General

The wily Trade Commissioner’s future rests on a report into his implausible explanations from the circumspect but stringent EU Commission President. By Jonathan Baxter. National morale had already been starting to crack before more than 80 attendees sat down for dinner at the Clifden Station House Hotel. As a result, this was never going to be a story that could be waited-out and wished-away. Yet that is exactly what one of Ireland’s most influential politicians has been manoeuvring towards. In the first three months of the pandemic, Irish people were among the most positive in the world in rating their government’s response to the crisis. A large part of that was due to the trust and credibility that Leo Varadkar and Simon Harris generated. It was impressive. So often criticised as elitist and out of touch, Fine Gael had managed to position themselves as the guardians of the people. There were mistakes and disapproval but never enough to bring the position of the government into question. When British anger erupted over Dominic Cummings in May, there was some gratitude that we in Ireland did not have to suffer such a personality. That has now changed with Fine Gael’s Phil Hogan and his stuttering three-stage response to fury over his choice to attend the Oireachtas Golf Society dinner in Galway. His initial statement included no apology, instead diverting blame to the Irish Hotels’ Federation. The lack of personal responsibility – so emphasised by public health frontmen Dr Tony Holohan and Dr Ronan Glynn – was evident and damning.  His second response was a textbook political non-apology, stating he apologised “for any distress caused by his attendance”. This artful placement of “any” instead of “the” was another refusal to meet public anger with a real, direct and humble apology. It was a simple but deliberate choice, and one which has no favourable interpretation. On Sunday, Hogan issued a third statement and second apology. This time he apologised “fully and unreservedly”, stating his actions “touched a nerve” and that he was “extremely sorry”. It seemed he was on the right track. It was inevitably too, he said, “fulsome” a word that is so widely misused that most people have forgotten it means insincere. But then came the choice to state that he recognised “the issue is far bigger than compliance with rules and regulations and adherence to legalities and procedures.” Within that is a subtle suggestion that he had not broken any rules. Even if that were true, the need to include such a point is another example of hubris on Hogan’s part. Very few politicians are willing to jump before they’re pushed and resign out of a principled acknowledgement of wrongdoing. Hogan is not unusual in that respect. But there is a tipping point when the consequences of not resigning are greater than any benefit of staying on.  The intervention by Michéal Martin and Leo Varadkar in asking Hogan to “consider his position” was initially significant but later recast. On RTE Radio 1’s Sunday ‘This Week’ programme, Varadkar said Hogan must apologise, explain himself and – only if the explanation was wanting – consider his position. Antagonism was waning where it mattered.  Retribution was quick for others but Hogan is prevaricating.  He doesn’t want to step down, either because he feels he doesn’t need to or his importance in the European Commission is too great. But ultimately the Trade Commissioner is prevaricating because he can. Big Phil is too big to fail. Fianna Fáil backbencher Jim O’Callaghan suggested to This Week that the balance lay with retaining his expertise where it was unlikely any Irish replacement for him would retain his portfolio. This seemed to be weighing apples against oranges: ethics against pragmatism. Micheál Martin’s stance too was unclear or at least without vigour. The Irish Times, whose views on these things is respected among some of the people who will take decisions on Hogan, seems on balance to be suggesting the Big Man should go. The calculations for Hogan’s fellow attendees Dara Calleary and Jerry Buttimer, or at least their respective parties, was clear. They were not going to get out of this scandal intact and offered what they thought was a proportionate sacrifice in resigning from an elevated position in the Oireachtas. While both remain in place as elected representatives, they have lost their offices. The public has been satisfied. The position is different with Phil Hogan and Supreme Court judge Séamus Woulfe who, only appointed to the highest judicial authority in July, also attended the dinner. Separation of powers make a government move against Woulfe unrealistic while Hogan has no title or role within the Oireachtas to resign from.  Beyond their signal to the public that Hogan’s action were unacceptable, neither Martin or Varadkar hold much power over Hogan. Varadkar could expel him from Fine Gael but, as European Commissioner for Trade, Hogan serves the EU, not the appointing member state. The real power over Hogan rests with his boss, European Commission President Ursula von der Leyen. Technically dismissal requires an adjudication of the European Court of Justice but no-one believes that he would not jump if von der Leyen demanded it. At that point, even the most stubborn and arrogant politician would have no option but to resign.  At the time of writing and according to high-ranking sources, the Irish government is awaiting Von der Leyen to receive the trade commissioner’s report before deciding on Hogan’s future. Her decision will have to take into account that Hogan appears to have lied about observance of national quarantine restrictions. His European Commission spokesperson initially said compliance was complete but it now emerges he returned to locked-down Kildare to collect “personal belongings and essential work documents”. Why did he need to do this? It is implausible he could not have taken his work material with him when he left pre-lockdown Kildare for Kilkenny. And that is to assume some significant purpose of his return was genuinely work-related.  The EU has an acuter eye for

The current political administration in Britain attacks the Civil Service (by cull) and the Judiciary (by murmuring) while tightening the grip of the Executive, particularly through unelected advisers and ‘specialists’. By Christopher Stanley For readers of Village the names of Gina Miller and Shamina Begum may not immediately be recognised. They are two women with British citizenship. That is probably all they have in common. But both have made headlines in the British press by way of their (ab)use of the courts. They have atttracted notoriety within parts of the British media and have now provoked the hositility of the  Conservative government or rather its Executive (right) wing in the Cabinet Office. Their actions may have dangerous constitutional consequences, not by any fault of their own but by the reaction of unelected officialdom (SPADS), including media commentators (The Daily Telegraph and The Spectator) and right-wing think-tank ‘influencers’ (intellectuals) such as Policy Exchange.  My last post for Village examined an apparent  constitutional ‘crisis’ in Britain. This ‘crisis’ was presented from the perspective of “The Narrow Ground” of Northern Ireland. However, it was also written as a warning to other advanced democracies tempted to tamper with the constitutional machinery of their systems of governance and also to identify emerging trends in the governance of complex societies under threat from ‘emergency’ situations including terrorism, fiscal downturn and pandemics.  For Northern Ireland, any tinkering with the British constitutional settlement (actually English constitutional convention within a devolved jurisdictional structure) must be considered in terms of The Belfast/Good Friday Agreement 1998 (GFA98), the expectations of all people in Northern Ireland and the current political arrangements including the maintenance of the security of what is a politically and economically fragile society.  A semblance of stability at Stormont has only recently been restored.  Northern Ireland has its own ‘particular circumstances’ and within the fabric of its society is a commitment to human rights and the Rule of Law, of which the judiciary are the principal guardians.  I have been critical of the most recent Whitehall proposals for Northern Ireland which, if implemented, would, I suggested, undermine the commitment to human rights and the Rule of Law for Northern Ireland. These proposals could lead to valid legal challenge (or disruptive ‘political litigation’?), dissent and fracture (see: The Pall is Lifting written for readers of Village). As ever Whitehall-thinking and Westminster-ideology ignore the subtleties required to secure the peace process in Northern Ireland. [i] Where do Gina Miller and Shamina Begum figure in this view from The Narrow Ground? In short, their cases are being used as an excuse by the Conservative government to reign in “excessive” judicial power. This is part of a process of radical response to the apparent constitutional “crisis” which, if implemented, would further increase dominance by the Executive over the Legislature (Parliament) and the Judiciary.  This is happening on the false pretext of restoring Parliamentary Sovereignty which is the none too subtle sleight of hand within an Elective Dictatorship by which the roles of Parliament and the Judiciary within the dynamic of the Separation of Powers are dangerously diminished, undermining accountability and transparency by limiting scrutiny of Executive discretionary powers. It severs the trust – the fiduciary relationship – required between those who govern and those who are governed and blurs government for the public good, needed now more than ever in an era of uncertainty and emergency.  [ii] Why should Westminster Politicians and Whitehall Ministers, Civil Service Mandarins and Cummings-Type SPADS be careful when Murmuring Judges?  Murmuring judges is an offence in Scottish law (called Scandalising Judges in English law) and is the act of causing offence to judges, accusing them of corruption – or indulging in judicial overreach (See: BBC News 10 12 2012). Judicial overreach or the exercise excessive judicial power is the present scourge of some in the current British government, of their advisers and their friends in right-wing neo-liberal think-tanks such as Policy Exchange whose express role is Protecting the Constitution: “The rise of judicial power in the UK in recent years is a striking change in our constitutional arrangements – in how we are governed – a change that threatens good government, parliamentary democracy, and the rule of law. The expansion of judicial power is a function both of Parliament’s decision to confer new powers on courts, most notably by enacting the Human Rights Act 1998, and of the changing ways in which many judges, lawyers and scholars now understand the idea of judicial power. Parliament is responsible for maintaining the balance of the constitution and should restate limits on judicial power, restoring the political constitution and the common law tradition.  The Government has been elected on a manifesto commitment “to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts”, to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government” and to “ensure that judicial review … is not abused to conduct politics by another means or to create needless delays” (page 7). Gina Miller’s ‘offence’ was (on two occasions) to challenge the British government regarding exiting from the EU. On both occasions the UK Supreme Court (UKSC) upheld her application.  In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 the court ruled that fresh legislation had to be enacted before the Government could trigger Article 50 and begin the process of the UK leaving the EU.  In Miller (No 2) [2019] UKSC 41 following the prorogation of Parliament — a step formally brought about by the Queen on the advice of the Prime Minister — the court was ask to determine whether that advice, and the resulting prorogation, was unlawful.  The court held that the issues raised by the case were properly justiciable and concluded that the advice and the prorogation were unlawful.  The UKSC held that the prorogation prerogative does not extend to a situation where a fundamental constitutional principle would be impinged upon without a reasonable justification.  Shamina Begum’s ‘offence’ was more straightforward. She is a British-born woman