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    The cost of costs

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    Real justice requires access to justice, which requires effective access to courts, which requires that courts be accessible without the threat of prohibitive costs. Some 90%, or an even higher percentage, of people in Ireland have no realistic access to justice, due to the prohibitiveness of the costs associated with legal actions via the courts. The Irish system of access to justice is permeated with unfair procedures, unconstitutional laws, and conflicts of interests, which means that most court users in Ireland are vulnerable users. BalaNCiNG CONFliCTiNG CONSTiTUTiONal RiGHTS: The English rule (Loser pays rule) on legal costs does not balance two conflicting rights – (1) the property rights of winning litigants, and (2) the right of persons to have access to the courts, without being threatened by unpredictable and prohibitive legal costs. Notionally, proponents of the English rule claim that winners are entitled to be 100% vindicated, and so be in a position to cover all their legal costs. However, this is a very narrow view, which fails to assess the big-picture consequences: (a) winners are also threatened, up to the point of winning, and can be threatened as defendants, in circumstances where they have no chance of recovery of costs from penny-less plaintiffs. (b) the English rule creates all sorts of conflicts of interests and market distortions, which enormously inflate the costs payable. (c) wealthy litigants can threaten persons of lessor wealth, with adverse costs, such that the case is determined more often by issues of fear, rather than justice. (d) the state, and most government actors become unaccountable, as the decision makers are immune from costs (lumped ontaxpayers, often, with little transparency), but can pursue political goals, or engage in abuse of power, with no financial downside, and can still threaten all challengers with financial ruin; this inequality of arms, means that citizens are generally unable to challenge the unconstitutional laws and conduct of government. HeNCe, THe eNGliSH RUle iS NOT COMPaTiBle WiTH a Real CONSTiTUTiONal deMOCRaCy: Costs Allocation Rules incentivise Unfair Adjudication Rules which also incentivise Inefficiencies into the system. Because the government is allowed to intimidate its challengers with unlimited adverse costs, it then wants to maximise those costs, so as to bolster its threat and avoid oversight; High Legal Costs has been the default weapon of choice for all governments since the commencement of the state; the “Big Stick” is maintained to bounce its opponents out of the ring, and this has so far been achieved with little condemnation by international institutions, which have largely failed to recognise the stealth threat that prohibitive costs represents as a threat to the rule of law. The Big Stick undemocratically deters citizens and/or NGOs from challenging the government when it passes unconstitutional laws, or acts unconstitutionally – this allows the government to pander to its own electoral constituency while depriving less well represented persons access to rights protection, leading to violations of minority rights and individual rights. When populist demands call for adjudicative processes which affect specific rights of connected groups, QUANGOs are often created in order to parry off populist demands for accessible justice. The substitute QUANGO justice can rarely be as independent as courts, and the outcomes are often secretised, thus bypassing democratic oversight. Hence, the government passes unfair laws for legal costs adjudication, so as to frighten all challengers – this allows it to exercise power with minimum oversight. THe Need FOR CCOS (COSTS CaPPiNG ORdeRS) In the ex parte application by Dymphna Maher [2012], the applicant effectively sought an assurance from the High Court that any adverse costs would not be prohibitively expensive, if her lawsuit was subsequently deemed not to have fallen under the ambit of the special costs regime (related to some environmental cases). Judge Hedigan insisted that there was no legal authority to permit him to make the order sought by the applicant. However, he observed that: “[It was] very arguable that the absence of some legal provision permitting an applicant to bring such a motion, without exposure to an order for costs, 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. As things stand, I have no power to change this”. This case along with 12 other cases was appealed to the Supreme Court (SC) on an ex parte basis – where only one of the parties is heard. The SC held that it could not provide such an assurance, on an ex parte basis, as the other side (the EPA) needed to be heard first. The SC decision in the Coffey case means, in effect, that any person seeing to access the courts in Ireland is threatened with financial ruin, even if just seeking a CCO. The court failed proportionately to balance the right of access to the courts as a right conflicting with the property rights of government, particularly in the context of the need for real separation of powers. The judicial sphere of power is rendered inaccessible to most citizens, when the loser-pays rule is applied to challenges to executive power, and so the judicial sphere of power is inappropriately diminished; this undermines the checks and balances necessary in a liberal democracy between the legislative, executive an judicial functions. SePaRaTiON OF POWeRS By dividing power between these traditional three spheres, the courts, the government, and the Oireachtas, we help to disperse power and make less probable the accumulation of power to one person, or a small elite, as often happens in what are referred to as illiberal democracies. Diagram 1, above, displays the traditional Montesquieu view of three spheres of power. However the (Montesquieu) tripartite division of power, is a poor reflection of reality. This is largely because it generally fails to engage with the level of real power held by each of the three spheres, in practice. A second flaw, is that there should really be five spheres of power, and not three; the people should be seen

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    ‘Reclaiming the State – a Progressive Vision of Sovereignty for a Post-Neoliberal World’

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    ‘Reclaiming the State – a Progressive Vision of Sovereignty for a Post-Neoliberal World’ is the title of what will surely come to be seen as one of the more important social science works of our time (Pluto Press, 2017, €23). In it Australian economics professor William Mitchell and Italian political theorist Thomas Fazi reconceptualise the Nation State as a vehicle for progressive change. They issue a highly topical challenge to progressives, leftwingers and genuine liberals to come to the defence of national sovereignty and not cede that issue to the populist right. For the thirty years from the end of World War 2 to the 1970s a left-oriented Keynesian consensus held sway in the developed world. Then, for reasons this book describes, the mainstream Left as represented by the mass Labour and Social Democrat parties in Britain, France, Germany and elsewhere, and by the Democrats in the USA, ideologically disarmed themselves before rampant neoliberalism. Key neoliberal propositions were that national sovereignty had become irrelevant in today’s increasingly complex and interdependent international economy. Globalisation had made individual States increasingly powerless in face of market forces. The growth of multinational companies and the internationalisation of finance had eroded the ability of national States to pursue progressive social and economic policies and deliver prosperity for their peoples. Consequently the only hope of meaningful change was to “pool” State sovereignty and transfer it to supranational institutions such as the European Union, thereby regaining at supranational level the sovereignty that has been lost at the national level. Many who regarded themselves as progressive and on the Left came to share these views, stressing how neoliberalism has involved a retreat or a hollowing-out of the State, which found itself increasingly powerless in face of market forces. To cover their abandonment of criticism of capitalism as a social system, progressives and Left parties generally focused instead on issues such as racism, gender, homophobia, multiculturalism and environmentalism – social marginality being no longer described and opposed in terms of class but rather in terms of identity. This book analyses the political timidity, ideological opportunism and intellectual fallacies involved in this surrender. For example the decades of neoliberalism have seen little or no decline in State spending as a percentage of GDP – a key measure of the strength of the State in society. Even supposedly neoliberal governments such as Reagan’s or Thatcher’s did not reduce overall public spending, although they altered its composition, for example spending more on weaponry and less on welfare. As the authors point out, “even though neoliberalism as an ideology springs from a desire to curtail the State’s role, neoliberalism as political-economic practice has produced increasingly powerful interventionist regimes.” Neoliberalism has entailed extensive and permanent intervention by States and their Governments: for example the liberalization of goods and capital markets, the privatization of resources and public services, deregulation of finance, the reduction of workers’ rights in collective bargaining, cuts to social programmes and the lowering of taxes on wealth and capital at the expense of the middle and working classes. The authors show how neoliberal ideology, in its official anti-State guise, has been little more than a convenient alibi for what has been an essentially political and State-driven project aimed at placing the commanding heights of economic policy in the hands of capital and especially Finance Capital. Far from neoliberal globalisation making the Nation State out of date, all its key elements were the result of choices deliberately and consciously made by national governments as their ruling elites set out to limit State sovereign rights. The authors call this a process of “depoliticisation” of policy. Its principal elements were: the reduction of the power of parliaments via-a-vis the executive; making central banks formally independent of government; adopting constitutional limits on debt-to-GDP ratios and public spending, as with the 2012 Stability treaty, thereby limiting what politicians can do at the behest of their voters; enforcing free movement of goods and capital, and, above, all shifting government powers from the national level to the supranational. Why did national politicians choose to ‘tie their hands’ in this way ? As the EU case epitomises, the creation of these self-imposed ‘external constraints’ allowed national politicians to reduce the political costs to themselves of neoliberal policies that were generally unpopular. It enabled them to ‘scapegoat’ these externally imposed rules and supranational and ‘independent’ institutions. These could be publicly presented as an inevitable outcome of the new harsh realities of globalisation, about which supposedly little or nothing could be done at national level. In this way national government choices and State macroeconomic policies were insulated from popular criticism and protest. Mitchell and Fazi contend that the war on sovereignty has been in essence a war on democracy. This process was brought to its most extreme in Europe where the 1992 Maastricht Treaty that created the euro-currency embedded neoliberalism into the EU’s very fabric, effectively outlawing in supranational EU law the Keynesian policies that had been commonplace in the previous decades. Given neoliberalism’s war against State sovereignty it is only natural that the revolt against neoliberalism should first and foremost take the form of demands for a ‘repoliticisation’ of national decision-making processes – that is, for more democratic control over politics and particularly over the destructive effects of the free movement of capital, goods and labour unleashed by neoliberalism. This necessarily can only be done at the national level by means of the national State in the absence of effective supranational mechanisms of representation. The latter are impossible to bring into being as long as people’s primary political identification is with their own nationality and State. Supranational structures will always lack democratic legitimacy because people do not identify with them as their own. The case of Iceland shows what even a tiny country can do when it used its State sovereignty, an independent currency, capital controls and sequestration of its banks to overcome an extreme economic crisis. The authors argue that progressives and the political Left should not regard Brexit –

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    Dumb greens and unions

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    One of the things historians may dwell on is how the key December 2017 and February 2018 eu drafts of the Brexit agreement came to take the forms they did. It is all the more important since the inept UK Government of Theresa May failed to produce its own draft, though it might have been expected to do just that. Of course that suggests a lack of seriousness on the UK’s part about the agreement and perhaps that the EU Drafts may not go as far as we, and the EU, think, but that is a separate matter. In particular it is interesting that the drafts – the first a draft political agreement, the second a draft legal agreement with the same substance enshrine the EU’s rules for the customs union and single market but not its rules for multifarious other spheres of eu activity that bind the UK while it remains a member of the EU: most notably on the environment, labour and consumer affairs. The body politic and commentators have missed the following: the UK could become the trading neighbour from hell by ignoring EU environmental, health, labour etc standards – exploiting the competitive advantage over the eu you’d expect from a country saving money by keeping these standards low. It is interesting is that so many dogs have failed to bark. One might have expected the British trade unions to be shocked at the potential dangers to workers’ rights if EU standards are abolished and they become subject to the whims of a hawkish Tory party. But they didn’t because, like the British Labour party of course, they can only think of the superior standards Jeremy Corbyn will bring to the sphere. This is self- absorbedly naïve. Corbyn will not be in power for ever and the Tories won’t be going anywhere. When they return they will not have to observe the comfort blanket that EU standards provide. We know well the frustrations of the Tory party over the years with what used to be known as the EU’s ‘Social Chapter’. Nothing is as certain as that they will not observe its prescripts on issues like maternity and overtime if they return to power in some post-Brexit outturn. There are occasional insights into this thinking but mostly the protagonists remain mute. Surprising too that the Irish unions have made so little noise about it but then the Irish Congress of Trades Unions and SIPTU are both challenged by having members and remits both North and South of the border. You’d think they’d be on the warpath. Environmentalists and Green parties have said little perhaps because typically they languish far from the vehicles of power and tend not to be as forensic or aggressive as the circumstances here demand. Village tried to provoke the establishment media, most of RTÉ’s and the Irish Times’ Europe, Northern Ireland and Environment correspondents etc (by twitter) into recognising their failure to cover this issue but – to a man – they’re too complacent, and probably too immersed in politics and economics, to think about social and environmental rights and rules. The issue is clouded as terms like “a common regulatory area on the island of Ireland” and “a single regulatory space on the island of Ireland…” in themselves don’t do justice to the fact that there are important areas that will no longer be regulated by the EU. It’s also a bit difficult for many people to get their heads around as “regulatory alignment” of Northern Ireland with the EU is only envisaged as a ‘backstop’ if the UK can’t strike a more wide- ranging deal with Ireland and if a technological border solution proves impossible. Of course with only a year left to Brexit it’s looking increasingly like neither of the two contingencies will come to pass. The easiest way to avoid the backstop is for the UK as a whole to remain in the customs union and the single market. But the UK government insists this will not happen. Because the contingencies are uncertain they were left out of the draft Withdrawal Agreement which is a strictly legalistic document, thought they had appeared in the December political draft – and they remain politically possible. It’s complicating too that the Tories and Brexiteers so vociferously think the common regulatory area described in the EU draft goes too far rather than not far enough – though of course they are referring essentially to economic matters, not to environmental and social matters about which they may care little. It is clouded because it may well be that no deal is possible. It is important to note that, despite occasional diplomatic pleasantries, there has been little progress on the central conundrum of the negotiations: if the UK leaves the EU trading bloc, then a customs border is needed either on the island of Ireland or in the Irish Sea. One is ruled out by the EU drafts, the other by the UK. Theresa May asked Brussels if Britain could stay in the bits of the single market that she likes and exit the bits that she does not. The EU doesn’t have to, and won’t, run with that – no matter how self-righteous Brexiteers fume. On this basis it is very possible the EU’s draft terms form no element of the (WTO) arrangement that the UK falls back on. And it is clouded because confusingly the Draft Withdrawal Agreement refers, in its Article 12, to the Environment. Most people (not you dear reader) glaze over a little when contemplating the diktats of a customs union and single market. The customs union is an agreement among members to charge the same import duties as each other and usually to allow free trade between themselves. The single market guarantees the free movement of goods, capital, services, and labour – the “four freedoms” – within the European Union. You couldn’t for example have goods which comprise some material, imported into Britain on the basis of a tariff-free agreement between Britain

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    Braced for Brexit

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    Back in the 1960s I once stood on the plinth of Nelson’s column in Trafalgar Square, London, between Landseer’s lions, at a Connolly Association rally against anti-Catholic discrimination by the Northern Ireland Stormont regime. Lots of people were waving tricolours. Forty years later I spoke again in the same spot, at an anti-EU rally organised by the Democracy Movement, one of Britain’s EU-critical bodies, before a sea of little Union Jacks. I smiled to myself. Here were the English discovering the drawbacks of being ruled by foreigners, by people they did not elect, and how EU laws had come to have primacy over those of their own Parliament. They were reacting against losing their democracy and national independence. British Euroscepticism is largely English nationalism. The political psychology of the governing élites in England and Ireland is very different, not least in their attitudes to the EU. The lack of self-confidence of the Irish élite is shown by their continual anxiety to be seen as ‘good Europeans”’. Hence for example Enda Kenny’s boast that our recent modest economic improvement has “restored our reputation in Europe”. I was at the EU summit in Gothenburg, Sweden, a few days after Irish voters rejected the EU’s Treaty of Nice in 2001. The then Taoiseach, Bertie Ahern, was virtually beating his breast there as he explained apologetically to the international media how Irish voters were mistaken, but they would have a chance to change their minds in a second referendum – which of course duly happened. By contrast England’s governing élite has the psychology of a ruling power. For centuries they backed the second strongest powers of Europe against the strongest, thereby preventing any one power dominating the continent. When the EU came along after World War II they joined it in the hope of either prising France and Germany apart or else of being co-opted by the Franco-Germans as an equal partner to run ‘Europe’ as a triumvirate. Both hopes have proved illusory. Hence English disillusion with the EU. They never shared the Euro-federalist visions of the continentals – something that former Commission President Jacques Delors expressed when he said in 1993: “We’re not here to make a single market – that doesn’t interest me – but to make a political union”. Prime Minister Cameron wants to stick with the EU. But most of his party and large swathes of British public opinion see the EU as a low-growth economic area mired in recession, with a dysfunctional currency and high unemployment. They want to regain their freedom of action, especially over trade, by leaving. They want to develop trade and investment links with the five continents and the far-flung English-speaking world. The obvious power imbalance between the two sides would make it extraordinary if the “Leave” people were to prevail over the “Remain-Ins” in the Brexit referendum. On the one side are the British Government, the American Government, the German and 25 other EU Governments, Wall Street, the CBI, the TUC, the British Labour Party, the Brussels Commission, the European Movement, most EU-based High Finance and Transnational Corporations, plus in Ireland all the parties in the Oireachtas. On the other side is a diverse and sometimes quarrelsome range of groups and individuals on the Left, Right and Centre of British affairs, united only by their desire to get back their right to make their own laws, control their own borders and that their Government should decide independently its relations with other countries. It would be unrealistic though to think that a “Remain-in” vote in June will decisively settle the matter. It is likely merely to delay the inevitable divorce, for the interests of the continentals and the island Britons are just too fundamentally opposed. And what of the Celtic fringe? Contrary to the received wisdom there could well be a substantial “Leave” vote in those areas too. If the UK as a whole votes to leave, will Scotland want to break away from the rest of the UK in order to remain in the EU, abolish sterling and adopt the euro – that being a requirement for all newly acceding States to the EU? It is very doubtful. The Irish media have not yet picked up on one big downside for Irish people of the deal David Cameron concluded in Brussels before he launched his referendum. This is the implication of the EU agreement that if the UK votes to remain, new immigrants to the UK are liable to have lower social benefits for some years than those already there. It will be impossible under EU law to differentiate between Irish immigrants on the one hand and non-Irish ones on the other. This means that new Irish immigrants to Britain or the North must face cuts in social bene ts too if the “Remain” side wins. This proposal will not affect Irish people already settled in the UK, but solidarity with their fellow countrymen and women should still cause lots of them to vote Leave. If a booming British economy, freed of EU regulation, becomes the Singapore of Europe outside the EU, which is perfectly possible, it can only benefit Ireland economically. Lurid scenarios are being painted of the consequences of Britain leaving the EU while Ireland remains in it. If Brexit happens some uncertainty is inevitable for a year or two, but it will not be the end of the world. Free trade will continue between Ireland and the UK under all realistic “Leave” scenarios, so there will be no customs posts on the North-South border within Ireland, no passport controls or anything like that. Such claims are simply scaremongering, part of “Project Fear”. What of Northern Ireland in the event of Brexit? Over the past decade the UK has paid over £150 billion to the EU budget – far more than it has got back. It sends £350 million to Brussels every week. This is some ten times the Northern Ireland schools budget. EU subsidies to the North in the form of

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    1916 values diverted

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    One value of the 1916 Rising commemorations is to highlight the contrast between the aspirations of those who set out to establish an independent Irish State for the whole island of Ireland and the reality of what exists today – a partitioned country whose native language, Irish, is on the point of death as a cradle-spoken tongue, and in which the State that did come from the independence movement has been reduced to provincial or regional status in a supranational EU quasi-Federation that now makes most of our laws. The Easter Proclamation read: “We declare the right of the people of Ireland to the ownership of Ireland and to the unfettered control of Irish destinies to be sovereign and indefeasible”. “Indefeasible” means cannot be lost. That right may notionally exist still, but the reality of a sovereign Irish State in which its own Parliament and Government are the sole source of the laws prevailing in its territory has clearly been lost, as with the 27 other EU countries, through membership of the EU. Growing public awareness of this fact, in Ireland and other EU countries, is at the root of the current EU discontents. Article 29.4 of the Constitution, which was inserted by referendum in 1972 to enable Ireland to join the then European Economic Community (EEC), gives European law primacy over any countervailing Irish law. It reads: “No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of membership of the European Union, or prevents laws enacted, acts done or measures adopted by the said European Union from having the force of law in the State”. Realisation of the implications of supranational EU law being given primacy in this way over the provisions of the 1937 Irish Constitution that he had personally drafted led then President Eamon De Valera to say, somewhat poignantly, to his family on New Year’s Eve 1972, the day before this change took place: “I am the first and last President of an independent Irish Republic”. So Eamon O Cuív TD, De Valera’s grandson, who was present on that occasion, told me*. The loss of independence has gone much further since. In 1999 Ireland abolished its national currency and joined the Eurozone, thereby abandoning control of either its rate of interest or its exchange rate – the former essential for controlling credit, the latter for influencing economic competitiveness. EU Commission President Romano Prodi underlined the political significance of this when he said at the time, “The two pillars of the Nation State are the sword and the currency, and we have changed that”. The 1987 Single European Act, the 1992 Maastricht Treaty, the 1998 Amsterdam Treaty and the 2001 Nice Treaty saw further growth of EU powers and simultaneous diminution of national State powers. This culminated in the 2009 Treaty of Lisbon, which gave the EU the constitutional form of a supranational Federal State. Lisbon incorporated 99% of the provisions of the Treaty Establishing a Constitution for Europe that had been rejected by French and Dutch voters in referendums in 2005. Whereas the rejected constitutional treaty gave the EU a Federal Constitution directly, the Treaty of Lisbon did so indirectly, in the form of amendments to the existing EU treaties. Although the legal content of the two treaties was virtually the same, the French and Dutch were not allowed referendums on Lisbon. Ireland was the only EU country to be allowed that, because of the Supreme Court’s decision in the 1987 Crotty case that, as the Irish people were the repositories of State sovereignty, only they could agree to surrender it to the EU through a referendum. When Irish voters rejected ratifying Lisbon in 2008, they were made vote on exactly the same treaty the following year to deliver a different result. In the Lisbon Two referendum the constitutional amendment permitting Lisbon’s ratification differed from that in Lisbon One in that it included the sentence: “Ireland affirms its commitment to the European Union…”. Here was a supposedly independent Irish State affirming a constitutional “commitment” to a superior entity made up of other States – surely a remarkable development? Yet the Explanatory Handbook which the statutory Referendum Commission sent to all voter households, supposedly to inform them what the referendum was about, made no reference to this change. Neither, so far as I know, did anyone in the Irish media. The Lisbon Treaty replaced the existing European Community with a European Union that had full legal personality and its own constitution for the first time. It made citizens of the different Member States into real citizens of this new federal-type Union for the first time also. One can only be a citizen of a State. Before Lisbon, citizenship of the then embryonic EU was stated to “complement” national citizenship. It was an essentially notional or honorary concept. The Lisbon Treaty provided that EU citizenship should be “in addition to” one’s national citizenship, just as citizens of provincial states like California, Massachusetts, Bavaria or Brandenburg have two citizenships, for they are citizens also of their respective Federal States, the USA and Germany. Lisbon also gave explicit primacy to EU law over national law for the first time in an EU treaty. In most years nowadays arguably the majority of laws that are put through the national Parliaments of the EU Member States come from Brussels, although most people do not realise this. Eur-Lex estimates that there are currently some 134,000 EU rules, international agreements and legal acts binding on or affecting citizens across the EU. These include 1842 EU Directives, 11,547 Regulations, 18,545 Decisions, 15,023 EU Court verdicts and 62,397 international standards which the EU has signed up to and which are therefore binding on all its 28 members. If a Member States does not obey any one of these, the EU Court of Justice can impose heavy daily fines to enforce compliance. The EU Treaties prevent voters at national level, their parliaments and governments from amending or abolishing

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