Sunday, July 10, 2011

Conflict between Minister and Judges over Publication of Memo on Pay

There is allegedly a conflict brewing between Mr. Shatter and the courts service over the latter's decision to post a memorandum prepared by judges in response to the proposed referendum over pay. The minister is reported to be upset about its publication on the courts website.
I must admit that it is a bit unusual for judges to publish such a document on the courts' website. However, given the kinds of shots being taken against them by politicians in the media and their reluctance to engage in unseemly public spats, publication of the memorandum sets out their position in public in a dignified manner. And, it allows both sides of the debate to engage with principled arguments rather than rhetoric.

Some key points from the memo (my comments are in blue):
  • ... judges of the High Court and Supreme Court are effectively debarred by the Rules of the Bar Council from returning to legal practice following resignation or retirement. If ... the constitutional principle that there be no reduction in judicial remuneration is altered, then the basis for the permanent abandonment by a judge of the practice of his profession is undermined. ... no one would be prepared to give up the right to practice a profession permanently if they did not have the assurance of fixity of salary and tenure of office. There are good reasons for debarring a judge from practicing before an equal or lower court. But does this mean that a former judge is permanently abandoning the profession? Much legal work has nothing to do with the courts. Former judges could join law firms and get paid a lot of money? They could become arbitrators and mediators. Or legal academics. Or practice in a proximate foreign jurisdiction? So, to say that there is a permanent abandonment of the profession is a bit of a stretch.
  • Why, then, should this rule [against earning other income] be maintained in such circumstances if the quid pro quo - no reduction in pay - is being abandoned? Many continental judges (including, for example, judges of the Court of Justice and the German Constitutional Court) hold offices of emolument for example as Professors in universities. I've posted on this subject before. There are veryt strict rules in the US and other jurisdictions on the earning of outside income. It cannot exceed 10% of the total remuneration and can only come from certain sources that do not pose conflicts of interest. So, this point must not be overstated because even if we adopt the US rule and allow 10% outside income it will not make that much of a difference when the pay cut is much larger.
  • Could, for example, a judge who engaged in part-time arbitration work continue to hear arbitration cases in his or her judicial capacity? Absolutely not, this would not be allowed in the US, and I doubt it would be in most jurisdictions.
  • ... the language [of the proposed text] is extremely loose. It would provide no limitation on the circumstances in which a reduction should be made; the government’s view of the "public interest" (as reflected in the legislation enacted by the Oireachtas) would suffice. There is no method of calculating the reduction identified. The only figure by reference to which such a reduction should be effected is contained in a phrase of very broad potential application, namely, "in the public interest". Good point, the text is unnecessarily loose and overbroad.
  • ... the bodies which are to be charged with deciding the reduction, both as to whether it is required and by reference to what comparator such reduction should be calculated, are the other branches of government, i.e., the Executive and Legislative branches. Isn't that the whole point behind the separation of powers? These organs are given the task of setting pay in similar legal systems.
  • There would be furthermore nothing to stop the Oireachtas enacting legislation cutting the pay of any other office holder(s) and applying that particular pay cut to the judiciary. There is nothing in the suggested wording of the proposed amendment to prevent a series of "tactical" cuts being applied to different classes of public servants, but each of whom can be applied to the judiciary. I've blogged about this before. The wording in the proposed draft is capable of mischief and needs to be improved. It must rule out pay cuts unless there are emergent circumstances and unless all public servants are being hit with a similar cut.
  • The principles of judicial independence require that any decision regarding judicial remuneration and the reduction in judicial pay must be taken by an independent body. Not necessary under traditional separation of powers doctrine.
  • A finding by a reputable international court or observations by an international organisation that these fundamental guarantees of constitutional independence had been - even unwittingly - compromised, were the suggested wording for the amendment to be adopted, would have huge reputational implications for Ireland and for confidence in our legal system. Doubtful. Besides, who cares?
  • That confidence [independence of judiciary] is not only a bulwark of the Constitution’s freedoms which we as citizens enjoy in a free society, but is an essential bedrock of economic confidence on which our recovery from the ordeal to which the State is at present subject is completely premised. Bit of a stretch.
In conclusion, the memo is strongest when it sticks to critiquing the drafting of the text and it is weakened by several unnecessary arguments [like economic confidence, international reputation etc] that are not supported by any evidence. Will the government improve the wording of the draft and end this unseemly controversy?