In her own words, People Before Profit TD Bríd Smith defends her recent criticisms of a High Court ruling which have generated a media flurry.
There was a lot of mock outrage from the great and good, as well as those in the legal professions, about comments I made recently. I was speaking about a judgment of the High Court which struck down Sectoral Employment Orders (SEOs).
For context, SEOs put a floor on workers’ earnings in a particular industry – they set minimum pay rates which are mandatory all employers. In this case, the SEOs affect over 100,000 workers in the construction, electrical and mechanical contracting industries.
This judgement, which I took issue with, didn’t seek to scrap just one order – it undermined the basis for all attempts to enforce set pay rates. In his ruling, the judge laid out his concern for industry competition and employers’ rights – suggesting hostility to any attempt to set decent pay rates in any industry. This could have potentially dire ramifications for low-paid workers who already battle precarious contracts and whose sectors have high numbers of vulnerable migrant workers.
As far as I am concerned, there are two issues with this judgement: whether the judiciary, in cases like this, are actually impartial and above all earthly prejudices; and what the judgment actually said.
‘Independence’ of the Judiciary
Much of the outrage at my comments was based on the argument that I had personalised the issue by naming the judge and pointing out what he earned. This was said to be an attack not just on the judgement (which was grudgingly accepted as permissible) but an attack of the whole judiciary and the separation of powers.
For a start, the judge’s name and the earnings of High Court judges are a matter of public record.
And let’s be honest, there is no such thing as an independent judiciary on matters relating to class and the powers of the state. There is no such thing as a separation of powers between the executive and legislative, and the judiciary, when it comes to protecting private property rights and the rights of employers and the wealthy.
The myths these ideas rest upon are useful in creating an aura of mystique around the judiciary as King Soloman-like creatures that hover above society, dispensing judgements on the basis of a deep scrutinising of texts, laws and past jurisprudence. It’s nonsense.
The history of our courts and their judgments are a history of class struggle and class bias. Ask any worker or campaigner on the receiving end of the system and they will tell you as much.
Strikes have been on the receiving end of injunctions based on the rights of people to travel for shopping, compared to workers’ right to strike for their livelihood.
Private property rights have trumped the right to work and the right to decent pay and conditions. It’s not so long ago that a 14-year-old rape victim was effectively interned lest she might access an abortion.
Evictions, anti-migrant sentiments, open hostility to women and working class people are commonplace and unchallenged. The very way courts operate here, from the wigs and gowns and all the pomp, is designed to say ordinary people: this is a special place where you don’t belong, and one you can’t understand.
A lot of outrage centred on my pointing out that High Court judges earned over €210,000. I stand over that, and I would add that they are overwhelmingly from upper middle-class backgrounds. They often attend one of a few select private schools and go to a few select colleges, where they meet and socialise in select circles.
Every time appointments become available in the circuit or high courts they are awarded to the fellow political travellers, if not card-carrying members, of whatever party /parties are in office. I’m sure they are always eminently qualified but we are talking about independence and objectivity here.
Some years ago, proposed reforms to how judges were appointed, reforms that were mild and anodyne, elicited a response that suggested the state would collapse if the present system were touched. A similar chorus about the sanctity of the judiciary’s independence and the separation of powers could be heard from the defenders of the status-quo. I wasn’t convinced then and I remain unconvinced now.
My criticism of the judgement was not based on a dislike of the particular judge – I don’t know him and I’m sure he’s a nice individual. It is based on the understanding of who populates the judiciary, the political circles they originate from, the social class they belong to and the world view they are likely to share.
The Judgement
It is a pity that those who felt outraged by my criticism did not examine the consequences of that judgement for many thousands of workers – never mind the wider implications for any attempt to legislate for basic minimum pay, conditions, sick and pension schemes for any group of workers.
I have been attacked for suggesting that the judgment was anything other than a fine legal mind finding flaws in shoddy legislation. But it is worth pointing out that this most recent SEO Bill was drafted after two rulings struck down previous SEOs as unconstitutional. I think it is safe to assume that the most recent SEO Bill was crafted with the previous judgements in mind, and that it was done by similarly fine legal minds.
The reality is, this most judgement was highly ideological. There were three main grounds on which the judgement found against the SEO Bill:
- That were weaknesses in how the Labour Court, as a third party, compiled the report which gave rise to the SEOs;
- That those supporting the SEO may not have been representative of the sector as a whole, and that the report (and rates of pay it suggested) may not have taken account of the impact on employers and industrial competition;
- That only the Oireachtas can make laws, and in this case the powers delegated to both the Labour court and the Minister usurped that exclusive constitutional right.
Yet all three of these happen regularly in the setting of other laws, even very recently.
Many of our laws already rely on reports done by third parties. Many laws are drafted following a process that contains submissions from affected parties that are then effectively ignored in the final draft, and many laws are approved by way of final votes in both houses with minimal final debate.
The continued use of the FEMPI acts (Financial Emergency Legislation that allowed for attacks on public sector workers) and the passing of the Special Criminal courts legislation are two recent examples of such a process.
The reality is that most of those bills, passed in the Dáil, do not seek to protect workers’ pay or threaten employers in any way. It seems that it is only when a law threatens to do just that that the argument about ‘powers’ is trotted out.
The particular objections aside, what really stands out in the entire SEO judgement is the underlying ideology. The attempt to set rates of pay and the desire to safeguard decent pay was described as a hopelessly “vague”, if worthy aim, and the SEO was criticised for not recognising the negative impact on competition and employers’ rights of contract.
While attacking the desire for decent pay as a subjective thing, the judgment described €26 an hour for an experienced electrician as “high” – itself a subjective description!
The defence of competition and the prioritising of it as a policy choice is telling and disturbing for all workers and trade unionists. Competition is not a neutral policy that is above politics. It is a defence of the current economic system which has been used to justify privatisation, to defend cutting pay, and worsening workers conditions.
Understanding this ideological thrust allows us to make sense of this indefensible judgement on SEOs (and indeed, the countless others that have affected workers and their rights!)
It is not based in some nuanced interpretation of any particular law or act. Rather, it was exactly what could have been expected, because the rates of pay of contract cleaners or electricians are of secondary importance to the rights of employers, and to the policy of protecting competition and private property rights. It is this bias that the judiciary as a whole are destined to uphold.
Though it is to be expected, we should never stay silent about it.
