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Ireland's political and cultural magazine
2 2 July 2017
POLITICS
O
UR NEW Taoiseach Leo Varardkar TD
makes sure he gets out once a week,
often to see a movie. Last year he
went to see the English movie ‘I
Daniel Blake’ directed by Mike Leigh.
Discussing the movie at a Pobal conference he
showed little sympathy for the plight of Daniel
who, having suffered a heart attack at work, was
forced to reply on job seekers payments while
attempting to appeal a decision not to allow him
a disability payment. Nor did he appear signifi
-
cantly moved by single mother Katie and her
children (Daisy and Dylan). Katie, having moved
to Newcastle from a London homeless persons’
hostel, and increasingly desperate to survive,
resorted to food banks, shoplifting, and work in
a brothel.
Indeed he has since gone out of his way to
affirm his belief in the heavy-handed ‘work-first’
policy message at the heart of UK welfare reform.
Through a rhetoric of ‘welfare cheats’ and an
election campaign that spoke to the “coping
classes”, the “people who get up in the morn-
ing” he has consciously sought to replicate an
anti-welfare rhetoric in Irish political discourse.
The question we must now ask is whether, under
his new emboldened leadership, the bleak lives
of Daniel and Katie, dominated by a hostile wel
-
fare state, could happen here. Are we seeing
conditions emerge for ‘I, Dónal Blake?.
The Irish welfare state has recently played
catch-up to new forms of glo-
balisation, privatisation,
marketisation and voguish
new public management
(NPM) and has, championed
by both international and
domestic actors, moved
towards work-first activation
which is a more active use of
income support to promote
participation in paid employment. It is a mixture
of enabling, compensation and regulatory
regimes, but the general international trend has
been for policy, and managerial, reforms to
undermine potentially enabling elements and
intensify its regulatory and punitive elements.
Pathways to Work (PTW), Ireland’s activation
policy, has fundamentally restructured Ireland’s
activation institutions and programmes, rolling
back old institutions like FÁS and rolling out new
institutions like Intreo, the pay-by-results pri-
vate-sector Job Path, and the Social Inclusion
Community Activation Programme which has
reoriented local community-development work
towards supporting job readiness. New penal
-
ties have been introduced and, while the
incidence of sanctions is still comparatively low,
the unemployed have heard the message clearly.
There is a new regime in town which must be
engaged.
Activation is often associated with recommod-
ification of labour and mobilisation of a new form
of ‘floating’, or more available and flexible
employee, where claimants are gauged by their
‘standby-ability’ and live in a condition of flex-
insecurity. We can best understand what
activation is for by asking activation ‘into what’.
The crisis also saw increased incidences of low
pay and more precarious working conditions.
Low pay is an increasing feature of the Irish
labour market, with up to 30% of Irish workers
low-paid according to the OECD definition of two
thirds the industrial wage. Some groups of
people are more likely to be low-paid, with
women, young people and migrants not only
more likely to be in low-paid work but also to
work involuntarily part-time, to be
underemployed or to be
in precarious forms of
employment. The Irish
state spends over €1bn
in in-work benefits to
support low-paid workers
and their families, com-
pensation mechanisms
that supports participa
-
tion in low paid
employment ultimately act as forms of corporate
welfare, supporting not only low-paid workers
but ultimately making such low-paid work viable.
Taken together then, recent Irish changes
point to a work-first policy strategy with a greater
use of privatised actors working in a more mana-
gerial culture and using more regulatory
sanctions to pressurise working-aged claimants
into low-paid and precarious employment. That
this work is often only viable through compensa-
tion in the form of in-work and employer
subsidies raises questions about the quality of
employment people can aspire to and whether
in fact paid employment offers a sustainable
route out of poverty. There is an alternative and
it includes longer-term ‘preventative’ measures
including properly accredited and quality educa-
tion and training and regulating for decent jobs
and living wages. One desirable recent change
is the inclusion of Employment in the remit of the
old Department of Social Protection. We need to
judge success not by movement from welfare
into work, but movement into lasting, sustaina-
ble and decent employment. If the new Taoiseach
wishes to avoid a dystopian future or ‘I Dónal
Blake’ situation he might look to addressing low
pay as a significant Irish labour market phenom-
enon and introduce policy initiatives that counter
a ‘low hours’ employment culture. People want
jobs and to ‘get up in the morning’ but need a
combination of institutional and income support
responses to unemployment that reverse the
emerging reality where approximately 30 per-
cent of Irish workers experience not only low pay
but also low hours of work, part-time work, tem-
porary contracts and precarious working
conditions.
Ireland quietly
subscribes to
voguish Thatcherite
programmes to get
people back to work
Micheál Collins and
Mary Murphy
The Irish welfare state
has catches up to
globalisation, privatisation,
marketisation and voguish
new public management
and work-first activation
Activ
(N)ation
July 2017 2 3
R
UADHÁN MAC Cormaic, Irish Times
journalist and former legal affairs
correspondent, has written what is in
effect a biography, the first, of the
Supreme Court, bringing to life its
stories through its judges and litigants. Clearly
he has had unprecedented access to many of the
most prominent judges and their papers. The
research is meticulous, the unnamed sources
are intriguing, the interviews with litigants are
refreshing and illuminating.
Chapters unfold in the manner of a drama,
with a rolling cast of colourful characters meticu-
lously drawn. Each chapter is carved out of a
step forward in the evolution of Ireland embrac-
ing the creation in 1922 and recreation in 1937 of
the Irish Constitution, then leaping beyond the
guardrails of the Constitution, as drafted, to the
genius of the doctrine of unemunerated rights,
that the Supreme Court utilised to unlock the
superpower of the “powder blue book”, Bun
-
reacht na hÉireann.
This is no dusty history. Litigants are pro-
pelled into the foreground, given a
multidimensional rendering by Mac Cormaic,
and so come alive in a manner that would never
shine through in a clinical court report or, for
those of us who studied law, in text books. Legal
teams, which broached new and creative ways
to challenge laws, and judges, who reviewed,
expanded and reinterpreted the constitution, are
shown through a real and unfiltered lens. He
expatiates in particular on the Ryan (water fluori-
dation and the right to bodily integrity), McGee
(contraception), Norris (homosexuality), de
Burca (female participation in juries), CC ( a
lacuna in the law of sex offences),
Crotty (power of government to sign European
treaties) McKenna and Coughlan (government
intervention in referendum campaign), Abbeylara
(capacity of Oireachtas members to conduct
meaningful parliamentary inquiries), X (abortion),
and Sinnott (right to education - the nadir) cases.
Definitive sketches emerge of the great law
-
yers of the last century: Brian Walsh, Seamus
Henchy, Cearbhall O’Dálaigh, Tom O’Higgins and
Adrian Hardiman. He gives the personal side to
the evolution of unenumerated rights first logi
-
cally extracted from the constitution by Justice
Kenny in the High Court in Ryan – the Constitu
-
tion lists some rights but makes it clear they are
not exclusive: therefore there other rights can be
inferred. Perhaps the hero of the book is Brian
Walsh who was never elevated to the position of
Chief Justice, partly because of a perceived prox-
imity to Charlie Haughey. Mac Cormaic has
unearthed friendly correspondence between
him and the great US Supreme Court Justice Wil-
liam Brennan, which suggests Walsh was
systematically monitoring US Supreme Court
jurisprudence during the golden era of judicial
enumeration of Constitutional rights in both
jurisdictions. The doctrine of unenumerated
rights has been in decline since Sinnott (2001).
Mac Cormaic outlines the events that led to the
resignation of Hugh O’Flaherty from the Supreme
Court and how senior judges leant on Chief Justice
Hamilton to strengthen his report about the
Sheedy Case. Mac Cormaic clearly spoke to an
impressive range of the protagonists too in
researching how both Albert Reynolds and newly-
appointed High Court judge Harry Whelehan
came to resign following the seven-month neglect
by the office of Attorney General, which Whelehan
had just vacated, of a request for extradition to
Northern Ireland for paedophile priest Fr Brendan
Smyth. Politicians who feature in periodic clashes
that unfolded between the legislators and the
judiciary, are also scrutinised.
The hard fought battle by Mrs May McGee, to
assert her right to import into Ireland contracep-
tives for personal use within her marriage,
seems to come from an impossibly different era
of so called 1970s modern Ireland. McGee told
Mac Cormaic that she found the Four Courts
“cold and scary . . . an awful place to be”, but she
is proud of her part in probably the court’s most
important decision. The McGee case was suc-
cessful on appeal to the Supreme Court, but
paradoxically, as noted by Mac Cormaic, the
freedom won by McGee was undoubtedly the
catalyst for a conservative political movement to
kickstart the pro-life campaign that ultimately
led to the 1983 amendment to enshrine the right
to life of the unborn in the constitution. This was
the Eighth Amendment to the Constitution and a
campaign to amend or repeal it is a very live
political issue today.
If only there was an addendum to this book to
address the current struggle between the judici-
ary and the government on the topic of the
Judicial Appointments Board. It seems that polit-
ical expediency has propelled the Cabinet to
endeavour to fast-track this Bill and introduce a
new balance of power to the Judical Appoint-
ments Commission Board which is to comprise
a majority of non-legal members and a lay chair
-
person, rather than the Chief Justice Susan
Denham. This bill is getting a mighty push,
despite the lack of support from Fianna Fáil
which benefits from a Confidence and Supply
Arrangement with the government. Fine Gael are
relying on Sinn Féin Party and the radical left to
land their Bill. It would be really interesting to
imagine what views the late and volcanic Justice
Adrian Hardiman would have launched into the
debate. Mac Cormaic would have extracted
them, discretely but forensically.
Máire Moriarty is a barrister and journalist.
A racy but meticulous
biography of the Supreme
Court, its judges and its
famous litigants
Reviewed by Máire Moriarty
Litigants are propelled
into the foreground, given a
multidimensional rendering
by Mac Cormaic, and so come
alive in a manner that would
never shine through in a clinical
court report or, for those of us
who studied law, in text books.
‘The Supreme Court’
by Ruadhán Mac Cormaic
