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    Eden not Apocalypse: a golden future for investigative journalism.

    By Gerard Ryle. I was at a global conference in Rio late last year listening to Glenn Greenwald declare journalism in a “golden age”. Greenwald is the reporter credited with breaking the Edward Snowden story. He said the profession’s largest institutions are experiencing tough times because of the changing way people consume news. This was not something to be sad about – rather we should be happy about it. “The media institutions are failing and it’s a great thing to celebrate”, he said. Journalism isn’t dying. It’s thriving and just going to other places.” At the same conference, the day before, David Leigh also declared that journalism was in a new “golden age”. Leigh is the recently retired investigations editor of The Guardian newspaper, the paper that first carried the Snowden stories. Leigh’s argument was this. It is a golden age because investigative journalists are coming together in new forms of collaborations using fresh technology. And this dynamic is producing unprecedented levels of transparency and impact. “We are in the age of collaboration”, Leigh said. The Guardian has been involved in three of the biggest such investigative projects in the last three years. Leigh cited the Wikileaks collaboration that released hundreds of thousands of secret US diplomatic cables; the most recent Snowden disclosures of secret data collection by the US National Security Agency; and a story that I was involved with that broke worldwide in April 2013 that has since become known as Offshore Leaks. Once upon a time in Australia a man came along who claimed to have invented a magic pill. You put this pill in your motor vehicle and suddenly your fuel lasted 20 per cent longer. What’s more, the pill managed to eliminate all of the toxic emissions. The Australian Trade Commission wanted to believe so badly it had an entire section of its website devoted to the success of this company. The company got nearly €300,000 in taxpayer grants for sales that had never been made.It had no factories; it had no trucks – in fact, it had no actual product for sale at all. But it had penetrated deeply into Australia’s elite. Many of them secretly held shares in the company and they too thought they were going to be rich. So when I exposed all this as a fraud I spent my time defending the lawsuits, attacks in the Australian senate and I went through the despair and doubt that all investigative reporters are put through when powerful people don’t want something made public. This firm had been sending the money it was getting from selling shares to the British Virgin Islands and to other tax havens and then bringing the money back to Australia, as if it were sales of the magic pill. As long as new investors could be found, and the price of the shares continued to rise, the game went on. It continued for nearly 18 months even after I exposed it as a fraud, until finally the company stopped paying the lawyers who were suing me. By then I realised that I was staring at something much bigger – a secret universe that allowed this kind of thing to happen. And my pill company was only a small part of it. After I wrote the book about the magic pill, a mysterious package arrived in the mail. It was a computer hard-drive – the kind you can buy in any store. But this one was packed with a hoard of documents – the biggest stockpile of inside information about the offshore tax haven system ever obtained by a journalist. We are talking 2.5 million secret records. The total size of the files, if you were to measure it in gigabytes, was more than 160 times larger than the U.S. State Department documents given to Wikileaks. There were 120,000 clients from all over the world, from nearly 170 different countries. There were Americans … Russians … Irish. But this presented me with a dilemma: I had spent most of my career as an investigative reporter. We fiercely protect our secrets, at times even from our editors because we know that the minute they hear what we are working on they want it right away. To be frank, when we find a good story we also like to keep the glory for ourselves – but it’s funny how life sometimes throws up opportunities in batches. A few months after I got the hard drive in the mail, I got an email from my old professor at the University of Michigan. He was on a board that ran an outfit called the International Consortium of Investigative Journalists. This is a non-profit organisation headquartered in Washington DC that oversees some of the best investigative journalists in the world.It brings them together to work on cross border projects. He told me they were looking for somebody new to run the network – how did I fancy living in Washington for a few years? And the data I had was a total mess and extremely hard to read. It contained nearly 30 years of records taken from people who set up offshore accounts for clients. Going, sometimes four deep, into each of these folders I found emails, random PDFs with passport and home addresses, and spreadsheets with the names of thousands of clients. I began doing what many other reporters would do after me. I began looking for big names. But the story I was looking at was not about big names. The real value of what I had was an unprecedented look into a secret world. The same secret world I had a glimpse of when I was researching the magic pill. This is a world whose very product is secrecy. That’s what it sells. And this anonymity allows some individuals and corporations to gain tax advantages not available to average people. It allows frauds like the magic pill company. It can also pit economies and entire nations against one another. You just have to

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    Women are not vessels: Labour should seek repeal of the Eighth Amendment

    Ivana Bacik This summer we saw yet again the tragic consequences of the eighth Amendment. In the Ms Y case, a young rape victim, an asylum seeker with a crisis pregnancy, was denied the abortion she sought, and ultimately forced to endure invasive medical procedures against her will. She had sought an abortion early in her pregnancy but was unable to travel abroad for one. She became suicidal, but it appears that her pregnancy was only diagnosed formally as posing a risk to her life too late for an abortion to be performed. Instead, the baby was delivered by C-section at about 25 weeks. Not all the circumstances are clear, and the HSE is currently reviewing the case. However, it is manifest that this appalling case is a direct consequence of the 1983 eighth Amendment. That amendment enshrined Article 40.3.3 in our Constitution, giving equal rights to life to both “mother” and “unborn”. In the 1992 X case the supreme Court interpreted this Article to mean that a rape victim was entitled to an abortion only where the pregnancy posed a “real and substantial” risk to her life. Abortion is thus only lawful in Ireland where a pregnancy poses a risk to the life of a woman, and not on any other ground; not rape, nor risk to a woman’s health, not even fatal foetal abnormality. Our law portrays women as vessels, forced to carry unwanted pregnancies to term. But that’s not the reality for most women in hypocritical Ireland. In 1992 we amended Article 40.3.3 to allow the right to travel for abortion. So we have a two-tier regime. Women who can travel abroad to terminate their pregnancies do so in their thousands every year. Last year 3,679 Irish women had abortions in British clinics. since 1983, more than 150,000 women have made that journey. We may have the most restrictive law on abortion in europe, but the Irish abortion rate is comparable with that of every other EU country. Abortion is only denied to vulnerable women unable to travel due to poverty or legal status – like Ms Y. The adoption of Article 40.3.3 has not prevented one crisis pregnancy. Yet legal change – even legislation to implement the X case – has been resisted by the powerful anti-choice lobby for decades. The Labour Party had promised this legislation and the Protection of Life During Pregnancy Act was finally introduced at our initiative last year. The debate on the legislation was overshad- owed by public outrage at the tragic death in October 2012 of savita halappanavar, which highlighted the urgent need to provide clarity on the carrying out of life-saving abortions. The Act does this but deals only with the most extreme cases, involving risk to a woman’s life. This is due to the restrictive wording of the eight Amendment, which has effectively tied the hands of the Oireachtas for 31 years. It is our duty now as legislators to address the health needs of women by holding a referendum to repeal the eighth Amendment. Only then can we introduce the compassionate legislation that is the norm throughout the EU, in which abortion is made available on a range of grounds up to specified time limits within pregnancy. There is clear public support for this. The silent majority are well ahead of politicians on this issue, despite the strident “pro-life” lobbyists. Labour has long taken liberal stances on social issues. In line with this tradition, I believe that Labour should now seek political agreement for a referendum to repeal the eighth Amendment within the remaining term of this Government. If Fine Gael do not agree to this, then a consultative group should be convened to recommend how to achieve the necessary Constitutional change. A referendum could be held early in the term of the next Government, if a responsible political consensus could be built on such a recommendation. As we learn the distressing facts about Ms Y’s case, one thing is clear: if we do not change the law, we will see more tragic cases. Only repeal of the eighth Amendment will enable us to enact an abortion law that meets the real health needs of women in Ireland.

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    Economic hopium for the masses

    The Interloper: Ireland’s national accounts extraordinarily manipulated. By Constantin Gurdgiev.   Since the publication of the second quarter 2014 (Q2 2014) National Accounts on September 18th, Irish media have virtually abandoned any critical assessment of the economy in a fog of fawning, culminating in some wayward demi-jubilation over the Budget. The ‘crisis easing’ narrative of the past has now turned into an unrelenting celebration of the ‘Celtic Phoenix’. Evidence of mortgage and utilities-payment arrears, and the rising numbers of those who find it difficult to meet their monthly groceries bills has been swept away by cheering for the official statistical releases.   Recent commentary by Central Bank Governor Patrick Honohan is revelatory. Data published by the Central Bank show that over 40 percent of ‘permanently restructured’ mortgages remain in arrears after restructuring. Despite this, the Governor claimed that some 80 percent of all restructurings were a resounding success.   The nation has been well prepped for this confidence turnaround. Years of unrelenting bad news, rising tax burdens and cuts in public services have tolled. Like a drunk told by his doctor that he has cirrhosis, Ireland needed a bottle of ‘good news’ to drown its sorrows.   The intoxicating power of rising home prices and torrents of feel-good press-releases from Government Departments and the commentariat have done the trick: the nation has pushed aside its indebted and insolvent, its poor and homeless, its tax-hit middle classes struggling to pay their bills and the unemployed. A new story – a tale of our mythical revival – fuels our imagination. Much of this is hopium – a PR ‘drug’ for confidence.   Consider our national accounts. Ireland was one of the first countries in the EU to switch from the the ESA 95 to the ESA 2010 accounting framework back in Q1 2014. This means that we started including estimated illegal economic activities (sales of drugs, stolen goods, prostitution etc) as a part of our official GDP, GNP, Gross National Income and domestic demand. We also reclassified R&D spending by companies, including Multinationals (MNCs), and state enterprises, as investment. Under previous standards, R&D spending was treated as a business cost, not adding to the economic activity until it generated actual returns. Now, R&D is labelled as investment and thus counts fully for national income irrespective of whether it produces anything meaningful in the end or is simply written off as a loss.   According to the EU Commission, just three companies account for almost 70% of all R&D ‘investment’ in Ireland: Accenture (31%), Covidien (24%) and Seagate Technology (15%). So R&D inclusion simply introduced more MNC-driven statistical noise into our aggregate figures. The effect of these accounting changes was not immaterial. Overnight, 2013’s GDP was boosted by €10.6 billion or a whopping 6.5 percent. With it, the entire informational content of the national accounts has become unprecedentedly muddied. As actual Government debt continued to climb, the debt-to-GDP ratio fell from 123.7 percent to 116.1 percent. The Government deficit shrank from 7.2 percent to 6.7 percent. Thanks to statistical gimmickry, we were made richer than before without adding a single cent to our actual purses.   Then the preliminary Q2 2014 estimates rolled in with even more aggrandised revisions and upgrades to national income. In nominal terms, in H1 2014, personal expenditure on consumer goods and services was up 2.9 percent on the same period in 2014. Still, even with the illicit activities factored in, our nominal consumption over 3 years went up less than 1.5 percent. Not exactly booming.   Government spending went up 0.2 percent year-on-year yet is down 0.8 percent on H1 2011. In other words, post-austerity spending is basically flat. Out-performing its own Budget 2014 targets, the Government is now presenting a rising tax take capable of funding interest costs on our debt as a sign of economic strength.   Gross Fixed Capital Formation is also booming, officially. Much of this is, once again, thanks to reclassifications and tax-optimisation by MNCs and the notorious rise in corporate inversions. In H1 2014 €98 billion worth of mergers and acquisitions deals were announced involving ‘Irish’ companies. Virtually all related to ‘inverted’ US MNCs superficially registered in Ireland.   Vulture funds and other institutional investors continued to sieve the rubble of the Celtic Tiger, buying up property in the hope of flipping it in 1-2 years time. This too counts as investment, even though it sustains nothing more than a handful of legal jobs and NAMA employment rolls. All in, gross investment officially recorded in the national accounts saw a rise of 13.3 percent year-on-year in H1 2014 and is now running 7.2 percent ahead of H1 2011.   With the help the above factors, year-on-year, Irish GDP rose a jaw-dropping 5.7 percent in H1 2014 in nominal terms or €4.86 billion. Three quarters of this is due to tax- and property-linked ‘investments’, higher stocks of goods held by companies and net-exports expansion. One quarter is attributable to the real domestic economy, including illegal-activity adjustments.   To paraphrase Dirty Harry: “Are you feeling rich, punk?”. The Irish Government has been quick to claim wild numbers in new jobs creation: from 60,000 in Q1 to 71,000 in Q2.   But things are not as they seem. In Q2 2014, year-on-year, non-agricultural private-sector employment in Ireland rose by 21,400. Not bad, but far from what is emitted as political sound bites. Worse, since the current Government came into office, total non-agricultural employment has risen by only 24,700.   Of course, a job added is better than none. And the number of officially unemployed is down 66,000 on Q2 2011. But the number of retirees is up 52,200. Everyone knows there have been plentiful early retirement schemes across the economy but it is important to note that retired workers are not being replaced one-for-one with new ones. This explains why in Q2 2014 the Irish labour-force participation rate was running at 60.0 percent, which is lower than 60.5 percent three years ago.   The

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    Eurout of line on the environment

    European Parliament should block Juncker’s shocking attempt to undermine EU environmental policies. By James Nix   As currently proposed, the EU Commission would, for the first time in more than two decades, have no dedicated environment Commissioner. Instead environment is rolled in with fisheries and maritime to make up one of what are essentially 20 sub-Commissioner roles – under Commissioner Karmenu Vella. Its role will centre on deregulation. Merging climate and energy and then putting this (sub) Commissioner under a Vice-President for Energy Union implies that climate action is considered subordinate to energy-market considerations. Legally and practically, what new Commission President Jean Claude Juncker has done is quite revolutionary. Instead of 27 Commissioners, all on a par, under one President, Juncker has appointed a ‘first’ Vice President (Dutchman Frans Timmermans), High Representative for Foreign Affairs (Italian Federica Mogherini) and five Vice-Presidents. These seven plus Juncker himself form a team of eight that arches over 20 sub-Commissioners. Each of these 20 subordinates is to report in to a given Vice President – their line manager. Critically, no legislative changes can be promoted by any sub-Commissioner without the approval of the supervising Vice President. Specifically on the environment, legislation “will now be the responsibility of the Vice-President for Jobs, Growth, Investment and Competitiveness, who does not have the environment mentioned in his mandate” notes the Green 10, an alliance of European environment organisations. “Since the environment is completely absent from the priority list, and no Vice-President is charged with promoting it, this means a de facto shut down of EU environmental policy-making”. With this downgrading, Juncker has decorated the stage for a serious subversion of existing EU commitments to sustainable development, resource efficiency, air quality, nature conservation, climate action – and health protection. Juncker’s changes come in spite of a Eurobarometer poll in September showing that notwithstanding the economic crisis, 95% of 28,000 citizens interviewed said that protecting the environment is important to them personally and that more should be done. The survey shows no public demand for environmental deregulation. Yet Juncker’s vision effectively scraps the 7th Environmental Action Programme, a legally binding commitment negotiated and agreed by Commission, Member States and European Parliament only a year ago. Juncker’s plan to take responsibility for relations with the European Chemicals Agency, whose job is to protect European citizens from harmful chemicals, out of the Environment portfolio, where it now lies, and add it to Enterprise shows a clear bias towards prioritising business interests over human health and the environment.   The many conflicts of Miguel Arias Canete, Commissioner designate for Climate & Energy Miguel Arias Canete, a member of Spain’s Partido Popular, was nominated to the newly-formed post of EU Climate and Energy Commissioner in mid September. During his tenure as Spain’s Minister for Agriculture, Food and the Environment from 2011 to mid 2014, Canete and his family controlled 80% of the shares in two oil companies. Yet part of Mr Canete’s environment brief in Madrid was to tackle climate change. When both oil companies secured public contracts, as they did in 2011 and 2008, Mr Canete did not include this in his declaration of interests, which was an illegal omission. After his non-declaration was exposed, Mr Canete claimed he was not aware that the oil companies had secured the contracts. In light of the size of the state contracts, and the 80% family stake, it’s a very difficult claim to sustain. Asked at the Commissioner hearing if (just after the recent share-selling) if his brother-in-law now controls both oil companies, Canete ducked the question arguing: “given that my wife and children are not involved [any longer], I have no conflict of interest”. Essentially, Canete’s pitch is that a brother-in-law doesn’t fall within the meaning of “family” for the purposes of declaring conflicts of interest – even if Canete himself was the one that handed over the reigns of control to his wife’s brother. But strategically, Canete’s move is cute: if the financial interests of the in-laws of all senior politicians were considered, it would open a Pandora’s Box, and he knows it. Shortly after the nomination, the Green 10 wrote to Juncker asking him to “resolve potential conflicts of interest for the nominees, and notably for the Climate and Energy portfolio”. It was not until 16 Sept, a week after his nomination as Commissioner designate for Climate Action and Energy, that Mr Canete pledged to sell his €437,000 of shares in two oil companies. And it was some days after that again that Mr Canete affirmed that his wife and son would also sell their stakes. Largely ignored in the coverage of the controversy, Canete has had to be pressured at every turn before starting to address his conflicts of interest. Mr Canete’s form stretches beyond energy. His record at home explains the strength of passion behind MEPs from green and left-wing parties as they posed questions to Canete at the recent hearing. While his wife ran a bull-breeding business, Canete pressed to have the EU’s system of agricultural subsidies (the Common Agricultural Policy, or CAP) extended to cover bull breeding. In the four years to 2012 Mr Canete’s wife received more than €615,000 in CAP payments. This money related not alone to bull breeding, but also to her large number of landholdings; Ms Canete benefits from having split up her farm into nine parcels just before changes in the CAP made such sub-division financially advantageous. Her husband says he recused himself from the making of these decisions. Then there are the revisions to Spanish environment law. In drafting law to regulate development on the Spanish coastline, Mr Canete invited industry to meetings when the legislation was being drawn up. At the same time, he excluded civil society from the process – including Spain’s own regional authorities and those working on the issue across Spanish universities. The law has exacerbated coastal vulnerabilities. Many beaches have already been compromised and Spanish NGOs say Canete has set a trail of destruction in train.

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    Penalising lone-parent employees

    By Caroline Fahy. In July 2014, over 5,000 recipients of the One Parent Family Payment (OFP) lost the payment. This was as a result of the decision announced in Budget 2012 to restrict eligibility for the OFP to those parenting alone whose youngest child is aged seven or under. Minister for Social Protection, Joan Burton TD, highlighted two reasons for the decision. The first was the high rate of poverty among lone parents in spite of considerable expenditure on social welfare. The second was the desire to support lone parents getting employment, in order to tackle poverty. One-parent families have the highest rates of poverty and deprivation of any family type in Ireland with 29% at risk of poverty and almost 50% experiencing basic deprivation. The need to address poverty among those parenting alone is clear. However, this measure will actually make it more difficult for them to take up employment, education or training opportunities. This is because they will no longer have access to the features of the OFP which were designed with the additional needs of those parenting alone in mind. In response to this concern Minister Burton stated at the time that the change would not be implemented before the introduction of a safe, affordable and accessible childcare system, similar to that available in Scandinavian countries. There has been some increased provision of childcare and afterschool care places targeted at low income families. However, provision still falls far short of a Scandinavian system of childcare. In spite of this, the changes to the OFP have now proceeded as planned. The loss of the OFP will be most keenly felt by lone parents who are already in employment. A lone parent, by way of example, who is earning €200 per week net income and is combining part-time employment with the OFP and Family Income Supplement will have a loss of income of around €70 per week. This is in spite of an increase in the Family Income Supplement payment, which, while vitally important, is not enough to compensate fully for the loss of the OFP. It is likely that this loss of income will make it impossible for some lone parents to stay in employment. This cut comes on top of the other significant cuts to incomes and services that have particularly targeted lone parents. Lone parents who wish to take up education or training opportunities will also struggle due to the loss of the OFP. The payment can be claimed by those parenting alone and undertaking education or training courses, along with a student maintenance grant. Those who lose the payment but who wish to take up education or training will now have to claim the Back to Education Allowance. This cannot be claimed at the same time as a student maintenance grant. This further disadvantages lone parents on low incomes with limited resources and high levels of caring responsibilities. It will be too much for many who will now not take up education and training opportunities as a result. The loss of the OFP when the youngest child turns seven years old will undermine Government’s stated objective of supporting those in jobless households and assisting families in low paid work. The development of a system of quality childcare and afterschool care that is affordable and accessible would have supported the Government’s objective of tackling poverty and joblessness. Such a system would have provided real support to all parents, particularly those with low earnings potential, to enter and remain in the labour market. Long term, passive recipiency of a social welfare payment is in no one’s best interests. However, penalising those lone parents already in employment and making it more difficult for those who might be considering taking up employment, education or training makes no sense. •

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    Tax cuts in low-tax Ireland won’t benefit the needy

    By Sinead Pentony. Preparations for Budget 2015 are under way. As with previous budgets, the Government has choices it can make in meeting the requirement to reduce the deficit in the public finances to less than 3% of GDP in 2015. Unfortunately, there are no such self-imposed or externally imposed requirements to reduce inequality and poverty, or to provide a reasonable standard of living for all families through the creation of good jobs with decent pay and the provision of high quality public services. Such a requirement would result in a very different budget. The Government indicated in the April 2014 Stability Programme Update that it is planning a €2 billion fiscal consolidation in the October budget to achieve the 3% goal based on a range of tax increases and cuts in public spending. The mood music from Government now suggests that the adjustment may be somewhat less than €2 billion. The tax take is running ahead of target and spending is down. Both indicators have been helped by an expansion in economic output, a modest reduction in unemployment and growth in employment. This means more people are working and paying tax and fewer people are claiming social welfare. Growth in the economy is the key driver of economic recovery and deficit-reduction. The Department of Finance has forecast the growth rate for 2014 and 2015 to be 2.1% and 2.7%. The Nevin Economic Research Institute (NERI) growth estimates are 2.1% and 2.9% for 2014 and 2015, respectively. The ESRI is more optimistic and puts growth for the same periods at 2.6% and 3.5%. Growth in the economy appears to be taking hold. On the basis of positive trends in key economic indicators, we are approaching the territory for a (near) neutral budget to take us over the line of achieving the deficit-reduction target of less than 3%. However, the European Commission, the IMF and the Irish Fiscal Advisory Council have all called on the Government to stick to an adjustment of €2 billion to meet the deficit-reduction target and to accelerate a reduction in overall debt to a more sustainable level. However, these calls fail to take account of the impact of imposing further austerity on equality, poverty and living standards. Whatever the size of the adjustment, it will be made up of a combination of tax/charge increases and cuts to public spending, with the emphasis being placed on cutting spending. To date, over €32 billion has been taken out of the Irish economy, two thirds of which has been achieved through cuts in public spending and one third through taxation measures. Successive austerity budgets have had a negative impact on the vast majority of household incomes and living standards. Charts 1 and 2 show the ESRI research measuring the impact of tax and welfare changes across the income deciles (or groups) for Budget 2014 and cumulatively over the last four years. In Budget 2014 the lowest income group lost proportionately more income than any other group. Over the last four years the two income groups worst affected were the very highest earners whose income fell by over 15% and the very lowest earners whose income fell by over 12%. It is important to remember that the lowest income group has the least capacity to absorb a reduction in income compared to the highest income group. The ESRI analysis looks only at income, and does not quantify the impact of decreases in public services, on which lower income groups are more likely to depend, which have a further regressive impact on the lowest income group. Income inequality is measured by the Gini coefficient and the income quintile share ratio. Ireland is close to the European average for both measures. However, at EU level, the overall trend is towards growing income inequality. In Ireland income inequality has remained relatively unchanged between 2007 and 2012 but this has to be understood in terms of the critical role of social welfare in addressing poverty and protecting incomes. Income data alone do not tell the whole story concerning living standards. Poverty and deprivation levels have been rising consistently since 2009 and the latest figures show that 16.5% of the population (756,591 people) is considered to be ‘at risk of poverty’ (income below €203.70 per week per adult). The level of deprivation now stands at 26.9% (1,233,472 people) and has almost doubled since 2008.  Households experience deprivation when they are excluded from consuming goods and services which are considered the norm for other people in society e.g. keeping a home adequately heated or having a roast-meat dinner once a week. What budget options exist that will allow us to meet the 3% deficit reduction target next year, promote growth in the economy, reduce inequality and poverty and improve living standards? Various lobby groups, and a large proportion of mainstream commentators, are saying ‘it’s time for a cut in income tax’. This does not bode well for equality and poverty reduction. While a cut in income tax would bring some relief to average income earners, it is unlikely to benefit those in the lowest income groups, as the vast majority do not earn sufficient income to benefit. A cut in income tax would put further pressure on our public services, which are funded through taxation. Lower income groups are more dependent on public services and further cuts would have a disproportionate effect on these groups. Finally, a cut in income tax is likely to be offset by increases in taxes or charges in other areas such as VAT which have a disproportionate effect on lower income groups. It is important to remember that Ireland’s total tax take, including social security contributions was 28.7% of GDP in 2012, which was well below the EU average of 39.4%. Public expenditure was 42.7% in 2012, which is also well below the EU average of almost 50%. It is the high tax and spending countries of Europe that are the most competitive economies. In terms of putting more money

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    Aarhus: State drags feet on legal costs in environmental cases.

    By Kieran Fitzpatrick. The Aarhus Convention aims to protect the environment and proclaims the public to be the best guardian of the environment. There are three strands to the convention: 1) Access to information; 2)Public participation; and 3) Access to justice to review environment-related decisions or to enforce environmental law. Ireland was the last member of the EU to ratify Aarhus and became eligible for ‘Communications’ subsequent to October 2013. This delay comes from the apparent reluctance of the Irish government to deal with the issue of prohibitive legal costs. The EU Commission prosecuted Ireland in 2007 for failing to comply with an Aarhus-related EU directive. The European Court of Justice (ECJ) ruled in 2009 that Ireland had failed to ensure that legal costs (relating to environmental legal actions) were not prohibitively expensive. Special Costs Regime – Catch 22 Ireland responded by passing legislation in 2010, the effect of which was to alter the legal-costs rules from the prevailing English Rule (losing litigant pays winner’s costs) to the American Rule (each side pays their own costs) for legal actions that relate to an EU directive implementing certain Aarhus compliance measures. Ostensibly, the special costs regime (SCR) means that a party could at least represent herself, without being threatened with a huge adverse legal costs bill, if she failed in her legal action. However, there is a Catch 22 in the SCR. To determine that a civil action falls under the ambit of the SCR, the applicant must risk an adverse legal costs award in making the application for such a declaration. This trap became stark in one case – an application by Dymphna Maher to the High Court in 2012. Judge Hedigan in refusing the application effectively said that the Catch 22 arguably “acts in such a way as to nullify the State’s efforts to comply with its obligation to ensure that costs in certain planning matters are not prohibitive”. The SCR can be scuppered if (i) the claim is frivolous or vexatious, (ii) the applicant conducts her litigation in a manner disapproved of by the court, or (iii) the applicant acts in contempt of court. The second of these conditions introduces a huge level of fear due to the lack of clarity as to how this sanction might be implemented. The third item, “contempt of court”, also introduces uncertainty, as became evident in the European Court of Human Rights (ECHR) case of The Sunday Times v UK [1979] (the Thalidomide case). The UK introduced “contempt of court” legislation in 1981 giving clarity to the various offences encompassed, but Ireland did no such thing. So Ireland’s attempt to comply with the 2009 ECJ decision against it, was to introduce a SCR with a Catch 22, plus other unpredictable adverse outcomes, any of which could leave an applicant with a life-ruinous legal bill. This hardly meets the ECJ’s demand that litigants be assured that costs are not prohibitive “with all the requisite clarity and precision”. In any event, the American Rule should not be seen as a complete solution to the problem of prohibitive legal costs for the following reasons: 1.    An applicant may not always have the wherewithal to initiate legal proceedings as a lay litigant. 2.    Many environment-related legal actions inevitably fall under the ambit of EU law, which can result in a reference to the ECJ. The rules of procedure of the ECJ require that any applicant must be represented by a lawyer before the ECJ. In these circumstances, an applicant must give consideration to the employment of a lawyer. Own Lawyer’s fees A litigant who hires a lawyer to represent her can be in a tricky position when she comes to deal with the legal bill issued by her lawyer, at the end of proceedings. If she receives a surprisingly high legal bill, she is left with two choices: (a)    Complain to the Law Society. The outcome of this process is generally not published; so it fails to comply with the demands of Aarhus that “Each Party shall …. establish a clear, transparent and consistent framework to implement the provisions of this Convention.”   or (b)    Avail of the Taxation process (or legal costs adjudication) for solicitor/own-client costs. However, this also lacks transparency and operates rules that are unfair to complainants: (i)    Unless the complainant can show that she has been overcharged by at least one sixth, she must pay the ‘costs of the hearing’. (ii)    The complainant must pay an 8% stamp duty, if she fails to prove she has been overcharged by one sixth. (iii)    There is no published database of outcomes so that a complainant is blinded as to what is a fair fee of her lawyer, and is left more vulnerable to being ensnared by the one-sixth rule. These rules illustrate the failure of government to bring in “a transparent framework” to constrain legal costs; arguably the most important demand of Aarhus. These pro-lawyer rules also violate “equality before the law” requirements as well as other human rights. Equality under law is broken on two grounds: first, a client is treated differently to a solicitor in the matter of a contractual dispute. Second, solicitors are treated differently to other professionals, such as doctors or dentists in their contractual right to be paid professional fees. Dentists, for example, don’t enjoy the deterrent effect of a “one sixth rule” plus an 8% stamp duty on their fees. Dentists cannot overcharge with any degree of impunity. The US Supreme court ruled that imposing different legal rules on one party to litigation as opposed to another party, particularly on arbitrary grounds, violates the equal-protection clause of the US Constitution (GULF v ELLIS [1897]). The “one-sixth” rule allows solicitors to overcharge clients  by about 17% with impunity (as costs of a hearing will likely be about 9% of adjudicated costs, plus 8% stamp duty), without any effective remedy – violating Article 13 ECHR in addition to Protocol 1 of the ECHR (relating to property rights). The above hurdles

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