R2W AND R2W TD'S ABANDONED THE 9.4 EXEMPTION AND AGREE WITH PRO GOVERNMENT PROGRESSIVE CHARGES

by Enda Craig & James Quigley

The Oireachtas Committee on Future Funding of Domestic Water spent a full day on February 15, 2017 discussing compliance with European Law and the role of the regulator. A major part of that session concerned the principle of Ireland's ' Established Practice' enshrined in Article 9.4 of the Water Framework Directive and whether it is still a valid option for the Irish Government  to re-invoke the 9.4 Exemption that would allow Ireland a derogation from charging for domestic water.

Two Senior Counsels, invited by FF and SF, were adamant that it was still intact and on that basis saw no reason why the Irish Government should not use it.  It was noticeable how vehemently the EU Commission delegation and Fine Gael forcefully argued that Ireland gave up it’s right to invoke the 9.4 Exemption and asserted that it is now defunct.

As a result of the convincing arguments of both senior counsels, including supporting evidence of two similar cases in  the European Court of Justice (ECJ) and the EU Commissioners and FG efforts to quash it, I anticipated that the 9.4 Exemption would be, not only included but would form a major part in any report or recommendation.

However, there was no mention of Established Practice’, ‘9.4 Exemption’ or ‘Derogation’ in any final report, including the the 'Final Confidential Draft Report' that was supported by all the R2W TDs.  Incredibly, it was replaced by the new concept of 'Progressive Charges ' for excessive use and all that that entailed e.g. metering. 

According to the Committee secretary all the TDs on the Committee agreed the contents of that Final Draft Report. 

A group of R2W TDs predominately Sinn Féin,  heading to the Dáil plinth on April 6th.  At front Richard Boyd Barret, PBP, left and Eoin O Broin, SF, right

A group of R2W TDs predominately Sinn Féin,  heading to the Dáil plinth on April 6th.  At front Richard Boyd Barret, PBP, left and Eoin O Broin, SF, right

Progressive Charges, Metering and 9.4 Exemption. Who Benefits?

1.  The concept of charging and a minimum allowance was proposed by Sinn Féin and supported by R2W Unions in 2015 when Lynn Boylan included it in her European Citizen Initiative. This was totally opposite to R2W and even Sinn Féin’s stated policy in Ireland.

2.  A small daily allowance and charges for anything above was accepted in the final Oireachtas Water Committee reports. The principle of charging, no matter how small sets a precedent, it commodifies water with a natural consequence of a metering programme. There is no other way to measure a daily allowance.

3.  There is now  two components necessary for privatisation established, namely charging and metering.  The ink is not yet dried on the Oireachtas report and  the legislation based on it, the Water Services Bill 2017, now allows the charging amounts and allowances to be manipulated.  What with the Irish Water company well established, most of its plants and businesses outsourced to private companies, incentives and legal commitments in relation to metering, there is not much in it for optimism for the future.

4.  Retention of Irish Water the company. By accepting the process of the Oireachtas Committee, in the first place, and especially it’s Final Draft Report, the R2W TDs accepted and copper fastened the Irish Water company. In 2016 Eoin O Broin, Sinn Féin accepted that there was no viable alternative to Irish Water. This statement was not contradicted by any in the R2W leadership.

5.  By not including the 9.4 Exemption , R2W TDs accepted the arguments from the EU Commissioner. They have now allowed the Government to ignore it in future River Basin Management Plans.   During February 15th debate Eoin O Broin  unilaterally introduced a brief statement that the 9.4 was not included in the first RBMP.  In my opinion this was a highly significant remark, one that I would argue strongly against.  It was not the first time that Sinn Féin introduced brief unilateral statements which, in the circumstances, would be seen as R2W policy.  Without being corrected by R2W these throwaway remarks have had major consequences for the anti water charge movement in general and they have forced the direction of the anti water movement.

6.  R2W Trade Union delegation to the Oireachtas Committee on Feb 16th agreed that a former statement by Brendan Ogle  where he stated that he was not opposed to  ‘charging for excessive use’, is the policy of R2W.  Again this was another unilateral statement by R2W Trade Unions but taken with Lynn Boylan's 2015  Citizen's Initiative, it was designed to copper-fasten the policy of an excessive use charge again forcing the direction of R2W movement.

7.  Having not included the principles contained in the 9.4 Exemption in the Oireachtas Committee's final report, the ball was left firmly in Government hands whether they might  re-invoke it or not.  How much pressure Fianna Fáil will exert to have it re-invoked or how much commitment they have to the 9.4 Exemption is anyone's guess.  In my opinion this has been a massive failure of the R2W TDs.  Their argument that they were only 5 TDs in a committee of 20 is not good enough.  As I have said previous they either did a deal (which they are not willing to explain) or else they have been outwitted by their counterparts.  In the first place R2W should not have taken part in the establishment's charades and secondly when and if they realised that the 9.4 was not in the running they should have walked out and called an uprising.
 

How could this have happened?

Prior to and after the February 15th Oireachtas session, the 9.4 Exemption was seen as one of the most effective defences against EU insistence that Ireland charge for domestic water. To my dismay this exemption was thrown away by the R2W TDs and Fianna Fáil on the committee when it was not included in the final report. For seven months all requests for an explanation from R2W and R2W TD's have been met with a wall of deafening silence. Further research showed that between the 9.4 discussion in the Oireachtas Committee on Feb 15 and publishing its draft report on the April 5th  the committee met in over 30 secret sessions. Attempts, through direct requests to the department itself and R2W and through the Freedom of Information process , to get details of the discussions in those private sessions have been refused. 
It is obvious something substantial must have transpired to convince the R2W TD's and Fianna Fáil to abandon the 9.4 Exemption and accept excessive charges and metering instead. Either they succumbed to FG and Eu pressure or some type of deal was done.  Without complete information or openness and transparency and through lack of democratic avenues within R2W, I am convinced that the latter is the most likely. Until I get reasonable answers the facts and silence is pointing to FF and the R2W TD's dropping their support for the 9.4 and accepting Progressive Charges in it's place, a complete U-Turn from the positions that they portrayed in the media and manifestos.

They abandoned one of Ireland's best defences against European bureaucracy and allowed Brussels an inroad to do away with Ireland invoking the Water Framework Directive’s 9.4 Irish Exemption, something that the Commission has been planning for some time. Now the defenders of the Oireachtas Committee are practising how best to hoodwink' their various supporters and the public in general and hopefully not get found out. As part of this propaganda the R2W TDs banded together on the morning of April 6th, after the introduction of the final Draft Report when over twenty of the biggest bunch of sell-out TDs marched up to the Dáil media plinth and spouted forth their betrayal of the 9.4 Exemption, the Anti Water Charges Campaign and the people of Ireland.

Fianna Fáil have been no different.  They once professed strong anti water charges and anti Irish Water principles but have conspired with Fine Gael, contrary to the mandate they were given by their supporters,  to establish Irish Water and through their agreed mechanisms with Fine Gael to defuse the massive anti water movement and finally to introduce water charges and metering.

Barry Cowen, FF, MacGill Summer School, July 2015, "The botched implementation of the water charges regime by the government has shook public trust in the tariff system. 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."

Eoin O Broin, SF, April 6th on the Dáil plinth “Our collective view is that the report which we are going to vote on later today is an enormous victory for the Right2Water campaign”


Oireachtas Water Committee secret bussiness is a no go area

by James Quigley

Below is an appeal sent to the Freedom of Information Commissioner . It is the third step in a laborious process of trying to find out what took place in over thirty secret sessions of the Oireachtas Joint Committee on the Future Funding of Domestic Water in Ireland.  The committee's business ended in April 2017 in acrimonious and dubious circumstances.  Buncrana Together has written extensively on the subject and to date we have not received a satisfactory explanation from any member involved in the Committee.  

The only little bit of information we were able to get was from the Committee secretary Mr Tom Sheridan who told us that:

"The content of the Report, which is mainly comprised of the Joint Committee’s recommendations, was agreed in detail by the Members over a number of meetings and approved by them in the normal manner."

Apparently the Oireachtas Committee business does not come under the FOI Act and according to the FOI Coordinator the department doesn’t give out information relating to Oireachtas Committees.

Details of our FOI request and initial appeal can be read here and here.

Members of the Oireachtas Committee On Future Funding of Domestic Water

Members of the Oireachtas Committee On Future Funding of Domestic Water

Below is the appeal  sent to the Office of the Information Commissioner by James Quigley on behalf of Communities for Ireland's 9.4.

 

"My FOI request concerned the Joint Oireachtas Committee on Future Funding of Domestic Water sent on Sept 8th 2017.  The request was dealt with and completely refused by the committee secretary Thomas Sheridan. I appealed his decision and my appeal was also refused by Vivian Uibh Eachach, Oct 13 2017, on the same grounds.

As far as I am concerned my request dealt with the administration of this committee, it's day to day procedures and in particular what each committee member voted and pushed for.

In the first place I find it difficult to accept that the person(s) dealing with my FOI request were directly involved with the issue. The question of impartiality arises here.

Secondly I find it difficult to accept that there is a carte blanche and total refusal of all information concerning such a public body, dealing with a public issue and in the interest of the public.

Surely there must be some information that is not totally restricted by the Houses of the Oireachtas Act 2013. I contend that that Act was dealing with sensitive issues and that is understandable.  However, it is not acceptable in this case where the issue was a public one, involving public representatives and witnesses.  In fact all witnesses' submissions are accessible to the public one way or another. 

As far as I can see there is nothing in that committee's proceedings that is remotely sensitive.  The committee was initially introduced  by Mr Coveney as a open and transparent process based on the recommendations of the Expert Commission.  One of this body's recommendations was that the public should have access and direct involvement in the water infrastructure affairs.  Surely a total refusal, hiding behind a bureaucratic 2013 act is contrary to this sentiment.

As part of my request I pointed out problems with the management of this Committee especially around the 30 odd secret meetings where, as far as I am led to believe, voting took place concerning what would go into a final report.  In particular I mentioned the session of February 15th and it's total omission from any report including the Confidential Draft Report sent to the committee members by Alan Byrne on April 5th.  I can send you his email which included the Draft Report.

I have read in the Oireachtas web site that it is a duty of the chairman to include all sessions in reports for members to accept or not for a final report.  That's as it should be and I contend that the Chairman and secretariat failed in this administration duty.  

It is significant that there was no mention of the February 15th session in the Draft Report especially as the Chairman himself commented on the day that this was a "very important discussion".  In my opinion this session was at the core of the argument, yet omitted entirely.

Again I would contend that the administration failed the public due to the controversial ending to committee's proceedings where the public was subjected to claims and counter claims by the members themselves who were openly at odds in the media.  

The administration did not protect the public by not making things clear especially as to what members voted for or agreed to.  No one was reprimanded and  official records and the truth has been withheld from public scrutiny.

To conclude I would suggest the reason given by both officials does not uphold nor protect citizens rights and as such goes against the very reason why we have Oireachtas committees in the first place."

 

Water Committee’s many unanswered questions

by James Quigley

In my last article I asked  should the chairman of the Joint Oireachtas Committee on the Future Funding of Domestic Water, Senator Pádraig Ó Céidigh  have ensured that each session of the committee was included in all committee reports.  I said that that question was put to him and that we did not receive a reply from him. It turns out my article wasn't wholly accurate.

Senator Pádraig Ó Céidigh, Chairman

Senator Pádraig Ó Céidigh, Chairman

Michael Mooney, Communities for Ireland’s 9.4 reminded me that he wrote twice to Mr Ó Céidigh in August this year  and he received not one but two replies.  Neither reply, however, was directly from the chairman himself.  Rather they were sent indirectly through the committee secretary, Tom Sheridan. (see all letter below)

Michael pointed out that in a second email he informed the secretary that he was annoyed that Mr Ó Céidigh did not reply personally, in the first place.  Hence the secretary's second reply.

However, apart from the etiquette question,  what Mr Sheridan's replies in fact does is point out that both he and the Chairman Mr Ó Céidigh are in agreement.

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This answer speaks for itself.  The responsibility is now laid squarely on the members themselves and puts the onus on them to give us an explanation, firstly whether they agree with the committee secretary or not and secondly, If they agree and it would be amazing if they didn’t, then,  they have to explain why they did not include any mention of February 15th session and in particular the 9.4 Exemption in any report.  Did they replace the 9.4 Exemption or Ireland's  ‘Established Practice’ with excessive charges and metering?

One of the reasons we dwell on this is because we have not got an adequate explanation to date from anyone.  We have to determine who was responsible for setting the agenda for any of the committee’s reports.   This is a highly significant line of questioning.  Depending on the Oireachtas member's explanation, their answer will shed light on procedures and in particular why there was a total omission of what we believe to be the central and most significant session of the whole committee, namely February 15th session.

Not only does it question the bona fides of those who professed to be acting in the interest of the majority of Irish people opposing Irish Water, water charges and metering but it has the potential to question the administration of the committee itself and by extension the farcical end result.  This by the way includes Fianna Fáil, Sinn Féin, Solidarity/PBP, Independents and Senators.

 

Original query from Michael Mooney

Dear Mr O’Ceidigh,

I am aware that you were appointed independent Chairman of the Oireachtas Comittee on the Future Funding of Domestic Water in Ireland which is now disbanded. I followed this with great interest but it ended with some disillusionment.

I understood that it would be an independent chairman’s responsibility to record and report on all significant contributions to the committee and as a result of this I have a query.

During the meetings which were both held in private and public you obtained input from senior counsels. These were Matthias Kelly and Conleth Bradley who are regarded as experts in European Environmental Law. You permitted their input, as you believed or stated that it would be of the ‘utmost importance’ following some objection from Colm Brophy TD. These people were invited by Sinn Fein and Fianna Fail to contribute their legal opinion on Ireland’s compliance with the European Union (EU) Water Framework Directive (WFD). Their contribution extended over at least one full session around mid-February 2017. In their legal opinion, they confirmed that Ireland was in compliance due to a practice already established of paying for water. This established practice forms an exemption which leaves Ireland in compliance with the EU WFD via Section 9, item 4 or as commonly referred to Exemption 9.4. This is a significant piece of information and my query is;

Why was this omitted from the confidential draft report that you furnished?

I look forward to an urgent reply on this matter. Please confirm receipt of this upon arrival and advise if you can reply within 7 days and maximum 14 days.

 

 

First letter from Oireachtas secretary

25 August, 2017

Dear Mr Mooney,

I refer to your recent message to Senator Pádraig Ó Céidigh regarding the Report of the Joint Committee on the Future Funding of Domestic Water Services.

In the course of its deliberations, the Joint Committee considered extensive information from a large number of stakeholders (received both in writing and in oral evidence at meetings), regarding a range of matters relating to its brief. Transcripts of the meetings of the Joint Committee along with a large amount of other information are available on the webpage of the Joint Committee at the website of the Houses of the Oireachtas (www.oireachtas.ie).

It was not the objective of the Report of the Joint Committee to re-produce all of the information that was considered. The content of the Report, which is mainly comprised of the Joint Committee’s recommendations, was agreed in detail by the Members over a number of meetings and approved by them in the normal manner.

The Joint Committee ceased to exist following the conclusion of its work at its final meeting on 11 April of this year, and the subsequent submission of its Report.

Yours sincerely,

Tom Sheridan
Committee Secretariat

 

Second letter from Oireachtas secretary

28 August, 2017

Dear Mr Mooney,

Joint Committee on the Future Funding of Domestic Water Services

I refer to your message to Senator Pádraig Ó Céidigh dated 20 August regarding the above matter, to my reply of 25 August, and to your subsequent message.

I replied to your message to Senator Ó Céidigh as the person who was the Clerk to the Joint Committee during its deliberations. This is consistent with normal practice.

Having considered both of your messages, Senator Ó Céidigh does not wish to add anything to my earlier reply.

Please contact me if you have any further queries regarding this matter.

Yours sincerely,
Tom Sheridan, Clerk