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Defining the Public Service and the Constitutional Amendment on Judges’ Pay

The proposed amendment on judges’ pay is written in tortured language and will baffle most reasonably intelligent people.

Section 3 is the worst:

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.

What does that tell you?

Well, first it tells you that Irish parliamentary draughtsmen have lost none of their pomposity or obtuseness.  It’s appalling, in the worst traditions of convoluted law when the Europe-wide trend is to write legislation in plain language.  Of course, it’s a much more difficult challenge to write something in plain words while keeping it rigorous, so instead, we fall back on the lazy expedient of clauses and sub-clauses in the hope that nobody will notice.

the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money

That’s just shocking.

It’s also unacceptable in our constitution, which is a document that any reasonably educated person should be able to pick up and read.  But more to the point, I think it betrays a fear by the government that this controversy about judges’ pay has the potential to light a much bigger bush fire.

Wouldn’t it have been much more sensible simply to add a section saying that judges are public servants and are subject to the same pay cuts as any other public servant?  Apparently not, and since Alan Shatter, our Justice minister, is no fool, it’s fair to presume that he already thought of this and decided it couldn’t be done because there is no definition of a public servant or the public service.  Civil servants are employed directly by the government but nurses, firemen and the like are not.  Their employers are the HSE, the third-level colleges, the secondary schools and the local authorities, although their pay comes from the exchequer.  Primary teachers are employed by the local bishop in most cases!

Maybe the language in the amendment is so convoluted to avoid raising the public service question, but maybe it achieves the opposite.  What happens when some bright spark of a nurse or a teacher takes a constitutional case and says, Wait a minute, Mr Minister.  You’re not my employer, so what right did you have to cut my pay?  The bright spark might say You cut the pay of something you called the public service, so go ahead and define what you were talking about.  You couldn’t do it when you were trying to whip the judges into line.

And what Supreme Court judge might disagree with this nurse, teacher or fireman, opening the way to a gigantic class action?  After all, and bizarrely, this amendment is open to scrutiny by the courts, with the ultimate irony that our judiciary might yet literally become judges in their own case.

 

13 replies on “Defining the Public Service and the Constitutional Amendment on Judges’ Pay”

Fair enough. Maybe it would set a precedent. Anyway, the point remains that there is no meaningful definition of the public service. Therefore, sooner or later, somebody is going to take an action challenging the government’s authority to reduce the pay of people it doesn’t employ.

You are right in saying that the government are not the employers of public servants such as nurses or teachers but the amendment refers not to employees as such but to “classes of persons whose remuneration is paid out of public money” – “paid out of public money” being I think the crucial words.

What I don’t understand is why this is important enough for a referendum? Yes judges are overpaid, but is it really worth the cost of a referendum and the potential for future actions as Bock just pointed out? Surely a referendum on the rights of children is far more important than the wages of a handful of people. Or am I missing something?

Haymoon — I think it’s very sloppy wording. Who knows what proportionate means? Who decides what’s in the public interest? Who are these “classes of persons”? They could be consultants hired by some government agency. They could be radio presenters on contract to RTE. There’s no logic in it, and therefore it’s vulnerable to any kind of interpretation in the Supreme Court.

Ruth — It isn’t a question of judges being overpaid, but of subjecting them to the same cuts as everyone else.

I read it as “in cases where we have already or in the future will make cuts to people’s wages whose wages are paid out of the public purse, we also can make cuts to judges pay with the same proportion”

Not a lawyer of course, and you are right – it sounds sloppy and ambiguous.

Bock
Re slopiness: The Chairman of the Referendum Commission, Bryan McMahon on radio this morning seemed to agree with you. Why cannot law be written in plain language?

I read the first line of the post and thought, Who rights these things? Perahps I’m mistaken but I would imagine those in the legal profession, and then I thought What is the pinnicle of a succesful law career? Wouldn’t that be becoming a judge, and then I thoguht We’re going to get fucked again aren’t we….

sheeeeesssh

why bother. I agree with C’est la craic that

‘We’re going to get fucked again aren’t we….’.

Maybe it’s time to adopt new tactics and fuck cicero’s laws (which I seem to remember being told our system is based on the old roman system). Funny though that the legal system is an ‘adversarial’ system, with its’ practitioners basically acting as a referee in disputes so……in the interests of the system to maintain a healthy level of ‘having a go at the other guy’ …………..and a judge is heading up the referendum commission ………………..and the legal system employs many people to administer ‘justice all paid from public money …….and….it’s possible for one of its’ practitioners to get paid more than €10 million (lotsa dosh) by the state to ‘act’ in a tribunal because we though some other guy was robbin’ us of lots more dosh ………………..

we’re not getting fucked again, we’re just getting fucked continuously in new and different ways (which in a different setting and meaning would be a good thing)

way past my bedtime so…………..

Mark Dennehy no class action in Ireland? Do you really believe that? Remember the army deafness claims? A rose by any other name.

Yeah Tony C, my grandfather was a bit of a Cork rogue. Used to say to us, ‘hang on a minute and I take out this bloody hearing aid, I can’t hear a word you’re saying’.. what with his claim in for the few wet days he served in the army.

I’ll be voting yes on the amendment to judges pay and no on oireachtas inquiries. Not that I’d waste my time reading the gibberish, but the wording of the oireachtas one was only published last week I’ve read.
Not enough time to understand the implications in my opinion.
And I’m thinking the only ones they need to investigate is themselves.

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