Government can subject judges’ salaries to the same levy that applies to public sector workers

MAY I say how much I agree with the letter from Brendan Cafferty headlined ‘Judges should agree to take a cut in salary’ (March 3).

While the explanatory memorandum to the relevant legislation, Financial Emergency Legislation in the Public Interest Bill 2009, states that the constitution would invalidate legislation imposing the levy on judges, in fact this is just plain wrong.

The relevant provision of the constitution is Article 35.5, which states: “The remuneration of a judge shall not be reduced during his continuance in office.”

But this provision is not to be read literally.

We know this from the Supreme Court case of O’Byrne v Minister for Finance (1959).

In this case, which was brought by a judge’s widow, it was contended that this provision meant it would be unconstitutional to levy income tax from a judge’s salary. Rejecting this argument, Judge Kingsmill Moore stated: “The object was to secure the independence of the judges and the impartial administration of justice. The legislation was for the protection of the people, not for the interests of the judges. A judge who was subject to removal or to have his salary reduced would be under temptation to be subservient to the wishes of those in whose power it was to ensure his removal or reduce his salary. Any discrimination by tax or otherwise… would be equally objectionable. But I fail to see how a tax which is non-discriminatory against judges can assail the judicial independence… ”

The reasoning in Kingsmill Moore’s judgment would be broad enough to cover an increased pension levy against a judge’s salary, provided only that such an increase did not amount to a discrimination against judges.

There is no need, therefore, for any “voluntary reduction”: judges’ salaries could be subjected, by way of legislation, to the same levy that is being applied to public sector workers.

At a time of national turbulence and strife, we are likely to need the principle of independence of the judiciary because judges will have to take tough decisions, for example, perhaps enjoining nurses to go back to work or, worse, convicting a father who stole to feed his children.

In such unprecedented situations, a judge’s decision will have to be respected as impartial and underpinned by the independence of the judiciary. It is, therefore, most disquieting to see it being abused in this way.

Sadly, some of the biggest untruths are prefaced by the formula: “Unfortunately the constitution prevents us from… ”

David Gwynn Morgan

Professor of Law

University College Cork