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    Drew Harris Drawn in.

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    As allegations continue to be made about the involvement of Robert Nairac in the Miami Showband massacre, how compromised is Garda Commissioner Harris who was PSNI liaison with Britain’s intelligence services? By Deirdre Younge. In the High Court in Belfast the British Government’s Ministry of Defence (MoD) and British Army are applying to have cases relating to the Dublin and Monaghan bombing atrocity of 1974 dismissed, alleging they are out of time. The bombings were carried out by the Glennane gang also known as the Portadown UVF who were also at the heart of an organisation that came into existence in the 1980s called Ulster Resistance. A recent BBC ‘Spotlight’ programme dealing with Ulster Resistance confirmed extensive collusion across the loyalist spectrum from DUP to UVF, UDA, UFF to MI5. Members of Ulster Resistance (UR) became aware that some of its members were MI5 agents. The key MI5 agent inside UR was carved out of the distribution of the weapons it had procured in late 1987 by those who were not under the control of the intelligence services. At the same time, information was leaked from RUC and the UDR which provided them with details of ‘suspected republicans’. The BBC NI Spotlight programme showed images of RUC intelligence that ended up in the  hands of the UFF/UDA. It  was used to target suspected republicans, including Loughlin Maginn, shot in Rathfriland in August 1989. His death, following that of solicitor Pat Finucane in February 1989, sparked the decades-long investigations by Sir John Stevens into collusion by the Security forces. Stevens was not shown evidence of RUC collusion. (BBC Spotlight on the Troubles, October 2019.) The fact that the UDA were receiving large volumes of  intelligence material from RUC sources was known to the agent Brian Nelson,  his Army Intelligence handlers and M15. That intelligence also, no doubt, informs the de Silva Report into Pat Finucane’s murder. De Silva was given access to British Army and MI5 intelligence that RUC officers at every level were leaking information to Loyalists. That intelligence is also integrated into the Ombudsman’s report on the Loughinisland murders as it relates to RUC ‘tip-offs’ about surveillance operations carried out in an attempt to seize UR weapons in Armagh in 1987 and 1988.  Awareness among members of UR that some of its members were M15 agents led to a disastrous loss of control by the Security Services and Special Branch  – and multiple murders Part 1: Commissioner Harris Drew Harris, the Garda Commissioner, didn’t leave the ‘Troubles’ of Northern Ireland behind him on entering Garda HQ. Drew Harris As former Assistant and Deputy Chief Constable of the PSNI and its former interface with the Security Services (UK), Harris has been accused of  fighting attempts to get information about the perpetrators of atrocities like the Miami Showband murders and of blocking access to  files about the many murders carried out by the Mid-Ulster, UVF ‘Brigadier’ Robin  Jackson. In 2011 the Historical Inquiries Team found Jackson had been connected to a weapon used in the Miami Showband murders by fingerprint evidence. In the High Court in Belfast in 2017 Judge Seamus Treacy ruled that there should be an overarching investigation into State collusion with the ‘Glenanne Gang’ and asked the PSNI to respond. In the Court of Appeal in Belfast the Lord Chief Justice ruled in July 9 [2019] against an appeal and said there must be an independent investigation carried out by the PSNI. Chief Superintendent Jon Boutcher has started an investigation into the Glennane series of killings as part of Operation Kenova. In an extraordinary development, Eugene Reavey whose three brothers were murdered in Whitecross in Co Armagh in 1976, has been told by the Police Ombudsman of Northern Ireland that a file has been sent to the Public Prosecution Service in the case. It is believed to recommend prosecution of a former RUC man, who was a member as ‘The Glennane Gang’. With the signing into law in Ireland of the Criminal Justice (International Cooperation)  Act  2019, the Garda can now give evidence and share intelligence with Coroners’ Courts in Northern Ireland. In an interesting twist of circumstances, Commissioner Harris  now has charge of the legacy files of secret Garda intelligence. Clearly how ambitious he’d want to be in sharing this information with authorities in the North is uncertain. As Assistant Chief Constable of the PSNI Drew Harris was the liaison between the Security Services (UK) , the PSNI and the Smithwick Tribunal from 2006 to 2014. (See also https://villagemagazine.ie/how-smithwick-got-diverted/ )The Tribunal was inquiring into alleged Garda collusion in the murders of Chief Superintendent Harry Breen and Superintendent Bob Buchanan. (See also https://villagemagazine.ie/investigation-killusion/http://Killusion ) He confirmed that he had spoken to the Security Service before he gave evidence to the Tribunal in October 2012. Drew confirms his consultation with the ‘British Security Service’ In 1989 MI5 reported the overall picture seems to be one of RUC collusion and links with the Loyalists which is similar in scale to that of the UDR, but the latter is much more likely to become involved in very serious crimes Dealing with the past is also causing problems for some retired RUC men – members of the Northern Ireland Retired Police Officers’ Association (NIRPOA). They now apparently  believe a policy of  non-co-operation with bodies like the Police Ombudsman of Northern Ireland  has been counterproductive. The Miami Showband Part 2: Ombudsman confirms collusion NIPROA took a Judicial Review against the Police Ombudsman of Northern Ireland and his 2016 report on the 1994 Heights Bar murders in Loughinisland. Former Head of Special Branch and Assistant Chief Constable Ray White often acts as its spokesman. In 1989 MI5 reported the overall picture seems to be one of RUC collusion and links with the Loyalists which is similar in scale to that of the UDR, but the latter is much more likely to become involved in very serious crimes Their affidavit was submitted in the names of Ray White and retired Chief Superintendent Thomas Hawthorne, the former Sub Divisional Commander in Co Down and chief investigator of the Loughinisland

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    Irish Reunification: possible forms it could take

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      The parties’ election manifestos are elusive about the structure of the united Ireland to which they aspire. By Anna Mulligan. The biggest geo-political concern for this country is the possibility that in this decade, or even in the lifetime of the next government, a majority of people in Northern Ireland could be in favour of reuniting with the Republic.  With the tide of Brexit-caused uncertainty receding, this general election campaign finally offers us a chance to think beyond the next budget – to discuss critically what reunification might mean.  Since the Brexit referendum, commentators in the Republic have been falling into the trap of engaging with the question of reunification enough to raise hackles, but not enough to inform anyone of anything.  From Fine Gael to Sinn Fein, many of the parties state that their eventual goal is a united Ireland, but none have a clear position on what a united Ireland would look like. If the Brexit referendum holds a lesson for us, it is not to call a vote on a massive, sweeping change without first developing an understanding of the specific issues involved. The very term “united Ireland” is part of the problem. The question isn’t whether we should have a “united Ireland”, but whether we should reunite Ireland, and how, and what kind of country that new state would be.  The Good Friday Agreement is open-ended: it says that a border poll showing a majority in the Republic and the North for reunification would be a binding obligation on both governments to introduce legislation “to give effect to that wish”. The ambiguity in this statement – the nature of the wish, and how effect could be given to it – is ours to make sense of.In the Republic of Ireland, we have a bicameral parliament and a principally ceremonial President. We amend our constitution frequently by referendums. In Northern Ireland, there is a unicameral devolved legislature responsible for “transferred matters” (issues not reserved to Westminster) and for selecting the Northern Ireland Executive. This selection process is structured so that the Executive will include members from both unionist and nationalist communities, and the Good Friday Agreement requires that some controversial motions in the Assembly be passed by “cross-community vote”.  A reunification process would involve reconciling these structures. In doing so, three issues are most urgent – devolution, power-sharing, and the constitution. Any kind of reunited Ireland would involve trade-offs between these three concerns.  Keeping these in mind, there are broadly three ways that Ireland could go about the process of reunification: absorption, devolution, and integration. All of these options are on a continuum:  any arrangement can be more or less federal, involve more or less power-sharing mechanisms, and require more or less constitutional change. As a result, differences of degree need as much consideration as those of kind. The German Option: AbsorptionI’m not going to hold up any one option as preferable, but I do want to dispense with one that merits no consideration: the German model, in which the Republic of Ireland “absorbs” Northern Ireland and changes almost nothing about itself, from its flag to its constitution to its legislature. This model abandons power-sharing, devolution, and the spirit of the Good Friday Agreement, while it leaves Bunreacht na hÉireann almost untouched.  This model is the embodiment of unionist fears about reunification. There would be no protections for their interests as a minority, no safeguards to preserve the Good Friday Agreement’s delicate balance. The idea that a century of partition could be unravelled without compromise is unrealistic and inflammatory.  At times, it seems that this is what the great multitude of people who have been pushing for discussion on the issue mean when they say “united Ireland” – but if it ever does happen, they risk a shock. Now that the threat of a hard border in the near term has lifted, there’s no excuse for raising a delicate issue just to play pretend. Parties and voters in this election need to understand that reunification is not a policy towards Northern Ireland, but a policy of transformation for the Republic of Ireland and the North both. The Federal Option: DevolutionOne alternative is a federal or confederal option. This would effectively continue devolution with the Dáil replacing Westminster, allowing the institutions of the Good Friday Agreement to survive in a version of Stormont. This model would seek to acknowledge that distinct political cultures have emerged on this island over the course of partition.  The more radical option would be a “three parliament” solution, which was considered by the New Ireland Forum in 1984. This envisions separate parliaments and executives, North and South, along with an overarching government with relatively weak central authority. The “three parliaments” solution preserves power-sharing and devolution but would require serious constitutional change, and that a new Ireland bear the costs and complications of sustaining three separate bureaucracies.  It was for this reason that the Joint Committee on the Implementation of the Good Friday Agreement rejected the “three-parliaments” option in its 2017 report. It proposed another federal option: the “two parliaments” solution. Stormont, it argued, has always existed as a devolved parliament with limited authority. Just as we have seen devolution all over Britain without any apparent need or demand for a devolved authority in England, so – the report argues – would there be little demand for a 26-county parliament in a united Ireland. This model would leave power-sharing intact at a regional level by retaining Stormont as is, while the Oireachtas would operate as Westminster does now.  Sinn Féin’s manifesto appears to nod to this model, advocating for Northern MPs to be accorded membership in the Dáil – although there is no mention of whether this would foreshadow a similar structure after a vote for reunification. Fine Gael’s manifesto also discusses a commitment to the Good Friday institutions and to devolution that could be compatible with a federal or confederal model, but again, the situation envisioned after a border poll is

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    Review of Seamus Mallon’s ‘Shared Home Place’ (Lilliput, 2019; with Andy Pollak).

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    A memoir with thin narrative and little polemic nevertheless reveals  a steely and moral man with a belief in a consensual United Ireland. Reviewed By Kevin Kiely. Most people reading this will know who they consider the heroic protagonists of Northern Ireland’s peace process.   Few will acknowledge the role of David Trimble or enthuse about the role of Bertie Ahern or Albert Reynolds; some will hail Clinton or Blair, some Adams, fewer David Ervine; least controversially most will applaud John Hume.  They will accept too the narrative that he is now mute, that his party is moribund and that he had a worthy, flintier deputy, Seamus Mallon (born 1936), the man who could “make ‘good morning’ sound like a threat”.  Mallon’s autobiography does nothing to challenge this narrative.  This is partly because the book is essentially a memoir and lacks a hard-core historical backdrop.  He and co-writer AndyPollak also seem disengaged with the present and with the future about which their predictions are half-baked.  This is a haunted retrospective on ‘a peace process’ rather than ‘the peace process’ – there’s a self-indulgent primary focus on what might have been. Less than on what might be. Mallon’s father, and mother, Jane, formerly O’Flaherty of Castlefinn (Donegal) provided an unusually stable homelife for young Seamus and his four sisters.  Inheriting the father’s “fairness, generosity and willingness to help others” he became a secondary school teacher beginning in St Joseph’s Newry having met his future wife Gertrude “when we were both around fifteen”. He played Gaelic football for Armagh.  He got involved in the civil rights movement in the 1960s and was elected to the first power-sharing executive in 1973. His home place is Markethill, “a 90% unionist village” in the murder triangle of South Armagh where “per head of the population more people were killed…than any other county in the North”. His neighbours included the paramilitary Glenanne gang. Three miles from his front door openly lived “UVF killer, Robin Jackson, a former UDR man responsible for more than fifty murders”.  Mallon acknowledges the systematic collusion of loyalists including the RUC with paramilitaries and he despairs about the demise of the Historical Enquiries Team.  Mallon’s pacifism was tested over decades in the cauldron of arson attacks, death threats, defamation, and Community-polarisation and endless sectarian intimidation: “a man appeared and marched around the house playing the flute”. He came through the other end untoxic and even gamely manifests a contrived politeness on ‘Ulster-British culture’: “I rather like pipe bands; it’s the lashing of the warlike Lambeg drum I object to”. Mallon offers no polemical exegesis but does believe in a “shared homeplace”. Surrounded by  extremism Mallon always maintained  his pacifism: “We can build a shared centre where most people, unionist and nationalist, can feel comfortable and secure and at home…”. But surely this theory rests on moderate unionism undergoing “conversion”, presumably to a quasi-Alliance politics supporting human rights and the Good Friday Agreement (GFA).  He goes on: “We can then work towards the unification of the people of Ireland, rather than the forced marriage of territorial unity”.  His vague ultimate is: “I see Britain eventually leaving Northern Ireland”. Nevertheless his republicanism is more progressive than ‘Humespeak’ on Irish unity: he does see it as the “only long-term solution”.  The 1974 Sunningdale clauses on “Irish unity in stages” and an “orderly way”. He was of course the progenitor of the theory that the GFA was Sunningdale for slow learners. He chimes with the GFA that a united Ireland should depend on the consent of the majority of people, democratically expressed, in both jurisdictions: on “parallel consent”. He recognises the decline of the staunch unionist population to “the minority” but – unlike Sinn Féin – is suspicious of any ‘”narrow vote for unity” on a “50 per cent plus one” basis, “assuming the unionists do not boycott such a Border Poll”. ‘there’s a self-indulgent primary focus on what might have been. Less than on what might be’ The narrative in this book is thin. The chapter on the peace process and GFA is surprisingly lacklustre. His anecdotes are well known and long-rehearsed as when Mallon complained about Sinn Féin to Blair, who replied;: “The trouble with you fellows, Seamus, is that you have no guns”.  His exhaustion is apparent everywhere: the eventual agreements were  “the last chance of peace for a generation”.  Mallon’s portrait of David Trimble centres on a rehashing of the details of his defenestration by siege-Unionists Donaldson, Foster and others. On Sinn Féin he quotes journalist Ed Moloney: “Sinn Féin had no interest in reaching agreement with David Trimble on decommissioning and devolution”. Mallon inculpates Adams and McGuinness in “the murderous nonsense of violent republicanism”.  But admits that by 2001 the SDLP “were completely eclipsed as the two governments worked on unionists and republicans”.  Exhaustion and eclipse beleaguer the SDLP then and now.  But the embracing morality and steely decency of Seamus Mallon defy.

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    The Catalan Crisis Threatens to Reopen a Debate that the EU’s Power Brokers Thought They Had Long Ago Quashed.

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    By Professor Thomas Harrington. Though it is  largely forgotten today, there was during the late 1980s and early 1990s a  vigorous  debate in numerous sectors of European life about whether  the EU would be best structured as a Union of Regions or as a Union of States.  Adherents of the first posture hoped and believed that the goal the then still-emerging Union should be to greatly lessen the importance of existing  national boundaries and governments and to promote, or at least not stand in the way of, the emergence of new economic and social regions.  For example, since the Galician region of Spain shares much in the way of language culture and geography with neighbouring northern Portugal, it should, according to this outlook, be free to loosen existing bonds with far-away Madrid and direct more of its resources and infrastructural  aims  toward forging economic and social integration with nearby and traditionally dynamic Oporto.   This, of course, frightened the proponents  of a Europe of States,  who quite rightly saw such developments as a threat to dramatically diminish the prerogatives of  existing governments.   For reasons that are too numerous to examine fully here, but that include bureaucratic inertia, and the desire of an always meddling  US to have the ability to play states off against each other both within a dramatically-expanded NATO and the EU as a whole, the idea of the Europe of Regions was eventually bludgeoned  into insignificance by the proponents  of a Europe of the States.   Yet, for all their success in neutering the practical day-to-day effects of a Europe of Regions, the proponents of the Europe of States were unable to fully disable certain institutions, such as the European Parliament and the European Court of Justice,  forged and/or strengthened in the early years of the EU,  and whose structure implicitly militated against the continuing weight and hegemony of state governments within the overall functioning of the confederation.  For example, while a candidate for the European Parliament nominally “comes from” one or another member state, voters from any jurisdiction in the Union can select him or her on the ballot. He or she is thus not only a representative of, say, Spain and the Spanish citizens, but of the European people as a whole.    And while almost all justice is still meted out  by state-based judicial systems, these state systems are, since the ratification of the Treaty of Lisbon, subsidiary to the European Court of justice in matters pertaining to the EU’s Charter of Fundamental Rights.  And this last matter reality is why the long-dormant debate over  the underlying nature and structure  of Union is coming  to the fore once again.  The catalyzing factor in re-opening the debate was the decision was a decision handed down by the European Court of Justice late last year.  The Junqueras Case In the early hours of December 19th, 2019, the European Court of justice ruled that Oriol Junqueras, who on October 14 2019 was condemned to 13 years in prison for his role in promoting a peaceful referendum on independence in Catalonia, had, in fact, had possessed full legal immunity from the moment of the certification of his election to the European Parliament four  months earlier, and thus should have been released from detention at that time to take his seat in that body, and  quite probably should never been condemned  to the long sentence handed down in the autumn.   A case on one lucky guy finally getting a little bit of justice? Far from it.  The Long-Troubled Relationship Between Catalonia and Spain Though Catalonia was incorporated into a centralized Spain three centuries ago, its fit within that State has never been without tensions owing, among other things, to differences of language, social structure, economic models (Catalonia has always been considerably more commercially and industrially oriented than the rest of Spain), and approaches to governance. Catalonia was, for example,  one of the first polities in Europe to see the many impose limits on the exercise of monarchical power by the few, accomplishing this feat  a number of years before  the signing  of the English Magna Carta in 1215.   Spain, led by its central kingdom of Castile, has, on the other hand,  consistently tended much more to toward top-down and force-driven approaches  to resolving  conflicts over the apportionment of civic powers. It is thus not surprising that Catalan revolts (e.g 1700-1714, 1836-1843, 1906-1923, 1931-39) against central power have been a recurrent part of Spanish life during the era of the centralized state.  Nor is it surprising that Castilian-led government in Madrid has often used the full complement of  military and legal force at its disposal to quell these uprisings.  The latest  such revolt  began in 2010 when the Spanish Constitutional Tribunal overturned a new more expansive Statute of Autonomy for Catalonia within the  constitutional  order established three years after the death of dictator Francisco Franco’s 1975.  In keeping with the rules of the 1978 Constitution, the Catalan political leadership had, after writing the new Statute, submitted the text to both the Catalan Parliament and the Spanish parliament in Madrid for approval.  After passage through these legislative bodies, it was returned to the Catalan people, who approved it by a sizable margin in a popular referendum The Judicialization of Politics, or the Resurfacing of the Spanish Deep State But while this relatively insignificant rise in regional power pleased many in Catalonia, it alarmed many elements  of José María Aznar’s Popular Party (PP)—a configuration formed in no small measure by the sons and daughters of Francoist families—, as well as  the country’s judiciary whose Francoist  structures and Francoist sociology had remained largely intact during Spain’s then three decade-old democracy. Confident that their ideological allies in the judiciary would know how to “do the right thing” when called upon, the PP lodged a constitutional challenge to the new statute. Though it took them more than  three years  to do it, the Spanish courts delivered exactly what the PP had hoped and expected: the  nullification of key elements of the new law.   And when this occurred in the summer of 2010, Catalan citizens took to the streets in massive numbers to protest what they saw as a backhanded  and back-channel abridgement not only of their voting franchise, but also the democratic constitution upon it was based. Over the next decade

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    Civil War binary squeezes out the left

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      By Rory O’Sullivan   Election 2020 threatens to be another continuity vote with the Taoiseach yet again coming from one of Ireland’s two civil-war parties. Given their projected vote share this should be the left’s best election since the foundation of the state. Instead, despite having support equalling the combined vote-shares of Fine Gael and Fianna Fáil, they cannot hope to enter the next Dáil as anything more than a mere constellation of minority partners in a sprawling coalition. They have been muted and nearly silent so far in this campaign, with the traditional media effectively deciding that this is between Martin and Varadkar and skewing their coverage accordingly. Maybe the dusty corners of Twitter are right, and this is all because of bias; maybe the dominating past of the two parties and respective tooth-lengths of Ireland’s gregarious political correspondents have unfairly inflated their importance. But mostly it is because the mutual antagonisms and jealousies of the other parties mean that the only workable coalitions in the next Dáil will involve Fine Gael and/or Fianna Fáil, with some smaller parties, which has allowed them to dictate the terms of the campaign to everyone else. Labour have said they will never join a coalition with Sinn Féin, which removes even the faintest prospect of a government without either Fianna Fáil or Fine Gael. Those two could technically go into coalition together but it would outrage their bases, and surely accelerate their decline by making them even less distinct than they are now. Varadkar’s apparent offer to join a coalition with Martin in the Virgin Media debate was more an effort to seem grown-up than a genuine offer to share a government. Martin’s refusal earlier today to countenance any coalition with Fine Gael made this even clearer. This aside, neither party will govern with Sinn Féin, meaning neither can enough seats to govern without Labour and the Greens, which have both expressed a vague willingness to serve with both, even if the Greens will have to wrangle with their grassroots membership over a coalition agreement.  This has meant that to ensure that one of them wins and can govern without the other, Fine Gael and Fianna Fáil have both been aggressively spinning to convince everyone that every big question about the next Dáil is pretty much settled, apart from that of which party will be the largest. It is for this reason that the two parties have collaborated and so far succeeded in setting the terms of the whole election.  It is not simply that doing this sidelines the other parties, but that it pulls voters into an American and British-style binary decision between Martin and Varadkar; that in the next Dáil the Taoiseach will be one of those two has become the premise of the discussion rather than a potential outcome.  The irony of Virgin Media’s head-to-head debate between Martin and Varadkar is that, while seeming to oppose each other, they were in fact performing nearly as great an act of strategic political cooperation as confidence and supply. Before the debates even began, they had won hours of airtime and pages of newspaper-print characterising the election as a contest between two men.  Sinn Féin are right to be furious about it: it is a political coup, and they have been completely blindsided. The high polling numbers have made their exclusion even more controversial, but they are still not enough to overturn the logical conclusion of the last local election results: Sinn Féin are hitting their current electoral ceiling. They have tried to pivot from entrenched opposition party to party of government, only to find that no one wants to be in a government with them. But still to most Fine Gael, Fianna Fáil, Labour and Green voters they are toxic, bathed in historical violence, radical, unthinkable; to their own republican base and the rest of the left they are ever-less reliable. People like Martin Ferris, while dwindling in number and kept away from the television cameras, are still everywhere in the rank-and-file of Sinn Féin, and too many people know it for them to get away with it. Eventually, if they want to expand their coalition, they will need to take the short-term hit and jettison that support base. But even still, the moves to shut Sinn Féin out are an expression of weakness rather than strength. The only reason the two biggest parties are cooperating at all is that they have no choice; both will be scuppered if the election simply returns a result close to the same as now. Say, the Greens and Labour win no more than 15 seats between them (according to The Irish Times, a ‘bad’ day for both parties would leave them with a combined 14), and neither Fine Gael nor Fianna Fáil win more than 50: then, even with Independents and Social Democrats, the arithmetic becomes almost unworkable. For both men who hope to become Taoiseach there is only one, precarious, path to power that does not involve bringing a bitter end at last to the Irish Civil War. There is no chance of a straight majority for either  because of the 40-50% of the country who won’t vote for them, most won’t vote for them at all.  They know this very well; which is why their campaigns so far have largely been efforts by each to downplay their own perceived weaknesses in relation to the other, and win over their mutual swing voters, rather than serious attempts to win over anyone else. Fine Gael have always suffered from the perception that they’re a sneering elite who don’t care about ordinary people, and so their campaign and its slogan are targeted at the dormant guilt about poverty and homelessness among middle-class swing-voters. 2016’s “Keep the Recovery Going” has been supplanted in 2020 by “A Future to Look Forward to”. Fianna Fáil’s politicians have repeatedly mocked the Fine Gael slogan, and then with a straight face told interviewers that they have no slogan;

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    Rotten fruit: has anybody actually read the EU Commission’s Apple decision?

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    By Edmund Honohan   MEDIA ANALYSIS of the EU Commission’s 2016 Apple judgment that Ireland gave the company €13bn in illegal tax aid is half-baked, and the Irish government’s defence even worse. The implications of the judgment are much further-reaching than many realise. The Commission has argued that Apple’s two subsidiary companies in Ireland – ASI and AOE – should have paid Corporation tax here at the full Irish rate of 12.5% on the profits of their businesses between 1991 and 2015. There’s no suggestion from either side in this case that profits on sales of merchandise abroad should be booked abroad and taxed there. In other words, if the EU is right, the entire balance must be paid here and not be subject to some international shareout. The EU Commission’s judgment refers to a 1991 ruling by Ireland’s Revenue Commissioners which fixed AOE’s net profit at 65% of branch operating costs (sic) up to US $50-60m and 20% above that, and ASI’s at 12.5% of branch operating costs. The basis of capital allowances was fixed in the ruling, but not explained. In 2007, for example, ASI’s bill under the 12.5% liability came to $230m; but, in what was described in the accounts as “an adjustment for income taxed at lower rates”, this was then lowered to $8.9m. Ireland doesn’t want any of that money back, but the EU says the adjustments were State Aid to ASI and AOE and, as such, in breach of Article 107 of the Treaty on the Functioning of the European Union, one of the two main Treaties that underpin EU law. To be exact, the EU’s argument is that the accepted accountancy approach to the allocation of profits among companies in a group company architecture was neither followed in 1991 nor in the Revenue ruling in 2007, when Apple sought and obtained assurances from the Revenue Commissioners in Dublin as to the basis on which ASI and AOE would be taxed. The Commission says that all of Apple’s retail business outside of the Americas and Singapore was handled in Ireland, and that the respective head offices of ASI and AOE in the USA were brass-plate addresses with no employees. It adds that any functions performed, or “fictitious remuneration for services provided for free” by Apple Inc employees for ASI and AOE would be outside the scope of the assessment of profit allocation as between ASI, AOE and their respective head offices. In its 300,000-word decision issued in late 2016, the Commission was deeply critical of instances of poor professional quality in the Irish submissions. In paragraph 353, it notes: “at least three of the 52 companies chosen by PwC as comparables are in liquidation”. But it is even more critical of the actions of Revenue, who issued the rulings, stating that “none of the documents provided in support of the contested tax rulings contain either a contemporaneous profit allocation study or a transfer pricing report”. It later says that Revenue “should have at the very least analysed how that branch’s access to the Apple IP (intellectual property), which it needed to perform its functions, was ensured and set up within the company. There is no evidence that such an analysis was ever conducted”. The Commission says that in regard to allocation of profits to Irish branches of non-resident companies for the purposes of applying Section 25 of the 1997 Taxes Consolidation Act, “the profit allocation ruling practice of Irish Revenue demonstrates that no consistent criteria are applied”. But the Commission also cites cases of Revenue applying the arm’s length principle, with a Revenue tax advisor in one case confirming the OECD model as “little more than a restatement of the position under domestic law”. There’s no suggestion here that if a Pear or an Apricot were to come knocking, Ireland could still legitimately offer it the same deal it gave Apple in 1991. Nor does Ireland attempt to approach the case on a collaborative basis, to reconcile differing perspectives. Ireland hasn’t even offered a draft formula for a judgment in its favour, except to say that what we know now about fiscal State Aid was not known then, even by the Commission. The Commission was not happy with an after-the-event attempt to represent the profit allocation as a bona fide group company accounting exercise, with justifiable transfer pricing, holding that “the fact that the costs of the CSA (cost sharing agreement) were allocated to AOE’s Irish branch by Apple itself should have made Irish Revenue question the unsubstantiated assumption underlying the profit allocation methods ultimately endorsed by it”. The Commission goes on dramatically: “Even if Irish Revenue had been right to have accepted the unsubstantiated assumption that the Apple IP licences held by ASI and AOE should be allocated outside of Ireland, which the Commission contests, the inappropriate choice of operating expense and the inappropriately low levels of return accepted by Irish Revenue in the application of the one-sided profit allocation methods endorsed by the contested tax rulings result in an annual taxable profit for ASI and AOE in Ireland that, in any event, departs from a reliable approximation of a market based outcome for their respective Irish branches”. And in relation to a possible derogation if justified by the nature or general scheme of the tax system: “Ireland has not put forward any justification at all for the selective treatment”, and ”the argument (is) put forward by Apple that ‘the( tax rulings) derive from the intrinsic principles of Section 25 TCA 97’, without further explaining how this is to be understood or how this could justify the selective treatment in this case”. While it’s an arguable defence that the Commission’s pursuit of fiscal State Aid is in conflict with Member States’ general autonomy in taxation, the last time Ireland intervened in Court to make that point – in a case against Belgium – the Court gave it short shrift. Ireland has also pleaded that even if the accounting was a back-of-an-envelope exercise

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    Commemoration is always political

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    By Rory O’Sullivan.  The most interesting thing to emerge from Charlie Flanagan’s atrocious interview on Drivetime yesterday (Tuesday) evening, apart from a lesson in how thoroughly politicians can squeeze their talking points into shapeless pulp when the going gets difficult, came when Mary Wilson asked him why the now-cancelled commemorations of the RIC and DMP officers of the War of Independence had been to take place in Dublin Castle. Diarmuid Ferriter, who had been  on the show about an hour before, made a special point of this: Dublin Castle was the spiritual home of British colonial rule in Ireland. It would be like commemorating America’s Vietnam War veterans in a napalm factory.    Flanagan responded that Dublin Castle was chosen because it is the location of a garden of remembrance for gardaí who have been killed in the line of duty. Drew Harris, the garda commissioner, was supposed to address the commemoration event; last September, Charlie Flanagan attended an interdenominational religious service for the dead RIC and DMP men which has been held every year by the HARP society, who are mostly ex-gardaí, since 2012. Here is what he said about the RIC and DMP to the Irish Times last week, before the controversy began: “They were doing what police officers do. As they saw it they were protecting communities from harm. They were maintaining the rule of law. These are fundamental to police services everywhere”.   The government’s narrative about the RIC and DMP is that they were, effectively, the gardaí of their day, mostly doing the same jobs as gardaí now. But this is completely against history, ignoring the hard efforts by the British government of the time to blur the distinction between police force and army. RIC police stations were called Barracks,  and most of the IRA’s weapons came from raiding those Barrackses, because most Barracks had enough weapons to kill the surrounding populace twice over. RIC men – Irish ones – committed some of the war’s most shocking atrocities, including the murder of the elected Lord Mayor of Cork Tomás Mac Curtain in his own home in the middle of the night. Today we know the Black and Tans as the Black and Tans, but this refers only to the uniforms some police officers wore. Formally there was no difference between the Black and Tans and the RIC; only the Auxiliaries were a separate division, though even they were still technically a wing of the constabulary.   It was for these very reasons that the RIC were disbanded by the Free State government and replaced with An Garda Síochána, the guardians of the peace, named after the French Third Republic’s civilian police force, the ones who aren’t the gendarmes. Their headquarters were moved to Phoenix Park, and they were and remain unarmed. The whole point of the gardaí is that, at least in theory, they are supposed to be police officers of the community and with the community rather than against them; agents of liberation rather than repression.    The effect of Fine Gael’s commemoration policy would have been to rewrite the histories of both police forces and lump them together. Maybe that doesn’t matter at all, or maybe it does. On the subject of commemorations in general, Diarmuid Ferriter argued on Drivetime that the State should step back and let communities and local councils commemorate instead so as to fit in as much as possible; which is fine as a general principle, but as advice it is really nothing more than a neat way of getting around the question. It was not the Kilmichael or Rosscarbery war of independence, but the Irish one, from which most facets of the country in one way or another emerged. The State must do something as the State, which will inevitably mean taking the events of the war and putting them into a narrative: the story of who we were and, by extension, of who we are and what we stand for. People commemorate people, but States and societies commemorate stories.   What this recent shambolic effort at commemoration shows about Fine Gael is what is so glaringly obvious about them once you see it that afterwards you can never unsee it again. Their grand narrative about the Irish nation is in effect that once upon a time we were very poor; then there was a lot of violence and abuse, caused by senseless attachments to things like nationalism and religion; then, under either Garret Fitzgerald or John Bruton, history ended and we figured out that all that really mattered was making money, which necessitated our being a really good place to do business. For Fine Gael countries are all arbitrary products of history, and governments simply economy-managers. There is no greater antipathy between two parties in the Dáil than between Fine Gael and Sinn Féin, and that is for the simple reason that neither one understands the other at all; they may as well be on different planets. In government Fine Gael’s position so far has been to commemorate everyone under the guise of ‘growing up’ or ‘moving on’: we are all to grow up out of nationalism and move on into profitable, tech-savvy neoliberalism.   But ironically, Fine Gael misunderstand even themselves: their worldview is not new at all, has not moved on from anywhere, and is in fact a tradition in Irish politics older than the State itself. Fine Gael’s real tradition is of middle-class Catholic constitutional nationalists, who wanted more control over their own affairs but were doing far too well under Britain to take up arms. They are Redmondites; or, more darkly, they are the political descendants of William Martin Murphy, the brutal head of the employers during the 1913 lockout. They are the people who Yeats meant when he wrote about “fumbling at the greasy till”, and just because they have read Fukuyama and agreed with him and dropped the hard Catholicism from their manifestos does not mean they are any newer

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    In a legally questionable  move, on January 3, 2020, the Central Electoral Commission of the Spanish government, an administrative body with no judicial standing, voted to remove Torra from office immediately.

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      Up until two years ago Joaquim ‘Quim’ Torra was a business executive and cultural activist who had never been involved in electoral politics.  However, when the Spanish central government dissolved the Catalan parliament over its late October 2017 vote in favour of seceding from Spain, and subsequently ordered new elections that it clearly presumed would restore a pro-unionist majority in that body. To the surprise of much of the world, and the intense dismay of the Spanish government, exiled President Carles Puigdemont’s Together for Catalonia list won the elections, and hence the right to form a new government. Torra was successful as a parliamentary candidate. But Spain would have none of it. When, on January 30 2018, the Catalan Parliament was about to swear Puigdemont in by video connection from Belgium, the president of that body abruptly stopped the process in reaction to the threat of judicial sanctions – sanctions rooted in highly questionable jurisprudence – he had received from the Spanish courts. Two further candidacies centring on pro-independence figures were similarly scuttled in the succeeding months. Finally, on 17 May 2018 the then still largely unknown Torra was voted head of a pro-independence coalition government. Since assuming office he has repeatedly made clear that he believes that Carles Puigdemont is still the legitimate president of Catalonia and that his prime goal is that of advancing Catalonia toward independence in the most expeditious manner possible. The fact that he is a political newcomer who did not come up through ranks of his own party has led the generally pro-unionist press of both Catalonia and Spain, a press corps that tends to view machine politics as normative and  their continuation as inevitable, to treat this most cultured and literate of public figures  with no small amount of condescension, though Torra does not seem to care. This interview, conducted in Catalan and edited for reasons of space, took place on 30 October in the Palace of the Generalitat (The Catalan Government) in Barcelona, that is, 16 days into the massive and still ongoing acts of civil disobedience unleashed in reaction to the Spanish Supreme Court’s harsh sentencing of the politicians and civil society leaders responsible for promoting the October 1, 2017 independence referendum, 11 days before the fourth Spanish general elections in as many years, and 19 days before Torra’s own trial, at which he defiantly pleaded guilty to disobeying a Spanish government order to remove a banner hanging on the front of the Generalitat  that made reference to Catalan “exiles” and “political prisoners”. TH: How would you explain what is going on in Catalonia today to a reader who has little or no detailed understanding of the country’s history? QT: A quick response would be to compare it to a case with which most English language readers are familiar, and have to a certain extent reflected upon, which is Scotland – and the UK. I would speak of an ancient nation from Southern Europe that has always demonstrated a firm dedication to the pursuit of liberty, and that, after suffering a number of setbacks over the last three hundred years – years during which it worked to fit into the Spanish state and gain its trust – has, over the last decade or so, chosen to initiate a democratic process aimed at gaining independence. This is not about flags and borders. It is about quality of life, better education, better healthcare, an improved infrastructure and, of course, greater protections for the country’s language and culture. But above all, it is about being able to face the challenges of the twenty-first century with all of the tools that any modern country can expect to have at its disposal. TH: Do you think Catalans have a special obsession with freedom? QT: There are historians, such as Rovira i Virgili, who define the history of Catalonia precisely in terms of this special relationship to freedom. Others, such as Vicens Vives, link it more to a “will to exist”. Josep Benet, in turn, has summed it up, in a marvellous phrase, as centring on a “combat in the service of hope”. Others, of perhaps a more fatalistic cast, like Ferrater Mora say that a people cannot live life always on the defensive, that it  must arrive, or seek to arrive, to a state of vital fullness. TH: How did you come to be president of the Generalitat in the Spring of 2018? QT: I spent most of my life as a lawyer in private business, the last two years of that in Switzerland, an experience that allowed me get to know a country, the Helvetian Confederation, that I admire a lot. Returning to Catalonia, I founded a publishing house and got involved in historical research and writing. I’d always had strong cultural, civic and political interests thanks to my work in voluntary organisations of the type that are, in my view, fundamental to gaining an understanding of the country. These entities are the basis of its strongly ‘associative’ social fabric, and what provides it with very strong social cohesion from below. I had the good fortune of working side by side with the late Muriel Casals at Omnium Cultural  [along with the Catalan National Congress, the country’s most important pro-independence civic organization], an experience that allowed me to participate, as it were,  from the “second row”, in the last ten years of the country’s fast-moving history. During the latter part of this time, the country’s government was forcibly dismissed by the Spanish state (on 27 October 2017) while our elected leaders were either imprisoned or forced into exile. In the lead up to the 21 December 2017 elections imposed by Spain, I received a call from President Puigdemont in which he asked me to run as a candidate on his parliamentary list (Together for Catalonia). But owing to a series of events that would take a very long time to explain, and that are rooted in the repression that this country currently suffers

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