Income levy and the Judiciary

BennyLava

As a side note to the current financial difficulties our country is facing, why does the government appear to have such difficulty in imposing the income levy on members of the judiciary

the chestnut provided by Cowen
"we need to recognise the constitutional position and not say or do or indicate anything that would in any way interfere with the independence in the role and functions of those important public servants in the judiciary who serve us well”
dosn't hold up.

how can a levy applied to all employees in the state affect judicial independence?

Sleepy

Perhaps Lenihan has an eye on joining the bench after his inglorious career as a politician?

Darsad

Dont you know taxes are for the little people. but I am sure the tipstaffs wont be too happy !!

P. Breathnach

The basis for the decision is in the Constitution, Article 35.5:

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

It's a very limited reading, one that favours the judiciary. It treats the pensions levy as a pay cut, a point of view that the government does not seem to accept in other contexts.

It would have been wonderful to see the government apply the levy to the judiciary, have it challenged by a judge, and bring the question to court to be determined. The legal representatives of the state could challenge the right of any judge to take the case on the basis of conflict of interest.

dresden8

The government didn't want the judiciary to take a case and win.

If they won, it's thrown out for all public servants.

They're cowards, always have been, always will.

Always take the path of least resistance.

Does this mean judges don't pay tax? That reduces their remuneration.

dvpower

P. Breathnach wrote: »

The basis for the decision is in the Constitution, Article 35.5:

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

It's a very limited reading, one that favours the judiciary. It treats the pensions levy as a pay cut, a point of view that the government does not seem to accept in other contexts.

Seems to be a very limited reading. On that basis an increase in the tax or PRSI rates would also be unconstitutional.
Wouldn't the 1% Income levy fall into the same category?

dvpower

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

At least it can still apply to female judges.

Thirdfox

The tax issue was challenged by the widow of a judge who alleged that taxation constitutes an unconstitutional change to a judge's remuneration - the court struck that down.

The constitution provision is put in place so that the separation of powers (executive, legislative and judicial) are kept firmly in place and a government cannot threaten the judiciary with a pay cut/removal from office if they don't get judgments that they want. The 3 branches of government should be co-equal in power and act as a check and balance on one another.

Hence the care needed to make sure no unconstitutional action is taken against the judiciary. The executive holds the sword, the legislative holds the purse and the judiciary upholds the law (though in Ireland our executive and legislative branches are rather mixed - an even greater need for a fair and impartial judiciary).

Wheely

Its not unconstitutional,-as has been mentioned a judges widow already tried the issue and the Court made a ruling on it already though the Court was divided.

Also David Gwynn Morgan, prob the foremost Irish authority on the separation of powers in Bunreacht Na hEireann wrote a letter to the Times on Wednesday giving the same opinion and accusing the Govt as using the old "it's prohibited by the Constitution" excuse yet again, invalidly.

Dannyboy83

P. Breathnach wrote: »

The basis for the decision is in the Constitution, Article 35.5:


It's a very limited reading, one that favours the judiciary. It treats the pensions levy as a pay cut, a point of view that the government does not seem to accept in other contexts.

It would have been wonderful to see the government apply the levy to the judiciary, have it challenged by a judge, and bring the question to court to be determined. The legal representatives of the state could challenge the right of any judge to take the case on the basis of conflict of interest.

What would be the next step?
Elevation to European level?

Why not just amend the bloody constitution?

Dannyboy83

Thirdfox wrote: »

The tax issue was challenged by the widow of a judge who alleged that taxation constitutes an unconstitutional change to a judge's remuneration - the court struck that down.

The constitution provision is put in place so that the separation of powers (executive, legislative and judicial) are kept firmly in place and a government cannot threaten the judiciary with a pay cut/removal from office if they don't get judgments that they want. The 3 branches of government should be co-equal in power and act as a check and balance on one another.

Hence the care needed to make sure no unconstitutional action is taken against the judiciary. The executive holds the sword, the legislative holds the purse and the judiciary upholds the law (though in Ireland our executive and legislative branches are rather mixed - an even greater need for a fair and impartial judiciary).

I really ought to start reading more about constitutions and stuff, but would there not be some middle-man responsible for ensuring this didn't happen?

maybe I'm asking too much tho, this is Ireland, Land of the drive-by potatoing.

ArmaniJeanss

Dannyboy83 wrote: »

Why not just amend the bloody constitution?

I reckon the cost of the necessary referendum would be far greater than any savings that would ensue, though I suppose we could do it for the principle.

In fairness haven't judges already taken monster pay cuts in their potential earnings by moving from being barristers or whatever?

ArmaniJeanss

Dannyboy83 wrote: »

I really ought to start reading more about constitutions and stuff, but would there not be some middle-man responsible for ensuring this didn't happen?

A regulator perhaps.

The_Minister

My own reading of the situation, with regards to O’Byrne v Minister for Finance (1959) is that it would be constitutional.

However, it isn't a black and white issue. O'Byrne applied to a tax across the entire country, whereas the scope of this levy is far more limited.

Thirdfox

ArmaniJeanss wrote: »

I reckon the cost of the necessary referendum would be far greater than any savings that would ensue, though I suppose we could do it for the principle.

In fairness haven't judges already taken monster pay cuts in their potential earnings by moving from being barristers or whatever?

The supreme court justices etc. earn a pittance I suppose compared to their "private" counterparts (or their previous jobs) - last time I checked it was around 127,000 pre-taxes (that might be president of high court though). A first year attorney over here where I'm studying (US) earns 180,000 dollars at the larger law firms (I'm gobsmacked). But people do it for the honour and privilege (and I suppose a nice government pension is also welcome... and effectively you can't get fired - unless one is "allegedly" into child pornography).

I wouldn't mind being judge myself one day - but it looks like it's the solicitor's route for me (and in this climate, I might have to emigrate )

nesf

Dannyboy83 wrote: »

I really ought to start reading more about constitutions and stuff, but would there not be some middle-man responsible for ensuring this didn't happen?

Quis custodiet ipsos custodes? Much simpler to just fence off judicial pay and leave it at that.

Dannyboy83

nesf wrote: »

Quis custodiet ipsos custodes? Much simpler to just fence off judicial pay and leave it at that.

If we can ensure its only judicial, I guess.

sure feck it, what are the chances that Brian Clow(e)n would appoint government ministers or friendly builders to said positions anyway?;):D

BennyLava

Just reading something this morning

"Minister of State Mary Wallace insisted “our Constitution is quite clear on this. Article 35.5 expressly states ‘the remuneration of a judge shall not be reduced during his continuance in office’.”"

A literal interpretation of this, going by what Mary Wallace is saying, would surely mean that the pension levy is been seen by the government( obviously on legal advice) as a pay reduction, which reduces the remuneration of said state employees, therefore they can't apply it to Judges.

If this isn't true and, you believe their (the goverments) pr, that the pension levy is instead a contribution to future pension surely that would mean that increases in income tax couldn't be applied to judges, during their term in office

which clearly isn't the case

guess the same old story happening again, one rule for those in power, and another for everyone else

does this exemption hold true for other sectors of the state?, i.e. the president?

Wheely

Hmmmmmm, maybe its not as clear cut.....

Copy of letter in todays Times


Madam, – Prof David Gwynn Morgan says (March 18th) the Government’s contention regarding the constitutionality of a public service levy on judicial salaries is “just plain wrong”.

He cites the judgment of Kingsmill Moore in O’Byrne v Minister for Finance (1959) for this proposition. I think Prof Morgan is wrong on that count for the following reasons.

First, the O’Byrne case concerned a tax which applied equally to all members of the population – not simply those in the civil service. This can be seen from the judgment of Chief Justice Maguire when he says: “To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of Government cannot be said to be an attack upon his independence” (emphasis added).

Second, a levy on judges which did not apply to citizens, both public and private, treats the judicial branch of government as part of the executive – exactly the problem which the judicial guarantee in Article 35.5 was designed to prevent.

Third, the Constitution Review Committee in 1934 proposed an amendment to judicial tenure so that the Oireachtas could “regulate the salaries of judges by law”, which is exactly what Prof Morgan suggests can be done, but this proposal was not enacted in the 1937 Constitution.

From a constitutional point of view, therefore, I think the Government is correct. The moral case for a voluntary reduction in judicial salaries has, however, been made ably by Prof Morgan and the example of President McAleese. – Yours, etc,

The Raven.

BennyLava wrote: »

guess the same old story happening again, one rule for those in power, and another for everyone else

does this exemption hold true for other sectors of the state?, i.e. the president?

That appears to be the case, according to an article in the Irish Times:

When the public service levy was introduced, the judiciary and the President were precluded from the tax on constitutional grounds.

Solicitor, Alan Shatter (FG, Dublin South), doesn't seem to think it would be unconstitutional:

Mr Shatter said: “I understand there may be constitutional difficulties with reducing judges’ salaries, but I am not sure there would be a difficulty in constitutional terms in requiring judges to contribute towards their pensions”.

http://www.irishtimes.com/newspaper/ireland/2009/0312/1224242739082.html

However, Cowen seems to be scared to tread on their toes :eek::eek::eek:!!!

The Raven.

Thirdfox wrote: »

The supreme court justices etc. earn a pittance I suppose compared to their "private" counterparts (or their previous jobs) - last time I checked it was around 127,000 pre-taxes (that might be president of high court though). A first year attorney over here where I'm studying (US) earns 180,000 dollars at the larger law firms (I'm gobsmacked). But people do it for the honour and privilege (and I suppose a nice government pension is also welcome... and effectively you can't get fired - unless one is "allegedly" into child pornography).

I wouldn't mind being judge myself one day - but it looks like it's the solicitor's route for me (and in this climate, I might have to emigrate )

Thirdfox, I wouldn’t emigrate just yet. With the way things are going, it could become a judiciary’s paradise :cool::rolleyes:.!!

I have only a limited knowledge of the Irish judicial system, but the figures you have given above don’t seem to concur with what I found. They also differ slightly from one article to the next, but that may be due to the dates, which are sometimes unclear. However, they are all considerably more than what you have given. Correct me if I’m wrong.

In many cases, judges will earn less than the barristers appearing before them -- the Chief Justice, for example, has a salary of €262,983 a year, while some barristers earn in excess of €1m a year.

Chief Justice €262,983
President of the High Court €244,199
Judge of the Supreme Court €229,173
President of the Circuit Court €221,660
Judge of the High Court €216,027
President of the District Court €163,428
Judge of the Circuit Court €157,794
Judge of the District Court €131,494


http://careeradvice.loadzajobs.ie/industry-insight/legal/legal-jobs-in-ireland-judge-position-3371

The following site also gives an insight into the ‘expenses’ claimed in 2004. The salaries may be 2006

Judges' salaries
Chief Justice €249,095
President of the High Court €231,303
Judge of the Supreme Court €217,071
President of the Circuit Court €209,954
Judge of the High Court €204,618
President of the District Court €154,797
Judge of the Circuit Court €149,461
Judge of the District Court €124,550

http://www.village.ie/Society/Justice/District_judge_claimed_%8086,451_in_expenses/

Official figures here, but dates unclear. Scroll to page 3.
http://www.finance.gov.ie/documents/publications/other/AppendixHigherrep.pdf

Thirdfox

You would be much more correct than me - my figures were from vague memories (and may have even been in pounds ) It's not very likely that I'm going down that route so I haven't looked at the pay scales for some time now.