Sir, – It is increasingly difficult to resist the conclusion that the Government’s stance on judicial remuneration is mostly about power and only peripherally about money. Judges should, of course, be expected to play their part in the national effort to deal with the present financial crisis. Most have already done so through voluntary pay cuts but, even so, more formal steps may legitimately be taken to adjust their salaries in light of the reductions imposed on other senior public servants. Any measures adopted for this purpose must, however, respect the vital need to protect judicial independence and other fundamental constitutional values.
Judicial independence has two dimensions: decisional independence and institutional independence. The first, as reflected in the constitutional declaration subscribed to by all judges, requires that they carry out their functions without fear or favour and that they uphold the Constitution and the laws. This form of independence is not endangered by the Government’s proposed course of action, but the same cannot be said of institutional independence, a matter of which we have heard little so far. This involves freedom from collective control or influence by other branches of government, and is accorded the same importance nowadays as decisional independence. The political branches of government must not be, or appear to be, in a position to control the salaries or working conditions of judges. Nor, indeed, should they be in a position to control court administration.
There have been many formulations of the principles of judicial independence over the years. One of the more recent, and widely respected, is the so-called Latimer House set of guidelines, adopted by the Commonwealth Heads of Government in 2003. These guidelines are not, of course, binding on this country or any other, but they reflect the most enlightened international thinking on the topic. They expressly provide: “As a matter of principle, judiciary salaries and benefits should be set by an independent body and their value should be maintained.” Why the Irish Government is choosing to ignore this principle remains a mystery.
But there are other, even more worrying signs emerging of the Government’s desire, not only to achieve eventual control of judicial remuneration but to also to control the very debate on the topic. It has been reported that the Department of Justice tried to have the judges’ memorandum on the proposed referendum removed from the Courts Service website. If this is true, it is an utter scandal and deserves the strongest possible censure. It would scarcely be tolerated in any other constitutional democracy.
In February of this year, Lord Phillips, the president of the United Kingdom Supreme Court, delivered a lecture at University College London on judicial independence and accountability. He was critical in some respects of the present institutional relationship between the Supreme Court and the executive and said that current funding arrangements for the court did not satisfactorily guarantee its institutional independence.
The text of this lecture, and of others delivered by various members of the Supreme Court, is available on the court’s website. It would, I imagine, be unthinkable for a member of the British government to demand the removal of any of such text.
Constitutionalism calls for more than observance of the constitutional text itself. It also demands fidelity to certain fundamental and enduring constitutional values such as the separation of powers and the rule of law.
Scrupulous respect for the decisional and institutional independence of the judiciary is an indispensable precondition for the protection of those fundamental values. Apart from anything else, research has shown that right back to the 18th century, there has been strong correlation between judicial independence and economic development.
A great deal more thought and, above all, a great deal more dispassionate debate is needed in this country before we proceed to amend the Constitution in the manner now being proposed. We should begin with measures to depoliticise entirely all judicial appointments and then develop an acceptable mechanism for having judicial remuneration determined by an independent body completely insulated from political influence. – Yours, etc,