Memorandum by the Judges of the Supreme and High COURTS IN Support of Their Claims for Improvement in Their SALARIES AND Pensions.
1. The remuneration and pension rights of the Judges of the Supreme and High Courts were, in the first instance, fixed by the Courts of Justice Act, 1924, in accordance with the recommendations of the Report of the Judiciary Committee set up by the Government “to advise the Executive Council of Saorstát Éireann in relation to the establishment, in accordance with the Constitution, of Courts for the exercise of the Judicial power and the administration of Justice in Saorstát Éireann.” The salaries were fixed on a comparatively modest scale having regard to those enjoyed by the Judges of the previous regime, as the following table will show:—
By Article 69 of the Constitution of 1922 it was provided that all Judges were to be independent in the exercise of their functions and that no Judge was to hold any other Office or position of emolument. These salaries while representing a very drastic reduction in the scale of Judicial remuneration were fixed at a level which we believe was designed to secure the following objects:—To provide a suitable recompense for the duties to be discharged and such as would be reasonably commensurate with the earnings of leading members of the Bar from amongst whom appointments would most likely be made; to ensure the economic independence of the Judiciary without which its Constitutional independence might in some instances cease to be a reality; to enable the Judges to maintain a certain standard of living which normally enlightened public opinion would expect from persons entrusted with high offices of great responsibility; to enable them to make reasonable provision for their dependents on their decease; to preserve the distinctions in rank between the higher and lower orders of the Judiciary.
It should be hardly necessary to point out that the decrease in the purchasing power of money combined with the increase in the direct taxation of higher incomes have to a very great extent rendered these objects now impossible of realisation. This can easily be demonstrated by a comparison of the nett incomes of the Judges now with their nett incomes in 1924 when due allowance has been made for the difference in the value of the pound. The effect of the depreciation can best be realised by taking a particular instance. In January, 1927, the now President of the High Court was appointed Circuit Judge of Dublin at a salary of £1,700. For the years 1928-1938 his average nett income after deduction of tax was £1,520. His present salary is £3,450. Of this he will by the end of the year have received £2,725 after deduction of Income Tax, out of which he will have to pay £85 sur-tax leaving a nett income of £2,640. It has recently been officially stated that comparied with 1938 the value of the £1 is now 8s. 11d. Calculated at 9s. the value of £2,640 now compared with 1938 is £1,178. In other words after 26 years on the Bench and two promotions he is, as regards purchasing power, £342 worse off than he was as a Circuit Judge. Leaving direct taxation entirely out of account the President’s salary of £3,450 is worth £1,552 as compared with 1938 or £248 less than a Circuit Judge’s salary at that time. Regarded conversely the contrast is no less striking. Assuming that in 1938 a High Court Judge, out of his salary of £2,500, could count on having £2,000 to spend after payment of Income Tax and Sur-Tax he would now, on a very rough calculation, require a salary of at least £5,500 to allow him as much purchasing power after payment of tax.
Our salaries now compare very unfavourably with the earnings of leading members of the Bar and afford far less inducement than in 1924 to such leaders to accept appointment to the Bench. In circumstances as they exist at present few of the objects which, as we believe, the salaries fixed in 1924 were designed to secure are now capable of being fully realised; and should matters not improve the economic independence of the Judiciary may in some instances become jeopardised.
It is of course realised that the fall in the value of money affects every section of the community but we believe that most sections have managed to increase their incomes sufficiently to compensate, and in some instances more than sufficiently to compensate for the depreciation; and that few sections, if any, have received as little in the way of compensation in this respect as the Judges. The following figures, we believe, go a long way towards showing that such is the case. They do not purport to be exact in every instance but are approximately correct. They can of course be readily checked.
The Central Statistics Office has calculated that the National Income in 1949 was £352.1 million as compared with £158.2 million in 1938, an increase of over 120%. (Statistical Abstract 1951. Table 188 p. 187). From the same Table it appears that Agricultural Wages and Salaries have increased from £5.9 millions in 1938 to £16.1 in 1949, or an increase of over 170%. Agricultural profits increased from £30.2 to £83.3 millions or by over 175%. Wages and Salaries (other than Agricultural) and pensions increased from £68.7 to £154.6 millions or by over 125%. The profits from public and private companies increased from £11.9 to £33 millions or by over 175%. In 1937/8 the gross Income on which Income Tax was paid was £64.3 millions while in 1948/9 it was £134.3, an increase of over 100%. In 1937/38 the total income on which sur-tax was paid was £8.5 millions while in 1948/49 it was £17.2 millions, an increase of over 100%. (Statistical Abstract, 1941. Tables 161-2, p. 138; and S. A. 1951. Tables 210-11, p. 207). Recent increases in the remuneration of higher Civil Servants and of the holders of certain important and responsible offices have gone a considerable distance towards mitigating in their regard the hardship of the depreciation. The following figures are illustrative:—
It will be noted that in every case the increase is well over 50%.
The increases in the remuneration of some of these officers are more marked if they are considered apart from the effect of the bonus. For instance the basic salary of the Secretary of the Department of Finance in 1924 was £1,500 while it is now £2,625, an increase of 75% and the same applies to the Secretary, Department of Industry and Commerce, the Chairman of the Revenue Commissioners, the Chairman of the Commissioners of Public Works and the Land Commissioners. The basic salary of the Secretaries of other Government Departments in 1924, was £1,200; it is now £2,130, an increase of 77%. The basic salary of the Registrar of the Supreme Court was in 1924, £1,000 and is now £1,800 or an increase of 80%; and the same applies to the Taxing Masters. In like manner the basic salaries of the County Registrar, Dublin, the Master of the High Court and the Senior Registrar of the High Court have increased by 77%, 78%, and 81% respectively.
We wish to make it plain that we do not claim any right to have our salaries increased from time to time on account of any temporary increase in the cost of living whether reckoned by reference to the index figure or otherwise. The change which has taken place in the value of money since 1938 is, we conceive, radical; and, as has been recognised by the Government in making the increases in the basic salaries mentioned, is something over and above any temporary movement in the cost of living index figure.
Table 188 of the Statistical Abstract for 1951 which we have already referred to shows that profits (other than those of public and private companies), professional earnings, interest, etc., increased from £20.4 millions in 1938 to £32.2 in 1949 an increase of 57.84%. The sections of the community here included appear to have been the least successful in their efforts to offset the fall in the value of money. They have, however, been vastly more successful than we have. The increases granted us in 1947 were 20% in respect of the puisne Judges of the High Court and 15% in the case of the other Judges. They meant a gross increase of £600 in the case of the Chief Justice; £500 in the case of the Judges of the High Court and £450 in the case of the others. For every 20s. of the increase the State now takes back 9s. in direct taxation so that the nett increases are £360, £275, and £247 10s. respectively.
We believe that justice entitles us to an increase of 60% upon our 1924 salaries which will compensate us for the depreciation in the value of money merely to the same extent as those sections of the community who have been least fortunate in their efforts to offset the depreciation. We believe that the community is well able to provide the necessary money without any appreciable effort. An increase of 60% would mean that our total salaries would amount to £54,400 as against £25,500 in 1924 and £31,500 in 1938 (on account of the addition in 1936 of two Supreme Court Judges). The total of State expenditure in 1925/26 was in the region of £25 millions of which our then salaries formed a 1/1,000th part. The total State expenditure in 1937/38 was just over £32 millions of which our then salaries formed less than 1/1,000th part. The total State expenditure in the current financial year is estimated to exceed £95 millions of which our salaries (increased by 60%) would form a 1/1,700th part. Or let us consider it from another angle. In 1938 our salaries were less than 1/5,000th part of the National Income of £158.2 millions. With an increase of 60% our salaries would form 1/6,400th part of a National Income of £352.1 millions. An increase of 60% upon our 1924 salaries would add a gross £14,350 to the cost to the State. Of this amount the State would take back, at present rates, 9/20ths in the form of direct taxation leaving the nett cost at approximately £9,000.
The following matters, we believe, also deserve consideration. The Judges in the course of their work, judicial and otherwise, have acquired at first hand, information that the remunerations enjoyed by persons holding responsible positions in professional and commercial life in very many cases greatly exceed the higher judicial salaries. Members of the Committee also will no doubt be aware of this, but it is suggested that an inquiry would show the disparity to be so much as greatly to reinforce our contention that it is merely just that we be granted a substantial increase in our salaries to enable us to maintain our proper place in the life of the community.
Judges are expected to, and in fact do, act upon many public boards and committees and do so, of course, without remuneration. They are expected to contribute, on a scale suitable to their positions, to charitable institutions and organisations, and to take part in certain social activities. If they accept hospitality, as in reality they must, from persons public or private (as, for instance, diplomatic representatives), they ought to be in a position suitably to return it. There is no need or wish to labour this aspect of the matter but it does constitute a serious and embarrassing problem for the Judiciary.
We receive no allowance for certain expenditure which we ought to make, and, in many instances, must make if we are properly to discharge our duties. A Judge should be in a position to maintain at home a suitable library of legal text books and reports; and to do so must subscribe to our own series of Law Reports and to those of the countries whose system of law approximate to ours and where problems are constantly dealt with which are similar to those with which we have to deal from day to day. A car is in some cases an absolute, and in most cases a practical necessity. Its absence is apt to give rise to comment and can be the occasion of awkward and almost humiliating situations. We believe that in few places apart from this country are Judges of the Higher Courts without clerk or typist or secretarial assistance of some kind. The only exception here is the Chief Justice.
To provide for the expenditure mentioned in the preceding paragraph a Judge would find it necessary to set apart something in the vicinity of three or four hundred a year, perhaps as much as a sixth of his effective remuneration.
Every Judge must retire on reaching the age of 72 but any Judge may retire on completing 15 years service, if he so wishes, and thereupon becomes entitled to a pension equal to 2/3rds of his salary. If before completing fifteen years service he has to retire on account of age or infirmity he gets nothing in the way of pension or gratuity unless he has completed at least five years service. If he has completed five years his pension amounts to 1/6th of his salary and he is entitled to an additional 1/20th for each completed year in excess of five up to the maximum of 2/3rds.
These pension rights, provided by Section 14 of the Courts of Justice Act, 1924, have so far cost the State comparatively little. Most of our predecessors have died either in office or within a short period after retirement at the age limit. Only one Judge has retired on the grounds of ill-health. He survived his retirement for a very short period. We by no means desire to minimise the advantage of these pension rights but we feel that in the nature of things they can be availed of in comparatively few cases and that they are in several respects defective and inadequate.
The five year qualifying period and the low pension rate for those who are compelled to retire after short service are calculated to prevent eligible members of the Bar who are well qualified for appointment from accepting promotion to the Bench once they have reached a certain age. They will not be disposed to give up their earnings at the Bar to take office for a short period with no, or with inadequate, pension rights. Judges are normally appointed after they have reached middle age and often late in life and have to retire at seventy-two when there is no real possibility of other remunerative employment.
Under the provisions relating to pensions, of the Judicature Act, 1877, which established the Courts in existence up to 1924, there was no qualifying period and no distinction between Judges who retired on completing fifteen years service and those who had to retire by reason of permanent infirmity. There was no age limit at which Judges had to retire. These provisions contained in Section 19 of the Statute were far more capable of meeting the requirements of individual cases than the present system under the operation of which cases of hardship have occurred.
The present system makes no provision for the payment of anything by way of pension or gratuity to the dependents of a Judge who dies in office no matter how long his service. For instance, five of us have completed over fifteen years’ service and could retire any day on full pension. Our combined salaries amount to almost £18,000. If we did retire the cost to the State would be £12,000 yearly. By remaining in office we of course suit our own convenience but incidentally save the State £12,000 per annum. Four of us have in this way been saving
the State more than £8,000 yearly for over ten years past making a total of over £80,000. If one of us dies in office he will have drawn nothing in the way of pension and his dependents will receive nothing whatever from the State.
The high salaries and pensions payable to Judges in Ireland prior to 1924 were such as to enable them to make provision for their dependents. As we have already indicated the position has under present conditions been completely altered. In Great Britain and Northern Ireland there is still no age limit at which Judges have to retire. Their pension systems, similar to that operating here prior to 1924, which were in most respects better than ours, have recently been considerably improved by the Administration of Justice Pensions Act, 1950 (14 & 15 Geo VI. c. 11). This Act makes it possible, where a Judge consents to a certain reduction of his pension on retirement, for him or his dependents to receive a lump sum equal to one year’s salary or two years’ pension, or for his widow and children to receive a limited portion of the pension to which he would have been entitled.
We suggest that some such scheme as this should be introduced to remedy the defects in our pension system which we have indicated. We suggest also that the five year qualifying period be done away with and that the Minister for Justice with the concurrence of the Minister for Finance be empowered by Statute to award a pension not greater than 2/3rds of his salary to any Judge who retires on the ground of age or infirmity before completing fifteen years’ service.