Leaders
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How it started: A Fianna Fáil TD appearing on the national platform as low-key, unimpressive to the point of being insipid, and just a bit greasy. Yet this TD has the good fortune to own a residential property in Dublin City – that he himself doesn’t use, despite working in Dublin as a TD and Minister of State at the Department of Enterprise, Trade and Employment. He opts for other arrangements, perhaps commuting from his constituency of Longford-Westmeath, or availing of hotel accommodation within Oireachtas expenses provisions for elected members. This apartment is occupied by a tenant, therefore providing Robert Troy rental income, Case V, for tax purposes. Perhaps to assist with a mortgage payment, as Leo Varadkar himself might assume. The circumstances still make this TD and Minister of State the owner of an investment property for MARP / Mortgage lending regulations and enforcement, and a landlord requiring registration – and therefore regulation by the State through its Residential Tenancies Board. In addition to this rental asset, Troy has a separate business of property development, which is currently developing the site where this rental asset is located into new build residential units that have already been sold ‘off plans’ as it were. This makes residential property for investment a commercial activity for Troy alongside his day job as a TD, which is boosted by being appointed a Minister of State in the 32nd Government of Ireland. I’m sure you can see that Troy has not your everyday Form 11 return, and has interests to declare as a condition of him being a member of the Oireachtas. Here I add that Troy acquired a residential property from the Criminal Assets Bureau. The CAB themselves are required to ensure they sell off assets seized by High Court order to purchasers whose affairs are in order. Comprehensive due diligence would be required as to the source of the funds being used, to avoid money laundering: was it earned legitimately, for example, and is it tax compliant? The CAB may also require Garda Vetting before engaging in a material transaction with an individual. If it doesn’t, let’s now suggest that they should. Here’s why : what if the purchaser of an asset being disposed of by CAB has unpaid fines, or is the subject of a bench warrant? Both the CAB solicitors and those representing Troy would also be obliged to confirm the buyer was 100% compliant with all forms of AML and Tax and Rates regulations before proceeding to complete the conveyancing and close the sale. Even more so in this case, as this property was subsequently sold for a profit by Troy back to another wing of the State for the use of social housing – a wing of the state where he was in a governance position, immediately presenting a risk of influence. As the property was to be used as social housing, it needed to be inspected by housing officers to ensure the property was suitable, as well as surveyed and independently valued. The regulatory framework for Social Housing also requires that housing officers confirm that there is a need for that particular type of property in the area. All this is prepared as a type of purchase order request that gets submitted to the Housing Agency for approval to then acquire the property for the local housing department in Westmeath County Council – who, as it happens, must also complete an independent valuation. For the sale to proceed, council finance staff would be required to complete standard diligence checking before being set up as an approved supplier to the Local Council, typically the provision of a valid TC1 and that his source of funds were legitimately earned, perhaps ID confirming residential address, and a simple credit check to ensure he has no outstanding bills with the Council; refuse charges, for example. As Troy was a councillor serving in this local Council chamber, additional checks and balances would be required before entering into a commercial arrangement with an elected member of its Governance Level. Was it good value for taxpayer money? What oversight did the Finance Committee of the Council have, likewise the Housing and Budgetary Committees, and what approval process did the County Manager complete to ensure proper procedures were observed at all times? Standard checks and balances. With this level of activity in property trading, and very successful trading, it most certainly meets the definition of trading. Therefore subject to Income Tax and not a matter of Capital Gains Tax on the occasional one off / windfall events. When an official accepts a nomination to run for election and submits their candidacy to the appointed Returning Officer, they immediately commit to fitness and probity regime with their signature. That is a promise that gets underpinned with their Declarations to SIPO. There can be no errors. Otherwise applying that signature is worth nothing, and has the same reliability as a forgery. Applying his own signature brings with it a promise of integrity, and to uphold the best interests of his constituents and the State, over his own at all times. That’s governance. Errors and lapses in memory must come with significant sanctions, the type that make banks weep. Troy should have conducted due diligence on himself before accepting the role of Minister of State from his party leader, Taoiseach Micheal Martin, as he promised he was a person of exceptional ethical standards and watertight compliance. He can never be trusted to sign any Government document or legislation because he has put his own seal in doubt. He has no excuse. Neither do all the regulated lines of defence for the taxpayer all along the way from his first day as a local councillor. Which makes the questions we now pose, in response to the latest Ditch report on that failed transaction between Troy and his business and Westmeath County Council for four additional residential units for the purposes of social housing, all the more cynical.
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On most Saturday mornings I am incensed by the op ed piece by Charles Moore in the London edition of the Daily Telegraph. My wife questions why I continue to read him and allow my blood to boil over my tea and toast. Moore is like marmite (of which I am fond). Part of my anger is that the views of Moore on Saturday will be replicated by the red tops and tabloids on Monday. I made this point recently to an online discussion group organized under the title of ‘Democratic Backsliding’. I pointed out that I considered our concerns to be not about democratic backsliding but rather about constitutional backsliding: as (our) Englishdemocracy slides towards a constitutional abyss. This book review is offered to readers of Village as a further dispatch from the Village of Westminster. It is a further caution – as if politicians in Dublin needed reminded of it – of the dangers of constitutional erosion which can result in democracy metaphorically falling over a cliff. Whilst politics in Ireland has its own style of theatricality, both tragedy and comedy, both gore and slapstick, in England, and I specify England because of the devolved settlement (including that pesky Northern Ireland Protocol), we (the subjects) appear to be in the grip of a dangerous attack on the constitutional settlement: democratic backsliding. Constitutional backsliding is at the core of the analysis elegantly and persuasively presented by Sam Fowles in “Overruled: Confronting Our Vanishing Democracy in 8 Cases” through four themes – accountability, bullshit, centralization, and enfranchisement. (Bullshit: Statements that treat Truth as immaterial (page 8)). Fowles is anxious that “We have allowed principles that were once inviolable to become contestable” (page 7). A contested principle, such as power, means it is relational to other factors which in the present circumstances and era of English constitutionalism means living in a weakened democracy governed by an Elective Dictatorship from Downing Street serviced by unelected SPADS. That is some seismic relational shift in the constitutional settlement premised on John Locke’s Separation of Powers doctrine. The power to govern and the practice or art of government and governance are no longer accountable or answerable to the Judiciary and the Legislature, those institutions preserving the Rule of Law which serves to protect our democratic liberties and freedoms. The contested principles – the purposes of democracy – now serve those in/with power: the Executive not in Whitehall but in Downing Street. Power now means the delivery of the Democratic Mandate (the profoundly unread and obliquely drafted manifesto of pledges) in the interests of party supporters (read: donors). The Executive knows best in an expression of a venal paternalism corrupting the letter and the spirit of the received constitutional settlement through the erosion of those pesky checks and balances securing truth and accountability. Fowles “Overruled” is an antidote to the sophistry offered by Charles Moore when he is regurgitates the ideas of the right wing think tanks such as Policy Exchange – the SPAD academies. The problem is of how any alliance of adherents to the ‘Old Ways’ can assume and maintain credibility without becoming labelled precious liberal academics, money grubbing lefty human rights lawyers, champagne socialists quaffing at Glyndebourne, or hand wringing Liberals in Whig clothing, and pro-EU Guardian reading intellectual elites. Fowles is alert to this hostage to fortune which is why he is Counsel to the All-Party Parliamentary Group on Democracy and the Constitution and founder of the Institute for Constitutional and Democratic Research which informs the APPG. I declare a vested interest at this juncture. I am a public lawyer in a practice reliant in part on legal aid funding. I am a Fellow of the Institute for Constitutional and Democratic Research. I was the requester of file CJ4/6052 ‘Provisional IRA intentions and activities in Great Britain’ catalogued by the National Archives but retained by the Northern Ireland Office. My request is now reported as Christopher Stanley (KRW Solicitors) v Information Commissioner and Northern Ireland Office [EA/2019/0019]. Sam Fowles acted pro bono in this appeal. The case is discussed in Chapter of Six of “Overruled”. Therefore, I have had the privilege of working closely with the author. In a discussion on tactics – I think in the café of the RCJ – Sam introduced me to a blindingly obvious point (almost a syllogism): • National Security is inevitably deployed to prevent access to disclosure of information held by the State (as it was in this instance – attaching to a file of material generated almost half a century ago) • National Security is not defined by the State therefore its definition cannot be contested or subject to interpretation • National Security serves to protect the UK democracy under the Rule of Law. The principles of democracy include transparency and accountability. • Ipso facto National Security should facilitate transparency and openness through disclosure of information held by State and reasonably requested by a citizen when in the wider public interest. “A government which does not trust its citizens is always frightening” (page 127). Sam Fowles has been instructed in (even as a bag carrier) in eight cases (including the Article 50 Gina Miller litigation) which constitute the narrative of this book. Each case is an examination in the erosion of what I call constitutional ‘values’ and he callsconstitutional rights. These are the values-rights attacked by the likes of Charles Moore and the inhabitants of Policy Exchange. These are the values described by Moore as The Blob. I called them the Old Ways (in a nod to Robert McFarlane). Sam Fowles has articulated these values thus, which is more persuasive than my creaky Lockean yearning: “Constitutional rights are the most important thing we have because it is only by protecting our democracy that we can preserve and achieve everything else that is important to us in the political realm” (page 85). Constitutional rights/values reflect, and I think/hope Sam Fowles would concur on this, the demand for governance for and in the public
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