Twenty-ninth Amendment of the Constitution of Ireland
Encyclopedia
The Twenty-ninth Amendment of the Constitution of Ireland is a pending amendment to the Constitution of Ireland
Amendments to the Constitution of Ireland
An amendment may be made to any part of the Constitution of Ireland but only by referendum. An amendment must first be approved by both Houses of the Oireachtas , then submitted to a referendum, and finally signed into law by the President....

 which will relax its prohibition on the reduction of the salaries of Irish judges
Courts of the Republic of Ireland
The Courts of the Republic of Ireland consist of the Supreme Court, the Court of Criminal Appeal, the High Court, the Circuit Court and the District Court. The courts apply the laws of Ireland. Ireland is a common law jurisdiction and trials for serious offences must usually be held before a jury...

. The Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Bill 2011 (No. 44 of 2011; ), having been passed by both houses of the Oireachtas
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...

, was put to a referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...

 on 27 October 2011. The referendum was passed, and the amendment will take effect once the bill is signed into law by the President.

Background

The Constitution of Ireland
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...

, since its enactment in 1937, has contained a prohibition on reducing the pay of a judge during his or her term of office. This was intended to protect judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...

, by preventing the government of Ireland from using the threat of a pay reduction to dissuade judges from exercising judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

 in a manner which the government might find inconvenient.

The Irish economy entered a severe recession
2008–2011 Irish financial crisis
The 2008–2011 Irish financial crisis, which had stemmed from the financial crisis of 2008, is a major political and economic crisis in Ireland that is partly responsible for the country falling into recession for the first time since the 1980s...

 in 2008, which is still ongoing in 2011, and has caused the state's revenues to fall sharply. Among the budgetary responses taken in 2008 by the then government
Government of the 30th Dáil
The 30th Dáil was elected at the 2007 general election on 24 May 2007 and first met on 14 June when President Mary McAleese appointed Bertie Ahern as Taoiseach, on the nomination of Dáil Éireann...

 was a levy on pension contributions made by public sector
Public sector
The public sector, sometimes referred to as the state sector, is a part of the state that deals with either the production, delivery and allocation of goods and services by and for the government or its citizens, whether national, regional or local/municipal.Examples of public sector activity range...

 workers. Paul Gallagher
Paul Gallagher (barrister)
Paul Gallagher was Attorney General of Ireland from his appointment by President Mary McAleese in 2007 until 9 March 2011. He succeeded Rory Brady and was succeeded by Máire Whelan....

, the Attorney General
Attorney General of Ireland
The Attorney General is a constitutional officer who is the official adviser to the Government of Ireland in matters of law. He is in effect the chief law officer in Ireland. The Attorney General is not a member of the Government but does participate in cabinet meetings when invited and attends...

, advised the government that this could not be applied to judges because of the constitutional prohibition. The government asked judges to pay the levy voluntarily, and 125 out of 147 did so.

Alan Shatter
Alan Shatter
Alan Joseph Shatter is an Irish Fine Gael politician. He is a Teachta Dála for the Dublin South constituency and has been the Minister for Justice and Equality and Minister for Defence since March 2011.-Background and early life:...

, then in opposition, introduced a private member's bill
Private Member's Bill
A member of parliament’s legislative motion, called a private member's bill or a member's bill in some parliaments, is a proposed law introduced by a member of a legislature. In most countries with a parliamentary system, most bills are proposed by the government, not by individual members of the...

 in 2009 to amend the constitution to allow pay cuts for judges. He argued that encouraging a "voluntary" levy amounted to political pressure on judges. The bill never received a second reading.

The agreed programme of the government elected in March 2011
Government of the 31st Dáil
The Government of the 31st Dáil is the present Government of Ireland, formed after the 2011 general election to Dáil Éireann on 25 February 2011. Fine Gael entered into discussions with the Labour Party which culminated in a joint programme for government. The 31st Dáil first met on 9 March 2011...

 committed to holding referendums "on a priority basis" on five subjects, including judges' pay. The cabinet agreed on 14 June to hold a referendum on the same day as the 2011 presidential election in the autumn. The wording of the amendment was approved by the cabinet and published by the Department of Justice and Equality on 26 July. The next day it was revealed that the election would be held on 27 October.

Amendment

The amendment is to replace the existing section 5 of Article 35 of the Constitution. The English and Irish texts of the Constitution will be amended in parallel. Technically the Irish text takes precedence in the event of divergence of meaning. The current text of section 5 has no subsections; the revised text is divided into three subsections.

Pre-existing text

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

Pending text

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.

Process

The amendment bill, which includes the proposed text as a schedule
Addendum
An addendum, in general, is an addition required to be made to a document by its reader subsequent to its printing or publication. It comes from the Latin verbal phrase addendum est, being the gerundive form of the verb addo, addere, addidi, additum, "to give to, add to", meaning " must be added"...

, was sent to the Oireachtas on 2 August 2011, during its summer recess. The bill was introduced
Reading (legislature)
A reading of a bill is a debate on the bill held before the general body of a legislature, as opposed to before a committee or other group. In the Westminster system, there are usually several readings of a bill among the stages it passes through before becoming law as an Act of Parliament...

 in Dáil Éireann
Dáil Éireann
Dáil Éireann is the lower house, but principal chamber, of the Oireachtas , which also includes the President of Ireland and Seanad Éireann . It is directly elected at least once in every five years under the system of proportional representation by means of the single transferable vote...

 on 14 September by the Minister for Justice and Equality, Alan Shatter, and passed all stages there the same day. It passed all stages in Seanad Éireann
Seanad Éireann
Seanad Éireann is the upper house of the Oireachtas , which also comprises the President of Ireland and Dáil Éireann . It is commonly called the Seanad or Senate and its members Senators or Seanadóirí . Unlike Dáil Éireann, it is not directly elected but consists of a mixture of members chosen by...

 on 21 September. A technical amendment made by the Seanad was agreed by the Dáil.

All proposed constitutional amendments are required to be put to a popular referendum before becoming law. The referendum was held on 27 October 2011, simultaneous with the presidential election and a second referendum on another proposed constitutional amendment
Thirtieth Amendment of the Constitution Bill 2011 (Ireland)
The Thirtieth Amendment of the Constitution Bill 2011 was a bill which, if enacted, would have amended the Constitution of Ireland "in order to provide for the...

, relating to Oireachtas inquiries
Public inquiry
A Tribunal of Inquiry is an official review of events or actions ordered by a government body in Common Law countries such as the United Kingdom, Ireland or Canada. Such a public inquiry differs from a Royal Commission in that a public inquiry accepts evidence and conducts its hearings in a more...

. A resolution
Resolution (law)
A resolution is a written motion adopted by a deliberative body. The substance of the resolution can be anything that can normally be proposed as a motion. For long or important motions, though, it is often better to have them written out so that discussion is easier or so that it can be...

 specifying the wording of the question on the ballot paper was passed by the Seanad on 21 September, and a similar resolution was passed by the Dáil next day. If the referendum is passed, the bill will be signed into law by the President.

A referendum commission
Referendum Commission
The Referendum Commission is an independent statutory body in Ireland which is set up in advance of any referendum. The Referendum Act 1998 as amended by the Referendum Act 2001 provides for the establishment of the body.-Background:...

 was established, under the terms of the Referendum Act 1998, to provide voters with non-partisan information about the proposal. The commission is chaired by Bryan McMahon, a former judge of the High Court. On 11 October, the commission launched a media information campaign and began distributing an information booklet to households in the state.

Debate

Some legal experts disagreed with Paul Gallagher's 2008 view that the Constitution precluded the pension levy from applying to judges. Columnist Vincent Browne
Vincent Browne
Vincent Browne is an Irish print and broadcast journalist. He is a columnist with The Irish Times and The Sunday Business Post and a part time barrister....

 claimed that the 2011 amendment is unnecessary, on the basis of a 1950s court ruling that the government is entitled to levy income tax
Income tax
An income tax is a tax levied on the income of individuals or businesses . Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate...

 rates on judge's pay, thereby reducing their disposable income
Disposable income
Disposable income is total personal income minus personal current taxes. In national accounts definitions, personal income, minus personal current taxes equals disposable personal income...

; Browne argues that a general cut in public pay is similar to a general rise in tax rates, and judges therefore have no exemption. The Irish Council for Civil Liberties
Irish Council for Civil Liberties
The Irish Council for Civil Liberties is an Irish non-profit organisation dedicated to supporting the civil liberties and human rights of people in Ireland.-History:...

 concurred, 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."

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. Alan Shatter claimed in October that the referendum would enable pay cuts worth €5.5m per annum to the Irish Exchequer.

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. The memorandum was leaked to The Irish Times
The Irish Times
The Irish Times is an Irish daily broadsheet newspaper launched on 29 March 1859. The editor is Kevin O'Sullivan who succeeded Geraldine Kennedy in 2011; the deputy editor is Paul O'Neill. The Irish Times is considered to be Ireland's newspaper of record, and is published every day except Sundays...

and later published in full on the website of the Courts Service. Minister Alan Shatter asked for it to be removed, arguing that it was an inappropriate place to publish it. There were rumours that some judges would retire rather than accept a pay cut. The memorandum concludes:
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.

In the Irish Independent
Irish Independent
The Irish Independent is Ireland's largest-selling daily newspaper that is published in both compact and broadsheet formats. It is the flagship publication of Independent News & Media.-History:...

, Dearbhail McDonald made a similar argument, and 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." Former Chief Justice
Chief Justice of Ireland
The Chief Justice of Ireland is the president of the Supreme Court of Ireland.Under Constitution of Ireland, the Chief Justice of Ireland also occupies several positions ex officio, these include;* A possible judge of the High Court....

 Ronan Keane
Ronan Keane
The Hon. Ronan Keane , S.C., was Chief Justice of Ireland from 2000 to 2004. Keane was educated at Blackrock College, Dublin, and graduated from University College Dublin in 1953 with a BA in Modern History. He was called to the Bar in 1954 and became a Senior Counsel in 1970. He was appointed...

 described the wording as "dangerously vague".

In September The Irish Times commented that "no body of opinion has yet emerged to oppose the amendment". The bill was unopposed in the Dáil, and opposed in the Seanad by David Norris
David Norris
David Norris may refer to:*David Norris , Irish Senator, civil rights activist and James Joyce scholar*David Norris , British admiral...

 and Rónán Mullen
Rónán Mullen
Rónán Thomas Mullen is an independent Irish Senator and delegate to the Council of Europe. He was elected in the National University of Ireland Seanad constituency in July 2007 and re-elected for a second term in 2011. Mullen is a frequent media commentator on social and political topics...

. In October the Irish Times commented that coverage of the Presidential election limited public debate on the two referendums being held the same day.

Opinion polls

Date Poller Commissioned by Yes No Undecided/
Abstain
Ref
Ipsos MRBI The Irish Times 94 3 3
Ipsos MRBI The Irish Times 88 4 83% abstain, 5% undecided.
Behaviour & Attitudes The Sunday Times
The Sunday Times
The Sunday Times is a British Sunday newspaper.The Sunday Times may also refer to:*The Sunday Times *The Sunday Times *The Sunday Times *The Sunday Times...

87 8 5
Ipsos MRBI The Irish Times 85 7 8

Referendum

The result was announced on 29 October 2011 shortly after 7 pm in Dublin Castle
Dublin Castle
Dublin Castle off Dame Street, Dublin, Ireland, was until 1922 the fortified seat of British rule in Ireland, and is now a major Irish government complex. Most of it dates from the 18th century, though a castle has stood on the site since the days of King John, the first Lord of Ireland...

 by returning officer
Returning Officer
In various parliamentary systems, a returning officer is responsible for overseeing elections in one or more constituencies.-Australia:In Australia a returning officer is an employee of the Australian Electoral Commission or a State Electoral Commission who heads the local divisional office...

 Riona Ni 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.

External links

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