Power of Attorney

Chief Justice John Murray is widely regarded as having been a safe pair of hands. But as he nears the end of his term, he is mired in pay controversy, writes Michael Clifford

THE Chief Justice, John Murray, is the highest paid judge in the world.

In a study published in 2008 by the Council of Europe into judicial pay in 45 countries, Ireland came out second behind Britain. The lower chief justice in Britain is paid £240,000 (€266,662). With pensions, Mr Murray’s remuneration far exceeds his British counterpart.

In addition to his €295,000 salary, he draws two pensions from his time as attorney general and a member of the European Court of Justice. His total remuneration comes to around €450,000.

In the world of developed democracies, Murray is top of the heap in the remuneration stakes. Ironic then that the final months of his term as chief justice have been dominated by judges’ pay and pensions and the impending referendum on the matter.

Murray steps down on July 23. He is then expected to revert to his former position as an ordinary member of the Supreme Court.

He is the first chief justice to operate under a new act that limits the term to seven years. When he does hand over the baton, he will continue to be the highest paid judge in the world, but no longer the most senior in a country effectively in receivership.

At a time when the remuneration of high earners in the public service has come under intense scrutiny, Murray’s arrangements have largely gone unnoticed. His position at the apex of the judiciary means he has been the conduit between judges and the Government across the sensitive divide representing separation of powers.

In 2008, the attorney general Paul Gallagher advised that judges’ pay couldn’t be cut due to Article 35 (5) of the Constitution, which states: “The remuneration of a judge shall not be reduced during his continuance in office.”

Murray moved quickly to attempt to retain confidence in the judiciary by suggesting to them that they take a voluntary pay cut. After an initial slow take-up, 125 of the 147 eventually volunteered a cut.

His public comments on the issue were an unusual departure for a chief justice. But the manner in which he handled it highlighted his most remarked-on attribute in the job. He is widely regarded as having been a safe pair of hands.

“Ronan Keane, the previous chief justice was probably the most intellectual member of the Supreme Court when he was in charge,” one Law Library source says.

“The same couldn’t be said about John Murray, but he was a good organiser, a good man to keep the show on the road.”

The sentiment was echoed by Eoin O’Dell, senior law lecturer in Trinity College. “He is a very practical man, and a very safe pair of hands as chief justice. It [the Supreme Court] is very well run.”

In more recent days Murray found himself again in the spotlight over money, when it was revealed that in a meeting with Enda Kenny he broached the subject of new pension regulations affecting those with pension pots in excess of €2.5 million. He was perceived as making representations on behalf of judges, although he subsequently denied this.

Then, last week, with the referendum train having already left the station, Murray conveyed the judiciary’s unease over the poll to the Government. He had asked four senior judges to examine the proposed referendum, and they suggested that if it went ahead it would compromise the independence of the judiciary. As an alternative, it was proposed that an independent body determine the size of any pay cuts.

While the judges appear to be primarily concerned with their independence, and the perception thereof, the public is more likely to view this latest development as an attempt to insulate themselves from the pain being felt across the public sector. Justice Minister Alan Shatter said at the weekend that the Government was having none of it. The referendum will happen. Again, the optics are unlikely to instil confidence in the judiciary.

Seven years ago, when the job of chief justice came up, his former party Fianna Fáil was in power. Murray had run as a local election candidate for the party in the late 1970s, and had served two terms as attorney general in Fianna Fáil administrations. His appointment to the top judicial job was the pinnacle of a lively career at the interface of law and politics, which began as a student when he was twice elected president of the Union of Students in Ireland.

His first state appointment arose in highly controversial circumstances. In 1982, Murray had a considerable practice at the bar, having qualified as a barrister 15 years previously. One of his early major cases was acting as a junior counsel in the defence of Niall Blaney during the Arms Trial in 1971. He also represented the state in the unsuccessful challenge taken by David Norris to decriminalise homosexuality a few years later.

Then in 1982, while on holiday in France, he received a phone call from then taoiseach Charlie Haughey. A problem had arisen with the attorney general, Patrick Connolly. Murder suspect Malcolm McArthur, a family friend of Connolly’s, had been found in the AG’s home and arrested. Connolly had resigned. Would Murray be interested in stepping into the vacant?

He wasn’t long in the job when he found himself at the centre of a campaign to have the ban on abortion inserted into the constitution. Murray drew up the wording after consultation with the main church leaders and the referendum was passed.

His tenure as AG ended after 11 months when a general election was called. Fianna Fáil went into opposition, and Murray went back to the Law Library. When Haughey returned to power in 1987, Murray’s services were again called upon. This time around, he found himself at the centre of a controversy over the extradition of Fr Paddy Ryan, a Catholic priest from Co Tipperary, wanted in Britain for running guns for the IRA.

Murray later revealed that he alone had made the decision to refuse the request to extradite, on the basis that comments in the British press and the House of Commons would not allow Ryan to receive a fair trial. There was uproar on the far side of the Irish Sea. Some of the comment was intemperate, some of it went too far. Murray sued The Sunday Telegraph for libel and was awarded “substantial damages and costs” in a settlement.

In September 1991, the Government announced that Murray would be its nominee for judge of the European Court of Justice. Apart from the obvious professional challenge, the move meant Murray’s annual stipend rose from around £60,000 to £100,000, with the added benefit of a lower tax rate. Once he left the office of attorney general, he was entitled to draw his pension for time served.

In 1999, after eight years in Luxembourg, he was appointed to the Supreme Court in Dublin. Once he took up the new position, he was allowed to begin drawing his pension from the European Court, to go with his burgeoning AG stipend.

The ECJ pension is paid according to 4.5% of annual salary. Having sat for eight years, Murray would be entitled to 36% of the salary, which stands at around €250,000 (exact figures weren’t available). Once the individual hits 65, he or she is entitled to draw the full value. Murray is 68. The latest figures for his AG pension show him pulling in €72,986 in 2009.

His elevation to the Supreme Court saw him join an elite bunch that once included his father-in-law, the late and much admired Brian Walsh. Murray’s brother, Michael, is a state solicitor in Limerick who has been very outspoken against criminal gangs and those who do their bidding.

Five years after joining the Supreme Court, John Murray was appointed to the top job. One of the first major cases to come before the Supreme Court during his presidency was the legislation to repay nursing home residents who had been overcharged for decades. The Government had introduced legislation limiting repayments to €2,000 per resident. The court’s decision to declare the law unconstitutional was seen as a major victory for the citizen against the state.

Another case of major significance was a challenge to the law in relation to child sex abuse, which forbade a defence of consent or lack of knowledge of the child’s age.

In May 2006 the Supreme Court ruled the law was unconstitutional. Within 10 days a convicted sex abuser known as Mr A was set free. The court, presided over by Murray, sat within days to consider an appeal against the release. It ruled that he should be rearrested, which bought time for the government to introduce new laws.

Off the bench, prior to the hullabaloo over pay, Murray’s only brush with controversy involved a clash with former justice minister Michael McDowell. The minister hit out at the decisions to grant a number of members of one gang bail on various offences. Murray responded by asking the Department of Justice for details, that he might examine whether the judiciary was functioning properly. The details weren’t forthcoming, according to reports at the time, “for security reasons”.

For Murray, he can meet the end of his term in the highest judicial office secure in the knowledge that there has been no serious controversies in his time, bar the pay cuts issue. His tenure won’t be remembered for any great advances in society through the Supreme Court. Under him, the Supreme Court was not overly interventionist. He kept the course steady, negotiating competently anything that was thrown in his path. A safe, albeit expensive, pair of hands.

Eyeing a successor

- IRRESPECTIVE of whose number comes up, the appointment is unlikely to be controversial. The last time there was some controversy over the appointment of chief justice was in 1994, when then president of the High Court Liam Hamilton got the nod.

Months earlier, Hamilton had delivered the Beef Tribunal report which was widely perceived to have been a whitewash. Had he been critical of government figures at the time, his chances of being elevated may well have been reduced. As a result, there was some comment about the confluence of interests between the author of a supine report and a government with a big job to hand out.

When John Murray steps down on July 23, his successor is most likely to be drawn from the Supreme Court. In theory, the Government could bring in somebody new to head up the judiciary, but this is highly unlikely.

If it were to go down that route, another problem would be numbers on the Supreme Court. With Murray almost certain to continue to serve, a new chief justice would require a new appointment to the court, which is currently full at nine members.

So the likelihood is that the new chief justice will be drawn from Supreme Court judges. Learned opinions in the Law Library suggest that the cleverest boy in that class is Donal O’Donnell, a native of Belfast, who was appointed directly to the Supreme Court rather than graduating from the High Court. However, he is on the bench for little more than a year and is unlikely to get the nod. As he is still in his 50s, his time will come again.

Another clever boy is Adrian Hardiman, who consistently delivers well-written judgements, easy on the untrained eye.

His politics are all wrong for this job. Hardiman was closely associated with the Progressive Democrats, and he may be regarded as possessing a heightened streak of independence which, while admirable in a senior judge, is a little disconcerting for members of the executive.

One name that keeps popping up is Niall Fennelly.

Appointed to the court in October, he spent the previous five years as an advocate general in Luxembourg, which also draws a few bob in a pension. His appointment would be well met by Fine Gael people, and he is regarded as a considerable intellectual force.

However, he will reach retirement age of 72 well short of the seven-year term, and this may go against his appointment.

The other name in the frame is Susan Denham. In December 1992, she was elevated from the High Court to the Supreme Court to become the first woman appointed to the court.

She is very well regarded across the political spectrum, and has been highly efficient in undertaking tasks such as chairing the Courts Committee on Procedures.

If it came down to a toss up between Denham and somebody like Fennelly, she could be in luck.

Picture: Chief Justice John Murray will return to the Supreme Court bench later this month, drawing pensions for his role as attorney general, chief justice and European Council of Judges membership. Picture: Niall Carson/PA

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