One law for the judiciary and another law for the rest of us

THE Government’s decision not to impose the €250,000 public service pay cap on current members of the judiciary highlights once again the degree to which, effectively, there is one law for judges and another for the rest of us.

The Government did not completely leave judges alone in the budget: it introduced a new PRSI charge of 4% which will apply to high-paid public office-holders, including members of the judiciary.

However, the Government did leave the judges’ basic pay rates untouched, and this is nothing new.

Ever since the economic crisis began, the Government has talked of cutting judges’ pay, but shied away from it every single time.

As a result, we have the bizarre situation where the most senior judges in a country that has just been bailed out continue to earn more than their counterparts in the world’s largest economy. Last year, Chief Justice of the US Supreme Court John Roberts earned $223,500 (circa €169,000 at current conversion rates). This compares with a salary of €295,916 for the Chief Justice of the Irish Supreme Court, John Murray.

The other members of the US Supreme Court were paid $213,900 — or €162,000 — last year. This compares with €257,872 for the other judges on the Irish Supreme Court.

Why is this?

The Government would certainly like to cut judges’ pay, but is afraid of the legal implications. This is because of a Constitutional provision which prevents any administration from cutting the pay of the judiciary.

Article 35.5 of the Constitution states: “The remuneration of a judge shall not be reduced during his continuance in office.”

So while the Government has imposed widespread pay cuts on the public service since 2008, this provision persuaded it not to target judges for direct cuts.

Not only that, but the Government also decided that the provision barred it from applying last year’s public sector pension levy to judges’ pay — even though many independent analysts considered the levy to be a tax rather than a direct pay cut and, therefore, saw no reason why judges should have been exempted.

However, that does not change the fact that their basic salaries remain untouched while the salaries of the lowest-paid public servants have been cut by 5%. And if you want to extend the comparison beyond the public service, judges’ salaries remain untouched even though the national minimum wage is being slashed by 12%.

The Constitutional provision was put in there for a good reason: so that politicians would not be able to threaten judges with pay cuts if certain rulings did not meet with their approval. But one could argue that the provision is now acting as a bar to social justice, because while pay cuts have been a feature of life in both the public and private sectors for the last two years, judges have not been affected by them.

The Government is at least providing for pay cuts for future members of the judiciary. The €250,000 pay cap will apply to all future judges, as will the 10% pay reduction for new public service entrants.

What will this mean? It means a new District Court judge will earn €132,895 rather than the current salary of €147,961. And it means that, if that judge were to progress over time to one of the most senior positions in the judiciary, his or her pay would be capped at €250,000.