Frank Connolly

After almost seventy days wandering in the political wilderness the two largest parties have finally agreed a programme with a 30-month timelimit. As Village was going to print the programme was being supplemented with whatever concessions are necessary to attract at least eight independents into the Fine Gaelled minority administration in a ‘Programme for Partnership’. But it was clear that it is a broadly centre-right deal. This reflects the largely indistinguishable ideological orientations of the two parties and sets out a range of proposals on the economy, public-sector pay and services, jobs, housing, crime and water. A fiveyear strategy for the health service is presumably intended to avoid the annual Health Services Executive cost overrun which destabilises budget planning.  Among its principles, the document has Fianna Fáil agreeing to permit the election of a Taoiseach and cabinet, to facilitate up to three budgets and to abstain or vote against on any motions of confidence in the government, its ministers or significant financial measures. In return, Fine Gael agrees to publish any deals it makes with Independents or other parties, allow the opposition to present bills without government obstruction and avoid policy surprises. Crucially, it accepts “that Fianna Fáil is an independent party in opposition and is not a party to the programme for government”. This particular figleaf is presumably intended to allow Michael Martin to pretend to his party members and supporters that he is not responsible for whatever the government does though Fianna Fáil has effectively written much of its agenda. In other words, Fianna Fáil is hoping to maintain its position of lead opposition party while ensuring that Enda Kenny, or whoever replaces him within the coming 12 to 18 months, sticks to implementing the policies contained in the eight page document. Clearly the agreement cannot include provision for the unexpected events that are certain to erupt over the coming three years or indeed for the outcome of the Brexit referendum in Britain, the ongoing refugee crisis in Europe or the outcome of the uneasy compromise on water provision and charges. The water can has been kicked under the bridge but will still cast a shadow over the minority government which will have to deal with the recommendations of the expert commission it will establish within eight weeks of its appointment and which will have until early next year to compile its report. The outcome is the ultimate in political fudge since the findings will be put to an Oireachtas committee and then to an Oireachtas vote sometime in the late Spring of 2017 if the timetable is realised. With the certainty that any proposed charging scheme will be opposed by a majority of TDs and senators the policy programme has included a convenient contingency which states that “those who have paid their water bills to date will be treated no less favourably than those who do not”. Realistically this signals the end of the shambolic charges regime imposed by Irish Water and the outgoing government and its probable replacement in a subsequent budget by a new household/property/utility tax. All of this hinges on the willingness of Fianna Fáil to allow this new dispensation where it seeks to influence the policy direction of the government, including a budget division of 2:1 in favour of public services over tax cuts, while sitting on the opposition benches posing as an alternative administration in waiting and dreaming of the next election result when it hopes to increase its tally of TDs to the mid-sixties. Martin and his more far-sighted colleagues also know that there is no longer a likelihood of any single party gaining a majority to allow it form the type of government Fianna Fáil used to dominate and are prepared to envisage a similar arrangement next time around, with FG as the facilitators. It’s either that or full-blown coalition with the blueshirts. However, they are also watching their backs and know full well that Sinn Féin, the other left parties and independents who do not sign up to Kenny’s temporary little arrangement will not give an easy ride to the new minority administration, and are certainly not obliged to. Equally, those independents who join government, mainly of centre-right disposition – or of the well-known disposition that allows the sacrifice of left-wing principles for a seat, or influence, at the cabinet table – are likely to get nervous if events don’t work out as planned. A failure to realise their ambitions, whether local or national, as the minority government totters unsteadily towards its near-three-year termination date will mean almost certain defections from the depleted ship of state. Add to that the potential for industrial unrest, as workers demand a greater share of promised recovery, continuing anger over the homeless, housing and health crises and general dissatisfaction at a weak administration unable to cope with big issues like climate change and international developments and you have a recipe for uncertainty. Not a lot to look forward to.

‘Sharing in the recovery’ was the big theme in the work of the Irish National Organisation of the Unemployed (INOU) in 2015. Our members and affiliates, the users of our services, and participants in our regional Discussion Forums and training events were all clear that this recovery had yet to be experienced by many people dealing with unemployment. There was a strong sense that the job recovery is urban-based and not evident in rural areas. Still, people living in disadvantaged urban areas noted the lack of visibility for any recovery in their communities. We need a Government that is serious about supporting unemployed people, their families and their communities. Any such commitment will only be credible if it is seen in action. The INOU have identified four key issues to be addressed. Firstly, they must strive to create an equitable and inclusive society. The second highest rate of discrimination was reported by people who are unemployed, at 23%, in the Central Statistics Office August 2015 ‘Equality Module’. This discrimination festers the absence of any protection. There is no ground in the equality legislation related to employment status and, therefore, no way for these people to challenge or change this experience. This first step for the new Government must be to commit to an equitable and inclusive society. The incoming Government should add socio-economic status as one of the grounds protected under the Employment Equality Acts and the Equal Status Acts so that unemployed people receive the full protection of this legislation. Linked to this, the Government must hold a referendum to enshrine economic, social and cultural rights into the Constitution, as already recommended by the Constitutional Convention. Secondly, the Government must support unemployed people to achieve a minimum essential standard of living. Given the impact of unemployment on people’s lives, it is critical that unemployed people receive social welfare payments that ensure they can meet their needs. ‘Jobseekers’’ payments must be restored to their 2009 levels. The age segregation applied to ‘Jobseekers Allowance’ payments in 2009 must be reversed. Further steps must be taken to protect unemployed people’s incomes. People whose primary source of income is their social welfare payment should be exempt from the additional charges introduced during the economic crisis. Rent Supplement and Housing Assistance Payments should be increased to more realistic levels that would support people to access accommodation. The third step that must be taken is to deliver better services for unemployed people. It is critical that these services enable them to make informed choices. Good career guidance, the provision of which would support unemployed people to access appropriate education and training and ultimately get a decent job, is a critical element. Frontline staff must be adequately trained to provide a top class service. A service that is built around the needs of the unemployed person is required: a service that provide additional supports to enhance unemployed people’s participation in education, training and employment programmes and ensures that this participation is by choice. This would lead to the more efficient and effective use of the resources. It would create services for which both providers and users would have a high regard. Community organisations play important roles in the delivery of services to unemployed people and others experiencing social exclusion. During the crisis, a lot of their funding was withdrawn, at a time when the demand for their supports was increasing. The new Government needs to acknowledge this work and re-invest in these community organisations to support the growth and development of their work on tackling inequality, poverty and social exclusion. Fourthly, the new Government must ensure that unemployed people can get decent and sustainable jobs. The creation of decent and sustainable jobs, jobs that pay a decent wage, must be prioritised and maximised. Employment programmes that serve as a stepping stone to such jobs must be developed. Action is needed with participants, providers and employers to secure better outcomes from such programmes. Part-time work can be a meaningful option for unemployed people and, in some regions, possibly the only option. It should be facilitated through tailored employment and social protection supports. Self-employment can be an important access point to the labour market for unemployed people experiencing exclusion because, for example, of their age, their ethnicity, or their locality. Their access to supports must be improved to make self-employment a more viable option for them. Brid O’Brien is Head of Policy and Media with the Irish National Organisation of the Unemployed

There are human rights to food, water, healthcare, a minimum standard of living, and housing. Despite western opposition they found their way into the International Covenant on Economic, Social and Cultural Rights (1966). They have wrongly been denied as rights in Ireland since O’Reilly v Limerick Corporation [1988]. This article is about the right to housing which is most famously recognised in The UN’s Universal Declaration of Human Rights (1948). “There can be no fairness or justice in a society in which some live in homelessness, or in the shadow of that risk, while others cannot even imagine it”, according to Jordan Flaherty [in Floodlines]. Yet the Irish State is not providing enough housing that is adequate and affordable. The problem is easily addressed. For as US educationalist Jonathan Kozol reminds us: “The cause of homelessness is lack of housing”. Clearly we need to build more houses. They should be of excellent quality, sustainable, built in accordance with a spatial strategy and using new funding models, such – for example – as have been suggested by the credit unions which seem to recognise a feasible and financially viable model which government ignores. In the boom although Ireland completed up to 20 new homes per 1,000 population – the highest rate in the EU, less than two new homes were for social housing, one of the lowest rates in the EU. More starkly, since 2008 the capital expenditure on social housing has been ruptured by successive budgets with cuts of 80% (from €1.3bn to €275m). Certainly Labour Minister Alan Kelly’s Urban Regeneration and Housing Act legislates for social housing. It requires developers to provide “up to 10%” of their housing units for social housing, though even Martin Cullen, as well as Ministers ever since, maintained the rate of “up to 20%” introduced in the 2000 Planning Act, albeit that the percentage was for “social” but also “affordable” housing. The new Act also allows the dubious retrospective application of reduced development contributions and the introduction of a vacant site levy. Elswehere the Minister promoted a reduction in apartment sizes. All in the supposed interest of increasing housing supply. Moreover, the last government failed to address problems in the rental market. The current rent supplement for a single person is €520 per month and for a couple, €750 per month, despite the fact that the cost of renting a two bedroom property in Dublin city, for example, is €1,700 per month. That government also tolerated an epidemic of evictions by banks and vulture funds that it has not adequately regulated. Instead it permitted them to engage in unfair commercial practices often in breach of both consumer protection and EU law. The non-interventionist obsession, nurtured in the voodoo logic of neo-liberalism, also drove failure to nationalise the banks permanently in the public interest – to provide public-interest lending, to secretive and apparently profoundly unstrategic deal-making in the deeply suspect NAMA and to a banking inquiry which failed, through lack of zeal, to hear key evidence; and inevitably to define the root cause of the canker. Why has NAMA not intervened to provide public infrastructure, – parks, museums and above all housing? Its website states: “As at end June 2015, NAMA had identified over 6,542 residential properties as potentially suitable for social housing. Of these, demand has been confirmed by local authorities for over 2,500 properties, of which 1,386 have been delivered for social housing use. Confirmation of demand is a matter for local authorities and is not something in which NAMA has a role”. NAMA has been interventionist in its deal-makings, why not in its public-interest interventions? In short we have become a socially dislocated nation where many of our citizens do not feel part of the society that has clearly abandoned them. The level of homelessness in Dublin city centre in particular now generates an almost surreal zombie-like feel to the streets late at night, redolent of New York in the early 1990s or the streets of Nairobi where multitudes walk the streets and fields in a non-directional and tragically aimless way. The question arises what causes such matters and what can be done. First, it is obvious that the root cause was our banking collapse responsibility for which our top lawyers, civil servants, bankers and their symbiotic plutocrats have been serially let off the hook, most recently by the feeble Banking Inquiry which toiled under a smokescreen of legal manoeuvres. It was morally correct of Pearse Doherty and Joe Higgins not to sign their names to such a charade. In my practice as a barrister I have noticed that the banks have pursued the policy of reneging on their contractual obligations to reinstate consumers to tracker mortgages after expiry of a fixed-rate period. Significant litigation in the Four Courts is now geared at understanding precisely what went on in this context. Further, banks with no interest in Ireland – Danske Bank and the Bank of Scotland – simply left the room and disposed of their assets leaving to others to hike up interest payments and/or sell the assets off to the underworld of vulture funds. The banks also bundled assets. In a particularly scandalous case now wending its ways through the courts Danske Bank refused a repayment offer of €90,000 from the consumer and then sold the house via receiver to a composite property portfolio at the bargain-basement price of €60,000. This is simply an outrage but it passed unprobed. Recent reportage suggests that the vulture funds are now gathering for mass evictions and in Tyrellstown we have witnessed a vulture fund perpetrating a mass eviction even where the residents can afford to pay their rent. As Village went to press, it seemed a new government would prioritise homeless, housing and mortgage difficulties. However, the commitment it the ‘Programme for Partnership’ between Fine Gael and Independents and in the ‘Confidence and Supply’ deal with Fianna Fáil are notably nebulous. Why does the incoming government not also investigate the proposal from High

With calls to review their policy that their TDs and senators should only take the average industrial wage (in Dublin because of higher living costs in the capital), Sinn Féin’s financing arrangements are again in the news. According to its press office, Sinn Féin staff have taken an average wage for as long as the party has been involved in public institutions. It was already a long-established part of political discourse during the last Presidential election campaign in 2010, when Martin McGuinness promised to draw down only the average industrial wage (AIW), if elected. A Google search reveals a 2002 article highlighting the policy. Nor is the policy exclusive to Sinn Féin; a 2002 Socialist Workers manifesto also mentions the practice. In the case of the SWP/PBP and the Socialist Party, it appears funds are distributed to various charitable and community groups within their constituencies. On the other hand a 2005 post to the Politics.ie bulletin board, specifies that Sinn Féin TDs excess incomes pay for a local “office and a full-time member of staff”. According to the same poster, councillors “give up their standard expenses to fund offices”. It is not quite clear how this ties in with the SIPO regulations prohibiting any political party from accepting a donation in excess of €2,500 from any individual. Party stalwarts lionise the practice on several grounds. Firstly, it discourages ‘career’ politicians by limiting the financial benefits of elected office. Secondly, it ensures representatives don’t lose touch with their constituents as their pay packets increase, and of course, the money goes back to the party and helps it grow. The first claim is somewhat mistaken. The average is not necessarily the typical income for a voter, particularly a Sinn Féin voter, in an economy where one in three workers earns the minimum wage (or less, due to part-time hours). The often-cited practice of Sinn Féin TDs and senators who only take an AIW, with the rest spent for the benefit of the party, remains curiously unclear. The Sunday Independent recently reported that the excess over the AIW amounts to some €47,000 a year, which can then be used to pay for a constituency worker or office rentals. On the face of it, no more than €2,500 in donations can be accepted by “a political party, accounting unit of a political party, or a third party from an individual or a registered corporate donor in any calendar year”, according to the guidelines published by the Standards in Public Office Commission (SIPO). SIPO is responsible for enforcement of the Electoral Act 1997 and accordingly addressed the question of donations by Sinn Féin TDs and Senators in its 2012 annual report, on the back of media reports relating to then-TD Sandra McLellan and enquiries from members of the public. (In the interests of full disclosure, I began blogging on the topic of political donations and the average industrial wage in 2011, and so may have been one of the “members of the public” mentioned in the 2012 annual report). In relation to McLellan, SIPO reported that both she and Sinn Féin “emphasised that elected Members’ salaries and expenses are paid directly into the Members’ own bank accounts and after awarding themselves the average industrial wage the Members use the remaining funds to expand and develop their constituency service… As the Commission did not uncover any evidence of a breach of the Act through any transfer of funds from the Deputy’s bank accounts to the Sinn Féin party it decided that its enquiries into this matter should be closed”. This 2012 investigation appears to be the first time SIPO looked at the question of Sinn Féin TDs’ spending, as a previous inquiry in February 2011 showed that SIPO had no record at that time of any advice sought by or given to Sinn Féin on the legality of donations made by its TDs to party and constituency organisations. SIPO has further stated in correspondence to the author that “a constituency office/service could not be regarded as a subsidiary organisation within the meaning of the act”. A subsidiary organisation is defined by the Electoral Act 1997 as “a body or association which: (a) forms part of such political party, or (b)  is established by or under the constitution of the political party, or (c)  is effectively controlled by the political party or the officers thereof, or (d) has functions conferred on it by or under the constitution of the party”. Put simply, if a TD gave money to Sinn Féin, and Sinn Féin hired a worker for a constituency office with that money, then it would constitute a donation to the party. But if the TD hires a worker herself, and the worker’s wages never pass through a Sinn Féin account, the same expenditure is not a donation. And if that’s not enough, a constituency office is not deemed to be a subsidiary of the party for purposes of donations. Given the differing legal requirements for the reporting of donations in the two jurisdictions, Sinn Féin’s Northern counterparts appear to operate a different policy, going by public comments by Martin McGuinness, who said during a presidential-election radio debate that as deputy first minister he earned £112,000 annually “but I don’t see it. It goes straight into a Sinn Féin account and I’m paid a subsistence out of it”. Contacted about the details of its donations policy, the party was content with a statement which simply said “Sinn Féin are fully compliant with the Standards in Public Office Commission. Your questions would be better put to them in this regard”. UCD Sutherland School of Law legal lecturer John O’Dowd points out that, while the policy may seem to fly in the face of the spirit of the law, the party is entitled to the benefit of the doubt. “There is a general legal principle that if two interpretations are possible, and one leads to no law being broken, you give the benefit of the doubt”, he said:

Money for Nothing? Lobbyist Frank Dunlop told the Planning Tribunal in Ireland that his phone would “walk off the desk” with calls from candidates seeking money as soon as a general election was called. There are analogies with Australia. For years the heavy reliance of both major Australian political parties on developer donations has been known. One developer (Jeff McCloy) memorably told the New South Wales (NSW) Independent Commission against Corruption he felt like a “walking ATM”. Both givers and recipients have insisted that nothing is expected and nothing is given in return for these donations, and it has been impossible to disprove this “money for nothing” proposition. Instead it has been suggested that donations are simply a way of “participating in the political process”. The Courts: donations as communication The notion that donations are simply a way of “participating in the political process” reflects US Supreme Court jurisprudence, which has elevated donations to the status of “speech” and forbidden US legislatures to act to prevent anything short of “quid pro quo” corruption. The Australian High Court followed the US Supreme Court part of the way along this path, characterising donations as a form of “political communication”. An attempt to confine donations to voters (as is the case in Canada) was successfully challenged in the Australian High Court by Unions NSW, on the basis that this was an unreasonable imposition on an “implied freedom of political communication” . A recent challenge by McCloy to the constitutional validity of the pre-existing NSW ban on donations from property developers (in place since 2009), and caps on the amount of donations (in place since 2010), was however unsuccessful in both respects. The High Court rejected the US Supreme Court’s reasoning that governments may only limit political communication to prevent quid quo pro corruption. It confirmed that the prevention of both corruption and undue influence are valid reasons for legislatures to restrict political donations, and that in the final analysis, the Australian constitution must be interpreted to serve the interests of democracy. This should come as a great relief to Australian citizens. Proving quid pro quo Anti-corruption agencies with strong investigative powers (including the power to undertake covert operations) have uncovered what many suspected was the truth, both in Ireland and Australia. There is now firm empirical evidence in both countries of cases in which donations from the property development sector have in fact had “strings attached”. Something was expected of public officials in return, whether explicitly stated or not, and that something was some form of rezoning or development approval, or an action that cleared the way for these approvals. The reality of donor influence has been admitted in the public statements of some donors and some recipients in Australia, most recently in the submissions for the plaintiffs in the McCloy case in the High Court. This evidence is backed up by research in the field of psychology. A donation, like any gift, tends to activate the very human urge to reciprocate. The resulting cognitive bias may be genuinely unconscious, but it is real, and potent. The Planning Tribunal In Ireland the Tribunal of Inquiry into Certain Planning Matters and Payments (the “Planning Tribunal”) ran from 1997 to 2008 in Ireland, and made its final report in March 2012. It found 14 separate rezonings that had been influenced by corrupt, improper or inappropriate payments in the form (or guise) of political donations. The Tribunal made adverse findings against public officials from George Redmond, Dublin’s Assistant City and County Manager, right up to a Taoiseach, Bertie Ahern. The approach taken by the Tribunal is encapsulated in a passage from its final report. The Tribunal found that the developer Owen O’Callaghan had provided his lobbyist Frank Dunlop with large amounts of cash (IR£80,000 in 1991 and IR£73,500 in 1992) and that most of this money was paid to councillors to ensure their support for the rezoning of land at ‘Quarryvale’: “The Tribunal considered that such payments were always corrupt from the perspective of Mr Dunlop and Mr O’Callaghan, and were often (although not always), corrupt from the perspective of the recipients”. Having considered an enormous amount of evidence, the Planning Tribunal developed a set of principles relating to payments to local councillors, covering both givers and recipients. These principles are summarised below. Donors In the eyes of the Planning Tribunal it was “probably corrupt” for a developer/landowner to pay money to an elected councillor, where: (a) the developer/landowner was, or was likely to be, or to become, the subject of a decision by the County Council in which the councillor was an elected public representative; (b) the councillor would be entitled to exercise the right to vote, or to otherwise act, in relation to such a decision. Depending on the circumstances, however, the payment might alternatively be classed as “improper” or “inappropriate”. The Tribunal’s concept of improper or inappropriate payments corresponds with the concept of “undue influence”. Donors often argued that payments could not be corrupt because they did not change the recipient’s actions, but this claim was either rejected or made no difference to the Tribunal’s overall view of them: “The Tribunal did not consider it necessary that the recipient was actually influenced by the payment or even aware of the payer’s intention to influence him or her for the payment to be corrupt on the part of the payer”. Recipients The principles applied by the Planning Tribunal in the case of the recipients of donations were: a) It is corrupt to solicit or accept money from a developer/landowner, specifically in return for exercising his/her vote (or for undertaking any other act open to him/her to take in his/her role as a councillor); b) It is corrupt for a councillor to exercise his/her vote in the expectation of a payment of money; c) It is inappropriate, improper or corrupt to solicit or accept money from a developer/landowner, where it is known, believed, expected or suspected that land in which they have an interest