When the Dust Settles

by Enda Craig

On Thursday evening, when the dust settles, after two full days of ' fake arguments' in the Dáil we will not be one centimeter closer to saving our 9.4 Irish Domestic Water Exemption. Why? Well because it’s like trying to close the gate after the horse has bolted.  It’s merely a distraction, just playing to the gallery and the media or another way to look at it ‘electioneering’.  The time for the R2W politicians to take a stand is long past.

Paul Murphy, Solidarity TD and Eoin Ó Broin , Sinn Féin TD are both former members of the Oireachtas Committee on Funding Domestic Water.  Being from legal backgrounds they will understand the significance of the omission of any mention of the 'Established Practice' clause in the committee's report and indeed the ramifications of a possible Judicial Review.

Paul Murphy, Solidarity TD and Eoin Ó Broin , Sinn Féin TD are both former members of the Oireachtas Committee on Funding Domestic Water.  Being from legal backgrounds they will understand the significance of the omission of any mention of the 'Established Practice' clause in the committee's report and indeed the ramifications of a possible Judicial Review.

For instance,  I could go back to February 2016 when after the General Election there was an great opportunity to take a stand and refuse to accept any move to diffuse the momentum of the anti water charges movement.  Instead the so called R2W politicians accepted and even encouraged the establishment of a so called Independent Water Commission and an Oireachtas Committee on Funding Domestic Water.  One hundred years after the 1916 Irish Rising the leadership could have once again taken a stand but instead they took part in the establishment's subterfuge.

After the 2016 General Election a Fine Gael and Fíanna Fáil'Programme for Government' was devised and agreed.   This was clearly set up to counteract the mass opposition to Water Charges and take the wind out of the sail of the successful campaign. The tactic was devised not only as a result of the General Election where the result was directly influenced by the mass opposition to water charges but also it was necessary because of the the European Commission’s Eurostat's classification of Irish Water in July 2015 the previous year.  The Eurostat decision not to allow Irish Water to go off the State's books must have shocked the establishment.  Again this came about through the national anti water charges' movement and their refusal to accept Irish Water and pay water charges.  No doubt Fine Gael needed to save face and devise a different approach one that might take longer but one that will ultimately get them what they wanted.  Thus was born 'the 'charging for excessive use' approach presented to them on a plate by Sinn Féin in their R2W European Citizen Initiative in 2015.   The Programme for Government including the suspension of charges, the Independent Expert Committee and the Oireachtas Committee on Funding Domestic Water was also in line with that presented by Fíanna Fáil’s Barry McGowan at the McGill Summer School in Donegal in the Summer of 2015 (https://www.fiannafail.ie/10094/ ) where he said

Fianna Fáil maintains its call for the immediate suspension of charges. Domestic charges should only be introduced when the national infrastructure is brought up to standard.

After the general election the R2W TDs should have run a mile from such an establishment plan. However, they ran the other way, straight into its arms,  not only taking part, but in my view they aided and abetted the Government tactic for their own political ends.

We have now witnessed this agenda coming to fruition as the ‘ongoing opposition to water charges' where the establishment left, particularly Sinn Féin and Solidarity and People Before Profit can now dine out on it for the foreseeable future sniping at the heels of Fíanna Fáil.  Even the R2W Union leadership are in on this politically lucrative ‘permanent opposition to water charges’ act. The old adage ‘never trust a politician’ comes to mind or as Richard Armour said

″Politics, it seems to me, for years, or all too long, has been concerned with right or left instead of right or wrong. ″

However, it is the more recent Oireachtas Committee on Funding Domestic Water, who eventually delivered it’s controversial report last April over a year since the General Election that shows up the duplicity of it’s members including the R2W TDs. The Committee was nothing short of playing to the grandstand where it’s members including the five R2W TDs were clearly basking in the limelight in the public sessions but in it’s 21 private sessions it was an altogether another affair. This duplicitous grandstanding was clearly demonstrated by the lack of any mention of the Ireland’s 9.4 Exemption or indeed any mention of the full day session of February 15th.  Anyone genuinely supporting the mass movement would have been up in arms at this omission and clearly the February 15th session showed that they all knew how important the question of Ireland's 9.4 or 'Established Practice' was.

Judicial Review, show by actions and not words

I asked a legal friend of mine for his opinion about the exclusion of the 9.4 Exemption and the February 15th session from both the ‘Confidential Final Draft Report’ or the ‘Final Report’ of the Oireachtas Committee on Funding Domestic Water Charges.  He advised that a Judicial Review against the Government for the non-inclusion is indeed very possible.  The fact that ' Established Practice and the 9.4 Exemption ' was given one full day of debate, including submissions of two Senior Counsel, establishes that this sector of discussion as " Material Information " and by normal legal right should have been included in the reports.

If any of the R2W TDs or R2W Union bosses had the slightest interest in retaining the 9.4 Exemption they could have and should have instigated a Judicial Review back in April 2016 to save the 9.4 Exemption and have it inserted in the Committee's report as of right.

No one would know this better than Deputies Eoin Ó Broin and Paul Murphy with their extensive legal knowledge. Instead they have been encouraging ' meaningless ' River Basin Management Plan submissions and proclaiming their bona fide anti water charges credentials in the Dáil.

Maybe I could suggest to them that an opportunity still is available until October 6th to save the 9.4 Exemption when the Statute of Limitations runs out on a Judicial Review.


Oireachtas Committee on Funding Domestic Water - A Collusion in Secrecy

A Freedom of Information (FoI) request sent by us on the 8th September 2017 to the FOI Co-ordinator, Oireachtas Service, has been refused by Mr Thomas Sheridan, Clerk to the Joint Committee on the Future Funding of Domestic Water Services.

by James Quigley

chairOireachtas.png

We requested information on 21 private sessions, including voting preferences and agreements of members of the Joint Committee on the Future Funding of Domestic Water Services that concluded business in highly controversial circumstances in April this year.

We asked the FOI Services for

“all submissions, records and minutes of all Private Sessions and any information other than was made public through the Oireachtas site, relating to the Joint Oireachtas Committee on the Future Funding of Domestic Water Services, that took place between 13th December 2016 and 11th April 2017.

We believe there were 21 meetings in total and all had private sessions and submissions that were not made public.

We believe we have a right to know what took place in our name, who voted for what and what is the actual truth of events during those proceedings.

We are particularly interested in the 15th February 2017 sessions and all the 10 'Private Sessions' between 28th February 2017 and 11th April 2017.”

Mr Sheridan replied

″I have reviewed your request, and have considered all of the records to which you refer in the context of the specific provisions in the Freedom of Information Act 2014. Arising from that review, I do not believe that any of the records to which you have requested access falls to be released under the Act, as the Freedom of Information Act 2014 does not apply to those records. ″

(Read Mr Sheridan’s full reply here)

 

Facts kept under lock and key

So other than an appeal of Mr Sheridan’s decision, (costing €30), it seems we are not going to be made any the wiser about the many private sessions of the water committee. We suspect that there were many private deals done between individual Oireachtas members and parties, such is the nature of the sordid political game.  We know we will not unearth that information, other than some honest member with integrity divulging it.  However, we should expect openness and transparency especially in any public representative body such as an Oireachtas Committee and it is a shame and indeed it is ‘fingers up to democracy’ when such a simple thing like knowing what our representatives agreed to or voted on, is being kept under lock and key.

What we do know is the fact that the most important session of all, that of February 15th, including the highly significant paragraph 9.4 of the Water Framework Directive, never got into any final committee report.  (see references)

 

Mr Sheridan sheds light on secrecy

The collusion of all members of the committee in this secrecy and what can only be described as the deliberate omission of the Irish Exemption or any reference to the February 15th session was corroborated in a phone conversation between Thomas Sheridan (Oireachtas secretary) and Enda Craig (Buncrana Together) two weeks ago when Mr Sheridan revealed that contents of reports by the committee was discussed and agreed beforehand by the committee members.

If Mr Sheridan's explanation is the case then surely the corollary to that is that any omissions were also agreed.

 

Chairman gone AWOL

For a fuller picture of this overt 'collusion in secrecy'  it might be interesting to know that a letter was also emailed a month ago to the 'independent' Oireachtas Chairman, Senator Pádraig Ó Céidigh asking why the February 15th session was completely omitted in any report.  We have not receive a reply yet.

References:
The dilemma of paragraph 9.4, our democracy, the Oireachtas Water Committee and Right2Water Ireland

Clouds of suspicion over omission of 9.4 Exemption in Oireachtas Water Committee report

Michael Noonan 'Water Charges Required Under European Law' is a Lie


The dilemma of paragraph 9.4, our democracy, the Oireachtas Water Committee and Right2Water Ireland

What exactly took place in the Oireachtas Committee on Funding Domestic Water that ended in highly controversial circumstances in April this year.  There are many questions that members of the committee and politicians have failed to answer and that the mainstream media have not bothered to ask.

by Enda Craig and James Quigley

 
Twenty members of the Joint Oireachtas Committee on Future Funding of Domestic Water Services.  Top two rows were professed anti water charges, anti metering and anti Irish Water delegates.

Twenty members of the Joint Oireachtas Committee on Future Funding of Domestic Water Services.  Top two rows were professed anti water charges, anti metering and anti Irish Water delegates.

 
 

Oireachtas schedule, including Private Sessions, from the Oireachtas Final Report April 12 2017.  Click to enlarge

The short answer is: there are many many unanswered questions and we don’t know exactly what took place. It's like a wall of silence has been erected and any mention of paragraph 9.4 or what went on in the many Private Session is taboo.

For example, we don’t know what influence Minister Simon Coveney or the Eu Commisioner Vella’s threats had on the process. We don’t know whether Fianna Fáil reneged on promises, whether to Fine Gael or to the anti water charges members. We don’t know why the Right2Water committee members appeared on the Dáil plinth on April 6th and prematurely hailed the draft report a victory.  We don't know whether the Right2Water bartered away some key demands.

And the biggest conundrum of all is we are unclear whether the committee members, especially those professed anti water charges, anti metering and anti Irish Water Ltd members, agreed with the 'Confidential Draft Report' of April 5th, even though there was no mention of Paragraph 9.4 of the Water Framework Directive 2000/60/EC and most importantly no mention of invoking this paragraph in Ireland’s second River Basin Management Plan.
 

Honest information is hard to come by

Even after emailing the chairman Pádraig Ó Céidigh, querying committee members and last but not least our numerous requests from Right2Water Ireland, we still are unclear how exactly the ‘Draft Report’ came about or whether it’s contents were agreed by the members of the committee.

However, we do know that there were many claims and counter claims after April 5th, with Fine Gael accusing Fianna Fáil of going back on promises and Sinn Féin accusing Fianna Fáil of multiple turnarounds and Fianna Fáil denying any of it.

After a phone conversation with the committee secretary Tom Sheridan who told us that the contents were agreed by the members and that is how the process works, we are gravitating towards some kind of committee member's agreement with the contents of the controversial draft report.  However, the only confirmed fact at the moment is not one member of the committee objected to the omission of 9.4 in the draft or final reports.

Surely it is our right to know what this committee and it’s members got up to and not rely on hearsay or misinformation. Basic information like 'what exactly did they agree or barter away during all those private sessions, especially the last ten private ones from February to April, should be readily available?  It is not and no one wants to talk about it.

As mentioned in our earlier article we have a big problem with this committee’s protocol and the numerous private sessions. Who drafted the contents of the ‘confidential draft report’ and why was the most important issue, that of Ireland’s ‘Established Practice’ enshrined in the EU Water Framework Directive, paragraph 9.4 , not included?  Did the committee’s officials decide not to include it?  Or did the members themselves agree the contents of the draft report including the omission of any mention of paragraph 9.4. In other words, in both scenarios, was it a deliberate omission? After all that went on during a full day’s debate on February 15th and the importance Chairman Ó Céidigh gave to the debate, it should have been included. 

Because of the importance of the 9.4 paragraph to Ireland any member of the committee who supported anti water charges and anti metering should have been up in arms over the omission.  There wasn't even a whimper.

A recent email that came our way, (see below) written by Alan Brynes and addressed to all committee members and the secretariat, including the chairman Pádraig Ó Céidigh, confirms the existence of this ‘confidential draft report’.  We say this because even some in Right2Water are denying it's existence. 

In a phone conversation with a committee secretary we were told that the contents of this report were agreed by the committee members. If this was the case, then it follows that the members of the committee agreed not to include paragraph 9.4 or any mention of the River Basin Management Plans or any mention of February 15th debate.  What corroborates this conclusion is the total lack of criticism about the omission from any member of the committee and their absolute silence afterwards.

 

Draft Report email from Oireachtas secretary to Committee members April 5th 2017

Paragraph 9.4

This is the paragraph in the The EU Water Framework Directive (2000/60/EC that enshrines Ireland’s ‘Established Practice’ into European law.  It was transposed into Irish law by the European Communities (Water Policy) Regulations 2003 (S.I. No. 722 of 2003).  Paragraph 9.4 was negotiated by Fianna Fáil , the government of the day in 2000, who were forced into it by past successful anti water charges’ campaigns. Hence it was called the ‘Irish Exemption. The paragraph is undoubtedly Ireland’s best defense against the EU Commission forcing water charges and metering through, in any shape or form.  It must be invoked in the second River Basin Management Plan which will be sent to Brussels on the last day of this year.

Another little bit of information is that the Irish Government is not obliged by EU law to bring in water charges and paragraph 9.4 of the Water Framework Directive 2000/60/EC establishes this.  However, we believe that this paragraph and any form of water charges are mutually exclusive.