independent

Friday 18 April 2014

Who will stand up for our democracy?

We are ruled by an unelected committee who are happy to trash the Constitution, writes Gene Kerrigan

Last week, with no fuss whatever, the Constitution was trashed. It was done very deliberately, for short-term political purposes, with the evident co-operation of the Government. In addition, we've been finding out, in the days following the announcement of the Budget, that the Government has adopted the Anglo Irish Bank approach to arithmetic. As heard on the Anglo Tapes: "Where did you get that figure?"

"I pulled it out of my arse."

Let us leave aside, for the moment, the damage done to so many lives by the seventh austerity Budget in a row. No one seems too upset about the continued asset stripping of the country, for the greater good of those who already have too much. Instead, let us look at the circus that surrounds the Budget figures – and the way that political game playing makes a nonsense of the Constitution.

Too often the Constitution is treated like a sacred relic, as though Eamon de Valera brought it down from a holy mountain where it was drafted with the help of a ghostly committee that included Pearse, Parnell and Cuchulain. In truth, it's a fairly ragged document, with all sorts of dubious insertions and questionable legal interpretations.

Still, it is important. The Constitution is the single document in which the collective beliefs of the people (or a passable reflection thereof) are contained, along with the administrative and legal structures intended to advance and protect those beliefs. At its best, the Constitution gives the State the powers necessary to survive, and it gives individuals rights that may safeguard them against state oppression. The Constitution sets the limits within which all laws must fit. It's a political document, interpreted and fleshed out by the courts and adjusted only by citizens voting in referendums. Only a government that is stupid or desperate would play around with the Constitution for short-term gain.

Speaking of which . . .

Enda Kenny's Government, like all others, must operate within the Constitution, Article 28:4:3 of which says: "The confidentiality of discussions at meetings of the Government shall be respected in all circumstances."

This stricture was already in the Constitution in the Nineties, when a controversy about cabinet confidentiality erupted within the Beef tribunal. This saw paragraph 4:3 interpreted and endorsed by the High Court, then the Supreme Court. Today, the confidentiality of government can only be broken by order of the higher courts, when the administration of justice, or an overriding public interest, requires such an order.

This rule on confidentiality is considered so important that it had to be validated by referendum in 1997. In short, this is a heavy-duty clause. Whether or not you agree with its absolutism (and, for what it's worth, I don't), it is the law – carefully worked out by the legislature, the courts and the citizens voting in referendum.

For some years, successive governments have suffered from chronic budgetary incontinence. Details are leaked, kites are flown, citizens are driven to anger and fear. All of this, it could be weakly argued, used to happen in the run-up to the Budget, before final government decisions were made. But last year and this year, there has been a change. Selected journalists have reported in advance with the kind of accurate detail that suggests one of two things: they stole government documents containing budgetary decisions, or they were briefed on the contents of those documents.

The journalists concerned don't steal. Which means that someone – ministers or State officials – broke government confidentiality. The media loves getting information early. Politicians, by strategically leaking such information, aim to manipulate the expectations, anxieties and tolerances of the citizens.

We know, from the subsequent silence, that this thrashing of the Constitution is fine with the Government.

Some leaks are taken seriously. In 2010, when letters from a government minister were leaked; and earlier, when there was fear that one aspect of one Leaving Cert subject had been leaked in one school; the National Bureau of Criminal Investigation was called in. Last week, an extremely serious, premeditated and extensive breach of confidentiality at the highest levels was casually accepted.

Where is the judiciary speaking up, when the Constitution is treated as though it contains vague suggestions, rather than inviolable limits? The Attorney General? The DPP? The police, the Dail, the Seanad? Evidently, no one – least of all those ministers entrusted with protecting the Constitution – is too bothered. But, then, being a minister isn't what it used to be (though the salary remains obese). Here's the Minister for Health James Reilly: "These were the figures that were given to us by the Government."

The minister speaks as though "the Government" – of which he is supposedly a member, given his seal of office by the President – is something remote from him. Which, of course, it is.

Today, the Cabinet is ruled by the Economic Management Council (EMC), which consists of Kenny, Eamon Gilmore, Michael Noonan and Brendan Howlin, and various unelected advisers. The EMC dictates to the Cabinet, the Cabinet dictates to the Oireachtas – TDs and senators do as they're told by party whips.

Unelected people govern, through the EMC, and are not alone privy to but are party to the decisions handed down to the Cabinet members. It's not just the confidentiality directed by the Constitution that's been discarded, it's the form of government outlined in Article 28:1. "The Government shall consist of not less than seven and not more than 15 members who shall be appointed by the President."

Now, some might say, if this shower had stumbled on to a form of government that enhanced efficiency in a time of distress, "Oh, to hell with that democracy nonsense". We could argue for a referendum to validate this new form of government.

But, given last week's farce, in which figures were pulled out of arses all over the place, it seems that Enda and his cronies have found a whole new way to make a balls of governing.

A new Benefits Squad is to be set up. The problem of welfare fraud has been accurately characterised by Michael Taft: "Chasing mice while the elephants destroy the house." But the new buzz phrase is "job activation measures". Joan Burton has come up with the notion that if you make life difficult enough for the unemployed, jobs will miraculously appear.

Benefits for which the young and their parents have already paid are to be cut. An emigration activation measure.

Huge amounts of money has been spent on consultants, who tell Reilly there's tens of millions to be saved through medical card "probity tests" (snatching medical cards away from the sick, a kind of death activation measure).

Since the Government is now a branch office of the Bundestag, we don't have a Minister for Health or a Minister for anything else. We have a "management" council that pulls numbers out of its arse and passes them to ministers. Last week, the Dail was given the Budget. According to Miriam Lord, the Taoiseach "was having difficulty keeping his eyes open. More than once he seemed to drift off as his ministers droned on."

What a shame the lad has to subject himself to such weary duties. Couldn't we give him a break and abolish the Dail?

Sunday Independent

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