Conor Power: Why a failure to refund water bills could be in breach of the Constitution
Published 29/04/2016 | 02:30
Talks on the formation of a new Government seem to have delivered another Irish solution to an Irish problem: how to pay for water without actually charging for it.
The current state of play is that water charges will be suspended, but that no refunds will be paid to households that have previously paid.
The thorny issue of enforcement of outstanding charges is one elephant in the room. But there is another: can a Government lawfully condone non-payment without a full refund to those who have already paid?
Under the Water Services (No 2) Act 2013, Irish Water is legally obliged to charge each customer for the provision of water services and those customers are in turn legally obliged to pay.
The suspension of charges will require a change to the law. That change will only operate prospectively, leaving intact the obligation to pay in respect of past water supply.
Those who paid did so in compliance with the law. That obligation remains and Irish Water can legally enforce non-payment in the courts.
Any decision to prevent the enforcement of past charges would similarly require legislation. However, if there is no parallel amendment to allow for the repayment of charges that have been paid, a formal waiver to exclude the pursuit of unpaid charges alone is at risk of being deemed unconstitutional.
In such a scenario, one set of persons would be out-of-pocket for having complied with their legal obligations, whereas another set of persons who did not pay will be excused the obligation.
This is to legislate for an inequality based on a happenstance, and may well be contrary to the constitutional guarantee of equality before the law.
It would be very difficult to defend such unequal treatment, unless it can be proven that everyone whose charges are being waived had a particular and substantial reason not to pay.
Any such amending law would need to be scrutinised to ensure that it does not breach the Constitution.
The minister can give directions to Irish Water regarding its functions under the Act to compel it to abide by Government policy.
While this is a potential alternative to formal legislation, any direction that excused non-payment without a refund would likely face a similar fate in the courts to any specific legislative amendment as outlined above.
In the absence of a formal waiver, Irish Water could enforce non-payment. But to date they have not - and it is difficult to see this occurring anytime soon.
If charges are now abolished, no arrears can meet the level necessary to trigger the operation of the well-received Civil Debt (Procedures) Act 2015, whenever it begins operating.
However, there are other debt-collection mechanisms available.
Given the issues at stake, it may be that such inaction by Irish Water to pursue arrears would be challenged by a compliant customer who wants a refund.
If there was a policy of non-pursuit of payment by a State-owned company whose assets are on the public books, is this really any different in effect to a formal State policy? The very basis of the charge is in legislation and not by agreement of the parties, such as would be the case with other utility arrears.
If a case were taken and a court decided that the actions of Irish Water were a proxy for the State, any policy of non-pursuit could be in doubt. It may not be a defence to assert that the customer had to pay under law if the law is ignored by the entity tasked with its enforcement.
While none of this is clear-cut, these issues will have to be addressed in any changes, otherwise Irish Water may remain a political bug-bear but become a legal fight.
The difference is that this time any challengers would be those who have paid the charge.
Barrister Conor Power is a Senior Counsel.