Twenty-ninth Amendment of the Constitution of Ireland

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Twenty-ninth Amendment of the Constitution of Ireland
27 October 2011 (2011-10-27)
To relax the prohibition on the reduction of judges' salaries
Results
Choice
 Votes %
Yes 1,393,877 79.74%
No 354,134 20.26%
Valid votes 1,748,011 97.89%
Invalid or blank votes 37,696 2.11%
Total votes 1,785,707 100.00%
Registered voters/turnout 3,191,157 55.96%

The Twenty-ninth Amendment of the Constitution Act 2011 (previously bill no. 44 of 2011) is an amendment to the Constitution of Ireland which relaxes the previous prohibition on the reduction of the salaries of Irish judges. It was approved by a referendum on 27 October 2011 signed into law on 17 November 2011.[1] It was held on the same day as a referendum on Oireachtas Inquiries, which was rejected, and the presidential election at which Michael D. Higgins was elected.

Background

The Constitution of Ireland, since its enactment in 1937, had contained a prohibition on reducing the pay of a judge during their term of office. This was intended to protect judicial independence, by preventing the government from using the threat of a pay reduction to dissuade judges from exercising judicial review in a manner which the government might find inconvenient.[2]

In 2008 the Irish economy entered a severe recession, which was still ongoing in 2011, and had caused the state's revenues to fall sharply. Among the budgetary responses taken in 2008–09 by the then government were the Financial Emergency Measures in the Public Interest Act 2009 (a levy on pension contributions made by public sector workers)[3] and the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 (a reduction in public sector pay).[2][4] Paul Gallagher, the Attorney General, advised the government that this could not be applied to judges because of the constitutional prohibition.[5] The government asked judges to pay the levy voluntarily, and 125 out of 147 did so.[5]

Fine Gael TD Alan Shatter, then in opposition, introduced a private member's bill in 2009 to amend the constitution to allow pay cuts for judges.[6] He argued that encouraging a "voluntary" levy amounted to political pressure on judges.[7] The bill did not receive a second reading.[6]

Some legal experts disagreed with Paul Gallagher's 2008 view that the Constitution precluded the pension levy from applying to judges. Columnist Vincent Browne claimed that the 2011 amendment was unnecessary, on the basis of a 1950s court ruling that the government is entitled to levy income tax rates on judge's pay, thereby reducing their disposable income;[8] Browne argued that a general cut in public pay is similar to a general rise in tax rates, and judges therefore have no exemption.[9] The Irish Council for Civil Liberties concurred,[10] as did Patrick O'Brien, who described the amendment as "a classic example of hard cases making bad law. The new Article 35.5 closely addresses a very specific situation but has uncertain application outside of it."[11]

The agreed programme of the government elected in March 2011 committed to holding referendums "on a priority basis" on five subjects, including judges' pay.[12] The cabinet agreed on 14 June to hold a referendum on the same day as the 2011 presidential election in the autumn.[13] The wording of the amendment was approved by the cabinet and published by the Department of Justice and Equality on 26 July.[14] The following day, the election and referendums were set for Thursday 17 October.[15]

In June 2011, a retiring district court judge said the plan did not "make economic sense" because the cost of holding the referendum would exceed the money saved by the ensuing pay cuts.[16] Alan Shatter claimed in October that the referendum would enable pay cuts worth €5.5m per annum to the Irish Exchequer.[17]

Judges produced a memorandum for the government in July 2011, which argued that making judges' pay subject to laws made by the Oireachtas would compromise their independence, and suggested that instead an independent body should be empowered to reduce judges' pay.[18] The memorandum was leaked to The Irish Times and later published in full on the website of the Courts Service.[19] Minister Alan Shatter asked for it to be removed, arguing that it was an inappropriate place to publish it.[19] There were rumours that some judges would retire rather than accept a pay cut.[18] The memorandum concludes:[2]

This memorandum is not prepared in opposition to an amendment of the Constitution so as to ensure that judges bear a fair share of the burden of pay reductions, but rather proposes that, if this is to be achieved, the essence of constitutional independence must be safeguarded by means of an independent adjudication on what these reductions should be.

Change to the text

The Twenty-ninth Amendment deleted the following Article 35.5 of the Constitution:

The remuneration of a judge shall not be reduced during his continuance in office.

and substituted that section with the following:

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 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.

Oireachtas debate

Minister for Justice and Equality Alan Shatter, who had proposed a similar amendment as a PMB (see above), proposed the Twenty-ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011 in Dáil Éireann on 14 September 2011 on behalf of the Fine Gael–Labour Party coalition government.[20] It had the support of all parties in the Dáil and passed the remaining stages later that day.[21] It passed all stages in Seanad Éireann on 21 September, with one amendment; its final passage was opposed by senators David Norris and Rónán Mullen.[22] On 22 September, the Dáil accepted the amendment from the Seanad, which consisted of the deletion of the words "into law" after the clause "before or after the enactment of this section" in the proposed subsection 3°.[23] The bill proceeded to a referendum on 27 October 2011, on the same date as the presidential election and a referendum on proposed constitutional amendment relating to Oireachtas inquiries.[24]

Campaign

A Referendum Commission was established by Environment, Community and Local Government Phil Hogan.[25] It was chaired by Bryan McMahon, a former judge of the High Court.[24] Its role was to prepare statements containing a general explanation of the subject matter of the proposal and of the text of the proposal in the amendment bill.[26] On 11 October, the commission launched a media information campaign and began distributing an information booklet to households in the state.[27]

In September The Irish Times commented that "no body of opinion has yet emerged to oppose the amendment".[24] In the Irish Independent, Dearbhail McDonald criticised both proposed amendments as "evidence of a new strain of executive mission creep: a barely disguised power grab by politicians to undermine the separation of powers."[28] Former Chief Justice Ronan Keane described the wording as "dangerously vague".[29] It was later alleged shortly after the death of Supreme Court justice Adrian Hardiman in 2016 that he had threatened to resign if the referendum passed.[30] In a letter published on 24 October, eight former Attorneys General opposed the amendment arguing that, "The proposal to allow proportionate reductions in judicial renumeration (which we support in principle) provides insufficient protection for the independence of the judiciary."[31]

In October, The Irish Times commented that coverage of the presidential election limited public debate on the two referendums being held the same day.[32]

Opinion polls

Date Poller Commissioned by Yes No Undecided/
Abstain		 Ref
22 July Ipsos MRBI The Irish Times 94 3 3 [33]
8 October Ipsos MRBI The Irish Times 88 4 8[n 1] [34]
23 October Behaviour & Attitudes The Sunday Times 87 8 5 [35]
25 October Ipsos MRBI The Irish Times 85 7 8 [36]
  1. ^ 3% abstain, 5% undecided.

Result

See also: Irish constitutional referendums, 2011

The result was announced on 29 October 2011 shortly after 7 pm in Dublin Castle by returning officer Riona Ní Fhlanghaile. The total poll was about 20,000 less than for the presidential election, which was held at the same time and places with the same electorate.[37]

Twenty-Ninth Amendment of the Constitution Bill 2011[38]
Choice Votes %
Referendum passed Yes 1,393,877 79.74
No 354,134 20.26
Valid votes 1,748,011 97.89
Invalid or blank votes 37,696 2.11
Total votes 1,785,707 100.00
Registered voters/turnout 3,191,157 55.96
Results by constituency[38][39]
Constituency Electorate Turnout (%) Votes Proportion of votes
Yes No Yes No
Carlow–Kilkenny 106,810 55.5% 47,454 10,332 82.2% 17.8%
Cavan–Monaghan 98,952 59.0% 45,487 11,195 80.3% 19.7%
Clare 81,419 58.0% 37,196 8,749 80.9% 19.1%
Cork East 82,731 54.8% 35,949 8,339 81.2% 18.8%
Cork North-Central 75,622 54.9% 32,629 8,071 80.2% 19.8%
Cork North-West 62,113 60.6% 29,601 7,195 80.5% 19.5%
Cork South-Central 91,716 58.4% 42,116 10,510 80.0% 20.0%
Cork South-West 60,248 59.4% 28,425 6,429 81.5% 18.5%
Donegal North-East 58,579 48.6% 20,583 7,167 74.2% 25.8%
Donegal South-West 64,158 48.3% 22,849 7,144 76.2% 23.8%
Dublin Central 54,500 51.6% 21,191 6,508 76.5% 23.5%
Dublin Mid-West 64,370 52.9% 27,242 6,395 81.0% 19.0%
Dublin North 69,347 57.2% 31,725 7,460 81.0% 19.0%
Dublin North-Central 51,929 63.9% 25,962 6,735 79.4% 20.6%
Dublin North-East 57,627 59.7% 27,070 6,930 79.6% 20.4%
Dublin North-West 50,410 50.2% 19,736 5,165 79.3% 20.7%
Dublin South 104,145 61.9% 50,100 13,629 78.6% 21.4%
Dublin South-Central 77,688 53.3% 31,326 9,387 76.9% 23.1%
Dublin South-East 55,533 55.1% 21,633 8,618 71.5% 28.5%
Dublin South-West 69,977 52.3% 29,001 7,088 80.4% 19.6%
Dublin West 61,583 58.9% 28,714 7,154 80.1% 19.9%
Dún Laoghaire 82,033 59.8% 36,631 11,825 75.6% 24.4%
Galway East 81,896 57.3% 36,892 8,638 81.0% 19.0%
Galway West 94,700 53.4% 38,812 10,455 78.8% 21.2%
Kerry North–West Limerick 63,068 54.6% 26,728 6,721 79.9% 20.1%
Kerry South 57,776 55.1% 24,693 6,201 79.9% 20.1%
Kildare North 76,623 56.7% 34,587 8,257 80.7% 19.3%
Kildare South 57,933 53.9% 24,779 5,873 80.8% 19.2%
Laois–Offaly 107,023 55.3% 46,640 11,090 80.8% 19.2%
Limerick 66,345 55.4% 28,783 6,975 80.5% 19.5%
Limerick City 66,421 52.1% 27,685 6,277 81.5% 18.5%
Longford–Westmeath 85,911 52.8% 35,199 9,003 79.6% 20.4%
Louth 102,941 56.3% 45,117 11,774 79.3% 20.7%
Mayo 97,714 54.8% 42,678 9,372 82.0% 18.0%
Meath East 65,477 54.0% 28,221 6,553 81.2% 18.8%
Meath West 63,111 52.3% 25,845 6,469 80.0% 20.0%
Roscommon–South Leitrim 60,416 60.2% 27,678 7,665 78.3% 21.7%
Sligo–North Leitrim 62,152 55.0% 26,321 7,041 78.9% 21.1%
Tipperary North 62,603 61.1% 29,975 7,129 80.8% 19.2%
Tipperary South 56,295 57.9% 25,498 6,147 80.6% 19.4%
Waterford 78,960 54.1% 33,453 8,249 80.2% 19.8%
Wexford 108,490 53.9% 46,783 10,388 81.8% 18.2%
Wicklow 93,812 61.5% 44,890 11,832 79.1% 20.9%
Total 3,191,157 55.9% 1,393,877 354,134 79.7% 20.3%

Implementation

In accordance with the Referendum Act 1994,[40] the returning officer issued a provisional referendum certificate stating the results of the referendum, which was published in Iris Oifigiúil on 4 November 2011.[39] No petition challenging the result was lodged with the High Court within seven days, so the certificate became final. All bills must be signed into law by the President. This was done on 17 November 2011 by Michael D. Higgins, who had been elected president on the same day as the referendum.[41]

The Financial Emergency Measures in the Public Interest (Amendment) Bill 2011 was proposed in the Dáil on 29 November by Minister for Public Expenditure and Reform Brendan Howlin,[42] to amend the 2009 Acts so as to apply to judges. It was passed by the Dáil later that day,[43] to amend the 2009 Acts so as to apply to judges. It was passed by the Seanad on 7 December;[44] it was signed into law on 19 December 2011 and came into force on 1 January 2012.[45]

References

  1. ^ "Constitution of Ireland". Irish Statute Book. October 2015. Retrieved 9 June 2018.
  2. ^ a b c "Re: Proposed Referendum on Article 35.5 of The Constitution" (PDF). The Irish Times. July 2011. Retrieved 6 September 2011.
  3. ^ Financial Emergency Measures in the Public Interest Act 2009 Irish Statute Book
  4. ^ Financial Emergency Measures in the Public Interest (No. 2) Act 2009 Irish Statute Book
  5. ^ a b Clifford, Michael (8 July 2011). "Power of Attorney". Irish Examiner. Retrieved 6 September 2011.
  6. ^ a b "Twenty-ninth Amendment of the Constitution Bill 2009 (Bill number 71 of 2009)". Oireachtas. 17 November 2009. Retrieved 9 June 2018.
  7. ^ Shatter, Alan (15 December 2009). "Opinion: Referendum needed on reduction in judicial pay". The Irish Times. Retrieved 6 September 2011.
  8. ^ O'Byrne v Minister for Finance [1959] IR 1.
  9. ^ Browne, Vincent (13 June 2011). "Cutting pay of judges could be a simple Act". The Irish Times. Retrieved 6 September 2011.
  10. ^ Brady, Tom (27 October 2011). "Proposed change 'would create kangaroo court'". Irish Independent. Retrieved 27 October 2011.
  11. ^ O'Brien, Patrick (19 September 2011). "Judicial Independence and the Irish Referendum on Judicial Pay". Blog. University College London: Constitutional Unit. Retrieved 17 October 2011.
  12. ^ "Questions: Programmes for Government". Houses of the Oireachtas. 22 March 2011. Retrieved 9 June 2018.
  13. ^ "Referendum on judge's pay announced". Newstalk. 14 June 2011. Retrieved 6 September 2011.
  14. ^ "Government approves proposed wording on Judges' Pay Referendum" (Press release). Department of Justice and Equality. 26 July 2011. Retrieved 6 September 2011.
  15. ^ "Presidential election set for a Thursday, despite objections in the past". thejournal.ie. 28 July 2011. Retrieved 21 August 2011.
  16. ^ Roseingrave, Louise; Dan Buckley (16 June 2011). "Judicial pay referendum 'does not make sense'". Irish Examiner. Cork. Retrieved 9 September 2011.
  17. ^ "Judges' pay referendum is fair and will save us €5.5m pa – Shatter". Irish Independent. 12 October 2011. Retrieved 17 October 2011.
  18. ^ a b Cullen, Paul (4 July 2011). "Judges' pay review call rejected". The Irish Times. Retrieved 6 September 2011.
  19. ^ a b Drennan, John; Ronald Quinlan (10 July 2011). "Minister and judges in website face-of". Sunday Independent. Retrieved 6 September 2011.
  20. ^ "Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011: Second Stage". Houses of the Oireachtas. 14 September 2011. Retrieved 9 June 2018.
  21. ^ "Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011: Committee and Remaining Stages". Houses of the Oireachtas. 14 September 2011. Retrieved 9 June 2018.
  22. ^ "Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011: Committee and Remaining Stages". Houses of the Oireachtas. 21 September 2011. Retrieved 9 June 2018.
  23. ^ "Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011: Amendment from the Seanad". Houses of the Oireachtas. 22 September 2011. Retrieved 9 June 2018.
  24. ^ a b c Coulter, Carol (5 September 2011). "Retired judge to chair judicial pay referendum". The Irish Times. Retrieved 6 September 2011.
  25. ^ "S.I. No. 445/2011 - Referendum Commission (Establishment) Order 2011". Irish Statute Book. 5 September 2011. Retrieved 9 June 2018.
  26. ^ "Referendum Act, 2001". Irish Statute Book. 22 December 2001. Retrieved 24 May 2018.
  27. ^ "Referendums guide being delivered". The Belfast Telegraph. 11 October 2011. Retrieved 15 October 2011.
  28. ^ McDonald, Dearbhail (17 October 2011). "We need a proper debate before voting on handing over our rights". Irish Independent. Retrieved 17 October 2011.
  29. ^ Lally, Conor (18 October 2011). "Ex-chief justice Keane critical of referendum". The Irish Times. Retrieved 24 October 2011.
  30. ^ Keena, Colm (2 September 2016). "Hardiman threatened to resign over judges' pay referendum". The Irish Times. Retrieved 2 September 2016.
  31. ^ "Amendment to the Constitution". The Irish Times. 24 October 2011. p. 17.
  32. ^ "Rushed referendums". The Irish Times. 12 October 2011. Retrieved 15 October 2011.
  33. ^ Collins, Stephen (22 July 2011). "Majority of voters back pay cuts for judges". The Irish Times. Retrieved 6 September 2011.
  34. ^ Collins, Stephen (8 October 2011). "Coalition on track to secure victory in two referendums". The Irish Times. Retrieved 17 October 2011.
  35. ^ Reilly, Gavan (22 October 2011). "Gallagher extends lead in latest Áras opinion polls". TheJournal. Ireland. Retrieved 22 October 2011.
  36. ^ Collins, Stephen (25 October 2011). "Opposition to Oireachtas amendment grows, poll finds". The Irish Times. Retrieved 25 October 2011.
  37. ^ Carroll, Steven (29 October 2011). "Judges' pay vote carried". The Irish Times. Retrieved 29 October 2011.
  38. ^ a b "Referendum Results 1937–2015" (PDF). Department of Housing, Planning and Local Government. 23 August 2016. p. 81. Retrieved 9 May 2018.
  39. ^ a b Ní Fhlanaghaile, Ríona (4 November 2011). "Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill 2011" (PDF). Iris Oifigiúil (88). Dublin: Stationery Office: 1511–13.
  40. ^ Referendum Act 1994 §§40–42
  41. ^ "Titles of Acts signed by President Higgins". Dublin: Office of the President. 2011. Retrieved 8 December 2011.
  42. ^ "Financial Emergency Measures in the Public Interest (Amendment) Bill 2011: Second Stage". Houses of the Oireachtas. 29 November 2011. Retrieved 9 June 2018.
  43. ^ "Financial Emergency Measures in the Public Interest (Amendment) Bill 2011: Committee and Remaining Stages". Houses of the Oireachtas. 29 November 2011. Retrieved 9 June 2018.
  44. ^ "Financial Emergency Measures in the Public Interest (Amendment) Bill 2011: Committee and Remaining Stages". Houses of the Oireachtas. 7 December 2011. Retrieved 9 June 2018.
  45. ^ "Financial Emergency Measures in the Public Interest (Amendment) Act 2011". Irish Statute Book. Retrieved 2 September 2016.; "S.I. No. 683/2011 - Financial Emergency Measures in the Public Interest (Amendment) Act 2011 (Commencement) Order 2011". Irish Statute Book. Retrieved 2 September 2016.
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