We’re getting more than one ballot, you know…
17 Oct
Right, we now know that the Presidency is a two-horse race between Michael D Higgins and Sean Gallagher. So, how about we spend the remaining two weeks talking about the other two votes we’re going to be handed on polling day?
When you think about it for a moment, it really is quite staggering just how little attention the two referendums we’re about to vote on are getting in the media and in general pub chat. And if you’re someone who may not even know about these two referendums, do not worry, you’re not alone – I’ve met many a person over the last few weeks who has whispered to me, “Don’t have a rashers what these two referendum are called, let alone about…”
Right – let’s try and shed some light on these two other votes.
The two referendums are votes 1. to be able to change judge’s pay and 2. to increase the power of the Oireachtas to investigate “a matter of general public importance”. Taking them in that order, over two blog posts I am going to explain the reasons behind these two proposed referendums in the first place, some pros and cons I can think of and then where you can get more information. So to start off:
Judge’s pay referendum
Right now, judges get paid a pretty huge amount of money – from €147,000 to over €260,000 – and they have not had their salaries reduced during this recession as their pay is something enshrined and protected in our Constitution. They do pay income tax and the Universal Social Charge like other public servants but do not have to make a Public Service Pension Levy, though they can opt to do so if they wish (and 125 out of 147 judges do). Judges are not allowed to take any other work while being a judge – as anything could be a conflict of interest. That said, see the salaries above.
The Government wants to make judges’ salaries proportionate to other public servant salaries and to make them pay the Pension Levy. To be able to do this, we need a referendum because, as mentioned above, the matter of judge’s pay are enshrined and protected in the Constitution.
Just so you know, the reason why the pay of judges was put into the Constitution is that supposedly it keeps them more independent of the other branches of government (the Cabinet and the Oireachtas) – knowing that their monthly income is not at the behest of Cabinet ministers makes them review law better. After all, there’s a good chance that Court Judges are going to be reviewing Cabinet decisions and Cabinet-made law in the cases that come before them. That’s their job after all.
Right to the campaigns. If I had to summarise them, it is a battle of the practical (vote Yes) or the principle (vote No).
Yes campaign
In a tweet: “Simples! Everyone else has got a pay cut, so why not the wig guys? It’s only fair.”
That really is their campaign. It’s the “All other public servants have taken a big hit over the last number of years and judges haven’t. It’s their time” school of thought. Honestly this is the single message that I’ve heard again and again. One other comment I thought was interesting was Dr Bryan McMahon did say the influence of judges by this decision was going to be minimal and that they were going to crack on and do their job regardless of the outcome. So that means they could afford the hit alright – a hit that many other civil servants have had to take because they don’t have constitutional protection.
After doing a bit of online trawling, it’s hard to find a lot more information on this campaign because it really is a simple message – “everyone else took a hit, it’s now their turn”. There is really not much else to say about the Yes campaign apart from the fact that those in favour are talking about just how practical, uneventful and logical this Constitutional revision is – if you can even hear them at all. It has been very, very quiet hasn’t it? Most parties from what I can see are not really getting into this campaign at all, so this one is largely being driven by the two Government parties and in fact is really being driven by Alan Shatter, Minister for Justice.
No campaign
In a tweet: “Judges should retain their independence & not have their salary used as a beating stick. Plus the language is crap.”
Right this one takes a bit more time. As mentioned above, one of the fundamental rules when building a country (just in case you were ever asked to build one) is that to make good law, the three branches of government – executive (Cabinet), legislative (Oireachtas) and judiciary (The Courts) – need to have clear separation of powers, ie. be able to get on with their job without the other two getting up in their grill. Here in Ireland we don’t have great separation of powers due to the way in which our executive (Cabinet) is elected through our legislative (Oireachtas) which then makes our Cabinet very strong and our Oireachtas very ineffective. That whole issue – that basically once our Parliament elects our Taoiseach, it has no real influence in law-making – is too big an issue to take on in this post so that’s for another day. The key bit here is that now the Cabinet wants to be able to decide the pay of the Judges, which is them getting involved in another branch of government, which does make political theorists and those down the Law Library break out in an instant rash.
Fiona de Londras, a UCD law lecturer who has become a leading spokesperson against this referendum has got some interesting points on her website here, in particular the section ‘The Broader Point’ onwards. One of her main points is that all of the proposed political reform changes that the Government has set out in their Programme for Government, does make the Dail much stronger but at the real detriment of the judiciary, which she feels is not a good step forward as “an independent judiciary is what protects us as a people from populist, dangerous, unconstitutional actions by the state. If you use contraception, or appreciate your right to have a say in the development of the foundational treaties of the European Union, or agree that a suicidal teenage rape victim ought not to be prevented from having an abortion for example, you should remember that these things are all possible because of an independent judiciary that stepped in where an inert political system would not.”
The other argument is that the language that is going to be inserted into the Constitution is very ambiguous so that even if you agree with the idea of reducing judge’s pay, how they’ve written the proposed insertion into the constitution is a bit crap and creates more problems than it solves. Paul McMahon, a doctoral student at Oxford has written about this – and amazingly it’s in English, so this is also worth a read. It seems that Paul has a point in this as in an interview with Morning Ireland, Referendum Commissioner Bryan McMahon has confirmed that the language is woolly and will have to be clarified later.
One final point, judges are not allowed enter this debate, which is partly why this debate has not kicked off that much – the main people affected are just not allowed get involved. You’ll hear this one fought by law lecturers from across Ireland – and mainly on blog websites so have a Google if you’re interested.
Here’s some more reading (which I’ve tried to summarise above) and two very good radio interviews that are worth a listen. If you’ve got any questions on this, do feel free to pop them in a comment below – you can guarantee that someone else will be wanting to ask the same question.
Next stop, the Oireachtas Committee referendum.
More reading:
Referendum Commission information on this referendum
A brilliant guide to the pros and cons of the judge’s pay referendum
A succinct article in the Independent about the referendum
Fiona de Londras’s article about the referendum
Paul McMahon pulls apart the language of the proposed referendum
Labour Party’s information on the referendum (could not find anything on Fine Gael’s website!)
A bit of listening:
The Head of the Referendum Commission on Morning Ireland
Thank you! I barely even knew there were two referenda.
If there was a box for ‘I have no clue what this is about’, there would be a landslide win.
Last night’s Frontline had a 1 hour feature on this. It should be available on the RTE player. Recommended watching.
Cheers for that Rory – think this is the link. http://www.rte.ie/player/#v=1117492
When did anyone last “find anything on Fine Gael’s website” ?
Thanks Andrea. Just wondering if the judges were asked to take a pay cut voluntarily beore all this? If passed, how much money would the state save?
Hey Alan – bit of a long answer but hopefully this is useful:
1. Were they asked to take a cut?
Yes, Judges were asked under the last Government and the vast majority did take them after a bit of a nudge, as you can read about here. http://www.independent.ie/national-news/majority-of-judges-pledge-to-take-voluntary-pay-cuts-1784841.html. It’s generally agreed that this leaves around 10-15% or so who have not taken a cut, which is between 15 to 22 individuals.
2. How much would this save?
It’s tough to say exactly how much it’ll save the state as judges are on different pay grades but we can have a rough stab. The Revenue Commissioners reported in January 2010, that with 111 judges then taking the cut, they got back €698,000, so taking that as an average, it’s probably about €6,300 per judge. €6,300 x 22 individuals (see above) = €138,600. Michael Pattwell, a retired District Court judge has estimated that it could be a bit higher, at around €250,000 a year.
So to finally answer your question, while showing my homework, it’s somewhere I’d say in the region of €138,000-€250,000.
Seems like a “relatively” small amount to save, considering the potential threat to judicial independence. But then we could hire a couple more judges with the cash
More to think about thanks. Looking forward to your piece on our ineffective Oireachtas.
Who determines judges pay or increments?
My understanding is that it’s decided by legislation, protected by the Constitution. It doesn’t get changed much!