Prof Gary Murphy, School of Government & Law, DCU

 

Where now for Ireland after the last decade of austerity and the electoral consequences of that austerity? We are now at the tenth anniversary of the 2007 election whereby all political parties were promising that heady concoction of more public spending and more tax cuts. Just over three and a half years later we had the 2011 Ireland-has-failed election: a sorry trail of self-destruction, produced in part by a sad record of mismanagement, led to a paralysis of leadership whereby at the beginning of 2011 the democratically elected government of the state was barely functioning. That government eventually collapsed in what would be laughable circumstances if the context was not so serious. A boom to bust story of economic policy making, characterised by recklessness in banking and regulation, was both implicitly and explicitly endorsed by the Irish people in a variety of elections and through a lax approach to the dangers of corrupt influence epitomised, in particular, by a strengthening of the clientelist system whereby the people expected their politicians to get things done for them on an individual level. This worked in creating the conditions for a booming but essentially false economy. It worked in land rezoning. It worked on the European level where politicians oftentimes blamed Europe when they were not able to deliver on specific issues. However, once it failed when the banks collapsed and the lax regulatory framework inevitably flopped, the electorate would take their brutal revenge on the peddlers of this clientelist system: Fianna Fáil. The Irish people, however, went seeking answers from an alternative in Fine Gael and Labour proffering similar wares. And this just a quarter of a century after those same parties were unceremoniously turfed out of office after the brutal recession of the mid 1980s.

Once the crash happened and the Irish economy went into freefall in late 2008 and throughout 2009, the then Taoiseach Brian Cowen admitted that certain public policy errors that had deepened the crisis could, with hindsight, have been seen to have been made over the course of the boom period of the previous decade or so. He insisted, however, that all policy decisions were based on the best advice available at the time. On one level this seems to preclude or deny a role for politics in political decision-making and reduces Irish politics to a contest of who can best manage the economy. On another level it seems to absolve the political class and the governments, of which Cowen was first a senior minister and later leader, to the role of passive participant in the policy process taking advice and following it slavishly without any consideration of how this would play politically.

 

A CLASSIC EXAMPLE OF A BUREAUCRATIC MODEL OF POLICY MAKING
The civil service itself bears significant culpability when it comes to the story of the crash. Within the civil service there were very few voices of caution and those that did raise concerns such as Marie Mackle were told to disregard their fears of a property crash in 2006 and to instead toe the consensus line that a crash could never happen. Mackle’s superiors told her to ignore her fears and instead issue positive statements on the state of the economy and the housing market. In this we see a classic example of the bureaucratic model of policy making whereby both senior civil servants and the political class agreed on a certain course of action and could not be dissuaded by any contrarian voices, whether more junior civil servants or former members of the political class. Mackle’s line superior, Derek Moran, is now Secretary General and was appointed in a closed competition, only open to existing members of the civil service.

 

OUTSOURCING LEADERSHIP
And if it’s not the civil service that the political class can blame then it can always rely on the referendum device. The seemingly never ending cycle of referendums in Ireland, particularly on social and European issues, have helped the political class to remove a variety of controversial issues from the policy making arena where the political parties have, to all intents and purposes, outsourced leadership on these issues to the courts and the people through the mechanism of the constitutional referendum. This obsession with the referendum shows no sign of abating. One of Fine Gael’s impressive first time TDs, Josepha Madigan, has been busy recently trying to reduce the constitutional waiting time for divorce from four years to two. The bill drafted and presented by the Dublin Rathdown TD and family law solicitor in April received cross-party support and is now to be assessed by the Oireachtas Justice Committee. If the bill is ultimately passed, a referendum would then have to be held to place the two year waiting restriction into the Constitution. There will then have to be a campaign and an information booklet and all the other paraphernalia and cost that goes with a referendum. This is madness. A far better approach would be to simply delete the constitutional provision requiring a four year wait before people can divorce – although that in itself would require a referendum – and simply regulate by statute. For too long, the fall-back position for numerous Irish politicians has been to put things into the Constitution rather than legislate for them. This is why we have the eighth amendment. The same thought process was behind Enda Kenny’s St. Patrick’s Day proposal to hold a referendum on votes for emigrants in presidential elections when the government could simply legislate for it. The “it’s no good unless there’s a referendum” mind-set also pervades those who want to see the principle of public ownership of water enshrined in the Constitution.

 

THE LET’S HOPE FOR THE BEST MENTALITY
Part of the explanation for this lack of political policy making lies in the fact that, beyond tending to the constituency, political parties in Ireland, and indeed independents, now compete on an increasingly narrow base. The ingrained nature of social partnership removed much of the economic debate from the political sphere and what was left was a sterile debate as to who could best manage the economy. In essence, over twenty years of social partnership ultimately led to a scenario whereby no-one in either the bureaucratic or political elite had any idea at all of how to get the state out of the economic quagmire it found itself in as a result of ineffective regulation, greed, clientelism and downright incompetence. This paucity of intellectual rigour in political thinking essentially led to the infamous bank guarantee scheme of September 2008 where the easiest decision to let the state take responsibility was the one ultimately plumped for by the Taoiseach of the day, Brian Cowen. It had all the hallmarks of a let’s hope for the best mentality that had riddled public policy making and indeed decision making by politicians in Ireland since its independence. The political agency of Irish politicians from all the parties who had been in government since the foundation of the state was that when big business found itself in difficulty the state would come to its aid. It was this mentality that led the state to bail out the Insurance Corporation of Ireland in 1986 and to provide export credit insurance to a number of beef companies, most notably those associated with Larry Goodman, in 1987. The reductionism in economic policy making in modern Ireland then dwindled even further as the parameters of independent government action were deeply constrained by Ireland’s paymasters in the Troika.

 

THE INFLUENCE OF SELF REGULATING GROUPS
The political class has also had a very curious relationship with various powerful interest groups and self-regulating professional bodies. For instance the only group who saw off the Troika were the lawyers. The Bar Council of Ireland representing barristers, and the Law Society of Ireland representing solicitors expressed deep concern about plans by the Fine Gael/Labour government to reform the legal profession in 2011. In a series of meetings with Taoiseach Enda Kenny and other ministers of the government between 2011 and 2015, these groups managed to persuade the government to substantially water down the Legal Services Regulation Bill. Both the Bar Council and Law Society campaigned and lobbied against key parts of the legislation and managed to secure major concessions when late amendments were made in advance of the final legislation going through the Oireachtas. A key objective of the Bill, a condition of Ireland’s bailout programme by the Troika in 2010, was to lower costs. From the moment the Minister for Justice Alan Shatter published the Bill in the autumn of 2011 both organisations began a significant lobbying campaign to oppose the legislation. While the Bar Council had already expressed its concerns to Shatter, they were able to take their case directly to the Taoiseach showing the power of access these groups have.

 To show the links between influential self-regulating groups such as those that represent lawyers and politicians, no finer example can be found than that of Senior Counsel, Frank Callanan, who wrote to the then Taoiseach Enda Kenny in September 2011 to say the Bill as proposed was catastrophically deficient: “The Bill is very un-Fine Gael. It is not in your style as Taoiseach … it should not be adopted by the rational, pragmatically reforming government you lead” (Irish Times, 31 December 2015). The ultimate result was that both the Bar Council and the Law Society secured major concessions. They retained major powers despite the creation of a new independent regulator and there was in effect no real reduction in legal fees.

Journalist Dan O’Brien, for one, bemoaned such influence, stating that the Fine Gael/ Labour government of 2011-16 had been far too timid in its dealing with powerful interest groups in order to make changes that would benefit all citizens, despite the enormous political capital that it had with the biggest Dáil majority in the history of the state: “From the legal profession to the health service, reforms that could have improved the functioning of the economy and saved taxpayers’ money have too often been shied away from” (Irish Independent, 28 January 2016). It is notable that the two examples he cites, that of lawyers and doctors, are the two most powerful self-regulating bodies in the state, with easy access to the levers of power and policy making in the Irish state.

 

THE HUBRIS OF IRELAND’S POLITICAL ELITE
After 2011, Fianna Fáil remained relevant in Irish politics. The clientelistic relationships it had built with the people in its long tenure as Ireland’s natural party of government provided them with some succour during and after the traumatic general election of 2011. But it was now just one of many parties in the marketplace rather than the dominant behemoth that had bestrode Irish politics colossus-like and treated other parties as somehow not worthy. Fianna Fáil ultimately remained relevant because not only was it able to persuade people that it was worth voting for but the alternatives in the guise of Fine Gael, Labour, and even Sinn Féin were so similar to it. They all relied on the Troika to fund the state and even when the Troika left, the spending and taxing parameters would remain extraordinarily narrow in which to direct macroeconomic policy. Although social partnership was over they all still relied on the social partners to maintain industrial and economic harmony. They all relied on a troubled civil service bureaucracy which in itself had failed the state. The hubris of Ireland’s political elite had cost the state its economic sovereignty.

 

THE COLLAPSE OF THE TRIAL OF SEAN FITZPATRICK
And yet there really is no place like Dáil Eireann when it comes to howls of righteous indignation. Just two months ago, our national parliament was full of the guttural growls of our political class, both government and opposition, bemoaning the effective collapse of the trial of Seán Fitzpatrick after the judge in the case directed the jury to acquit the disgraced banker.

Enda Kenny, used his Dáil pulpit to maintain that a minister performing in the way the hapless Office of the Director of Corporate Enforcement (ODCE) did in this case would face instant dismissal. This is the same Taoiseach who on coming to office said he would publicly publish his own grades of his ministers and sack underperforming ones and yet somehow never got around to it. In sombre tones, Kenny stated that the Minister for Jobs, Enterprise and Innovation, Mary Mitchell O’Connor had sought a report from the ODCE on the outcome of the trial to include the role of all the professionals involved.

Other members of the government rowed in also demanding answers from the ODCE. The then two Fine Gael leadership contenders were equally outraged with Simon Coveney, almost plaintively noting that the ODCE ‘seems to have made a mess of this.’ The Taoiseach-in-waiting, Leo Varadkar, seemed equally sad lamenting that legislation surrounding ‘so-called white collar crime was not robust enough and that the workings of the ODCE needed to be examined.’

On the opposition benches the target was Mitchell O’Connor who was rounded upon by all shades of political opinion demanding that she do something about the whole sorry saga. Her response was that classic Irish tactic; the seeking of a report. Where, one might ask in all this outrage, were the calls for the Minister for Justice to do something? While the ODCE comes under the auspices of Mitchell O’Connor’s department this was still, after all, a criminal trial. It might have had all the appearances of a civil trial but this was a serious criminal matter and a man’s liberty was at stake.

Never mind that Fitzpatrick has become the poster boy for all that was wrong in Celtic Tiger Ireland and was blamed by many for almost single-handedly causing the economic crash. He, like all Irish citizens, was entitled to the presumption of innocence. Instead he was the victim of a biased and partisan investigation by the ODCE which sought to build a case against him to the extent that it ignored any evidence of potential innocence. As the court of public opinion had already convicted him, the ODCE, it seems, was happy to follow suit.

It might not be fashionable to call the remarkably self-satisfied Fitzpatrick, the man who slept soundly in his bed on the night of the bank guarantee, a victim of anything. Those pictures of him smugly walking away from the court will certainly stick in the craw of many still struggling to eke out a living in post-Celtic Tiger Ireland where austerity remains a byword for how many people live their lives. But in this case victim is undoubtedly what he is.

The Fitzpatrick trial is curious on many levels but one crucial question that needs to be answered by the ODCE in the report Mitchell O’Connor has demanded is why the chief investigator in the case was appointed when he had no previous experience in relation to prosecuting indictable offences. After all the Fitzpatrick case was clearly going to be the most high profile of the lamentably few white collar trials there have been in Ireland over the course of the last number of years. In that context one would have thought that the ODCE, the Gardai, and the Director of Public Prosecutions would have invested any amount of resources to ensuring that they had a watertight case all along the route from investigation to trial. And that our government would have made sure they had those resources. Clearly not.

A decade ago our then Taoiseach Bertie Ahern, at the height of his prowess and on the verge of winning his third general election in a row, stated that the ODCE would have to wait in line like everyone else when its chief executive had the temerity to ask for extra resources to allow it to do its business properly. For Ahern, then embroiled in the farrago of the Mahon tribunal, the work of the ODCE was not unimportant. It was simply a matter of his government prioritising at a time when resources were becoming scarce.

 

THE POLITICAL ELITE AND WHITE COLLAR CRIME
This in essence sums up the attitude of the political elite to white-collar crime. It’s important, kind of, but not so important as to do anything about resourcing it properly for those whose job is to police and investigate it. Go back a decade earlier again and we get a prime example of what the state can really do when it wants to be effective in terms of crime. The public outrage that followed the death of Veronica Guerin in 1996 forced the state to act in relation to violent gangland crime. The formation of the Criminal Assets Bureau and a whole host of auxiliary legislation specifically targeting the John Gilligan crime gang proved enormously successful in taking them down.

That same attitude simply does not exist when it comes to white collar crime and the private influence that has long riddled the public policy process as seen by evidence presented to the Mahon and Moriarty tribunals. The result is a conspiracy of neglect when it comes to attitudes to white collar crime. Politicians fulminate in the Dáil about white collar crime. They state, as both Brendan Howlin and Mary Mitchell O’Connor did last May, that no one in the ODCE has asked for more resources since the Fine Gael/Labour coalition came to power in 2011. This is the politics of reaction and neglect. The result is an insidious, if not wilful, decision to under resource any institution that may damage, through robust actions, the very state institutions they are meant to police. What this state really needs is the politics of action. The shrug of the shoulder attitude that the political class have taken towards the whole banker class and those suspected of white collar crime needs to be ditched.

 

IT IS CLEAR THAT THE GOVERNMENT HAS NO POWER
Civic duty demands that it be replaced by a state that puts its full resources into ensuring that all citizens of this country are treated equally when it comes to the investigation of criminality in all its forms. Otherwise, we will be all be guilty of perpetuating the reality of the two Irelands: the mythical one that claims to represent all citizens and the real one that places a certain class on a pedestal from which it seemingly cannot be brought down.

So what can be done now? In pondering this question I am reminded of Don Fabrizio Corbera in Giuseppe de Lampadusa’s The Leopard who, on defending his decision to join Garibaldi’s redshirts in Sicily, notes: “If we want things to stay as they are things will have to change.” It is clear that the current confidence and supply agreement between the minority Fine Gael and independent government and the Fianna Fáil opposition cannot hold much longer. That in itself is a good thing because as this government limps through office it is clear that it has no power. Neither does Fianna Fáil. The result is a vacuum where no decisions are taken, the spectre of Brexit looms, establishing commissions of inquiry becomes the way of governing and the number of super junior ministers keeps increasing as a sort of consolation prize. That is no way to run a country. Our Constitution states that the Cabinet can have no more than 15 members but over the last two decades since the first super junior minister was created it has become a mechanism to assuage the disappointed. Our Taoiseach, Leo Varadkar, really should answer the question of why there are now four super junior ministers sitting at the Cabinet table.

Why is the aforementioned Mary Mitchell O’Connor still at Cabinet? What exactly would be wrong with simply making her a junior minister for higher education? Being distraught at losing her Cabinet position should not be a reason to keep her there as a super junior. Given there are four super junior ministers why is there none for Brexit, the most important issue facing the state? In fact does any particular area deserve a super junior ministry? So many questions, no answers.

 

IRISH DEMOCRACY NEEDS TO TREAT ALL ITS CITIZENS EQUALLY
It seems to me that whether we want things to change and stay the same or really change will only be decided by a clear the air general election within the next number of months. And in that election the political class’s relationship with its civil service, with powerful interest groups, and its attitude to all the citizens of this state should be interrogated more rigorously than ever before by we the voters. Irish democracy remains extraordinarily robust but we should not take it for granted. If the centre is to hold it needs to ensure it treats all its citizens equally. The consequence of not doing so is a lessening of moral authority that gives fringe groups the opportunity to peddle superficial wares that will leave the Irish state much weaker. That needs to be resisted.

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