NONE OF THE STATE’S INSTITUTIONAL ARMS IS IN WORKING ORDER
NONE OF THE STATE’S INSTITUTIONAL ARMS IS IN WORKING ORDER
Fintan O’Toole, Assistant Editor, The Irish Times, Author and Columnist
In 1980, in his first Fianna Fáil ard fheis as Taoiseach, Charles Haughey, described Northern Ireland as a “failed political entity”. He was right, of course – but, black pots, black kettles, glasshouses, stones. There was, and is, more than one failed political entity on this island.
Back then, when Haughey used this infamous phrase, there was a rather sterile argument about partition. Was it a historical inevitability or a grotesque tragedy? We can now see that the answer, as it usually is in Irish history, is “both”. Given the lack of any serious engagement with Ulster unionism by Irish nationalists, partition was probably unavoidable. But that does not make its consequences less drastic. It produced two deeply flawed and ultimately unsustainable political entities.
They failed in radically different ways: one through violent explosion, the other through slow implosion. The fate of the southern State is much more complex and ambiguous than that of the northern statelet and it has the immense advantage of retaining the broad allegiance of most of its citizens. Yet, those ambiguities should not mask its ultimate failure. And that failure should be seen as a challenge and an opportunity – it invites us to radically rethink the State.
The failure of the State can be calibrated in many ways: the unwillingness to protect vulnerable citizens from slavery and abuse, the inability to sustain a modest prosperity, the apparently endemic resort to mass emigration, the descent into systemic corruption, the throwing away of hard-won sovereignty, the persistence of large-scale structural inequality. But we can also see it, even if we look at the State in its simplest expression, as a set of institutions.
The State as established under the 1922 and 1937 Constitutions is a classic, three-pillared democracy. It is built on the structure designed in the 18th century by Locke and Montesquieu, the separation of powers between the executive, the legislature and the legal system. But each of these pillars is so badly cracked that any honest inspector would have to condemn the building they support.
This is hardly, at this point, a controversial statement. Every serious observer in recent decades has pointed out, again and again, that the legislature does not originate legislation, scrutinises legislation in a wholly inadequate way (more than half of all Bills under the current Government have been rushed through under the guillotine), and seldom holds to account the executive that, through the whip system, exerts almost complete control over it.
The critics of the pitiful state of parliamentary power include, in principle, the current governing parties. Where, for example, do we find the following baldly stated truth: “We believe that in recent years an over-powerful Executive has turned the Dáil into an observer of the political process rather than a central player and that this must be changed”? Not in some radical manifesto but in the Programme for Government adopted by the coalition parties in 2011. Is it not extraordinary that a democratic government can describe the parliament to which it is in theory accountable as a mere “observer of the political process”? And it can then institute cosmetic reforms that will, at best, make the Dáil a slightly more keen-eyed observer?
The legal system, meanwhile, has proved itself to be almost entirely powerless in bringing to justice those who commit those crimes that are most corrosive of social order: corruption, fraud, tax evasion, bribery, perjury, market abuse, corporate recklessness. I’ve listed in The Irish Times nine things you can do in Ireland without going to jail:
1. Systematically paying workers a significant portion of their wages “under the counter”, without deducting tax and insurance. And regularly sourcing the cash for these from local banks using fraudulent cheques made out to nonexistent individuals. (Goodman beef processors, as concluded by the beef tribunal.)
2. Undermining the integrity of a key State commercial competition by exerting an “insidious and perverse” and “pervasive and abusive” influence on the process. (Michael Lowry, Moriarty Tribunal report.)
3. Acting in a manner that was “profoundly corrupt to a degree that was nothing short of breathtaking”. (Lowry and Ben Dunne, in relation to attempts to influence arbitration of rental payments to Dunne, see Moriarty report.)
4. Making corruption “both systemic and endemic” at every level of Irish political life. (The Mahon Tribunal)
5. Stealing money raised for a friend’s life-saving operation. The Moriarty tribunal found that Charles Haughey stole a “sizeable proportion” of Brian Lenihan’s medical fund.
6. Committing perjury. Charles Haughey lied to the McCracken tribunal, claiming that he had not received money from Ben Dunne but later conceded he had done so. The Bailey brothers “hindered and obstructed” the Flood Tribunal in a number of ways, including making untrue statements under oath. Not only did Mick and Tom Bailey each give false evidence under oath, but the tribunal found that they had colluded to concoct that evidence.
7. Covering up and repeatedly facilitating sexual attacks on children by known predatory paedophiles. (Several Irish bishops, see the Murphy report.)
8. Operating a massive and systematic tax fraud against the State. In 1993, the then huge sum of £2 billion was held in non-residential accounts the banks knew to be fraudulent. Allied Irish Bank alone had 88,000 “non-resident” accounts – the practice was highly organised throughout virtually all Irish banks. The public accounts committee found it to be “an industry-wide phenomenon”.
9. Manufacturing a therapeutic substance without a licence, not informing women that you knew had been infected with hepatitis C and not informing the Department of Health of the infection as you were obliged to do by law. (Senior management of the Blood Transfusion Service Board, see Finlay report).
These are just some of the socially destructive things you can do in Ireland, confident that there is a tiny chance you will be prosecuted, a tinier chance you will be convicted and a chance of going to jail that recedes towards vanishing point. The legal system as a whole has therefore failed to uphold its own most basic principle – equality before the law. There is a rough but real distinction: poor criminals go to jail; and rich and/or well-connected criminals enjoy a very large measure of impunity. Officials know this very well: In June 2013, the outgoing Financial Regulator Matthew Elderfield told the Public Accounts Committee that the system – consisting of his office, the Office of the Director of Corporate Enforcement and the Garda – is inadequate in relation to “being able to ensure individual accountability” for financial offences. “White-collar crime seems to be an area in which the system is just not operating well in terms of being able to tackle that”, he said.
The weakness of these two pillars of the State – parliament and the legal system – is chronic and long established. What is new is the virtual collapse of the third. The executive is now crumbling too. The Constitution is clear about what the executive branch of government is: the cabinet acting as a whole. But cabinet government is now itself in crisis. The most consequential economic decision in the history of the State, the blanket bank guarantee of September 2008, was made when most of the cabinet was not present and when, according to themselves, the absent members had little understanding of what they were agreeing to on the phone.
Since then, we have seen that the budget has been passed on for examination by the finance committee of the Bundestag in Berlin before going to the Cabinet in Dublin. And we know, not least from a senior Minister such as Joan Burton, that economic and budgetary decisions are being made, not by the Cabinet but by the (all-male) Economic Management Council of Enda Kenny, Eamon Gilmore, Michael Noonan and Brendan Howlin, along with unelected and unaccountable advisors. In the most important areas, cabinet government has been replaced by arrangements outside the constitutional structures of the State.
Pat Leahy is his book, The Price of Power, gives us a stark example of a sovereign cabinet decision being simply set aside. Leahy describes what happened on March 28th 2011, a few weeks after the Government took office. Michael Noonan proposed a detailed plan to burn some of the remaining bondholders in Anglo Irish Bank -speculators who had bought the bonds at a fraction of their face value and stood to make vast windfall profits from impoverished Irish taxpayers. The cabinet took a decision, in the words of one minister, “not to repay €6 billion in Anglo senior bonds”. Three days later, Jean-Claude Trichet, then president of the European Central Bank, made a direct threat to Noonan that he would pull the plug on Ireland if this happened: “if you do it, the bomb will go off.” Noonan crumbled under this threat of financial terrorism. A sovereign cabinet decision was simply torched.
One might argue that there is in fact a fourth pillar of the State: direct popular sovereignty through referendums. If so, this pillar is cracked, too. The referendum on the Seanad presented us with a “choice” scarcely anyone wanted: between abolishing bicameral parliaments and keeping a rotten and absurd institution.
Even without considering failures of policy or achievement, it ought to be obvious that the southern State is a “failed political entity”. Does this mean it is a “failed State” in the same sense as, say, Somalia is? Of course not: we have a functioning Army, police force and bureaucracy and public services that, however strained and inadequate, meet the requirements of a modern society. But it is a failed State in the simple and obvious sense that none of its institutional arms is in working order.
The first step to recovery is honest acknowledgement of the scale of the problem. Piecemeal, symbolic “reforms” will do nothing except deepen the sense of disillusionment. A real and serious programme of institutional reform – genuine local democracy, a radical review of company law and of our systems of investigation and prosecution to end the culture of impunity, a thorough strengthening of parliamentary scrutiny and a reassertion of cabinet government – would not even amount to the “democratic revolution” the Government claimed to be implementing. It would simply indicate an awareness of how deep the crisis in Irish democracy now goes. Facing up to failure can give us the courage to start again.
