Politics

It is almost a decade since the beginning of the financial crisis which brought capitalism to the point of collapse. In the intervening years, working-class people have been forced to carry the cost of bailing out the system through various, vicious austerity programmes. Establishment political parties across Europe and the world have been greatly reduced, or almost wiped out, for implementing these measures. Now, as we enter 2018, the ‘line’ from the establishment and media is that we have entered a period of stability and recovery. However, for working-class people the key signifiers of the ‘recovery’ are precisely the issues which show that capitalism cannot deliver a decent standard of living for all and provide the space for movements and a socialist Left to grow. Politically, in Ireland, recent opinion polls have been heralded by right-wing commentators as a sign that everything’s ‘back to normal’. But it is a new ‘normal’, with the combined vote of Fianna Fáil and Fine Gael at best only hitting 60% but averaging out in the mid-50s, only slightly up on its historic low. Meanwhile, the Labour Party is stuck in the margin of error. The ‘centre’ isn’t as strong as it tells itself it is, and through movements on the streets can be forced into giving some concessions, solving the problems facing people we need a fundamental change of the system.   Housing The key crisis facing working-class people is housing. At the last count in October, 5298 adults and 3194 children were homeless and in emergency accommodation. 184 homeless people are forced into sleeping on the streets. Rents have rocketed and are expected to continue skywards for the next two years at least. Over 100,000 people and families are waiting on housing. 500,000 young adults are forced to live at home because they cannot afford to move out, twice the number in 2006. At least 29 housing policies have been launched by this government and its predecessor, but the problem gets worse. All of these policies have relied on the private sector to solve the housing crisis. This reliance on the private sector has resulted in massive wealth being gathered in the hands of a parasitic elite of developers, vulture funds and landlords. While huge misery is inflicted on the majority. In Dublin West, for instance, despite the area being a homeless blackspot only 10 new social homes were directly built by the Council. Solidarity’s recent proposal to build 1100 social and affordable homes in Damastown has received widespread public support and is an example of the approach which is required. This proposal is for 550 social homes to be built for rent from Fingal County Council. Another 550 affordable homes are to be built and made available to buy through affordable mortgages. The mortgages would be provided by the Housing Finance Agency, and paid back over 25 years. Monthly mortgage repayments will be from €478 per month for a one-bed home, to under €800 for a four-bed home. This is the type of radical approach on housing which is needed but the government will need to be forced into it by pressure from the streets.   Repeal A whole generation of young people have been drawn into a battle to win abortion rights over the last number of years. This year saw the largest ever March for Choice, and big turnouts on International Women’s Day for Strike4Repeal and other marches and events. This has been accompanied by a deep politicisation of issues of oppression and equality. The #metoo campaign has encouraged women to speak out against sexual assault, genderbased violence and sexism. Demands for the separation of church and state and trans rights are now more common and loud than ever before. The vote on the Oireachtas Committee on the 8th Amendment to support abortion up to 12 weeks on request is a testament to the work and pressure applied by activists over a number of years. In particular, credit is due to the courage of those who highlighted the abortion pill, campaigning across the country to raise awareness and assist women and pregnant people with a crisis pregnancy. The pressure from the movement forced and dragged conservative politicians into voting for these recommendations. However, legislation must still be produced and passed by the Oireachtas. The Dáil is still deeply conservative and may attempt to water down any legislation. We need to continue to exert pressure on the Dáil to make sure there is no backsliding on the proposals.   Precarious employment While unemployment may be decreasing, many people returning to work are finding themselves in worse conditions. The government, the capitalist class and big business have used the crisis to hammer employment terms by creating a slew of temporary and contract jobs. The phenomenal growth of the so-called ‘precariat’ signals the success they have had with this policy. So called ‘if and when’ and ‘banded hours’ contracts have become the norm across whole industries. The effect of this row-back in employment conditions especially affects ‘would’ workers. They are expected to be at the beck and call of employers. They have no guarantee of hours and therefore have no guarantee of income. The Tesco strike this year exposed for everyone the reality of ‘banded hours’ contracts which can see a worker’s hours and income fluctuate anywhere from 16 to 40 hours a week – often determined at the discretion of a manager, and often as a weapon to punish workers. The decision of Ryanair pilots in Ireland and across Europe to take industrial action can be a decisive battle. If a major anti-union, anti-worker employer like Michael O’Leary can be given a bloody nose it will be a major victory for all workers. It will demonstrate to workers, especially those employed in multinationals, that international action against bosses is possible and can deliver victories. The government have played a part in undermining working conditions too. As part of public-sector pay deals, they have created an age apartheid between young and older

There’s been plenty of talk about “carrot and stick” for our housing predicament. At a property Summit last month, commentators exhumed memories from the industry boom and bust and suggested numerous ways to revive the sector. Much discussion revolved around the fact that there is no official metric for the measure of new housing output. With projected completions of fewer than 9,000 new homes this year, supply remains well short of demand. Senior Government officials suggested that the state needed more land and would get more into active land management. Others noted how state house-building has fallen off a cliff. Local authorities are building on average 300 homes per annum yet own enough zoned residential land to build more than 45,000 homes nationwide . Approved Housing Bodies (AHBs) – part-funded by the state, and voluntary efforts, account for the bulk of social homes in any year, out-performing local authorities two to one. In Dublin there were 16 local authority homes built in the first six months of 2017 – AHBs completed were 174.   Part V One source of new-build social homes is so-called ‘Part V’ dwellings, built by developers and sold at a discount to local authorities. Part V requires 10% of all private residential developments of ten units or more to be sold to the state at reduced prices. The discounted site cost is calculated at ‘existing use value’, a pre-determined formula. The ‘preferred’ option is purchase of units (Part V guidelines direct Local Authorities to buy units rather than land), but land transfer can be agreed as an alternative. Indeed up to September 2015 cash in lieu of land was an option. Subsequent revisions precluded cash payments so developers can no longer buy their way out of Part V. The Rebuilding Ireland Part V target is an average of 524 units per year. However, only 514 Part V units were purchased nationwide in the past five years (see table right). 11 Local Authorities including Cork and Galway City Councils made no Part V social housing purchases in five years. On average 9 social homes have been purchased by Dublin City Council per annum. The current situation is in marked contrast to that of the preceding decade.   Part V 2002- 2011 According to the Housing Agency, between 2002 and 2012, 567,585 new homes were completed and 15,320 Part V social homes were purchased by the state. Other forms of Part V compliance, land transfers and cash in lieu, equated to the potential for an additional 4,311 social homes. Sites for 213 homes were transferred (20 hectares) and cash paid in lieu totaled €122.4m (av. €29,800 per site). The bulk of Part V compliance, 78%, was achieved by developers providing social homes at discounted prices.     Part V 2012- 2016 In the last 5 years the situation has changed dramatically. €29.6m was paid in lieu of land transfer by owners plus sites for just 3 homes (9 hectares). Out of a potential 1,510 Part V homes only 514 were delivered. The bulk of Part V compliance, 64%, was achieved by developers paying cash in lieu of land transfer. The affordable housing scheme was discontinued in 2011. Part V was revised in September 2015 to preclude cash payments, but according to official figures €11m was paid in 2015 and €4.9m in 2016 in lieu of land transfers by developers, perhaps reflecting an overhang of planning permissions extended from before the system was changed but perhaps also suggesting that old (and bad) habits die hard. The total percentage required was reduced from 20% for schemes of five or more units to 10% for schemes of ten or more units. The affordable housing scheme was discontinued in 2011. In the period 2002 to 2016, the total combined figure for cash in lieu of land transfers was €152m. Cash has been king for beleaguered local authorities. Extraordinarily, only three house sites have been transferred in five years. Figures suggest that a significant number of new homes will be built in coming years with little or no social housing element. For example in 2017 our total new housing output may be close to 9,000 homes but Part V is likely to comprise just 200 units, only 2.2% of total new housing. Given the minusculity of payments during the downturn, there is the strong uncomfortable possibility that some developers, while under the control of state agencies, sought successfully to reduce the provision of social housing. Even if there is an increase in new house-building, fewer than than 1,000 Part V social homes may be delivered by 2021. To put these figure in context, there are currently 216 new households per week availing of rent assistance (housing assistance payment) for the first time. 1000 homes would solve the problem for just five weeks worth of this backlog – by 2021!       Conclusion The reality of state land management is very different from the official narrative, even if – under media pressure – the authorities have ratcheted up their rhetoric. Official figures confirm there is little official appetite to obtain cheap land from developers and build directly, and even less inclination to pass site discounts to potential purchasers of affordable housing. Despite all the rhetoric. Owners of land-banks who agreed to buy-out part V obligations when sites were at a historic low values can expect a handsome return on their investment in a short time. Many sites will benefit from generous capital gains-tax exemptions. Legislation introduced by Minister Murphy in July 2017 to extend the lifespan of existing planning permissions ensures that lucrative Part V cash arrangements remain unaffected. There is no official affordable housing scheme and no official definition of what an affordable house is. Last July Minister Murphy confirmed that local authorities can build 2 bed dwellings directly for €191,000 ‘all in’ cost- yet Dublin City Council is purchasing Part V units from a developer in Rathgar for €480,000 per unit . At the property summit, when asked if there

This article asks what is meant by the concept of The Rule of Law and, after the resignation of a second Minister for Justice in two years, whether such a concept is honoured in Ireland today? Dysfunctionality and hypocrisy have dug a chasm between the theoretical affirmation of the rule of law by lawyers in this state, and reality. It renders the very nature of our democracy fragile.   1. The Rule of Law in Theory The legal philosopher John Finnis indicated that the rule of law is: “The name commonly given to the state of affairs in which a legal system is legally in good shape”.   2. The practice Let’s then stress test the case of the Irish state today. The Constitution as interpreted in the courts Yes of course rights exist in our constitutional matrix and in our still fine, if both dated and shop-worn, constitution, and are enforced by the courts in many instances; but there is also cause for concern about undue deference to the executive, which has led to the non-enforcement of social and economic rights by the courts and an abundance of judicial caution on other rights-based claims – particularly claims where issues of financial disequilibrium or that amorphous blob ‘public policy’ are cited. Judge Gerard Hogan of the Court of Appeal, an eminent constitutional academic, recently noted that the record of the Irish courts in upholding substantive constitutional rights has been disappointing, indeed “baffling”, in the last twenty years and stressed disquieting developments in due process and criminal justice. He noted that the recent Supreme Court decision deriving a right to work for asylum seekers “is probably the first time in 25 years or so that the Supreme Court has invalidated a major item of social legislation or social policy”. The State: the Garda and the Department of Justice There are widespread violations of and due process by the state itself and a demonstrable associated relative unaccountability, particularly in the case of the police force and justice department with the latter secrecy-driven tail wagging the former mad dog. The Charleton Tribunal is now grappling with the collateral implications of the Maurice McCabe scandal: allegations that the police with help from the HSE were framing McCabe, a Garda whistleblower, and others for child sex abuse. The Department of Justice acquiesced in smearing McCabe in that tribunal, ultimately forcing the resignation of the Tánaiste Frances Fitzgerald, former Minister for Justice, in late November. Considering also that up to two million breathalyser tests have been falsified by gardaí, law enforcement seems to have become systemic law-breaking. Journalist Fintan O’ Toole recently described the Department of Justice as subverting the state. We must address the possibility that the most dangerous subversives are those who have misappropriated the raiments of the state.   3. The Contribution of Lord Bingham Lord Bingham in a celebrated lecture (published in The Cambridge Law Journal, 2007) developed the following rule closely followed by eight sub rules as to what constitutes the rule of law. First, the general rule and the core of the rule of law according to the judge is that: “All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. It should be noted that such a rule is violated when retroactive legislation is passed or a retroactive decision such as A v Governor of Arbor Hill Prison are reached – regardless of its merit as policy. Judges deferring to the mob mentality or refusing to make decisions in conformity with the rule of law out of deference to a twisted sense of populism act misguidedly and not in conformity with the rule of law. It is also noticeable that the Proceeds of Crime Act was upheld on constitutional criteria even though it operates retroactively. Lord Bingham then developed eight sub-rules from the above generic statement all of which merit close attention and delineation. First, the judge considered, “the law must be accessible and so far as possible intelligible, clear and predictable: a norm is not law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct”. In this respect the layers of ambiguity and discretion inherent in say the Proceeds of Crime Act 1996 which allows for the confiscation of assets, theoretically without charge, on the say-so of a Chief Superintendent that someone is a criminal is bizarre. The over-deference to government on policy breaches the Rule of Law but has been overindulged by our Superior Courts, particularly since the economic downturn. A disequilibrium in the public finances is not an argument to discount or counteract a claim of rights. So, for example, vague discretionary non-review of the Financial Services Ombudsman process and long-standing deference to administrative structures in asylum, banking and environmental matters will not stand up to historical scrutiny. Second, Bingham considers that “general questions of legal right and liability the judge should ordinarily be resolved by application of the law and not the exercise of discretion”. Discretion is in reality too prevalent a feature in our sentencing policies. A recent ‘Prime Time’ programme exposed the scandal of the extent of use of the ‘poor box’ by District Court judges to avoid imposing convictions. ‘Discretion’ also dominates for example in our family courts. Discretion at a different level is utilised by the Garda not least in the penalty points sphere. The Garda Síochána Ombudsman Commission reported in November that 442 gardaí had cancelled penalty points in the case of one 700 times across 17 counties. Nobody knows how many of the 74,000 fixed-charge notices cancelled were legitimate and how many were not. And of course none of them will face sanctions. The third rule the judge enunciates is a vision of a type of equality: “The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”. Well of course we