IT WILL be very difficult for the courts to review decisions concerning the rights of those appearing before proposed new Oireachtas inquiries, according to chairman of the Referendum Commission Dr Bryan McMahon.
The former judge of the High Court was speaking at the launch of the commission’s public information campaign on the two referendums on constitutional amendments due to take place on October 27th, along with the presidential election.
The two amendments will allow the Oireachtas to set up and conduct inquiries into the conduct of people, where this is deemed to be in the public interest, and to provide for the reduction of the pay of serving judges in line with that of other public servants.
Asked if the proposal to give the Oireachtas the right to establish inquiries and to decide on the balance to be struck between the rights of individuals and the public interest meant people could still go to the courts to establish their rights, Dr McMahon said: “It is not our function to decide what the courts will do, but it puts the decision on where the balance lies into the hands of the Houses of the Oireachtas, given the current wording.
“If the question is whether the courts will be able to judicially review that decision, it will be very difficult for them to do so in the traditional sense.
“If the Oireachtas made some extraordinary ruling, they might, but the threshold for judicial review is very high, given the current wording.”
He said it would also be up to the Oireachtas to decide what “a matter of general public importance” was. He did not think the proposal to reduce judges’ pay would breach the separation of powers, which was spelled out in article 6 of the Constitution.
“Judicial independence is buttressed by various provisions – their independence is stated; they can only be removed with difficulty; they are not entitled to hold any other position of emolument, as well as article 35.5, which is to be amended.”
This states that the remuneration of judges cannot be reduced during their continuance in office.
An amendment, if passed, will allow for a law to be passed reducing the pay of serving judges proportionately if the pay of public servants is being reduced and that reduction was stated to be “in the public interest”, he said.
It would allow for a law to be passed making judges subject to the public service “pension levy” and any other such future charge.
At the moment, while judges paid taxes and the universal social charge the same as everyone else, they were not obliged to pay the pension levy, although they could voluntarily opt to do so. Last year 85 per cent of judges paid the levy voluntarily.
“Of course it changes the relationship [between the organs of the Government]”, Dr McMahon said, “but whether that is significant enough for the people to say stop, I don’t know.”
He added that it was up to the people to decide whether it was a good or a bad thing to amend the Constitution to give extensive additional powers to the Oireachtas to conduct inquiries and to the Government to reduce judges’ pay in certain circumstances, he said.
Dr McMahon said the commission was entirely neutral on the merits of the proposals and could not express a view on them.
He also said that since the amendment of the Referendum Act in 2001, the commission did not have a function to put the two sides of the argument or to canvass for views and process them, as had been the case before.
He added that the two amendments were stand-alone; it was open to people to vote Yes to one amendment and No to the other, or Yes or No to both of them.
Amendments to Constitution: complete texts
29th Amendment to the Constitution - Judges’ Pay
Existing text of Article 35.5:
The remuneration of a judge shall not be reduced during his continuance in office.
Proposed amendment:
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 that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges.
30th Amendment to the Constitution – Oireachtas inquiries Existing text of section 15.10:
1. Each House shall make its own rules and standing orders, and shall have power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.
It is proposed to renumber this as 15.10.1 and insert:
2. Each House shall have the power to conduct an inquiry, or an inquiry with another House, in a manner provided by law, into any matter or matters stated by the House or Houses concerned to be of general public importance.
3. In the course of any such inquiry the conduct of any person (whether or not a member of either House) may be investigated, and the House or Houses concerned may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.
4. It shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2 applies.