There has been a great deal of public comment in recent days about the fact that the 148 members of the Judiciary have been put in a position by a political decision of the Government that they be excluded from paying the pension levy. On what grounds did the Government make a political decision to exclude members of the Judiciary from having to pay a pension levy when approximately 300,000 other public servants have to pay the levy? Many of those public servants are now feeling real pain and difficulty and have to live on less than €100 per week after all the contributions have been made. What are the reasons for the Government exclusion of a particular sector of the public service, amounting to approximately 148 persons in all?

As the Deputy is aware, the Attorney General has given his advice, having regard to the Constitution. As the Deputy is also aware, the case law interpreting that advice is confidential. The decision not to impose the pension levy on judges was made on the basis of that advice. The wording of Article 35.5° is clear. In express terms it imposes a prohibition on the reduction of a judge's remuneration during a judge's continuance in office. The remuneration has been interpreted in previous decisions as including pension rights and the protection in Article 35.5° provides for financial independence on the part of the Judiciary, which is a key component in judicial independence. As we all know, the separation of powers is fundamental to the Constitution. It is not appropriate for one organ of Government to interfere with the constitutionally protected rights of another organ of Government.

Things have moved on. The fact that the Chief Justice has been in touch with the Revenue and has provided for a scheme whereby he and his colleagues can arrange for a voluntary contribution of the order required is to be welcomed. It enables the Judiciary to make that contribution and I believe they will do so.

I note the comments of the Chief Justice in that regard and I welcome them. The Government and the Taoiseach have placed members of the Judiciary in a very particular position, through no fault of their own. I respect the constitutional provision preventing a reduction in the remuneration of judges' pay. It is necessary that they are seen to be independent from the Executive. That is as it should be. However, the fact is that approximately 300,000 public servants are being told that this is not a pay cut, it is a pension levy.

The advice of the Attorney General is only that; it is only advice. Political leadership, either from the Taoiseach, the Minister or the Government, must make judgments based on the advice given to the Cabinet by the Attorney General, who is the legal adviser to the Government. On a number of occasions in the past that advice has been deemed to be invalid before the Supreme Court, but not from this particular Attorney General. The advice given to the Cabinet by the current Attorney General is only that; it is advice. People are beginning to feel the pinch. Young gardaí, nurses and teachers, who say to me they must live on €90 per week after the contributions have been made, feel a political decision taken by the Government has excluded 148 public sector workers, that is, judges, who must now pick up the traces by way of voluntary contributions. I respect the Taoiseach's comment that judges should be independent but, as the pension levy was made as a result of a political decision in the common good, and members of the Judiciary were included in that common good, they were therefore not being marked out for their independence.

The Financial Emergency Measures in the Public Interest Act 2009 clearly reflects a political decision that the Minister may exclude persons he or she believes should be included in a particular set of circumstances. If the Attorney General advises the Cabinet that judges' pay should not be reduced, bearing in mind that it would be reduced because of the pension levy, I disagree with that. The Taoiseach has placed the judges in a most enviable position. The Cabinet should have thanked the Attorney General for his advice and decided the pension levy was in the good of all public sector workers. For the 300,000 public sector workers who are not members of the Judiciary, the measure is deemed to be a pension levy and not a pay cut, as per the constitutional issue. The Taoiseach should at least publish the advice of the Attorney General so we can see it. He should be up-front by admitting the political decision taken by the Cabinet based on the advice of the Attorney General amounts to a pay cut dressed up as a contribution and that he has placed the Judiciary in a very enviable position by having to follow on the words of the Chief Justice. Has the Taoiseach any intention of reviewing the advice of the Attorney General on the basis that a pension levy applied across the board is in the common interest? Judges share that view.

Deputy Kenny has taken five sides of the argument and I do not know which side he is on at present.

I am on the side of judges paying the pension levy.

The most enviable side.

The position of the Attorney General, as I have outlined, is clear. He is the adviser to the Government on the Constitution and legal matters generally. It is not open to the Government to act in a way that it is advised would not be in line with the Constitution. That is a basic procedure of government. The advice was based on the case law and the clear wording of the Constitution itself. I have explained that in my first reply. It applies to pension rights also.

Apart from that, it is incorrect to suggest there was an effort to put anybody in a difficult position. As the Chief Justice said in his statement, members of the Judiciary considered it a matter of duty to seek ways to meet the constitutional inhibition, which is not in any way contested. Both the Judiciary and the Attorney General are ad idem on their interpretation of the Constitution. Members of the Judiciary themselves, on their own judicial initiative, consider it a matter of duty to seek ways to address the constitutional inhibition while at the same time respecting the spirit of the Constitution. As a result, the Chief Justice was involved in detailed discussions with the chairman of the Revenue Commissioners with a view to ascertaining what arrangements could be put in place to enable judges to make an appropriate voluntary contribution. All that has happened in this respect has been on the initiative of the Judiciary. It has dealt with the chairman of the Revenue Commissioners and produced an eight-page document. The arrangements have been approved by the Revenue Commissioners and they have facilitated the making of a voluntary contribution equivalent to the sum that would have been paid in any given year if the levy applied.

The Chief Justice made the statement yesterday because of what he believed were misapprehensions that in turn have led to misleading statements concerning the operation of the scheme for voluntary payments by the Judiciary in respect of the pension levy. The purpose of the statement yesterday was to clarify and confirm the initiative that was taken by the Judiciary. The Judiciary does not contest the constitutional inhibition and it has made arrangements with the Revenue Commissioners for the payment of the voluntary contribution in line with what would otherwise be payable were the pension levy applicable to it.