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.