The Pension Levy and Judges in the Republic
Prof. David Gwynn Morgan of University College Cork- who taught many of the contributors to this blog our constitutional law -was interviewed on yesterday’s Morning Ireland and spoke about the judicial pension levy. The judiciary are exempt from the public sector pension levy introduced this year. They were exempted on foot of advice given by the Attorney General to the effect that including them in the scheme would be unconstitutional. Article 35 of the Constitution, in a provision designed to safeguard the independence of the judiciary, provides that a judge’s remuneration shall not be reduced during his term of office. Many, Prof. Gwynn Morgan included, argue that the constitution therefore prohibits the ‘singling out’ of judges, whether individually or as a group, for punitive revenue measures. The key case is O’Byrne v. Minister for Finance (1951) IR 1, in which Chief Justice Maguire held thatArticle 35.5 did not require the exemption of judges from income tax schemes applying to the whole population. Prof. Gwynn Morgan argued yesterday that it was difficult to meaningfully distinguish between a general income tax and a pension levy affecting one third of Irish workers. However, the Attorney General favoured a firmly ‘hands off’ approach. The Taoiseach, explaining the exemption said: “We need to recognise the constitutional position and not say or do or indicate anything that would in any way interfere with the independence in the role and functions of those important public servants in the judiciary who serve us so well.”
At the request of the Chief Justice, arrangements were subsequently made between the judiciary and the Revenue Commissioners, establishing a voluntary levy scheme. The suggested contribution is 10% of salary. Under the scheme, it is a matter for each individual judge to decide whether to make a contribution. Yesterday the Revenue Commissioners announced that half of the country’s 144 judges had agreed to submit to the levy. Although it represents a significant increase on the 19 who had volunteered by June, this is a surprisingly low number. In June, Donal Barrington, a former judge of the Supreme Court, predicted that while ‘a small rump of people’ would refuse to contribute to the levy scheme, the vast majority of judges eventually would. The Chief Justice had also expected “strong and continuous participation” by the judiciary in the scheme.
The scheme seems to have exacerbated one of the problems it sought to circumvent. As Donal Barrington has argued, the voluntary scheme has opened judges to ridicule and to public charges of ‘elitism’ and of lack of moral authority , which undermined public confidence in the judiciary in a manner inconsistent with the spirit of of Article 35. In June, the Chief Justice criticised the public reaction to the scheme: stating that “unfair and misleading statements have been made concerning the position of the judiciary to the effect that all those who have not yet made a voluntary contribution have refused to do so.” It is, as Prof. Gwynn Morgan observed yesterday, a ‘shame’ that the vital principle of the independence of judiciary was wrongly pressed into service in this damaging debate.
The judiciary ought to be independent from the executive, but not from the people. In O’Byrne, Chief Justice Maguire held that “The purpose of [Article 35.5] is to safeguard the independence of judges. To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of Government cannot be said to be an attack on his independence.” What emerges from O’Byrne - as from the jurisprudence of many other countries - is the principle that an independent judiciary need not be hermetically sealed off or protected from from the life of the state. As Prof. Gwynn Morgan observed yesterday, in a Republic, privilege must be the exception and equality the rule. Judicial independence can be consisent with a kind of solidarity which envisages judges sharing in the general duties of the citizen. Indeed, it must be so consistent. Judicial independence is not tied to the ‘body’ of the judiciary, but, like the principle of solidarity and equality between citizens, is one established in the service of the people. As Kingsmill Moore J. remarked in O’Byrne, judicial independence is established ‘for the protection of the people, not for the interests of the judges.’ The resulting tension – between what judges must be kept apart from and what they must share in – has been highlighted by the Opposition, who have forcefully argued that judges ought to have paid the levy on the same basis as the 300,000 public sector workers who were compelled to do so.