The government has placed on the Department of Justice website the wording it wishes the Oireachtas to propose for the judicial pay referendum. There are three sections to the proposed amendment; I’ll take each in turn. Here’s the proposed 35.5.1°:

The remuneration of judges shall not be reduced during their continuance in office save in accordance with this section.

This section preserves the general rule against cutting sitting judges’ pay. Next, here is the proposed Article 35.5.2°:

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.

This section makes clear that judges pay taxes on their salaries and aren’t immune from general tax increases that also apply to other people. The constitution does not shield judges against tax rules of general application, even if those rules happen to place a greater burden on judges. That, as I understand it, is the objection to applying the pension levy to the judiciary. The merits of the objection depend on complexities of pensions and tax law that escape me—I simply haven’t had time to understand the issue. Anyway, the proposed wording would remove any lingering constitutional objection to applying the pension levy to judges, whether or not doing so is fair or sensible.

On to the real heart of the amendment, the proposed Article 35.5.3°:

Where, before or after the enactment into law 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 reductions to the remuneration of judges.

This, of course, is the important part—allowing a pay-cut for judges where it coincides with or follows cuts for other classes of public servant. The proposed wording is hardly a model of literary elegance. One can see why the drafters inserted the “before or after” clause—to make absolutely clear that pre-amendment public-sector pay reductions will justify an immediate cut for the judges. But still, the clause seems like unnecessary verbiage. The drafters also commit a cardinal stylistic sin with their gratuitious use of the passive voice: “reductions have been made or are made by law”.

Moving on to substance, there are many safeguards for judicial independence that the proposed amendment might contain, but doesn’t. (Some of these are suggested in the judges’ memo—no longer available on the Courts Service website but available here.) First, the proposed wording does not restrict the permissible justifications for a pay-cut in any serious way. It does require that the Oireachtas state that a pay-cut for other public servants is in the “public interest.” But that’s utterly vacuous. There’s always a plausible public interest in cutting salaries: any non-negligible saving to the taxpayer would suffice.

Second, the proposed wording contains no apparent constraint on the “classes” of other public servants whose pay must be reduced to permit a judicial pay-cut. (Oddly, it does seem to require multiple “classes”; does this mean that a single class—e.g. “all public servants”—wouldn’t suffice?) It’s technically possible that the Oireachtas could could select two small and irrelevant classes of public servants—to take an admittedly bizarre and extreme example, the Oireachtas could base a judicial pay-cut on a salary reduction for all public servants called “Paul MacMahon” and “Paul McMahon”.

Third, on a literal reading, the wording doesn’t require any equivalence or proportionality between the pay-cuts for other public servants and the judicial pay-cut. If that’s right, the government could impose a 1% cut to the salaries of TDs and Senators, and follow it up with a 50% cut to judges’ salaries.

Fourth, the proposal doesn’t provide a role for any independent body in determining whether a judicial pay-cut is justified. Admittedly, Ireland is overrun with commissions, tribunals, and quangos, so my general view is that proposals for independent commissions composed of worthy personages are presumptively suspect. But there might a place for one here. Under the proposed wording, the relatively unconstrained pay-cut decision will be taken solely by the Oireachtas. In our parliamentary system, that’s essentially the government of the day—precisely the body from which we want judges to be independent.