merrion street

Our Constitution is based on the doctrine of separation of powers which delineates the separate responsibilities of the 3 major institutions of State, Government, Parliament and the Judiciary. A central principle of the separation of powers is that each of these institutions respects the independent role of each and exercises its function as prescribed by the Constitution. Put at its most simplistic, it is the obligation of the Government to govern, the Parliament to legislate and the Judiciary to adjudicate. The roles of each also on occasion interact, in that the Government is accountable to Parliament and laws enacted by Parliament can be struck down by our courts where they violate constitutional principle. It is crucial to the functioning of our democracy that each of these institutions show due respect to the roles played by each and avoid entering into areas that go beyond constitutional propriety. In this context, the independence of our Judiciary is crucial in the hearing and determination of cases that come before the courts and neither government nor parliament has any role in the adjudicative process. For its part, in a variety of court cases, the courts have recognised that there are crucial areas reserved to government and parliament in respect of which the courts and the judiciary should play no role and that it is for those democratically elected to office, carrying out the duties of government with the support of parliament, to make decisions about fiscal and social policy and to propose and enact legislation. Moreover, our Constitution details the procedure applicable to the holding of a referendum on any issue. It reserves to the Houses of the Oireachtas the legislative process to initiate the Bill required to ultimately facilitate the people determining in a referendum whether to support or oppose any proposed amendment to the Constitution.

The courts, quite rightly, jealously safeguard their independent adjudicative function from interference by Government or the legislature and the courts’ right to do so is given full respect. That concept of respect and judicial independence also requires that the judiciary do not engage in political advocacy and show due respect for the role of government and parliament.

It is in the public interest that we maintain public respect for each of the 3 major institutions of State which operate under our constitution and that each is seen to fully play their constitutional role in harmony.

Unnecessary controversy has arisen over the commitment in the Programme for Government to hold a constitutional referendum to facilitate application to the judiciary of reductions in salaries which reflect those reductions already imposed across the public service. This measure poses no threat of any nature whatsoever to judicial independence in that it is merely concerned with ensuring judicial salaries are treated in the same manner as the treatment of similar salaries across the public service. There is no question of the judiciary being treated differently to others or of being individually or collectively targeted either now or in the future. The measure is intended to ensure continued public respect for the judiciary and to remove any public perception that the judiciary are immune from the unprecedented economic and fiscal difficulties confronting the State which have impacted on the salaries of all who are paid out of the public purse.

It was brought to my attention on Friday that a memorandum on the issue of judicial pay critical of the governments approach to this issue had been placed on the website of the Courts Service, courts.ie. I was surprised to learn of its posting on this website which is essentially provided at State expense to facilitate the publication of court judgements and information about the courts and court services. I can confirm that I asked an official in my Department to inform the Chief Executive of the Courts Service that I did not believe this posting to be appropriate. At all times, I was conscious that the Courts Service has an independent statutory role and it was ultimately for the Courts Service to determine what action to take. I was also conscious of the regular interaction between my Department and the Courts Service in addressing issues in the public interest in relation to courts matters. I am disappointed that this memorandum continues to be posted on the Courts Services website. I am not aware of any similar publication being posted in the past on the website of a Government Department or a State Agency in circumstances in which an issue arose concerning the salaries of individuals paid through such Government Department or State Agency. I believe that this event, which was not sanctioned by anyone associated with the government, is most unfortunate and it remains my hope that corrective action will be taken.