These are some brief thoughts on the text of the proposed constitutional referendum on judicial salaries. I should say at the outset that I used to work as Executive Legal Officer to Chief Justice Ronan Keane some years ago, which may colour my views (but I am speaking only for myself here and haven't spoken to any judges about the issue). I also hope to write at more length about these issues once the opportunity arises.

The full text of the referendum is available at the Department of Justice web site. It proposes to change Article 35.5 as follows:

"35.5.1° The remuneration of judges shall not be reduced during their continuance in office save in accordance with this section."

So far, so good. This does not create any significant change.

"35.5.2° 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."

Again, this is not problematic. It seems to codify the O'Byrne decision, as Vincent Browne has noted.

"35.5.3° 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."

At this point, the proposed changes become problematic. The reference to "classes of persons" would allow for the targeting of pay cuts at small groups of public servants. Paul McMahon has outlined his concerns with this. It seems to be a clumsy piece of drafting, basically saying that if some other group of public servants have their salary reduced, and that is claimed to be in the public interest, then the salary of judges can be reduced.

I have three principal difficulties with this. First, it places control over judicial salaries in the hands of the Oireachtas, where it should not be in order to protect the seperation of powers.

Second, for this to be legal, the law authorising pay cuts need only state that it is "in the public interest". There is no further test to be satisfied, or any requirement that it actually be in the public interest.

Third, and most significant to my mind, "provision ... by law" could (in theory) mean this power is devolved to the cabinet or to a particular minister and removed from democratic oversight almost entirely.

A larger concern, though, is the perspective of the Minister for Justice on all of this. Some of what he said regarding the release of the memo from the judiciary on the topic implies that he sees this more as an industrial relations issue ('circumstances in which an issue arose concerning the salaries of individuals paid through such Government Department or State Agency') than about separation of powers. Tom O'Malley has made the point, with which I agree, that this referendum seems to be more about power than money.

Given the general frustration towards those with power and money in Irish society, this referendum is very likely to pass. It will be very difficult for judges to speak publicly against it (something which I have written about elsewhere) and the new Chief Justice has made it clear that she values judicial silence. This government is taking advantage of this combination of factors to push through a flawed amendment in order to score populist headlines. I doubt the opposition parties will campaign strongly against it. Perhaps the legal academy should?

(Fiona de Londras makes similar points with more eloquence and expertise than I.)