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    World Crass

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    What was Richard Bruton thinking of when he referred to setting up a “world class” service, to establishing a new entity that is “all about making Ireland the best small country to do business in”, when he launched a “new era for employment rights and industrial relations”? The answer, surprisingly, is the Workplace Relations Commission instigated last October with a cacophony of overblown rhetoric. With all the fuss, it comes as a surprise when this “world class” service says it can’t adjudicate on some of the equality cases within its remit. It recently stated it did not have the resources to deal with cases of discrimination by landlords against tenants in receipt of rent allowance. Kieran Mulvey, its Director General, was quoted as suggesting “We are not the appropriate body for this, this is not a workplace issue”. This is troubling given the Workplace Relations Commission is in fact bound to adjudicate on cases in a broad range of fields beyond the workplace, under the Equal Status Act. It is indicative, however, of a deeper malaise with the Workplace Relations Commission. Richard Bruton did add, with pride, that this new “world class” service was launched with 20% fewer staff and 10% less money than its predecessor organisations”. Who did he think he was fooling with his inflated verbiage? The Workplace Relations Commission was established in October 2015 through the merger of five organisations: the Equality Tribunal, the National Employment Rights Agency, the Employment Appeals Tribunal, the Labour Relations Commission, and the Labour Court. The Equality Tribunal had been a key part of the equality infrastructure and sits uncomfortably in this new entity with a mandate that stretches beyond employment rights to discrimination in the provision of goods and services, education, and accommodation. The Employment Law Association of Ireland (ELAI) is not impressed. They raised some fundamental issues in a February 2016 submission: about the adjudication of cases and the competency of the adjudication officers, the pre-hearing process and complaint submission, and mediation. The ELAI note that the rules of procedure of the Workplace Relations Commission do not address how hearings are to be conducted. It identifies concerns among its members that “there is inconsistency in how Adjudication Officers apply basic rules of fair procedure; for example, the permissibility of cross-examination and the application of rules of evidence”. Cases are heard in private and there does not appear to be any monitoring of decisions by Adjudication Officers. The ELAI is concerned that the rules “do not guarantee users’ constitutionally protected right to a fair hearing”. It is further concerned that the “framework for appointing and training Adjudication Officers is substandard”. There is no clarity as to the qualifications or expertise required of Adjudication Officers or what training they get. This is damning given the broad spread of cases they now have to deal with. The ELAI suggests there has been a “dilution of expertise” from the specialisation that had developed among staff in the predecessor bodies. Richard Bruton made much of the importance of mediation in cases concerning employment rights. It would appear, however, that the mediation service is under-resourced and cannot meet demand. It becomes ever clearer that this is not a service set up to be “world class” but to save money. The ELAI notes that some of its members recount instances “where both parties to a dispute have requested mediation but that request has been rejected by the WRC”. The ELAI notes that while most complainants are not required to detail the substance of their complaint when it is being lodged, “exceptionally, complainants must provide substantive detail for allegations of discrimination and constructive dismissal.”. The guidance given by the Workplace Relations Commission for employees making a complaint of discrimination requires that “the complainant must set out the facts, the link between the ground(s) cited and the alleged discrimination, any other relevant information and, where appropriate, any legal points the complainant may wish to make”. Under the procedures of the former Equality Tribunal such a statement was only required when submissions were requested some time after the complaint was lodged. The approach of the Workplace Relations Commission makes it more difficult for complainants to lodge a case of discrimination, increases the need for legal representation at an early stage with additional costs, and reduces access to justice. This is only the first year of operation of the Workplace Relations Commission. There is still time to get it right. However, it is clear that urgent action is required to ensure people are able to vindicate their rights. As paid work becomes ever more precarious and as discrimination persists at high levels, the weakening of our rights infrastructure in this way must must not be accepted.

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    No ladies need apply. Adrian Hardiman, equality and the Portmarnock case.

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    By Donncha O’Connell (2009). Some men need to play a version of golf called ‘male golf’ and can, in order to realise that need, run a golf club in which membership is open exclusively to male players of male golf on the understanding that the principal purpose of that club is to cater only for the needs of men. In practical terms, this means they can have a legal drink after or even before a game of male golf and cannot be punished or deprived in this connection by operation of some equality-proofed application of the licensing laws. To do so would probably kill the game of ‘male golf’ while realising the bolder dreams of golf egalitarians and some golf widows. It is matterless that such clubs allow women to play golf at appointed times and provide female-only locker rooms to facilitate that privilege. That is purely a matter of external relations and does not bear upon the internal workings of private golf clubs which, as well as benefiting from club status, enjoy certain tax advantages. That, in a nutshell, is what a majority (3:2) of the Irish Supreme Court decided in November in a case taken by the Equality Authority against Portmarnock Golf Club. Four of the judges wrote individual judgments with Ms. Justice Macken agreeing with the two who held in favour of Portmarnock. The basis of her agreement with two differing majority judgments (those of judges Hardiman and Geoghegan) was not explained, which is regrettable given the pivotal nature of her ‘swing vote’ with the majority. She needs to work on her swing! The majority judgment that has attracted most attention is, unsurprisingly, that of Mr. Justice Adrian Hardiman. His judgment is stinging in its criticism of the Equality Authority for taking the case against Portmarnock Golf Club and laced with the rhetorical flourishes of a once-great advocate. Holding in favour of Portmarnock Golf Club he tears into the arguments presented by Counsel for the Equality Authority accusing the Authority of seeking to have Portmarnock ‘condemned’ as a discriminating club. What appears to animate his objection to the case being taken in the first place is the failure of the Authority to comply with a request by a former Minister for Justice, Equality and Law Reform to design a code of practice for golf clubs instead of using targeted litigation to address a particular form of gender discrimination in a particular golf club. This, as Mr. Justice Nial Fennelly rightly points out, is not relevant to a consideration of the central issues raised in the Portmarnock case – whether or not the club came within the exemption for so-called ‘discriminating clubs’ provided for by Sections 8 and 9 of the Equal Status Act. In other words, the sections apply whether or not a code of practice exists and do not exist as some kind of default provision only to be used in the event of non-compliance with a code that enjoys no more than the status of soft law. Apart from the fact that the point was irrelevant it was also unfair. In the absence of any significant judicial authorities on the delicate balance sought to be struck by Sections 8 and 9 of the Act – this was actually the first such case – it would have been impracticable and speculative to draft a code of practice of anything more than aspirational value. It is noteworthy that by the time the Equality Authority drafted its Code of Practice on Sexual Harassment & Harassment at Work there was voluminous case law on the subject making the exercise altogether more meaningful. It is quite clear from his judgment that Mr. Justice Hardiman is no fan of the Equality Authority. He criticises it again and again in quite colourful terms describing one of the Authority’s submissions as ‘utterly reductive’ and castigating it for not ‘leaving the members (of Portmarnock) alone to work out their own salvation’. For a judge, who in cases involving socio-economic rights always insists that the expenditure of public funds is not a matter on which the judicial branch is appropriately qualified to adjudicate, he is trenchant in his criticism of the Authority for using taxpayers’ money for the purpose of litigation ‘especially in times of economic difficulty’. Again, this is quite unfair bearing in mind the totality of the statutory mandate under which the Authority operates which includes the duty to promote equality by various means including litigation. As a creature of statute it is entirely appropriate that such a body should take this part of its mandate seriously and it hardly warrants such vehement disapproval on the part of a judge faced with a demonstrably justiciable issue. For someone who felt the case should never have been taken Mr. Justice Hardiman was at his prolix best in dispensing with it. Mr. Justice Hardiman is untouchable in terms of expertise when it comes to rules of evidence but he is somewhat promiscuous in taking judicial notice of matters not quite amounting to hard evidence. For example, in looking at single gender associations and clubs he mentions The Emerald Warriors which he describes as a ‘gay mens’ Rugby Club’. A perusal of the website of that club reveals that Mr. Justice Hardiman’s description is itself somewhat reductive. The club is described in the following terms: “…formed in August 2003 to provide gay, heterosexual and bisexual men the opportunity to play competitive rugby in Ireland and internationally.” There is obviously more to gay rugby than meets the judicial eye. In a genuflection, no doubt, to the status of The Irish Times as a paper of record, he quotes extensively from a 2005 opinion piece by Finola Meredith arguing for women-only spaces. This is then used to support a judicial surmise as to the growing number of women-only clubs in Ireland. Clearly, to borrow from an earlier second-hand phrase of Mr. Justice Hardiman speaking (controversially) at the Law Society’s Justice Media Awards in 2009, the farmer can

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    Anti-bloodshed brothers

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    Much is made of the choice made by James Connolly to join the Irish Citizen Army (ICA) with the Irish Volunteers led by Pádraig Pearse for the Easter Rising in 1916. Across the British and European Left, notably but not exclusively among those on the side of the allies in World War I, there was a mixture of horror and disdain at the Irish merger of socialism and nationalism into a revolutionary force. Within the ICA itself there was some opposition to any collusion by socialists with the nationalists with one of its founders, Sean O’Casey, to the fore in condemning Connolly whom he described, retrospectively, in 1919, as having “stepped from the narrow byway of Irish Socialism onto the broad and crowded highway of Irish nationalism”. For many years since, and particularly since the outbreak of conflict in the North in the late 1960s, Connolly’s decision to join the military council of the Irish Republican Brotherhood and to set a date for the Rising after a three-day secret meeting with Pearse, Sean MacDiarmada and Joseph Plunkett in January 1919 has been the subject of much criticism, including by many on the Left. However, in the light of so much recorded material including the invaluable statements of participants to the Bureau of Military History becoming available since then, the rationale behind Connolly’s decision, however reluctant, has become much clearer. Equally, the motivation and coherence of Pearse and his comrades in the Volunteers in striking a blow for freedom is also now more credible than many of their detractors would allow. In 1915 Connolly did use the words “blithering idiot” to describe anyone who would celebrate the “red wine of the battlefields” – comments widely believed to have been in response to Pearse’s exhortations. He said: “No, we do not think the old heart of the earth needs to be warmed with the red wine of millions of lives. We think anyone who does is a blithering idiot. We are sick of such teaching and the world is sick of such teaching”. He was referring to a Victorian tradition in literature and poetry which was widespread in Ireland and Britain as well as in mainstream, including socialist, European thinking which glorified blood sacrifice and martyrdom. What is more important though is the practical opposition of Pearse and Connolly to the actual blood sacrifice which saw hundreds of thousands of young men wasting their lives on the killing fields of Flanders and beyond in an imperialist war. For this was the central reason why both men found common cause in the Spring of 1916. As President Michael D Higgins said at a commemoration for the ICA in Áras an Uachtaráin at Easter: “The suggestion that, when WWI broke out, James Connolly scrapped his faith in socialism to embrace pure nationalism is contradicted by Connolly’s writing and journalism both before and after 1914. James Connolly was deeply concerned with the context of turmoil in Europe and the world, whose revolutionary potential was, in his view, being squandered in defence of imperialist adventurism. In Connolly’s estimation, a blow against Empire was a clearing of the ground for future socialist struggle. It is important, therefore, not to rush to judgement on what James Connolly’s motivations were for orchestrating a joint action with the Volunteers. One can understand how, in despair at the collapse of his and other socialists’ internationalist hopes after the outbreak of the War, appalled by the breakdown of the international proletariat into nationalities which were slaughtering each other on the Western Front and in the Middle East, James Connolly resolved to seize the opportunity of the war to strike a blow again the British Empire”. At the secret meeting in January 1916, Connolly accepted an invitation to join the IRB council and agree a date for the Easter Rising while conscious of the ideological differences that existed between the ICA and the nationalists of both the Irish Volunteers and the larger force of nationalists under John Redmond. Connolly had worked with the trade union movement against the capitalists in the US, and on return to Ireland led the Dublin workers against the brutal onslaught by employers, some of whom were prominent in the nationalist movement during the 1913 Lockout. That struggle led directly to the creation of the ICA the constitution of which influenced key sentiments of the 1916 Proclamation including its call for equality for women and children and “the right of the people of Ireland to the ownership of Ireland”. Further, Connolly was an internationalist who understood that the world war was essentially a contest between the great powers over global resources. Pearse clearly shared more in common with this perspective than many of his former nationalist allies as he agreed to include the progressive thinking of the ICA in the Proclamation he drafted and read at the GPO, a document that had of course been printed by union labour in Liberty Hall the night previously. Redmond on the other hand was prepared to encourage tens of thousands of young, mainly impoverished, Irishmen to their deaths in the imperialist war in order to gain advantage for his wealthy compatriots through the fading promise of limited home rule. As President Higgins remarked, “the ranks of mainstream nationalists, and particularly those of the Irish Parliamentary Party, comprised a significant number of industrialists and graziers who were happy to secure the advantages of a political independence within the Empire but who would resist economic, social, or as both O’Casey and Synge would learn, cultural, innovation”. Many of those who fought heroically with the Irish Volunteers during Easter Week went on to reveal just how divergent their view of the type of Ireland they were ghting for was from their comrades in the ICA, and indeed many in Cumann na mBan. Some of those drafting the 1922 Constitution of the Free State just six years later described how the proposed inclusion of Pearse’s words on equality was dismissed as “Bolshevist” by the British authorities

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    Democracy and war

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    DEMOCRACY AT HOME General Election 2016 has thrown up an utterly unpredictable result with Fianna Fáil in the ascendant. At the time of writing the consequences of the vote including who will survive as leaders, who will be in government and who will lead the government could not be less predictable and, without resorting to metaphysics, will reflect only opaquely the will of the people. Yet we carry on as if this did not reflect in any way on the integrity of our democracy. DEMOCRACY ABROAD The Brexit referendum should have been framed on whether the UK will be in the EU, in EFTA, or independent. But, as always in these islands, the third option, the middle one, has been omitted. The outcome, therefore, is bound to be inaccurate. And given the divisive nature of the in-or-out, stay-or-leave question, it is highly likely that the ‘leave’ option will win. In a three-option poll, the ‘leave’ option will probably lose. On 20th Dec last year, Spain went to the polls… and two months later, Spanish politicians are still arguing about who should be in government. But this is par for the course. As happens in so many democracies, open and transparent elections are followed by closed and opaque discussions, as various parties wheel and deal behind closed doors, trying to concoct a majority coalition. In 2013, Germany’s four parties took 67 days to sort something out. In 2010/11, Belgium’s dozen took 451 days! Will Ireland have the same sort of uncertainty? Democracy is for everybody, not just a majority. Conflict zones like Syria and Ukraine need inclusive governance, governments of national unity. Inter alia, this should mean that elections are preferential and proportional; that power is shared in both joint presidencies and all-party coalition cabinets; while the third ingredient is preferential voting and collective responsibility in parliament. Sadly, while we preach at least some of these ideals abroad, we practice the very opposite at home: majority rule in the Dáil and the Commons, and divisive majority voting both in parliaments and national referendums. Before the Scottish referendum of 2014, it was widely assumed that ‘devo-max’, the middle option for maximum devolution, would get about 60 per cent. The ballot, however, included only the two other options, status quo and independence. The result, therefore, was a highly inaccurate nonsense. There are times, as with the election victory of Aung San Suu Kyi in Myanmar, or our own recent referendum on same sex marriage, when democracy is wonderful. On other occasions, as in the Balkans, it was downright dangerous: the 1990 elections there were little more than sectarian headcounts and “all the wars in the former Yugoslavia started with a referendum”. (Oslo- bodjenje, Sarajevo’s main newspaper, 7.2.1999.) It must also be remembered that Napoleon became the Emperor by a popular vote, one in which he, literally, dictated the question. Hitler, too, came to power ‘democratically’. In the 1924 elections, the National Socialists won just 14 seats but, in the wake of the great depression, this rose to 107 (17.6%). The subsequent history consisted of weighted majority votes in parliament (like the Enabling Act of 1933), simple majority votes in referendums in which, again, the dictator di tated the question, and war. DEMOCRACY AND WAR The focus of this article is Westminster’s democracy and the decision to go to war in Syria. Would the outcome of the debate on bombing in Syria have been different if the chosen methodology of decision-making in parliament were not majority voting? In other words, would the House have made a different decision if the procedures had allowed for a more pluralist decision-making methodology? First of all, a little background. In 2002, in the UN Security Council debate on Iraq, Resolution 1441, both France and Germany objected to the phrase “serious consequences” in Clause 13. Yet both voted in favour of that resolution. The outcome, described as “unanimous”, was (not the but) a cause of war, of the invasion of Iraq on 20.3.2003, and of the sorry story since, not least in Syria. But that outcome – 15-nil – was not unanimous! France and Germany did indeed object to the above clause, and perhaps would have objected to other paragraphs if but the procedures had catered for such criticisms. Maybe other Council members, one or other of the ten temporary non-veto powers, which at the time included Ireland, might have had policy proposals worthy of consideration. Unfortunately, binary voting means questions are dichotomous. So countries vote in favour, perhaps because the resolution is better than nothing, perhaps because of the need for international solidarity, we don’t know. There is the main resolution; there may be amendments to this clause or that, or even perhaps a wrecking amendment; but everything is yes-or-no; it is this methodology which is at fault. Majority voting was, yes, a cause of war. A MORE INCLUSIVE PROCEDURE A more accurate methodology would allow the UK and USA to propose one draft Resolution 1441; option A. If France and Germany objected to Clause 13 or whatever, they could propose an alternative wording, even if only for this one clause, whence their preference would be a slightly revised but nevertheless complete package, option B. Syria, then a temporary member of Council, might have preferred another complete package, option C. Ireland could have preferred a more obviously neutral option D, and so on. Naturally enough, countries might seek to come together in groups to favour this or that option but the first principle would remain: everything should be on the table, (computer screen and dedicated web-page). The subsequent debate would allow for questions, clarifications, composites and even new proposals (although of course, at any one time, any one country could sponsor only one motion). At various stages, participating countries could express their preferences, so to indicate where the eventual consensus might lie. Then, at the end of the debate, all concerned would cast their preferences on a final (short) list of about five options. The winning outcome,

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    Put in perspective

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    As we know well in Ireland cash is one of man’s greatest temptations. It’s a recurring theme in Russia. In the venal world, for example, of Fyodor Dostoevsky’s ‘The Idiot’ (1869) most of the characters succumb to greed. General Ivolgin desires money to support his addiction to alcohol and to allow him to spend time with his mistress. Lebedev is willing to put his hands into a replace to retrieve a package that Nastassya Filippovna has discarded, with 100,000 roubles inside. In the society of The Idiot, money not only creates one’s fortune it also obtains one a bride. ‘Bids’ for Nastassya Filippovna range from 75,000 roubles to 100,000 to over a million. Money, then, is a clear symbol of the perversion of human values in the novel. Russia fell into a similar stupor at the end of the Cold War when excessive wealth corrupted Russian politics as Boris Yeltsin amply filled the role of the Idiot, his powers declining in a haze of vodka as the plot unfolds. It was out of this pit of iniquity that Vladimir Putin rose to power, the short but muscly former KGB of cer emerging from obscurity to become prime minister and then being elected President in 2000 when Yeltsin finally lost his reason. The US embassy cables published by WikiLeaks in 2010, revealed that American diplomats considered Putin’s Russia had by then become “a corrupt, autocratic kleptocracy centred on the leadership of Vladimir Putin, in which officials, oligarchs and organised crime are bound together to create a virtual ma a state”. A 2007 CIA report estimated Putin’s wealth at $40bn. Indeed the one-time biggest foreign investor in Russia, Bill Browder, told Business Insider that Putin was worth $200bn, making him the richest man in the world. He claimed “the first eight or 10 years of Putin’s reign over Russia was about stealing as much money as he could”. A BBC Panorama investigation earlier this year showed he has a $1bn palace on the Black Sea Coast. Funds for it were diverted from the super-rich who thought it would be spent on healthcare. But of course for most Russians, after a decade of buoyancy, all is not good on the cash front because of Ukraine-fallout sanctions, and the collapsing currency and oil prices. The Russian economy shrank 3.7 percent in 2015, and 4.1 in 2014 in rouble values, but in dollar terms it is 40% below peak. Oil prices rebounded in early February to above $35 per barrel but they had peaked in 2012 at close to $110 (when oil and gas constituted 52% of government revenue) and government forecasts are based on €50. Real wages fell 10 per cent year-on-year in December, the 14th consecutive month of contraction. Russia is running an unsustainable budget deficit of almost 5%. Soon a key thresold will be reached where over 50% of an average income is spent on food. Putin’s dastardliness and vulnerablity to exposé is even more drastic on the security front. For example, it has been alleged that, presumably under the direction of Putin, the Russian secret services, the FSB, bombed apartment blocks in Moscow in 1999 killing almost 300 people and pinning the blame on Chechnyan separatists. Of course, Putin was able to use the war in Chechnya to good propagandistic effect but he may have created hostages to fortune, even in furtive Russia. Such tactical ethical nihilism might have appeared in another of Dostoevsky’s extraordinary novels, Devils (1872). Towards the end one of the conspirators Lyamshin is put on trial and asked, “Why so many murders, scandals and outrages committed?”. He responds that it was to promote: “the systematic destruction of society and all its principles; to demoralise everyone and make hodge-podge of everything, and then, when society was on the point of collapse – sick, depressed, cynical and sceptical, but still with a perpetual desire for some kind of guiding principle and for self-preservation – suddenly to gain control of it”. Destruction and demoralising animates much of Putin’s policy from Crimea to Ukraine, Syria to Chechnya. Russia consistently operates standards that are more indiscriminate than Western military powers. Last September Putin shocked the world by weighing into the Syrian conflict with air strikes against rebel-held targets. Controversially the primary targets did not seem to be ISIL. An article in Time magazine by Timothy Snyder argued that the motivation for Russia’s intervention in Syria was to turn Europe into a ‘refugee factory’, compelled to accommodate many more beleaguered victims than have already arrived. This is based on the credible assessment that the Putin views the stability of the European Union as a threat to Russia. He will also have appreciated the opportunity to create a client authoritarian regime in the Middle East and to play to a growing anti-Islamic gallery in Europe, particularly in the former Soviet Union. Ironically, Putin started as a centrist in Russian terms. However, he was threatened by nationalist support for electoral protests against his regime in 2011-12, and now by economic instability and public poverty. If Putin fails to deliver in Ukraine, there is a probability of a challenge to his authority from a more radical nationalist agenda. Confronting Putin may be the greatest geopolitical challenge that Europe has faced since the end of the Cold War. Machismo, personal and political, is a big part of his schtick. Whether it’s bare-back horse-riding, descending in a deepwater submersible, posing with a massive pike he’s just caught or a tiger he’s tranquilised, or drinking 24-year-old vintage wine with Berlusconi he’s not notably alive to his feminine site. It’s Haughey for the twentieth century, gone global. He divorced in 2014 and is now living with a fecund gymnast. Man-on-Man buddy of Trump. Antagonist of Elton John. Scathingly self-righteous denier of any connection with the characteristic polonium poisoning of Alexander Litvinenko in London, despite the finding of a former English judge that he had “probably authorised it” and the dead man’s allegation that “the howl of protest from around the world

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