Twenty-ninth Amendment of the Constitution of Ireland

The Twenty-ninth Amendment of the Constitution of Ireland is an amendment to the Constitution of Ireland which relaxes the previous prohibition on the reduction of the salaries of Irish judges.[1] The Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011 (No. 44 of 2011), having been passed by both houses of the Oireachtas,[2] was put to a referendum on 27 October 2011.[1] The referendum was passed,[3] and the amendment the bill was signed into law as the Twenty-Ninth Amendment of the Constitution Act, 2011 (Irish: An tAcht um an Naoú Leasú is Fiche ar an mBunreacht 2011).[4]

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.[5]

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)[6] and the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 (a reduction in public sector pay).[5][7] Paul Gallagher, the Attorney General, advised the government that this could not be applied to judges because of the constitutional prohibition.[8] The government asked judges to pay the levy voluntarily, and 125 out of 147 did so.[8]

Alan Shatter, then in opposition, introduced a private member's bill in 2009 to amend the constitution to allow pay cuts for judges.[9] He argued that encouraging a "voluntary" levy amounted to political pressure on judges.[10] The bill never received a second reading.[9]

The agreed programme of the government elected in March 2011 committed to holding referendums "on a priority basis" on five subjects, including judges' pay.[11] The cabinet agreed on 14 June to hold a referendum on the same day as the 2011 presidential election in the autumn.[12] The wording of the amendment was approved by the cabinet and published by the Department of Justice and Equality on 26 July.[13] The next day it was revealed that the election would be held on 27 October.[14]

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.[15][16]

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,[17] during its summer recess. The bill was introduced in Dáil Éireann on 14 September by the Minister for Justice and Equality, Alan Shatter,[18] and passed all stages there the same day.[19] It passed all stages in Seanad Éireann on 21 September.[20] A technical amendment made by the Seanad was agreed by the Dáil.[2]

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.[1] A resolution specifying the wording of the question on the ballot paper was passed by the Seanad on 21 September,[21] and a similar resolution was passed by the Dáil next day.[22] 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.[1] On 11 October, the commission launched a media information campaign and began distributing an information booklet to households in the state.[23]

Debate

Some legal experts disagreed with Paul Gallagher's 2008 view that the Constitution precluded the pension levy from applying to judges.[10] 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;[24] Browne argues that a general cut in public pay is similar to a general rise in tax rates, and judges therefore have no exemption.[25] The Irish Council for Civil Liberties concurred,[26] 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."[27]

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.[28] Alan Shatter claimed in October that the referendum would enable pay cuts worth €5.5m per annum to the Irish Exchequer.[29]

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.[30] The memorandum was leaked to The Irish Times and later published in full on the website of the Courts Service.[31] Minister Alan Shatter asked for it to be removed, arguing that it was an inappropriate place to publish it.[31] There were rumours that some judges would retire rather than accept a pay cut.[30] The memorandum concludes:[5]

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."[32] Former Chief Justice Ronan Keane described the wording as "dangerously vague".[33] It was alleged shortly after the 2016 death of Supreme Court justice Adrian Hardiman that he had threatened to resign if the referendum passed.[34]

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."[35]

In September The Irish Times commented that "no body of opinion has yet emerged to oppose the amendment".[1] The bill was unopposed in the Dáil,[19] and opposed in the Seanad by David Norris and Rónán Mullen.[20] In October the Irish Times commented that coverage of the Presidential election limited public debate on the two referendums being held the same day.[36]

Opinion polls

Date Poller Commissioned by Yes No Undecided/
Abstain 		Ref
22 July Ipsos MRBI The Irish Times 94 3 3 [37]
8 October Ipsos MRBI The Irish Times 88 4 8[n 1] [38]
23 October Behaviour & Attitudes The Sunday Times 87 8 5 [39]
25 October Ipsos MRBI The Irish Times 85 7 8 [40]
  1. ↑ 3% abstain, 5% undecided.

Referendum

The result was announced on 29 October 2011 shortly after 7 pm in Dublin Castle by returning officer Riona Ní Fhlanghaile.[3]

Twenty-Ninth Amendment of the Constitution Bill 2011[41]
Choice Votes %
Referendum passed Yes 1,393,877 79.74
No 354,134 20.26
Valid votes 1,748,011 97.89
Invalid or blank votes 37,696 2.11
Total votes 1,785,707 100.00
Registered voters and turnout 3,191,157 55.96

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.[3]

Voting per constituency
Constituency Electorate Turnout (%) Yes (%) No (%) Spoilt Ref[42][43]
Carlow–Kilkenny 106,810 59,274 55.49% 47,454 82.12% 10,332 17.88% 1,488
Cavan–Monaghan 98,952 58,425 59.04% 45,487 80.25% 11,195 19.75% 1,743
Clare 81,419 47,183 57.95% 37,196 80.96% 8,749 19.04% 1,238
Cork East 82,731 45,320 54.78% 35,949 81.17% 8,339 18.83% 1,032
Cork North-Central 75,622 41,550 54.94% 32,629 80.17% 8,071 19.83% 850
Cork North-West 62,113 37,637 60.59% 29,601 80.45% 7,195 19.55% 841
Cork South-Central 91,716 53,572 58.41% 42,116 80.03% 10,510 19.97% 946
Cork South-West 60,248 35,794 59.41% 28,425 81.55% 6,429 18.45% 940
Donegal North-East 58,579 28,501 48.65% 20,583 74.17% 7,167 25.83% 751
Donegal South-West 64,158 30,958 48.25% 22,849 76.18% 7,144 23.82% 965
Dublin Central 54,500 28,125 51.61% 21,191 76.5% 6,508 23.5% 426
Dublin Mid-West 64,370 34,059 52.91% 27,242 80.99% 6,395 19.01% 422
Dublin North 69,347 39,692 57.24% 31,725 80.96% 7,460 19.04% 507
Dublin North-Central 51,929 33,172 63.88% 25,962 79.4% 6,735 20.6% 475
Dublin North-East 57,627 34,401 59.7% 27,070 79.62% 6,930 20.38% 401
Dublin North-West 50,410 25,290 50.17% 19,736 79.26% 5,165 20.74% 389
Dublin South 104,145 64,412 61.85% 50,100 78.61% 13,629 21.39% 683
Dublin South-Central 77,688 41,396 53.28% 31,326 76.94% 9,387 23.06% 683
Dublin South-East 55,533 30,619 55.14% 21,633 71.51% 8,618 28.49% 368
Dublin South-West 69,977 36,627 52.34% 29,001 80.36% 7,088 19.64% 538
Dublin West 61,583 36,267 58.89% 28,714 80.05% 7,154 19.95% 399
Dun Laoghaire 82,033 49,087 59.84% 36,631 75.6% 11,825 24.4% 631
Galway East 81,896 46,942 57.32% 36,892 81.03% 8,638 18.97% 1,412
Galway West 94,700 50,536 53.36% 38,812 78.78% 10,455 21.22% 1,269
Kerry North–West Limerick 63,068 34,415 54.57% 26,728 79.91% 6,721 20.09% 966
Kerry South 57,776 31,827 55.09% 24,693 79.93% 6,201 20.07% 933
Kildare North 76,623 43,426 56.67% 34,587 80.73% 8,257 19.27% 582
Kildare South 57,933 31,236 53.92% 24,779 80.84% 5,873 19.16% 584
Laois–Offaly 107,023 59,202 55.32% 46,640 80.79% 11,090 19.21% 1,472
Limerick 66,345 36,755 55.4% 28,783 80.49% 6,975 19.51% 997
Limerick City 66,421 34,614 52.11% 27,685 81.52% 6,277 18.48% 652
Longford–Westmeath 85,911 45,390 52.83% 35,199 79.63% 9,003 20.37% 1,188
Louth 102,941 57,993 56.34% 45,117 79.3% 11,774 20.7% 1,102
Mayo 97,714 53,553 54.81% 42,678 81.99% 9,372 18.01% 1,503
Meath East 65,477 35,367 54.01% 28,221 81.16% 6,553 18.84% 593
Meath West 63,111 32,977 52.25% 25,845 79.98% 6,469 20.02% 663
Roscommon–South Leitrim 60,416 36,338 60.15% 27,678 78.31% 7,665 21.69% 995
Sligo–North Leitrim 62,152 34,168 54.97% 26,321 78.9% 7,041 21.1% 806
Tipperary North 62,603 38,234 61.07% 29,975 80.79% 7,129 19.21% 1,130
Tipperary South 56,295 32,567 57.85% 25,498 80.58% 6,147 19.42% 922
Waterford 78,960 42,706 54.09% 33,453 80.22% 8,249 19.78% 1,004
Wexford 108,490 58,442 53.87% 46,783 81.83% 10,388 18.17% 1,271
Wicklow 93,812 57,658 61.46% 44,890 79.14% 11,832 20.86% 936
Total 3,191,157 1,785,707 55.96% 1,393,877 79.74% 354,134 20.26% 37,696

Coming into force

In accordance with the Referendum Act 1994,[44] the returning officer issued a provisional referendum certificate stating the results of the referendum, which was published in Iris Oifigiúil on 4 November 2011.[43] 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,[4] 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,[45] to amend the 2009 Acts so as to apply to judges.[46] It was passed by the Dáil later that day,[47] and by the Seanad on 7 December;[48] it was signed into law on 19 December 2011 and came into force on 1 January 2012.[49]

References

  1. 1 2 3 4 5 Coulter, Carol (5 September 2011). "Retired judge to chair judicial pay referendum". The Irish Times. Retrieved 6 September 2011.
  2. 1 2 Vol.740 No.5 p.5
  3. 1 2 3 Carroll, Steven (29 October 2011). "Judges' pay vote carried". The Irish Times. Retrieved 29 October 2011.
  4. 1 2 "Titles of Acts signed by President Higgins". Dublin: Office of the President. 2011. Retrieved 8 December 2011.
  5. 1 2 3 "Re: Proposed Referendum on Article 35.5 of The Constitution" (PDF). The Irish Times. July 2011. Retrieved 6 September 2011.
  6. ↑ Financial Emergency Measures in the Public Interest Act 2009 Irish Statute Book
  7. ↑ Financial Emergency Measures in the Public Interest (No. 2) Act 2009 Irish Statute Book
  8. 1 2 Clifford, Michael (8 July 2011). "Power of Attorney". Irish Examiner. Retrieved 6 September 2011.
  9. 1 2 "Twenty-ninth Amendment of the Constitution Bill 2009 (PMB) (Number 71 of 2009)". Bills 1997 – 2011. Oireachtais. 17 November 2009. Retrieved 6 September 2011.
  10. 1 2 Shatter, Alan (15 December 2009). "Opinion: Referendum needed on reduction in judicial pay". The Irish Times. Retrieved 6 September 2011.
  11. ↑ Dáil debates Vol.728 No.3 p.5 22 March 2011
  12. ↑ "Referendum on judge's pay announced". Newstalk. 14 June 2011. Retrieved 6 September 2011.
  13. ↑ "Government approves proposed wording on Judges' Pay Referendum" (Press release). Department of Justice and Equality. 26 July 2011. Retrieved 6 September 2011.
  14. ↑ "Presidential election set for a Thursday, despite objections in the past". thejournal.ie. 28 July 2011. Retrieved 21 August 2011.
  15. ↑ "Constitution of Ireland". November 2002. Retrieved 6 September 2011.
  16. ↑ Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Bill 2011; As passed by both Houses of the Oireachtas Oireachtas
  17. ↑ "Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011 (Number 44 of 2011)". Bills 1997 – 2011. Oireachtas. 2 August 2011. Retrieved 6 September 2011.
  18. ↑ Dáil debates Vol.740 No.1 p.24
  19. 1 2 Dáil debates Vol.740 No.1 p.27
  20. 1 2 Seanad debates Vol.210 No.4 p.12
  21. ↑ Seanad debates Vol.210 No.4 p.13
  22. ↑ Dáil debates Vol.740 No.5 p.6
  23. ↑ "Referendums guide being delivered". The Belfast Telegraph. 11 October 2011. Retrieved 15 October 2011.
  24. ↑ O'Byrne v Minister for Finance [1959] IR 1.
  25. ↑ Browne, Vincent (13 June 2011). "Cutting pay of judges could be a simple Act". The Irish Times. Retrieved 6 September 2011.
  26. ↑ Brady, Tom (27 October 2011). "Proposed change 'would create kangaroo court'". Irish Independent. Retrieved 27 October 2011.
  27. ↑ O'Brien, Patrick (19 September 2011). "Judicial Independence and the Irish Referendum on Judicial Pay". Blog. University College London: Constitutional Unit. Retrieved 17 October 2011.
  28. ↑ Roseingrave, Louise; Dan Buckley (16 June 2011). "Judicial pay referendum 'does not make sense'". Irish Examiner. Cork. Retrieved 9 September 2011.
  29. ↑ "Judges' pay referendum is fair and will save us €5.5m pa – Shatter". Irish Independent. 12 October 2011. Retrieved 17 October 2011.
  30. 1 2 Cullen, Paul (4 July 2011). "Judges' pay review call rejected". The Irish Times. Retrieved 6 September 2011.
  31. 1 2 Drennan, John; Ronald Quinlan (10 July 2011). "Minister and judges in website face-of". Sunday Independent. Retrieved 6 September 2011.
  32. ↑ McDonald, Dearbhail (17 October 2011). "We need a proper debate before voting on handing over our rights". Irish Independent. Retrieved 17 October 2011.
  33. ↑ Lally, Conor (18 October 2011). "Ex-chief justice Keane critical of referendum". The Irish Times. Retrieved 24 October 2011.
  34. ↑ Keena, Colm (2 September 2016). "Hardiman threatened to resign over judges' pay referendum". The Irish Times. Retrieved 2 September 2016. (subscription required (help)).
  35. ↑ "Amendment to the Constitution". The Irish Times. 24 October 2011. p. 17.
  36. ↑ "Rushed referendums". The Irish Times. 12 October 2011. Retrieved 15 October 2011.
  37. ↑ Collins, Stephen (22 July 2011). "Majority of voters back pay cuts for judges". The Irish Times. Retrieved 6 September 2011.
  38. ↑ Collins, Stephen (8 October 2011). "Coalition on track to secure victory in two referendums". The Irish Times. Retrieved 17 October 2011.
  39. ↑ Reilly, Gavan (22 October 2011). "Gallagher extends lead in latest Áras opinion polls". TheJournal. Ireland. Retrieved 22 October 2011.
  40. ↑ Collins, Stephen (25 October 2011). "Opposition to Oireachtas amendment grows, poll finds". The Irish Times. Retrieved 25 October 2011.
  41. ↑ "Referendum Results" (PDF). Department of the Environment, Community and Local Government. Retrieved 14 August 2014.
  42. ↑ Referendum Commission, Houses of the Oireachtas Inquiries Referendum, results by constituency (pages accessed 30 October 2011)
  43. 1 2 Ní Fhlanaghaile, Ríona (4 November 2011). "Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011" (PDF). Iris Oifigiúil. Dublin: Stationery Office (88): 1511–13.
  44. ↑ Referendum Act 1994 §§40–42
  45. ↑ Dáil debates Vol.748 No.2 p.26
  46. ↑ Financial Emergency Measures in the Public Interest (Amendment) Bill 2011 Oireachtas
  47. ↑ Dáil debates Vol.748 No.2 p.31
  48. ↑ Seanad debates Vol.212 No.2 p.6
  49. ↑ "Financial Emergency Measures in the Public Interest (Amendment) Act 2011". Irish Statute Book. Retrieved 2 September 2016.; "S.I. No. 683/2011 - Financial Emergency Measures in the Public Interest (Amendment) Act 2011 (Commencement) Order 2011.". Irish Statute Book. Retrieved 2 September 2016.

External links

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