of a constitutional amendment.

I have concerns about the wording that is proposed in the referendum. I have drafted an amendment which offers a clearer wording that is less open to misunderstanding and possible abuse in the future. It has been said that the majority of judges have accepted cuts. I note the comment in the Minister's speech that they have accepted one cut but they have not necessarily accepted the other. An issue arises about how the reduction is to be imposed on judges as a class. The Minister set out the legislation that will apply not retrospectively in terms of cutting back into the income already received, but in terms of applying reductions which were decided and imposed on others previously. In the case of public sector unions, they have long-established mechanisms for meeting Government and making submissions in respect of their remuneration either through a formal multilateral process such as the Croke Park negotiations or through meetings with the relevant Minister.

The Minister has ruled out of the use of an independent commission to examine the issue. It is understandable that the Government may not wish to overly complicate the matter by setting up yet another independent body when it would be easier to treat judges like senior public servants but as the Minister said himself in his speech there is a difference between judges and other public servants in that those working in the Civil Service are working directly for the Executive branch of Government while judges are constitutional officeholders.

This must be addressed where there is no such mechanism to consider any judicial submissions.

It was this matter that led the supreme court of Canada to consider that any reduction of judicial salaries had to be referred to an independent body. The Canadians have held that if this condition is met, judicial salaries can then be reduced as part of an overall economic measure affecting all of those paid from public funds, much in the same manner as the Government is considering here.

According to the eminent Australian judge, Sir Anthony Mason, "The principle is increasingly accepted that direct negotiation by the judiciary with other branches of government over judicial remuneration is open to manipulation and is incompatible with judicial independence". I cite that in light of what the Minister said in his speech and what was said in the previous debate over Senator Crown's Private Members' Bill, concerning the importance of the independence of the Judiciary. Everybody seems to want to say how much value they place on the importance of judicial independence, but we must examine what is being proposed and consider its implications for judicial independence.

Since no independent commission is being proposed, where does that leave the possibility for judges to have an input into any future decisions on pay? Earlier this year, the Chief Justice met with the Taoiseach to discuss various matters, but it was not long before certain concerns of the Chief Justice were leaked. That was very embarrassing to the Judiciary, as well as being inappropriate. I suggest that it contributed to a certain poisoning of the atmosphere between the Government and the Judiciary. What will happen in future when the Chief Justice meets with the Taoiseach? Will that be the Chief Justice's only opportunity to make certain submissions about pay? Could discussions about pay therefore become some part of a quid pro quo arrangement in which the Executive seeks certain things from the Judiciary and vice versa? There is a real need for transparency and the only way one can achieve that is by having some class of independent body.

I will now turn briefly to the wording of the Government's proposed amendment to the Constitution. Hopefully, we will get a chance to discuss it in more detail on Committee Stage. I note that the Government has already amended its proposal by introducing the word "proportionate". The Minister is to be congratulated for doing so, as that clearly improves the proposal. I consider, however, that other amendments are necessary and that without them this proposed constitutional amendment would be seriously flawed.

The first two parts of this proposed section are unproblematic. The proposed Article 35.5.2o is mostly a statement of already established law. On a plain reading of what is proposed, however, it allows for more than the current law. The entirety of the clause does not clearly prohibit the levying of a tax on a class of persons that comprises judges alone. Therefore my amendment to the paragraph, proposing to delete the phrase "persons belonging to a particular class", is necessary. It is not a question of any suspected mala fides on the part of the Minister - it is a question of setting out clearly what is to be the position in future, regardless of what future Governments might propose.

I also wish to mention the wording in this proposed amendment which states that the law in question proposing a reduction must state that such reductions are in the public interest. I regard this as a very worrying constitutional development. If the Legislature and the Executive says that the law is in the public interest, then there is no appeal to say that it is not. That is the effect of the proposed wording. It is basically to avoid the possible supervision of the courts. I wonder whether there has ever been a piece of legislation which did not say, implicitly or otherwise, that it was in the public interest. That is a serious problem.

We now have confirmed intentions to abolish the Seanad, strengthen the investigatory powers of Dáil committees, allow a reduction in the remuneration of judges, and reduce the number of Deputies. These changes have one thing in common: they strengthen the hand of the Dáil and weaken the hand of those with an essential role in acting as a brake on the powers of the Dáil. This trajectory reduces transparency and accountability, while increasing Cabinet power and radically changing our constitutional balance.

Judges have been paid too much but the solution to this is not a baldly-worded constitutional provision of the kind that is proposed. New pay levels for newly appointed judges are possible and I have no problem with an element of retrospectivity. I seriously believe, however, that because of the importance of judicial independence the wording that we put into the Constitution needs to be much tighter than it is. I hope to discuss that further with the Minister on Committee Stage.