Alan Shatter (Dublin South, Fine Gael)

We are discussing amendments Nos. 1 and 2 together. In amendment No. 2 we will effectively delete "into law", as I referred to in my opening speech. Those words are being deleted in the context of what will be Article 35.5.3o. If that amendment is accepted, it will read, "Where, before or after the enactment of this section, reductions ...", and the words "into law" are therefore superfluous. That is why we are making the proposal. I hope there is no great difficulty about that.

I listened with interest to what Senator Mullen had to say. Before I deal with the specifics of his amendments, I stress that it is important to understand that the Government's proposed change to the wording is only a microscopic element of the Constitution and, if it is successful, what will be the new Article 35. It will be placed within a constitutional architecture that expressly provides for the separation of powers and continues to assert the independence of the Judiciary. The overall content makes it clear that the Judiciary cannot, as a class, be targeted individually. It would be in violation of the overall constitutional architecture, the spirit of the Constitution and the other provisions within it for another Government with malicious intent to follow the route that Senator Mullen suggests might be followed if the proposal we have brought before the House is not amended. I do not believe the problems he foresees will arise in practice. A Government must apply the constitutional provisions in their totality. It is clear how the amendment will be applied and it will work in the manner that I described in my speech on Second Stage.

I appreciate that Senator Mullen has gone to some trouble to tease out the matter and that he proposed his amendments with good intention. I want to give some specific reasons his amendments cannot be accepted. He seeks to simplify the Government's wording of the proposed amendment provided for Article 35.5.2. I understand what his amendment seeks to achieve, but it would actually have the opposite effect and broaden the provision beyond what is intended. Specifically, it refers to "classes generally". The difficulty with this term is that it is not clear what classes it applies to. The term "classes" requires to be linked to some object. In this instance, the amendment needs to refer to persons, as the Government's proposed text does. An additional difficulty that arises with the Senator's proposal is that even if the term "classes generally" was acceptable, such a broad term would apply to everyone. The article refers to the imposition of taxes and levies, which are not applied to everyone. For example, those on low incomes or social welfare may be exempt from them. It is for this reason that the Government's wording for the constitutional amendment specifically refers to persons belonging to a particular class. As I said earlier, the Government's wording also ensures that a class cannot be picked out in a discriminatory fashion, for example, by virtue of their profession or the fact they are judges. We cannot say: "We are going to target this class for a pay reduction because they are paid out of the public purse". Another group that is paid out of the public purse has to be identified, and the reductions must be proportionate.

Senator Mullen proposes a similar amendment to the proposed wording of Article 35.5.3. That is the one to which the proportionate issue applies. Again, I understand the intent of his proposed amendment to this Article. It is proposed to set out a date from which reductions have been or are made by law. I accept that the Senator seeks to capture the reductions that have been applied since the commencement of the Financial Emergency Measures in the Public Interest Act 2009. However, it would be very unusual to amend the Constitution and insert a specific date reference. It would go against the norms that are generally adhered to in the text of the Constitution. I do not consider such an approach is desirable, nor is it necessary. The Government's text already encompasses the financial emergency measures taken since that date by virtue of the phraseology contained within them. The amendment refers to cases in which "such law is in the public interest". This terminology is ambiguous and would open the section to challenge. If the wording was accepted, it would be a matter for the court to determine whether a law was in the public interest or otherwise. The Government's proposed wording is clear. The section applies only to a law that the Oireachtas has passed and which is stated to be in the public interest. Senator Mullen asked whether the Houses of the Oireachtas could do anything at all simply by stating that it was in the public interest. That would require a serious breach of faith by the Houses, but it would also require both the Government and the Houses to ignore the other provisions in the Constitution that delineate the separation of powers.

The Senator's proposed amendment also refers to "general classes". The use of this term would change the intent of the article, which seeks to apply the same measures to the Judiciary that have been applied or may in future be applied to public servants who are subject to the financial emergency measures. The term "general classes" applies to a much greater range of persons than is intended. It applies to anyone who receives remuneration from the public purse, and not merely public servants. If I accepted the amendment it would mean that a person employed in the private sector who takes any work for which he or she receives remuneration from the public purse would be subject to the provisions of the Financial Emergency Measures in the Public Interest Act 2009. Thus, the private sector electrician who is employed by the Department of Justice and Equality or the Department of Defence to carry out some minor electrical repairs would or could be subject to the provisions of the 2009 Act. I do not think this is what the Senator intended when he proposed his amendments, and it is for that reason that I must oppose them.

I assure the Senator that the concerns he expresses about the possible interpretation or application of the Government's proposed wording are not valid. The Government's proposals are based on acceptance of the proposed changes by the people in the referendum, the specific wording of the amendments that are before the House and the general constitutional architecture into which they are to be inserted. They will be specifically applied to the particular circumstances intended and I do not believe there is any likelihood they will be abused by this Government, any future Government or either or both of the Houses of the Oireachtas.