Twenty ninth Amendment of the Constitution of Ireland

Background

The Constitution of Ireland, since its enactment in 1937, had contained a prohibition on reducing the pay of a judge during his or her term of office. This was intended to protect judicial independence, by preventing the government of Ireland from using the threat of a pay reduction to dissuade judges from exercising judicial review in a manner which the government might find inconvenient.

The Irish economy entered a severe recession in 2008, which was still ongoing in 2011, and caused the state's revenues to fall sharply. Among the budgetary responses taken in 2008–09 by the then government were the Financial Emergency Measures in the Public Interest Act 2009 (a levy on pension contributions made by public sector workers) and the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 (a reduction in public sector pay). Paul Gallagher, the Attorney General, advised the government that this could not be applied to judges because of the constitutional prohibition. The government asked judges to pay the levy voluntarily, and 125 out of 147 did so.

Alan Shatter, then in opposition, introduced a private member's bill in 2009 to amend the constitution to allow pay cuts for judges. He argued that encouraging a "voluntary" levy amounted to political pressure on judges. The bill never received a second reading.

The agreed programme of the government elected in March 2011 committed to holding referendums "on a priority basis" on five subjects, including judges' pay. The cabinet agreed on 14 June to hold a referendum on the same day as the 2011 presidential election in the autumn. The wording of the amendment was approved by the cabinet and published by the Department of Justice and Equality on 26 July. The next day it was revealed that the election would be held on 27 October.

Amendment

The amendment replaces the previous section 5 of Article 35 of the Constitution. The English and Irish texts of the Constitution were amended in parallel. Technically the Irish text takes precedence in the event of divergence of meaning. The previous text of section 5 has no subsections; the revised text is divided into three subsections.

Previous text

5. The remuneration of a judge shall not be reduced during his continuance in office.

New text

5. 1° The remuneration of judges shall not be reduced during their continuance in office save in accordance with this section.

2° The remuneration of judges is subject to the imposition of taxes, levies or other charges that are imposed by law on persons generally or persons belonging to a particular class.

3° Where, before or after the enactment of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges.

Process

The amendment bill, which included the proposed text as a schedule, was sent to the Oireachtas on 2 August 2011, during its summer recess. The bill was introduced in Dáil Éireann on 14 September by the Minister for Justice and Equality, Alan Shatter, and passed all stages there the same day. It passed all stages in Seanad Éireann on 21 September. A technical amendment made by the Seanad was agreed by the Dáil.

All proposed constitutional amendments are required to be put to a popular referendum before becoming law. The referendum was held on 27 October 2011, simultaneous with the presidential election and a second referendum on another proposed constitutional amendment, relating to Oireachtas inquiries. A resolution specifying the wording of the question on the ballot paper was passed by the Seanad on 21 September, and a similar resolution was passed by the Dáil next day. If the referendum is passed, the bill will be signed into law by the President.

A referendum commission was established, under the terms of the Referendum Act 1998, to provide voters with non-partisan information about the proposal. The commission was chaired by Bryan McMahon, a former judge of the High Court. On 11 October, the commission launched a media information campaign and began distributing an information booklet to households in the state.

Debate

Some legal experts disagreed with Paul Gallagher's 2008 view that the Constitution precluded the pension levy from applying to judges. Columnist Vincent Browne claimed that the 2011 amendment is unnecessary, on the basis of a 1950s court ruling that the government is entitled to levy income tax rates on judge's pay, thereby reducing their disposable income; Browne argues that a general cut in public pay is similar to a general rise in tax rates, and judges therefore have no exemption. The Irish Council for Civil Liberties concurred, as did Patrick O'Brien, who described the amendment as "a classic example of hard cases making bad law. The new Article 35.5 closely addresses a very specific situation but has uncertain application outside of it."

In June 2011, a retiring district court judge said the plan did not "make economic sense" because the cost of holding the referendum would exceed the money saved by the ensuing pay cuts. Alan Shatter claimed in October that the referendum would enable pay cuts worth €5.5m per annum to the Irish Exchequer.

Judges produced a memorandum for the government in July 2011, which argued that making judges' pay subject to laws made by the Oireachtas would compromise their independence, and suggested that instead an independent body should be empowered to reduce judges' pay. The memorandum was leaked to The Irish Times and later published in full on the website of the Courts Service. Minister Alan Shatter asked for it to be removed, arguing that it was an inappropriate place to publish it. There were rumours that some judges would retire rather than accept a pay cut. The memorandum concludes:

This memorandum is not prepared in opposition to an amendment of the Constitution so as to ensure that judges bear a fair share of the burden of pay reductions, but rather proposes that, if this is to be achieved, the essence of constitutional independence must be safeguarded by means of an independent adjudication on what these reductions should be.

In the Irish Independent, Dearbhail McDonald made a similar argument, and criticised both proposed amendments as "evidence of a new strain of executive mission creep: a barely disguised power grab by politicians to undermine the separation of powers." Former Chief Justice Ronan Keane described the wording as "dangerously vague". It was alleged shortly after the 2016 death of Supreme Court justice Adrian Hardiman that he had threatened to resign if the referendum passed.

In a letter published on 24 October, eight former Attorneys General opposed the amendment arguing that, "The proposal to allow proportionate reductions in judicial renumeration (which we support in principle) provides insufficient protection for the independence of the judiciary."

In September The Irish Times commented that "no body of opinion has yet emerged to oppose the amendment". The bill was unopposed in the Dáil, and opposed in the Seanad by David Norris and Rónán Mullen. In October the Irish Times commented that coverage of the Presidential election limited public debate on the two referendums being held the same day.

Referendum

The result was announced on 29 October 2011 shortly after 7 pm in Dublin Castle by returning officer Riona Ní Fhlanghaile.

The total poll was about 20,000 less than for the presidential election, which was held at the same time and places with the same electorate.

Coming into force

In accordance with the Referendum Act 1994, the returning officer issued a provisional referendum certificate stating the results of the referendum, which was published in Iris Oifigiúil on 4 November 2011. No petition challenging the result was lodged with the High Court within seven days, so the certificate became final. All bills must be signed into law by the President. This was done on 17 November 2011 by Michael D. Higgins, himself elected President on the same day as the referendum.

The Financial Emergency Measures in the Public Interest (Amendment) Bill 2011 was introduced on 29 November, to amend the 2009 Acts so as to apply to judges. It was passed by the Dáil later that day, and by the Seanad on 7 December; it was signed into law on 19 December 2011 and came into force on 1 January 2012.