The Vote Behind the Vote

 Like a local building society collapsing simultaneously with a multi-billion euro financial institution, the referenda taking place this October have garnered shockingly little media attention and inspired little debate outside the sullen chambers of the Oireachtas. On the face of it a direct competition between seven outsized personalities all competing for a single prize will obviously garner more public interest but when you dig a little deeper the referenda have some very interesting personalities of their own standing behind them.

The twenty-ninth amendment to the constitution is about the pay of serving judges. Currently article 35 section 5 of the constitution states that “The remuneration of a judge shall not be reduced during his continuance in office.” The inability of the Government to reduce a judge's pay means they cannot use the threat of a pay reduction to influence judicial decisions. This independence is seen as sacrosanct and is enshrined in the constitutions of most developed countries. While judicial independence is undeniably essential to the functioning of a free and fair democracy, this blanket protection has resulted in judges being spared the public sector wage cuts and pension levy applied to every other public sector worker.

In November 2009 Fine Gael's then Justice Spokesperson and current Justice Minister, Alan Shatter, put forward a private members bill that would have called for a referendum similar to the one taking place this year. The Fianna Fail – Green Party coalition at the time declined to give the bill a hearing before the Dáil but the referendum issue went on to form part of Fine Gael's election campaign. Speaking to the Seanád in advance of their vote on the issue Mr. Shatter said “this amendment is not primarily about money. It is all about fairness and the need to ensure that judicial independence is no longer undermined, through no fault of its own, by the perception of judges as an elite group who are not contributing their fair share at a time of unprecedented economic difficulty.”

The bill passed unanimously in the Dáil and was opposed by only two senators in the Seanad, one of whom was presidential candidate David Norris. Part of the reason the bill passed so effortlessly is that the little opposition there was were divided over their concerns. The judges for their part were never opposed to the idea that their wage packets should decrease due to the worsening state of the public finances. In fact some 85% of them reduced their wage in line with the pension levy voluntarily and, when appointed Chief Justice in July, Susan Denham chose to forego the €38,000 pay increase the promotion entitled her to. What the judges did have a problem with was the ability to reduce their pay being handed to the Irish Government in any shape or form. Safeguards in the articles' sub-sections were not enough to satisfy their concerns for their independence and they expressed these concerned in a memorandum which was at first partly leaked to the Irish Times and later published in its entirety on the court services website.

Opposition senators also expressed concerned but theirs were understandable different to those of the judges. Judicial independence did feature among the questions put to Alan Shatter in the Seanad debate but they took a back seat to concerns over the haste with which the legislation was brought to bear and wider concerns about the current (un)competitive state of Ireland's legal profession. Without a unified opposing ideology to the bill the referendum looks set to sail through with a Irish Times commissioned poll conducted on October 8^th showing 88% support for the legislation.