Alan Shatter (Dublin South, Fine Gael)

I will deal with the specific issues raised by Senators and I hope they will forgive me if I do not necessarily deal with them in the order in which they arose but there is a conjunction of some issues.

I thank Senators for their general support for the measure and I appreciate this support. Senator Mullen has an issue with the wording which perhaps we can deal with on Committee Stage. However, in my view, there is general support for the wording of the amendment. Some Senators raised the issue of the need for the judicial council and what might be happening in that regard. I confirm that this is part of the programme for Government and legislation will be enacted to provide for the judicial council. Legislation was drafted within my Department and the previous Government had some engagement with the Judiciary on the issue. I would hope the legislation will be published next year as the Government has other priorities ahead of it. However, work is being done on that legislation.

It is most unfortunate that legislation to establish the judicial council was not enacted many years ago. There is a range of reasons this legislation is needed but because of limitations on time today I will not deal with them now. However, I reiterate it is part of the programme for Government.

As regards the issues that have been raised, I wish to be very clear on what is the basic principle behind the Bill and which I have repeated in different ways in the course of my speech. The provision will apply to members of the Judiciary similar salary reductions as have been effected by persons within the public service on similar salary levels paid out of public funds. This measure is to ensure there is no remaining issue about the pension levy. Senator Bacik accused me of coming out on the pension levy. Indeed, I came out on that issue a long time ago when in opposition when the previous Government said there was a constitutional obstruction to applying the pension levy, by legislation, to the Judiciary. I disagreed and still disagree on that issue. However, there is clearly a constitutional prohibition on applying a salary reduction. The O'Byrne case eloquently describes why I believe the previous Government was wrong on the pension levy, but able lawyers can argue each way on that issue. In the context of it being clear that we need a referendum to deal with the remuneration issue, it is important that we remove any doubt about these matters.

The form of wording we propose deals with the two areas. It deals expressly with the income tax issue, which was dealt with many years ago in the O'Byrne case by the Supreme Court, and with the levy issue about which there are differences of opinion. While the majority of the Judiciary has voluntarily contributed to the pension levy, a minority has not and that minority cannot be required to do so other than by the referendum being successful to remove the doubt about it, followed by the application of the legislation.

Senator Barrett asked about the legal advice with regard to remuneration. Mention was made of the view expressed by a well known broadcaster that we should just legislate and ignore the Constitution. We cannot ignore the Constitution. No Government can stand over publishing legislation that is unconstitutional and we cannot simply enact legislation without a constitutional change to reduce the salary of judges, even if the reduction is, as intended, confined to similar reductions to those of others paid out of the public purse. That would, under the current Constitution and no matter how one looks at it, be a clear violation of Article 35.5. It does not take a legal scholar to know what the current Article says. All one need do is read it. It is clear that we cannot reduce the salary of judges in any circumstance during their period of holding judicial office. This is paraphrasing it, but that is what it says.

The idea that a Government can, gung-ho, enact legislation through both Houses and apply it to the Judiciary is nonsense. Should a Government attempt to enact such legislation, the President would be right to refer it to the Supreme Court under Article 26 of the Constitution. Then, after the expenditure of large sums of money for a solicitor and Counsel to argue the toss either way before the Supreme Court, the case would be lost and we would be back to the first stage. I find it extraordinary that people who engage in public commentary should propose such a way of approaching matters. I assure Senator Barrett that there is no detailed piece of legal advice that needs to be laid before the House on this issue. The Constitution is clear. The Senator should read the seminal work by John Kelly who deals with the issue and some of the works by others who have written about the Constitution.

Senator van Turnhout and others suggested we should set up an independent group to assess what the salary of the members of the Judiciary should be. If we do that, we do the exact opposite of what we intend. Setting up an independent group to assess what the salary of sitting judges should be would seriously violate judicial independence. We would be appointing a group that was unaccountable to anyone, including Parliament, to pronounce from a height on what we should pay judges. The judges could not be part of that group because they would not be independent. Who could be part of that group? If the group reached a decision that judges currently in receipt of "X" should now be paid "Y", on what basis could that be explained other than that the Judiciary was being targeted separately from everybody else? This is not about targeting anyone. It is about ensuring that we continue to protect judicial independence, but it also provides for a system that is fair and applies readily identifiable criteria to ensure the Judiciary has applied to it the same salary reductions that have applied across the public service.

What is the litmus test of this being an independent, non-targeted approach? The litmus test is the provisions contained in the 2009 Act and the financial figures I have provided which are readily, independently identifiable as not targeting the Judiciary in some separate way rather than being the decision of some body conducting a value judgment on what we should pay sitting judges, which would be undesirable and would be an attack on judicial independence. I was surprised that was a proposal contained in a document that appeared on the Courts Service website.

It is important that we are very careful how we proceed on this issue and we must be careful to ensure that we recognise the huge importance of judicial independence. In an economic crisis, it is important that judges are not immune from the impact of that crisis and that the public do not perceive them as inhabiting a world different from that of the rest of us and different from the world inhabited by those on whose lives they adjudicate. It is also important that in so far as there are fiscal problems being experienced by the State at a time of economic crisis, the reductions in salary that have applied to others paid out of the public purse apply to the Judiciary proportionately and fairly, no more and no less. That is the intention of the legislation before the House.

I was asked about the costs involved in the referendum. There are savings in having two referenda and a presidential election on the one day. Some of these savings are obvious, such as, the personnel involved in counting. The personnel are assembled on one rather than on three occasions. Perhaps the counting will go into a second day on some issue, but this happens in general and by-elections on occasion. Also, the ballot takes place in a location that holds the boxes for the presidential election and for two referenda.

I will refer now to my note on the finances of the matter. The position is that the Minister for the Environment, Community and Local Government, has made an order establishing the Referendum Commission. This means the same commission will act for both referenda and we will not need two separate commissions, the workings of which incur some expense. It also means the costs will be split proportionately between the two referenda.

As I mentioned, my Department is making available a budget of up to €750,000 for the judicial referendum. It is a matter for the commission in its independent judgment to determine how to present the case. Senator O'Brien wondered how anyone would present the case against us. No doubt, someone will and there will be arguments to be included. It is for the commission to decide on the necessity to spend all or a portion of the moneys in the context of the manner in which it believes and determines the public should be informed.

There are also some costs associated with running the poll. These refer to the printing of ballot papers or referenda papers, the circulation of the Bill and the printing and distribution of the statement furnished to voters as to the nature of the referendum taking place, which is normally furnished by the State. The estimated cost charged to central funds in that context is approximately €430,000. It might be of interest to note that some of the staff costs associated with distribution of ballot papers and boxes for the second Lisbon treaty referendum amounted to approximately €800,000. That was for a far more complicated issue than the judicial referendum. I am hopeful that communicating the message as to what this referendum is about - dealing with judges' pay - will prove to be a good deal less expensive and controversial.

The estimated cost of the referendum is between €1.1 million and €1.3 million but the savings in a full year will be €5.5 million. Members can see it might be a small sum in the overall realm where we now no longer talk in millions but in billions but, nevertheless, within my Department, a saving of €5.5 million in a year would make available funding for other purposes that may assist groups and organisations for which money is tight at the moment or could release moneys to be put into the legal aid system in circumstances where the Legal Aid Board and the law centres are under huge pressure. It may be a small sum in the overall scale of the world but it is an important sum and it will introduce a sense of fairness into the system.

I hope I have largely covered issues raised. The issue of the backlog in the Supreme Court was raised by Senator Burke. It is a concern that a substantial backlog has developed. It can take in excess of two years for an average appeal to be heard unless there is a reason for the court determining an appeal has exceptional and particular urgency, in which case it may be advanced. A number of years ago, the membership of the court was increased by the Government with the Courts Service allowing for additional appointments and it was envisaged at that time that there would be a development whereby the court, which must operate independently of Government and politicians, because of the number of judges appointed to it, would identify appeal cases that could appropriately be heard by a division of the court.

The court, in hearing appeals when I started off as a lawyer, had five members and, frequently, cases that were not seen to be particularly onerous were determined by a three-person court and the five members would only preside over cases of particular difficulty or public importance. When the number of judges in the court was increased, it was anticipated that would facilitate two divisions of the court. We might have had two courts of three judges able to hear appeals in respect of which there were not major, complex legal issues to be addressed but, in practice, that has not emerged. It is a matter for the Chief Justice as to how she orders the court in the new legal term but there is a concern at the time it is taking for appeals to be processed.

It is part of Government policy that we provide for a civil court of appeal. Legislation is necessary for that and serious consideration is being given to provide constitutionally for a court of civil and criminal appeal in order that important courts such as this should be referred to in the Constitution. That may be an issue for the next round of referenda in the context of the substantial constitutional reform agenda of the Government, which has been signposted in the programme for Government. A public consultative process will be undertaken in respect of other constitutional issues which people have concerns about and believe might be addressed. It is something we will come to. As Minister, I have to be conscious, again with limited resources, from the legal perspective, that the establishment of a civil court of appeal would be of great benefit. I believe many cases that would otherwise go to the Supreme Court could finish at that level. It may ensure appeals are heard a good deal sooner and ensure only cases of great complexity go through an appellate system to the Supreme Court.

However, establishing a new court structure would generate additional expense. Within the context of the justice envelope, I have an obligation to reduce the spend by approximately €340 million by 2014. There will be a difficulty reconciling the establishment of a new court, which I favour with the fact that I am restricted regarding resources. I would also like to see a separate, independent family court structure, which will also generate expense. Some of these developments will happen in the second part of the Government's term rather than the first part, during which we hope to further stabilise the public finances and be in a position to implement some of the reforms to which additional costs attach. We can proceed with many reforms now, which either do not give rise to additional costs or which are in the public interest and will reduce costs. I put this referendum in that context.

I hope I have responded to all the various queries raised by the Senators. Some more may arise as we take Committee Stage but I am conscious we are having a restricted exchange. I thank Senators for their contributions.