Growing up, I loved the comic 2000AD, and one of its leading characters was Judge Dredd (pictured left). We never saw underneath his helmet’s visor because – with his catchphrase “I am the law” (echoed by Lord Thurlow LC in The Madness of King George) – he represents the impartiality and facelessness of justice. This is why more traditional representations of lady justice show her wearing a blindfold – as in the statute overlooking upper castle yard in Dublin Castle: the blindfold represents objectivity and impartiality. Hence, under Article 34.5.1 of the Constitution, judges make a declaration that they will execute their functions “without fear or favour, affection or ill-will towards any man”. This judicial impartiality, abjuring both preference and malice, is the cornerstone of the rule of law – it requires and allows both that questions of legal right and liability to be resolved by application of the law and not by the exercise of discretion, and that the laws of the land should apply equally to all: be you never so high, the law is above you. But, as the text of judicial oath expresses, to be able to decide without favour, judges must be free to decide without fear – that is, without the dread in the title to this post. In particular, they must be free to decide against other arms of government without fear of retaliation.
Executive retaliation can be overt: John Bradshaw presided over the trial of Charles I in 1649; he died in 1659; but Charles II had his body exhumed for posthumous execution in 1661. Less dramatically, but more insidiously, Stuart monarchs frequently sought to dismiss judges who took decisions of which they disapproved. US President Thomas Jefferson, alarmed at the growth of judicial review of executive action, sought to have Justice Samuel Chase removed from the Supreme Court in 1805, but the impeachment failed in the Senate, and the strong US commitment to judicial review and judicial independence were secured. Colombia, Zimbabwe and Pakistan provide more recent instances of intimidation of judges.
Executive retaliation can be far more covert. US President Franklin Delano Roosevelt, alarmed at the striking down of key legislative elements of the New Deal by the Supreme Court, sought to change the way the Court functioned, especially by adding more amenable judges, but the Bill failed in the Senate. More subtly still, a government can seek to control a recalcitrant Court by pulling the purse-strings: earlier this year, the President of the UK Supreme Court complained that existing funding arrangements for the Court do not adequately guarantee its independence.
As a consequence, Article 35.2 of the Constitution provides that “judges shall be independent in the exercise of their judicial functions”. This reflects international standards, embodied in Article 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, Article 6 of the European Convention on Human Rights, and the UN Basic Principles on the Independence of the Judiciary. Moreover – reflecting provisions which date back to the Act of Settlement, 1701 and Article 3 Section 1 of the US Constitution (1787), as well as constitutional protections in Canada in 1867 and in 1982 – the Irish Constitution protects judicial independence against both overt and covert retaliation. A limited power of removal only for “stated misbehaviour or incapacity” and then only upon resolutions passed by the Dáil and Seanad (Article 34.4.1) protects against overt retaliation. And the by-now-controversial provision that the remuneration of a judge shall not be reduced during his or her continuance in office (Article 34.5) protects against covert retaliation.
An amendment to Article 34.5 would therefore seem necessary to implement government plans to reduce judges’ salaries in line with other public sector pay reductions. But, though well-meaning, the proposal has loosed dangerous forces that the government cannot control. It has led to open season on judges, even a witch-hunt against them. There was the remarkable vituperation of John Waters. I have heard many examples of plain old Irish bedgrudgery on radio, resenting high judicial salaries. And TDs are beginning to take that popular form of political exercise, jumping on the bandwagon, criticising judicial allowances and procedures. The government are easily winning the debate, but at the cost of demonising the judiciary. The more this continues, the more judicial independence will be undermined, and, in the long run, the rule of law itself will be compromised.
It is understandable that a new government doesn’t want to waste its early days in office, which is when it can be most radical. However, on this issue, they have confused making decisions with being decisive, and mistaken activity for action. Their impatience has led to undue haste; and it will prove to be a grave political miscalculation not to have included this proposal in a wider package of reforms, where the focus would not just have been on the judges’ pay but on the amendment in that broader context. A more comprehensive range of judicial reforms could have included equally important related issues such as increasing the autonomy of the statutory Judicial Appointments Advisory Board from political meddling in both appointing and promoting judges, and establishing a comprehensive oversight of judicial conduct and ethics; and this array of proposals could have been located in the wide-ranging reforms of the other arms of government – abolishing the Seanad, increasing the powers of Oireachtas committees, reducing the numbers of TDs, and so on – being planned by the government.
Given traditional judicial restraint, there is very little that the judges can do to put their perspective on this issue. The Chief Justice raised it in private with the Taoiseach, and was roundly criticised for his pains. The judges prepared a memorandum which they passed on to government via the Attorney General warning about the dangers of the proposed referendum, but the government rejected it almost immediately; and when the judges published the memorandum on the Courts Service website with the consent of the Attorney General, it seems to me that they were bullied into taking it down. It is to the credit of the Irish Times that it has republished it on its website (pdf), and I’ve posted it to Scribd.
Of course, the judges who declined a voluntary reduction in their salaries did very little to advance the position of their colleagues. And some aspects of the memorandum overstate the judges’ case. At paragraph 11, they argue that
Mere knowledge that the Oireachtas has the power to legislate to reduce salaries may be perceived, even if it is not so in fact, as having the potential either to pressurise judges, on the one hand or, alternatively, make them liable to view the other branches of government with suspicion or even hostility.
and at paragraph 29 they raise the spectre of “huge reputational implications for Ireland and for confidence in our legal system”.
Nevertheless, the memorandum accepts the financial imperatives behind the proposed referendum, and it does develop three important themes. First, it outlines flaws in the current draft of the proposed constitutional amendment; second, it robustly defends the independence of the judiciary; and, third, it suggests that, to preserve it, decisions relating to judicial pay – reductions as well as increases – should be made not by the government but by an independent body. I don’t understand why this has been rejected out of hand by the government. After all, and as in the UK, judicial pay has traditionally been set by the Review Body On Higher Remuneration In The Public Sector; in their Report No 44 (dated 30 September 2009; published 11 December 2009) they would have recommended a reduction in judicial pay if the Constitution had so allowed; and the Taoiseach has relied upon this recommendation in making the case for the referendum. It would be a small step to incorporating such an independent mechanism in the referendum proposal. But it would be a giant step towards re-establishing the proper boundaries of judicial independence from government.
At the level of principle, the government has good reasons for seeking to reduce judicial salaries, but the judiciary have equally good reasons for suggesting caution. However, in the current imbroglio, everyone looks bad here. The government has been hasty and heavy-handed; and it has unleashed populist forces beyond its control; whilst the judiciary have overstated their case in their memorandum. In my view, the balance of the argument from principle is with the judiciary; but the balance of public opinion is with the government. It now seems unlikely that the judges will be raised up and delivered out of the hand of those that would spoil them (The Book of Judges, ch 2, v 16); and we will all be the poorer for this in the long run – the judges, because of the reduction in their salaries; and society, because the demonisation of the judiciary and the destabalisation of their independence will have unfortunate repercussions for the rule of law.