Judge Kelly, Shatter, and judicial independence

recedite

The Judges are saying via their association that all structures for communication between the Government and the judiciary have ceased.

The meja are saying it could lead to "a constitutional crisis."

But if the back channels of communication have been closed, surely that means more independence. All judges are political appointees; they should not continue their links to the politicians who appointed them, otherwise we get cases such as The Sheedy Affair.

Anyway, as Fianna Fail were the party who held power over most of recent history, most judges will be FF appointees. It is not surprising then that a FG minister will have less behind the scenes communication channels with them. If the judiciary stick to judging court cases, and stop trying to influence the legislature as it legislates, this lack of communication won't be a problem for them.
There was another time when the meja warned of a constitutional crisis; when a judge's computer was found to be crammed with child pornography, and he initially refused to resign because he was found not guilty of the offence. It turned out he was just waiting for enough time to go by, so that he could get his full pension entitlements.

This current fuss seems to be really about a self-interest group whingeing because they thought pay cuts were just for other people, and now they have to scrape by on only a small multiple of the average industrial wage.

Manach

This is a crisis of the Government's own making. The Judiciary from various academics reports are held in high regard as a model of Independence from the control of the fused Legislative/Execute state. They have on numerous occasions been shown to go directly against the wishes of the then in power government and pursed decisions that have empower the individual against the encroachment of the State (eg AG v Ryan).
This Government's hamfisted attempt at reforming the Legal profession have drawn international condemnation, their blaming of the Ombudsnan for the mobility grants show how little that they value human rights and their complete ignorance of past and present doctrine of the Separation of the powers had lead them to spend money in reckless defiance of the McKenna Judgement.
There should be reform of the legal system, to make it cheaper and easier to access justice - so long as all relevant stakeholders are consulted and not a ham-fisted attempt by the Government to increase its power based. Ireland has a first class judiciary dealing with a third world government mindset.

VinLieger

Shatter is an egomanical little maniac who has systematically burned every bridge he has with all parts of the legal professions, Gardai, Solicitors, Barristers and Judges in an attempt to excert direct control over them all.
It all stems from him not being made a senior council a while back, its a chip he still has on his shoulder and i pray Enda realises this soon and dismisses him as minister for justice

mike65

His Honours do appear to be a prissy, over-privileged bunch who presume to be at a higher level of regard than may actually be the case. I can say the same about the Minister.

bon ami

Judges are appointed by politicians so how can they be independent of politics. What this is about is the Judges Pockets. The judges,like everybody else , have had to suffer wage and pension cuts but feel sore over it and are using "Judicial Independence" as an excuse to get back at the Minister for Justice.

I fail to understand how cutting there extremely high salaries and pension entitlements not to mention their expenses is an attack on their JUdicial Independence

Justice Kelly does not do his reputation any good by disguising his anger at cutbacks in his salary as Judicial Interference.

recedite

"Prissy" may well be a good description for both sides in this.
As for "the separation of powers" it has only been increased, which seems a good thing.

gizmo555

VinLieger wrote: »

Shatter is an egomanical little maniac who has systematically burned every bridge he has with all parts of the legal professions, Gardai, Solicitors, Barristers and Judges in an attempt to excert direct control over them all.

+1

I can't remember which of the late Margaret Thatcher's former Cabinet colleagues remarked about her that he wished "I was as sure about anything as she is about everything".

Alan Shatter makes Margaret Thatcher look diffident and lacking in self-confidence . . .

VinLieger

recedite wrote: »

"Prissy" may well be a good description for both sides in this.
As for "the separation of powers" it has only been increased, which seems a good thing.

How has seperation of powers been increased now the government has direct control over judges pay?

spank_inferno

Would it be fair to say that this "crisis" would be fixed if the Judges got their pay deduction back?

Seems more like a "we want more money" crisis, rather than a constitutional crisis.

gizmo555

spank_inferno wrote: »

Would it be fair to say that this "crisis" would be fixed if the Judges got their pay deduction back?

Seems more like a "we want more money" crisis, rather than a constitutional crisis.

No, it wouldn't be fair to say that. Read the relevant part of the statement of the Association of Judges of Ireland:

6. At all stages judges accepted that they had to bear their fair share of salary cuts. However, as the constitutional guarantee concerning judicial remuneration was removed, they asked that an independent body be established to fix such remuneration so as to ensure judicial independence. This request was dismissed out of hand.

In other words, they are making what seems to me a very reasonable point - that the government of the day should not have direct control over judges' pay.

Cody Pomeray

VinLieger wrote: »

Shatter is an egomanical little maniac who has systematically burned every bridge he has with all parts of the legal professions, Gardai, Solicitors, Barristers and Judges in an attempt to excert direct control over them all.
It all stems from him not being made a senior council a while back, its a chip he still has on his shoulder and i pray Enda realises this soon and dismisses him as minister for justice

Funnily enough, I do think Shatter has a chip on his shoulder about the judiciary and the court institutions.

I just think it's a very healthy chip.

The same disillusion and sense of distance is shared not only by lay people, but people studying and working in the legal services as trainee barristers, Junior Counsels, and even aspiring judges of the District Court and the higher courts.

The voices of dissent are coming from the people with the most to lose. This latest grumble can be dismissed as a very unbecoming spat about judicial salaries.

We are not in the midst of the judiciary's finest hour, but his legal reforms may be the making of Shatter's otherwise sour reputation.

gizmo555

Cody Pomeray wrote: »

This latest grumble can be dismissed as a very unbecoming spat about judicial salaries.

Only if you're willing to ignore the facts.

Cody Pomeray

gizmo555 wrote: »

Only if you're willing to ignore the facts.

I read it as there not being any material facts, only opinions.

What are the relevant 'facts' that I am missing?

VinLieger

Cody Pomeray wrote: »

I read it as there not being any material facts, only opinions.

What are the relevant 'facts' that I am missing?

Every "reform" shatter has called for since becoming minister for justice has reduced the independence of each branch of the judicial system and tried to place more of it in his hands, those are the facts.

Cody Pomeray

VinLieger wrote: »

Every "reform" shatter has called for since becoming minister for justice has reduced the independence of each branch of the judicial system and tried to place more of it in his hands, those are the facts.

Okay, I would contend that is an opinion, and a highly erring one.

Shatter has reduced the independence of the judiciary, that is an objective fact.

However, to say that "every reform" he has called for whilst in office has "reduced the independence of each branch of the judicial system" is little more than a strange opinion.

The point being responded to was in relation to whether or not the current "crisis" is just an argument about salaries, one that I personally believe (it is my opinion) is unbecoming of the Judiciary.

VinLieger

You can dismiss the current crisis all you want as an argument over pay but the fact is the government now controls Judges pay which is incredibly dangerous imo.
Also consider the legal services bill due to be reintroduced soon, there has been no direct input allowed by barristers or solicitors for a bill that is drastically going to change both professions and if previous drafts are anything to go by bring them both much more under the control of the minister for justice and his department.
Then theres the Oireachtas Inquiries referndum which was thankfully defeated but would have given any sitting government obscene powers of investigation

micosoft

VinLieger wrote: »

Shatter is an egomanical little maniac who has systematically burned every bridge he has with all parts of the legal professions, Gardai, Solicitors, Barristers and Judges in an attempt to excert direct control over them all.
It all stems from him not being made a senior council a while back, its a chip he still has on his shoulder and i pray Enda realises this soon and dismisses him as minister for justice

Or perhaps Shatter is taking on some of the most powerful vested interests in Ireland who up until very recently were completely sheltered from reality. Perhaps the fact that Shatter is facing such anger from so many indicates that he is doing the right thing and making long overdue changes in the Justice arena which has suffered significant reputational damage in recent years due the inaction of the many when the few behaved so badly.

In any case the statement from Hardiman and the judges group contradicts itself. On the one hand they are claiming judicial independence is threatened. On the other hand they are demanding they be consulted on legislative change. What about legislators independence? Surely separation works both ways?

Why is the primary focus for the judiciary the setting up of a pay commission? We've seen how benchmarking happened before. I would say the reason for the hyperbole is the very real issue of members of the Judiciary who invested heavily in property during the boom and are now under serious pressure. They are being disingenuous when they say they accept the need to take cuts given that a significant number of them (30% from memory) manifestly refused to take a cut until they were forced to.

As for the rest?
- Seanad is a red herring. We've never had a judge removed (even Perrin resigned before she could be impeached). I really don't think a second house makes much of a difference. Padding to make it look like it's about more than themselves.
- Insolvency judges are something that needs to be dealt with in a timely manner given the enormous amount of workload that will shortly be created. It also fundamentally misrepresents what is going on here.
- They assume they have a right to be consulted. They do not. Separation of powers and all that.

I think Shatter is in the right on this one and think the Judiciary are the ways creating this crisis. There was a comment by the master of the high court this morning re sense of entitlement amongst the Judiciary. Have a read of this comments (it was made very clear in the interview that he was not a judge and Kearns intervention strikes me as not addressing the substance of what Honohan said).

http://www.rte.ie/news/2013/0416/381601-judges/

Cody Pomeray

VinLieger wrote: »

You can dismiss the current crisis all you want as an argument over pay but the fact is the government now controls Judges pay which is incredibly dangerous imo.

Yes but they don't control individual judge's pay nor rates of pay for those judges' terms of office who are currently holding office save for taxes, levies and charges as applied 'generally or to a particular class'.

If the Government wanted to, they could do all sorts of things that are a lot more "dangerous" to human liberty than reducing judicial salaries. They could theoretically dismiss judges whose judgements were unfavourable, they could theoretically delay an election for 2 years and instigate cruel and unusual punishments on the people, and they could theoretically ban sex, Home and Away, and puppies.

We generally trust that they will not.

Because sometimes, you just gotta trust in the power of popular opposition and public anger. Judicial salaries are controlled by Governments in lots of jurisdictions, including at EU level, as far as I am aware.

I don't see any real or present danger in the public's decision to allow judicial salaries to be reduced in line with the wider public service.

Also consider the legal services bill due to be reintroduced soon, there has been no direct input allowed by barristers or solicitors

What do you mean no direct input?

Like this?
http://www.lawlibrary.ie/documents/news_events/BarCouncilSubmissionJointComm032012.pdf

Short of actually writing the bill for the Minister, I'm not sure what you want.

noodler

gizmo555 wrote: »

No, it wouldn't be fair to say that. Read the relevant part of the statement of the Association of Judges of Ireland:

6. At all stages judges accepted that they had to bear their fair share of salary cuts. However, as the constitutional guarantee concerning judicial remuneration was removed, they asked that an independent body be established to fix such remuneration so as to ensure judicial independence. This request was dismissed out of hand.

In other words, they are making what seems to me a very reasonable point - that the government of the day should not have direct control over judges' pay.

It wasn't the Government though, it was the people of Ireland? Isn't that that the referendum was (partly) for?

VinLieger

Cody Pomeray wrote: »

Yes but they don't control individual judge's pay nor rates of pay for those judges' terms of office who are currently holding office save for taxes, levies and charges as applied 'generally or to a particular class'.

If the Government wanted to, they could do all sorts of things that are a lot more "dangerous" to human liberty than reducing judicial salaries. They could theoretically dismiss judges whose judgements were unfavourable, they could theoretically delay an election for 2 years and instigate cruel and unusual punishments on the people, and they could theoretically ban sex, Home and Away, and puppies.

We generally trust that they will not.

Because sometimes, you just gotta trust in the power of popular opposition and public anger. Judicial salaries are controlled by Governments in lots of jurisdictions, including at EU level, as far as I am aware.

I don't see any real or present danger in the public's decision to allow judicial salaries to be reduced in line with the wider public service.


What do you mean no direct input?

Like this?
http://www.lawlibrary.ie/documents/news_events/BarCouncilSubmissionJointComm032012.pdf

Short of actually writing the bill for the Minister, I'm not sure what you want.

By all accounts it was completely ignored, speak to anyone from the bar council or the law society

raymon

What does this dispute need now? A Fianna Fail politician or two to start sneaking in a few populist insincere one liners.

Well done Michael Martin you opportunist gombeen.

Cody Pomeray

VinLieger wrote: »

By all accounts it was completely ignored, speak to anyone from the bar council or the law society

But you said "there has been no direct input allowed by barristers or solicitors".

Do you now want to take back that point and develop a different point that the direct input they made was ignored? Or what point are we now on?

VinLieger

Cody Pomeray wrote: »

But you said "there has been no direct input allowed by barristers or solicitors".

Do you now want to take back that point and develop a different point that the direct input they made was ignored? Or what point are we now on?

Fair enough they were allowed give input but from speaking to people i know who are barristers and work for the law society all input has been dismissed by the minister. However i can agree my views might be slightly clouded by knowing these people and their opinions, but i think shatter is also using the percieved supperiority complex of the legal professions(right or wrong) to sway public opinion in his favour.
I do agree Judges pay needed to be addressed but his dismissing of an independent body out of hand surely is questionable?

Cody Pomeray

VinLieger wrote: »

Fair enough they were allowed give input but from speaking to people i know who are barristers and work for the law society all input has been dismissed by the minister.

Maybe it was. Or maybe it was rubbish input. I don't have any desire to go through the Law Society or the Bar Council's proposals with a red pen and see which ones made it through the various stages.

An invitation for submissions is not a guarantee that your submissions are worthwhile or will be implemented. Aside from the reforms required to be made in order to meet the EU-IMF programme conditions, I don't believe that the media or the public at large are at all impressed with the veracity of the Law Society's or Bar council's opinions of the adverse repercussions following on from the legislative changes. In that sense, their argument has failed and the changes must go forward.

kidneyfan

gizmo555 wrote: »

No, it wouldn't be fair to say that. Read the relevant part of the statement of the Association of Judges of Ireland:

6. At all stages judges accepted that they had to bear their fair share of salary cuts. However, as the constitutional guarantee concerning judicial remuneration was removed, they asked that an independent body be established to fix such remuneration so as to ensure judicial independence. This request was dismissed out of hand.

In other words, they are making what seems to me a very reasonable point - that the government of the day should not have direct control over judges' pay.

False statement. If they had accepted the need to bear their fair share of salary cuts the referendum would not have been necessary.

Scofflaw

kidneyfan wrote: »

False statement. If they had accepted the need to bear their fair share of salary cuts the referendum would not have been necessary.

Referendums are not thought up overnight.

cordially,
Scofflaw

gizmo555

Cody Pomeray wrote: »

I read it as there not being any material facts, only opinions.

What are the relevant 'facts' that I am missing?

Here is the statement of the AJI in its entirety. The majority of the points raised are wholly unrelated to judicial salaries.

1. Mr. Justice Kelly was the guest speaker at a private dinner hosted by PWC for business leaders.

2. He made a wide ranging speech only about one third of which dealt with the concerns of the Association of Judges of Ireland on the topic of judicial independence. His comments have the full support of this Association.

3. There were no journalists present.

4. The report, whilst broadly accurate, contains a number of inaccuracies.

5. The judge pointed out that for almost 90 years of the State’s existence there had been no need for an association of judges given the mutual respect demonstrated by the executive and judicial branches of government, one for the other. All structures both formal and informal which existed for communication between those two branches of government have ceased.

6. At all stages judges accepted that they had to bear their fair share of salary cuts. However, as the constitutional guarantee concerning judicial remuneration was removed, they asked that an independent body be established to fix such remuneration so as to ensure judicial independence. This request was dismissed out of hand.

7. Subsequently, legislation was passed in respect of pension provisions for new judges without notice or consultation. These provisions extend by one third the length of time which superior court judges have to serve in order to obtain a pension which in any event is unlikely to amount to half final salary. This has major consequences for judicial recruitment in the future.

8. The Personal Insolvency Act was enacted without any notice or debate concerning the insolvency judges who are to be recruited in the first instance solely from the ranks of county registrars. Neither serving judges nor practicing lawyers will be eligible to be considered for such appointments until 2014. These judges, unlike all others, will be subject to ministerial direction concerning sittings.

9. Three further constitutional referenda are to take place within months. No wording concerning these has been forthcoming although they all have huge implications for the judiciary. The AJI accepts the need for a court of appeal but is concerned as to the form of amendment to the Constitution which may be proposed. The AJI has no information as to what the proposal is concerning specialist family courts. The abolition of the Senate renders the removal of judges subject only to a simple majority resolution in the Dáil. At present a resolution of both Houses is required.

10. All of these matters have implications for judicial independence. An independent judiciary and the perception of an independent judiciary is a vital element in a properly functioning constitutional democracy.

Cody Pomeray

gizmo555 wrote: »

Here is the statement of the AJI in its entirety. The majority of the points raised are wholly unrelated to judicial salaries.

I'm not sure which one of my contributions gave rise to your opinion that I must not read the newspapers gizmo! i'll try not to take that paste job in a negative way!

I know what the facts are, I'm asking which facts could possibly deny the statement that this spat revolves around pay.

Sand

It appears the Judges are hysterically overreacting to minor adjustments and making fools of themselves in the process. Our judiciary is quite insular and this latest outburst is not going to improve the judiciary's reputation in the country - why would they think they should be able to influence the legislature/executive?

Assuming our Judges are going to be influenced in their judgments by the group that sets their pay levels, then why exactly should the average citizen believe their interests are better served by that influential group being unaccountable private individuals rather than a public, transparent and accountable government?

I did find the attempts to discredit and dismiss the view of the Master of the High Court amusing. I doubt they'd be attacking him if he had agreed with their special pleading.

As was said above, if the various vested interests in the judiciary were not squealing then it would indicate a problem. That they are is reassuring that at least some reform is occurring.

Sand

gizmo555 wrote: »

Here is the statement of the AJI in its entirety. The majority of the points raised are wholly unrelated to judicial salaries

Only one point even raises judicial independence - the others are entirely devoted to the Judges complaining about their pay, pensions, and their inability to influence the government like in the good old days.

gizmo555

Cody Pomeray wrote: »

I'm not sure which one of my contributions gave rise to your opinion that I must not read the newspapers gizmo!

This one, which, given that you apparently do know the facts, can only be interpreted as deliberate disingenuousness on your part:

Cody Pomeray wrote: »

This latest grumble can be dismissed as a very unbecoming spat about judicial salaries

Cody Pomeray

gizmo555 wrote: »

This one, which, given that you apparently do know the facts, can only be interpreted as deliberate disingenuousness on your part:

Thank you for saving myself the bother of re-quoting myself.

Can you see that I am not specifically talking about the objective content President of the Hugh Court's speech? I am making a summary of my understanding of his grumble - which is one that relates to salary.

Why?

Because the Judiciary didn't even have an organisation until a month after the ratification of the 29th amendment. Salaries and pensions have been central to all discriminating readings of their public comments. I don't believe the Seanad issue was the serious gripe at the heart of the matter here.

micosoft

gizmo555 wrote: »

Here is the statement of the AJI in its entirety. The majority of the points raised are wholly unrelated to judicial salaries.

1. Mr. Justice Kelly was the guest speaker at a private dinner hosted by PWC for business leaders.

2. He made a wide ranging speech only about one third of which dealt with the concerns of the Association of Judges of Ireland on the topic of judicial independence. His comments have the full support of this Association.

3. There were no journalists present.

Grand. Free country and all that.

gizmo555 wrote: »

4. The report, whilst broadly accurate, contains a number of inaccuracies.
[/I]

Is this some form of Quantum report or something that is both broadly accurate but contains a number of inaccuracies??

gizmo555 wrote: »

5. The judge pointed out that for almost 90 years of the State’s existence there had been no need for an association of judges given the mutual respect demonstrated by the executive and judicial branches of government, one for the other. All structures both formal and informal which existed for communication between those two branches of government have ceased.
[/I]

Because for 90 years of the states existence little or no reform took place in the way our judiciary operate or their terms and conditions.

gizmo555 wrote: »

6. At all stages judges accepted that they had to bear their fair share of salary cuts. However, as the constitutional guarantee concerning judicial remuneration was removed, they asked that an independent body be established to fix such remuneration so as to ensure judicial independence. This request was dismissed out of hand.
[/I]

Manifestly untrue with regard to recognising what needed to be done. No need for another special pay commission whose members would be appointed by the Govt (so makes no odds) or some independent legal professionals!!

gizmo555 wrote: »

7. Subsequently, legislation was passed in respect of pension provisions for new judges without notice or consultation. These provisions extend by one third the length of time which superior court judges have to serve in order to obtain a pension which in any event is unlikely to amount to half final salary. This has major consequences for judicial recruitment in the future.
[/I]

Why should they be consulted given the above? What possible useful conversation was to be had -
Govt. "We'd like to cut your pay"
Judges "Okie Dokey. You consulted with us so we're cool with that"

The judiciary were given a more then enough time dealing with it in their way. They failed. It was legislated for. If it becomes a problem recruiting judges in the future like any other job the pay can be looked at but I suspect there are many the barrister/solicitor that would bite the hand off for a safe stable income these days.

gizmo555 wrote: »

8. The Personal Insolvency Act was enacted without any notice or debate concerning the insolvency judges who are to be recruited in the first instance solely from the ranks of county registrars. Neither serving judges nor practicing lawyers will be eligible to be considered for such appointments until 2014. These judges, unlike all others, will be subject to ministerial direction concerning sittings.
[/I]

Again, why should there be a debate with Judges on this matter. Legislation is for legislators. This strikes me as more about jobs for the boys then any serious attack on their independence. The courts system faces a deluge of technical insolvency cases that need to be dealt with efficiently. Our judiciary have proven time and again not to be able to understand that word.
- Why bother have criminal cases - go straight to the appeals court who seem to have to retry and resentance every case.
- Get rid of the high court as half the cases seem to go to the supreme court who accept the most minor points of law.
(both of above are slight exaggerations)

gizmo555 wrote: »

9. Three further constitutional referenda are to take place within months. No wording concerning these has been forthcoming although they all have huge implications for the judiciary. The AJI accepts the need for a court of appeal but is concerned as to the form of amendment to the Constitution which may be proposed. The AJI has no information as to what the proposal is concerning specialist family courts. The abolition of the Senate renders the removal of judges subject only to a simple majority resolution in the Dáil. At present a resolution of both Houses is required.
[/I]

Again it's for legislators to legislate. The only people here who are stepping across boundaries are the judges.

Seanad is a red herring

gizmo555 wrote: »

10. All of these matters have implications for judicial independence. An independent judiciary and the perception of an independent judiciary is a vital element in a properly functioning constitutional democracy. [/I]

No.
1,2,3,4 are about the report itself.
5 is meaningless but open to challenge as he is admitting that influence happened discretely as you might, for example be walking the dog and bump into someone....
6 is simply not supported by the evidence. We all know how "independent pay commissions" work
7. Their fault.
8. About jobs for the boys
9. Legislators legislate. They never have and don't need to refer to the judiciary on matters of legislation. (except potential referral re constitutionality)
10. (added in for the line on the Seanad). Red herring.

I fail to see a single case of where due to changes the judiciary are losing their independence. The pay claim is simply not believable.

I would go as far as to say this is a desperate punt to protect members of the judiciary who are in serious financial difficulties due to the collapse in property prices...

Curly Judge

We are a funny people!
We cry out for reform and when some politician tries to provide it we scream blue murder.
Name one minister anywhere in the common law states who tried to reform the legal system without the more fossilised members of the judiciary shouting rape?
Judges have far too high an opinion of themselves.
Airline pilots and train drivers have just as much responsibility as judges and just get on with it with a minimum of prima-donna-ship.
Why should they not be sacked if they are not up to the job?
The wall of protection built around them is as archaic as the law which says a TD cannot be charged with a driving offence on their way to the Dail.
All this mollycoddling and splendid isolation they enjoy may have been necessary in the past when only the rich and powerful could read and write.
With modern education and the all pervading media it would be a brave politician or political party indeed who tried to pull a fast one on the public's right to a free and fair legal system.
I thought Finan Sheehan was excellent today on the Pat Kenny show.
He really stuck it to the stiff collared boyos and fair play to him for doing so.

oscarBravo

Curly Judge wrote: »

...train drivers have just as much responsibility as judges and just get on with it with a minimum of prima-donna-ship.

Defence exhibit A, your honour:

Icepick

The FF Mandarins are upset. Good.

Scofflaw

Curly Judge wrote: »

We are a funny people!
We cry out for reform and when some politician tries to provide it we scream blue murder.
Name one minister anywhere in the common law states who tried to reform the legal system without the more fossilised members of the judiciary shouting rape?
Judges have far too high an opinion of themselves.
Airline pilots and train drivers have just as much responsibility as judges and just get on with it with a minimum of prima-donna-ship.
Why should they not be sacked if they are not up to the job?
The wall of protection built around them is as archaic as the law which says a TD cannot be charged with a driving offence on their way to the Dail.
All this mollycoddling and splendid isolation they enjoy may have been necessary in the past when only the rich and powerful could read and write.
With modern education and the all pervading media it would be a brave politician or political party indeed who tried to pull a fast one on the public's right to a free and fair legal system.
I thought Finan Sheehan was excellent today on the Pat Kenny show.
He really stuck it to the stiff collared boyos and fair play to him for doing so.

Reducing the independence of judges is not good reform, and there's nothing intrinsically great about reform for the sake of reform. And the idea that we can afford to do away with constitutional checks and balances because we can all read and write is shown for the absurdity it is by the arguments over this issue - clearly, many people will not recognise when the government is doing something constitutionally dangerous.

cordially,
Scofflaw

PRAF

Scofflaw wrote: »

Reducing the independence of judges is not good reform, and there's nothing intrinsically great about reform for the sake of reform. And the idea that we can afford to do away with constitutional checks and balances because we can all read and write is shown for the absurdity it is by the arguments over this issue - clearly, many people will not recognise when the government is doing something constitutionally dangerous.

cordially,
Scofflaw

Judges still are, and have always been, political appointees. Why weren't the judges complaining over a lack of judicial independence long before now?

Why does judicial independence only become an issue when there is a pay cut when there were no such complaints when the govt was increasing their pay?

I'm sure there are valid concerns for judges that should be considered here. However megaphone diplomacy and belly aching about pay cuts does not help their cause.

Mr.Micro

Curly Judge wrote: »

We are a funny people!
We cry out for reform and when some politician tries to provide it we scream blue murder.
Name one minister anywhere in the common law states who tried to reform the legal system without the more fossilised members of the judiciary shouting rape?
Judges have far too high an opinion of themselves.
Airline pilots and train drivers have just as much responsibility as judges and just get on with it with a minimum of prima-donna-ship.
Why should they not be sacked if they are not up to the job?
The wall of protection built around them is as archaic as the law which says a TD cannot be charged with a driving offence on their way to the Dail.
All this mollycoddling and splendid isolation they enjoy may have been necessary in the past when only the rich and powerful could read and write.
With modern education and the all pervading media it would be a brave politician or political party indeed who tried to pull a fast one on the public's right to a free and fair legal system.
I thought Finan Sheehan was excellent today on the Pat Kenny show.
He really stuck it to the stiff collared boyos and fair play to him for doing so.

Independence of the judiciary is a paramount IMO. How politically independent judges in reality are is a different story. I personally would like to see less of the archaic in the judiciary and the judicial system and a more modern open system that is in keeping with modern society and not so stuffy.

Cody Pomeray

Scofflaw wrote: »

And the idea that we can afford to do away with constitutional checks and balances because we can all read and write is shown for the absurdity it is by the arguments over this issue - clearly, many people will not recognise when the government is doing something constitutionally dangerous

Because of how this is written, I'm not sure whether youre suggesting that the Government has done something that is constitutionally dangerous, or whether youre suggesting that the arguments are so stupid that people couldn't tell the difference anyway?

Curly Judge

Scofflaw wrote: »

Reducing the independence of judges is not good reform, and there's nothing intrinsically great about reform for the sake of reform. And the idea that we can afford to do away with constitutional checks and balances because we can all read and write is shown for the absurdity it is by the arguments over this issue - clearly, many people will not recognise when the government is doing something constitutionally dangerous.

cordially,
Scofflaw

Something doesn't become constitutionally dangerous just because you think it so.
The fact that we can both read and write and hold opposing opinions proves my point.
200 hundred years ago I would have to doff my cap and be afraid to open my mouth in such superior company.

micosoft

Scofflaw wrote: »

Reducing the independence of judges is not good reform, and there's nothing intrinsically great about reform for the sake of reform. And the idea that we can afford to do away with constitutional checks and balances because we can all read and write is shown for the absurdity it is by the arguments over this issue - clearly, many people will not recognise when the government is doing something constitutionally dangerous.

cordially,
Scofflaw

I'm still struggling to see where their independence has been reduced though? Where are the specific threat/s that could cause a serving government to unduly influence a member of the Judiciary through coercion of some form caused by legislative changes that have happened or are proposed?

At the very least you must agree presenting the pay argument badly undermines their case...

Scofflaw

PRAF wrote: »

Judges still are, and have always been, political appointees. Why weren't the judges complaining over a lack of judicial independence long before now?

Why does judicial independence only become an issue when there is a pay cut when there were no such complaints when the govt was increasing their pay?

I'm sure there are valid concerns for judges that should be considered here. However megaphone diplomacy and belly aching about pay cuts does not help their cause.

There are valid concerns, and the judges are unfortunate that the ground they're fighting on has been prepared by the government with an eye to popular support, because the issue can easily be made to look like it's simply "belly aching about pay cuts".

Again, the problem here is not whether judges are appointed by a government in the first place, but whether the government then has any further control over them. The Oireachtas has control over them - a judge can be dismissed by a vote of both houses - but that is distinct from the government having control over them.

What all of this is about is control over the government, and prevention of the executive (that is, the sitting government) acting without due regard for the law - that is, acting arbitrarily. It's a hugely important principle, and no measure of control over the judiciary should ever be in the hands of the executive, because that makes it more possible for the government to act without regard to the law.

The end-point of such a process is judges who are entirely at the mercy of the government, which means that legality is no longer a restraint on government action. They decide to do something, they do it, and if a judge says it's illegal, the government dismisses them and appoints another. Classic banana-republic or dictatorship stuff, and the loser is the citizen, because they have lost the protection of the law against their government.

Obviously this measure doesn't take us anywhere near that situation, but it does take us in that direction. That's what makes it dangerous - and the more so because the Irish legislature, who are also supposed to be a check on the executive, are a rubber-stamp body.

cordially,
Scofflaw

Scofflaw

micosoft wrote: »

I'm still struggling to see where their independence has been reduced though? Where are the specific threat/s that could cause a serving government to unduly influence a member of the Judiciary through coercion of some form caused by legislative changes that have happened or are proposed?

At the very least you must agree presenting the pay argument badly undermines their case...

Unfortunately, as I said, the pay issue is where the government has chosen to attack the independence of the judiciary, precisely because it makes the judges look bad.

Allowing the government to arbitrarily reduce the pay of all judges is an obvious control mechanism - people tend to expand their outgoings to match their incomes, which means that the government can at any point seriously inconvenience all sitting members of the judiciary by knocking their pay down a good chunk. Those in the judiciary who would be most inconvenienced by that will be thought of by those who might not be, so that after a bit all judges become more reluctant to challenge the government's actions. And that's the point of this, not any savings - as someone pointed out, the cost of the referendum wiped those out in advance.

And reducing judges' pay is always going to be a popular move, too, because they're paid a lot more than most people. So the government has to hand a weapon it can use arbitrarily against the judiciary, without spending political capital to do so.

Sure, I'd like to believe that either the judiciary will be sternly unaffected by threats to reduce their pay, and/or that the government is so benign it would never even mutter the threat if it found its actions restrained by the law - but I'm afraid I don't believe either of those things.

cordially,
Scofflaw

VinLieger

PRAF wrote: »

Judges still are, and have always been, political appointees. Why weren't the judges complaining over a lack of judicial independence long before now?

Why does judicial independence only become an issue when there is a pay cut when there were no such complaints when the govt was increasing their pay?

I'm sure there are valid concerns for judges that should be considered here. However megaphone diplomacy and belly aching about pay cuts does not help their cause.

So what if they are political appointees, they should still have complete independence from the government so no control can be excerted upon them. Ive no problem with pay being cut but why not an independent body? That makes no sense.
And then for the insolvency courts, its completely understandable they expect to be consulted, the government are about to add a ton of new judges to fill the seats of these courts so why shouldnt the current judges be consulted at least on the appointment and vetting process and to advise on what qualifications and experience needs to be required

PRAF

Scofflaw wrote: »

There are valid concerns, and the judges are unfortunate that the ground they're fighting on has been prepared by the government with an eye to popular support, because the issue can easily be made to look like it's simply "belly aching about pay cuts".

Again, the problem here is not whether judges are appointed by a government in the first place, but whether the government then has any further control over them. The Oireachtas has control over them - a judge can be dismissed by a vote of both houses - but that is distinct from the government having control over them.

What all of this is about is control over the government, and prevention of the executive (that is, the sitting government) acting without due regard for the law - that is, acting arbitrarily. It's a hugely important principle, and no measure of control over the judiciary should ever be in the hands of the executive, because that makes it more possible for the government to act without regard to the law.

The end-point of such a process is judges who are entirely at the mercy of the government, which means that legality is no longer a restraint on government action. They decide to do something, they do it, and if a judge says it's illegal, the government dismisses them and appoints another. Classic banana-republic or dictatorship stuff, and the loser is the citizen, because they have lost the protection of the law against their government.

Obviously this measure doesn't take us anywhere near that situation, but it does take us in that direction. That's what makes it dangerous - and the more so because the Irish legislature, who are also supposed to be a check on the executive, are a rubber-stamp body.

cordially,
Scofflaw

As I understand it, the constitution is worded as follows:

"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"

To me, in laymans terms, this means that judges are no longer immune to pay cuts which have been applied to govt ministers, the most senior civil servants, etc. To believe that this change would allow any govt to directly attack judges pay is quite simply fantasy thinking. It was put to the people and after a long period of reasoned debate, the people decided that it was a fair and reasonable change to the constitution. End of debate

Regarding the ability of the govt to exercise control over the judiciary by means of firing them as they please, again this is fantasy. Has any judge ever been dismissed in Ireland?

On a technical point, you are incorrect in suggesting that it is the government who can remove a judge. It is only the Oireachtas who can do this. Currently, and until such point as it changes, this means over 200 legislators rather than the 15 or so members of the executive. There is a crucial difference in that. You may say that the whip system could be invoked to force it through but I would have thought it highly unlikely that over 200 legislators would allow that kind of thing to happen.

I'm also assuming, although I am not certain about it, that the President could step in prevent such a thing from happening (or at least delay it) if he deemed it to be unconstitutional.

Curly Judge

VinLieger wrote: »

So what if they are political appointees, they should still have complete independence from the government so no control can be excerted upon them. Ive no problem with pay being cut but why not an independent body? That makes no sense.
And then for the insolvency courts, its completely understandable they expect to be consulted, the government are about to add a ton of new judges to fill the seats of these courts so why shouldnt the current judges be consulted at least on the appointment and vetting process and to advise on what qualifications and experience needs to be required

So... not only must judges be exempt from pay cuts like the rest of us, they must also have a say on who should join them on the benches?
I'm all for an independent commission to oversee all these sensitive subtleties
so long as they are well sprinkled with common taxpayers and not stuffed with legal and political worthies.

VinLieger

Curly Judge wrote: »

So... not only must judges be exempt from pay cuts like the rest of us, they must also have a say on who should join them on the benches?
I'm all for an independent commission to oversee all these sensitive subtleties
so long as they are well sprinkled with common taxpayers and not stuffed with legal and political worthies.

Did you even read my post? I said they should have pay cuts but allowing the government to control it is completely against seperation of powers. Also i didnt say they should have a say, i said input on how they are chosen not a black ball system on who is chosen.
Seriously read a post properly before respponding to it

Cody Pomeray

Scofflaw wrote: »

Unfortunately, as I said, the pay issue is where the government has chosen to attack the independence of the judiciary, precisely because it makes the judges look bad.

That's your interpretation. I don't see why the Government should, out of the blue, decide to attack the Judiciary or seek to diminish the reputation of the Judiciary.

My interpretation is that the Government sought to alter the amount of their salary that Judges must repay to the state now and in the future in line with the class of persons (be they office holders, or public servants) to whom judges belong because as a group, the Judiciary had theretofore been non-compliant with the pensions levy. The change did not arise because the Government wanted to "make the judges look bad"

Allowing the government to arbitrarily reduce the pay of all judges is an obvious control mechanism

Yes it is. That is obviously not relevant to the 29th amendment, however.

the government can at any point seriously inconvenience all sitting members of the judiciary by knocking their pay down a good chunk.

Only in line with other public servants or other office holders.

The motivation cannot be an attack on judges' pay in itself.

And that's the point of this, not any savings - as someone pointed out, the cost of the referendum wiped those out in advance.

Did they? Given the political reality that the pension levy is unlikely to expire in the immediate future, that it may be amended, and that other provisions may be introduced which seeks to reduce the pay of public servants and constitutional office holders further in the future, I think that's a very premature conclusion to draw.

Then again, nobody is suggesting the 29th amendment only occured for fiscal reasons.

I think that as a principle, adverse public reaction to Judicial exemption from the pensions levy meant the Government justifiably felt the need to be seen to spread the burden of pain across the public sector.

Cody Pomeray

VinLieger wrote: »

Did you even read my post? I said they should have pay cuts but allowing the government to control it is completely against seperation of powers.

Judges, during their careers, don't have pay cuts.

They can now be subjected to the same taxes, charges and levies as apply to other public servants or office holders, which just means they can be required to pay back the same proportion of their salaries as those public servants and office holders are obliged to repay.

Who do you suggest controls judicial pay? A board? Who would be appointed to it, and how would they be appointed?

VinLieger

Cody Pomeray wrote: »

Judges, during their careers, don't have pay cuts.

They can now be subjected to the same taxes, charges and levies as apply to other public servants or office holders, which just means they can be required to pay back the same proportion of their salaries as those public servants and office holders are obliged to repay.

Who do you suggest controls judicial pay? A board? Who would be appointed to it, and how would they be appointed?

Yes which means no matter how you put it that the pay of judges is now in the control of the government.
Ive no idea how or who to appoint im not a legislator, or legale expert but I do know the independence of judges is a core foundation of the justice system and now their pay is under control by the government.
Your just being obstinant now by ignoring that the indpendence of the judiciary is threatened.