Voters must make their ruling on judges’ pay in referendum
It has been widely believed that most barristers and solicitors who have accepted a position “on the bench” in the past suffered a drop in income in doing so. This is saying something given the pay scale for judges, prior to the recent announcement of reductions for new appointees and the intention to dramatically reduce salaries for existing judges, if a constitutional amendment permitting these is presented to the people this autumn and approved.
The salary of a judge of the Supreme Court is €257,872 at present, with the chief justice John Murray getting €295,916. A judge of the High Court gets €243,080, with its president getting €274,779. The president of the Circuit Court earns €249,418 while each of the 37 judges appointed to the Circuit Court receives €177,554 in pay annually. The 63 judges of the District Court, lowest in the pecking order, still get €147,961 annually, with the president paid €183,894.
It gets better. The cost of paying judges is €27.4m each year, there is another €2m-plus in expenses claimed and the cost of pensions paid to retired judges is millions more. Full pension entitlements are available after just 15 or 20 years of service.
It is unusual for a barrister or solicitor to be appointed to either of the courts before their early to mid-fifties, usually the latter so as to give them a 15-year run at the job. If they had been earning more than would be paid in their new job then you would expect that a man or woman of this age would have the bulk of their mortgage paid off and that their children would be adult or nearing the end of their education.
The salaries paid to Irish judges have been calculated as the second highest in the world, with only Britain rewarding members of their judiciary more generously, according to a study published in the Journal of Legal Analysis two years ago.
Not surprisingly, our Government has decided that the rates of pay are too much. The idea is to save the exchequer about €5.5 million a year. Under the Government’s plans the salary of a Supreme Court judge would be cut to €198,226, a fall of 23%. A judge of the High Court would see his or her salary cut by a similar percentage to €186,973. The pay of the chief justice would fall to €227,168, while that of the president of the High Court would drop to €211,088. They would continue to draw some very tidy expenses, not just for transport but for things like clothes. New appointees would start their jobs at a rate of pay 31% below the current level.
This is part of an overall pattern of cost reduction, as demanded by our lenders in the IMF/EU/ECB. Public servants have had their pay cut on a couple of occasions and had a pension levy imposed. Government ministers — to whom judges pay was compared traditionally — are among those who have had their incomes slashed. Yet the judges are fighting hard against taking their share of the pay, citing Article 35.5 of the Constitution: “The remuneration of a judge shall not be reduced during his continuance in office.”
The idea of this was that judicial independence could not be interfered with by a government that would cut pay in retribution for a decision or decisions taken by a judge or the judiciary in general. Which is fine in theory, but when circumstances change then a new approach is required.
When the Fianna Fáil-Green Government introduced the pension levy for public servants in early 2009, the then Attorney General Paul Gallagher advised that the constitutional ban applied and that the levy could not be forced upon judges. Instead, Chief Justice John Murray organised for arrangements to be made with the Revenue Commissioners whereby judges could pay a sum equivalent to the pension levy imposed on all public servants, about 10% of salary. This measure was voluntary, however, and one in seven judges did not participate. Nor did they suffer salary cuts and that is the main issue now. In real terms these judges have become way better off relative to the income of other public servants. As a result the Government plans for a referendum to change the constitutional protection, that will take place on the same day as the presidential election.
The judges have gone mad about this. Four senior judges came together, at the request of the Chief Justice John Murray, and the President of the High Court, Nicky Kearns, and drew up a 12-page critique that claimed that the proposed referendum would “fundamentally compromise” the independence of the judiciary. It was given to Attorney General Marie Whelan. “The issue here is not whether judges’ pay should be reduced, but rather how that reduction should be achieved,” they said.
Recently, the former PD leader and Justice Minister Michael McDowell (now back as a barrister), wrote in the Sunday Independent that “typically, a solicitor or barrister in her or his mid-fifties is chosen on the basis that he or she has demonstrated intellectual capacity, independence of mind, and temperamental suitability to serve for 15 years with a retirement age of 70 (previously 72).” He boasted how we have “a judicial system in which judges are chosen for appointment from among the best barristers and solicitors in private practice. We do not have a system in which the judiciary are selected from a cadre of career state lawyers who depend on the “system” to promote state-friendly persons to hold high office.”
What he failed to mention was that most court appointments have been made on the basis of political patronage as much as ability. It is a rare for a judge to be appointed who hasn’t gone out of his or her way to ingratiate himself with a political party, in the hope that he or she will be appointed where the supported party is in power. These judges may later astound their donors with their ingratitude, but on their appointment everyone in legal and political circles can tell you their political affiliations. The PDs saw to it that some of their most prominent supporters became judges; that is not to deny their legal abilities, but often it tells you not just about their political biases but their ideological ones too. Perish the thought, however, that this would influence their judgements.
And what the judges have been slow to address is their failure to complain when successive governments were increasing their pay. Nobody is targeting the judges for punishment of any kind. The country is bust. The wording of the constitutional amendment will be designed apparently to ensure that any reduction in pay could only occur where required by economic circumstances and that there would be no question of judges being singled out for pay cuts. Enabling legislation would be introduced if the referendum was passed. This is right and proper that salaries of current members of the judiciary are reduced in line with the salary reductions already imposed on other public servants.
Judges are required to uphold and implement our laws. That responsibility is an important one — and their positions are worthy of respect — but it does not elevate them to a position above anyone else in this republic. Judges should not be immune from the current economic difficulties of the country. Let’s have the referendum and sort this.
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