Séamas Ó Tuathail ,SC, makes convincing argument for amending Irish Constitution on Public Water

Séamas Ó Tuathail  - photo: Irish Times

Mr Séamas Ó Tuathail's submission to the Joint Oireactas Committee on Funding Domestic Water, Jan 25 2017,  not only makes a convincing argument for amending the Irish Constitution but it also vindicates the long struggle of the Irish People against privitisation of the public water supply.   Mr Ó Tuathail's in his submission stated

"The proposed Constitutional amendment seeks to address significant concerns around privatisation of the water services which have been strongly expressed by the general public through mass public demonstrations. The public have indicated their desire to have the public water supply protected from future privatisation. This issue as a matter of grave public concern has been reflected within the Report of the Expert Commission on Domestic Public Water Services."  

The amendment was passed by the majority of TDs in the Dáil on Nov 9 2016.  (read 35th Amendment Water in Public Ownership No2 Bill 2016).  

As far as we can make out, this amendment,  which Mr Ó Tuathail drew up,  refers to ownership and management of our public water.  However, it must be noted that it does not encompass issues around the ' human right to water', water charges or metering.  Although we wholeheartedly support this amendment, we also need, once and for all,  a constitutional right to water.  This right has been played about with by politicians for far too long now that, similar to the 'privitisation' issue, we do not trust Government not to change legislation on charging in the future.

 

Some interesting quotes from Mr Ó Tuathail's submission
 

Importance of Access to Water

''Access to water is essential for human life, health and well-being. Therefore the provision of water is taken to be a basic human right and its direct provision should be considered to be a basic function of any State.  The introduction of a market relationship in the delivery of water can rightly be viewed as the first step toward privatisation and commercialisation of water provision and consequently as the first step towards diminishing a person’s human right to water 7. The creation of a primarily commercial type relationship redefines water from being a public good to that of a personal service which can be removed if a person is unable to pay.  It is reasonable to conclude that the threat posed by the pursuit of profit in terms of providing water services amounts to a threat to access by the general public to water."  page 2 

 

"Public Private Partnerships are being used increasingly within the public water system in Ireland. Private
companies are ‘providing, operating and managing water and waste-water treatment plants for some of our
largest cities and towns’ . With most of these private companies being global corporations which are leading
the way in water privatisation internationally.

They now control water and waste-water treatment infrastructure such as the Dublin Ringsend Waste Water Treatment Plant, (treating waste water from over 1.7 million people), the Bray/Shanganagh plant (serving a population of 248,000), Sligo (serving 80,000), Waterford (180,000), and plants in Cork, Tipperary, Offaly, Meath, and Donegal, amongst others.           According to Dail records there are, in fact, 115 of these PPP contracts to Design, Build, Operate and Maintain (DBO), water and waste-water treatment plants across 232 sites in Ireland. The contracts are worth a   massive total of €1.4bn and most are set to run up to 2030. It is estimated that Irish Water (previously the local authorities) are paying out €123 million per annum to the private companies to cover the operation/maintenance/repayment costs of these PPP contracts 14.  There are clearly a number of paths to privatisation."  page 2-3

 

Adequacy of Existing Protection

"The Constitution of Irish Water (Memorandum and Articles of Association) under the Companies Act2014 reflects the statutory prohibition on the alienation of shares and plebiscite requirement as it must be in keeping with Water Services legislation. However, both the requirement of non-alienation of shares and the requirement of a plebiscite can be removed by subsequent amending legislation, meaning the statutory protection on the shareholding can be undone by the consent of current or future governments.
More concerning are the wide powers given to Irish Water under its own Memorandum of Association in terms of disposing of assets, or transferring of assets under contract to private interests. Also borrowing against the assets means that the assets can be taken legally in satisfaction of a debt. Only Ministerial approval is required for the exercise of some but not all of these powers."  page 5

 

Irish Water Powers – Alienation of Assets by Sale, Transfer or Other Means

"The powers which had been provided under statute for the water authorities under section 31 of the 2007 Act would not seem to have been transferred and most were deleted. Section 7(2) of 2013 Act No. 2 provides that references to a water services authority under the 2007 Act in so far it related to functions transferred under the 2013 Act No. 2 would be construed as reference to Irish Water.  Therefore references to a ‘water services authority’ in Section 31 of 2007 Act still remain as reference to local authorities."  page 5

This restriction on transferring assets or infrastructure was not replicated in the 2013 Act, the 2013 Act No. 2 or the 2014 Act. In fact it would seem that under Clause 4 of the Constitution of Irish Water (the Memorandum and Articles of Association) wide powers have been provided in relation to disposing of assets or transfer by another means e.g. providing for use subject to contract. The exercising of some powers would require ministerial consent/approval under Clause 7, with the only prohibition on the Ministerial approval/consent being in relation to selling shares in Irish Water:"  page 5-6

 

Conclusion

"Existing protections are wholly inadequate. The only act that is prohibited under Statute and in the Memorandum of Association of Irish Water is the alienation of the share capital, which is only valued at €1,000,000 in total. The requirement for a plebiscite is a statutory requirement also. These requirements can be undone by the consent of a government with a majority in Dáil Eireann, using statutory amendments to remove them. 

Previous governments have sold shareholdings in various former public sector companies which have in certain cases resulted in detrimental consequences for the public e.g. sale of Eircom. This sale gave rise to a serious lack of investment in key technological infrastructure which hindered greatly investment by industry into areas of the country not supported by broadband 16 but in dire need of job creation.

More importantly; what is of value is the assets of Irish Water i.e. the public water system; the sale and transfer of which can currently occur or part thereof through the Irish Water exercising its wide powers, which in some instances are not even subject to ministerial approval/consent. These transactions can be for no consideration or benefit and the powers can only be widened in the cases of conflicting interpretations.

There is no statutory prohibition or otherwise on the sale or transfer of the assets of Irish Water in fact to do so is clearly provided for in the company’s own Constitution. Public private partnership contracts are already being used and parts of the public water system are now being managed, operated and maintained by private companies for profit. The key assets of the public water system can be sold, or transferred under contract to private interests leaving a shell company in public ownership. This offers no real protection to the public in terms of privatisation of the public water system."  page 8

 

Appropriateness of Constitutional Protection

"Access to water is essential to public health. Privatisation of water poses a serious threat to access and quality. The only legal mechanism we have that would ensure a government is prohibited from acting against the best interests of the public is the provide for a Constitutional prohibition by making the Government clearly responsible to own, manage and maintain the public water system.

This is the key aim of the The Thirty-fifth Amendment of the Constitution (Water in Public Ownership) (No.2) Bill 2016 was passed at its second reading by the majority of T.Ds in the Dáil on the 9th November 2016. There is currently no protection from a State who wishes to sell natural resources and public assets to private enterprise in its own interest but against the best interests of the Irish people . The Preamble of the Irish Constitution professes that the people gave themselves the Constitution and Article 6 provides that:
       ‘all powers of the government, legislative, executive and judicial derive under God from the people,
      whose right it is to designate the rulers of the State and, in final appeal to decide all questions of
      national policy, according to the requirement of the common good’.
The Irish people have strongly vocalised their concern and opposition regarding privatisation of water and water charges. This formation of the Expert Commission on the Future Funding of Domestic Water Services on whose report is being considered by this Committee is as a direct result of political pressure created by the people in relation to this issue. In line with the Constitution that provides this ‘overarching constitutional structure 18’ the people have appealed to decide this issue in relation to their own Constitution by way of a referendum.

A constitutional amendment is a ‘particularly solemn legislative process’ where the people and the Oireachtas take part . It is clear the public wish to take part in such a process to decide the policy in the area of water going forward and in particular to prevent privatisation. In the last analysis it is the people themselves who are the guardians of the Constitution." page 9

 

Full Submission on Constitutional Protection for the public ownership of the public water infrastructure/system to the Joint Committee on the Future Funding of Domestic Water Services.  Click image to read full document.

Public ownership of the public water system Ireland - privitisation & the Troika

John Lahart, Fianna Fáil

The following is based on an interchange during last week's Joint Oireachtas Committee on Funding Domestic Water, January 25, 2017,  between John Lahart Fianna Fáil, Mr Séamas Ó  Tuathail, SC, and Maria Graham, DHPCLG.

What especially interested us was the context of Mr Lahart's questions which Séamas Ó  Tuathail described as

"very well informed."

 

Séamas Ó  Tuathail, SC

However,  besides being well informed we wonder whether there might also be some substance behind this particular question from Mr Lahart

"Was the privatisation of water services ever agreed or discussed with the troika at any stage?  Is there anything available on that? "

Maria Graham, Dept of Housing, Planning, Community and Local Government

We would indeed like to know if there is anything available on that one.  Unfortunately this question was not answered.  We have a sneaky feeling that there may indeed be substance especially in light of what everyone in the anti Irish Water campaign knows as a result of the settingup of Irish Water Ltd,  Government's connivance and the true nature of the Troika (Privatising Industry in Europe).

 

We wonder too why Mr Lahart asked such a question and whether he might be keeping his powder dry on that one.

 

Note in the following transcript Ms Maria Graham   says " I think I attended all of the meetings with the troika ".   Less than convincing we should say and a more in-depth investigation into this one would be very interesting.

Full transcript of the exchange
 

Deputy John Lahart:   I have a few comments, and I thank our guests for their comprehensive documents today, and their presentations. Ms Graham in her opening statement mentioned the initial set up of Irish Water and how it was envisaged that the utility would be a public utility, a State body in public ownership. Some of the contributions seem to suggest that all the problems around this emerged out of nothing, or ex nihilo, as Mr. Ó Tuathail suggested. I am interested in what Ms Graham says was the original intention. It is worth briefly recapping on why we are here, and how it became so muddled and confused for people. It looked suspiciously like Irish Water was being prepared for privatisation through a whole series of actions. This was not something in people's imaginations, despite what the original motivation might have been. The Government at the time went against its own consultant's report in setting up Irish Water as a subsidiary of Bord Gáis. Parts of Bord Gáis were subsequently privatised and sold off. That gave rise to suspicions. It was given to Bord Gáis on the one hand because it was stated that Bord Gáis had the operational capacity to deal with it yet there was this necessity for huge sums of public money to be paid out to external consultants for Irish Water. Demonstrably, Bord Gáis did not have the capacity to deal with all the aspects of it. There was the speed with which it was set up.

Chairman:   Does the Deputy have a question?

Deputy John Lahart:   I do, yes.

Chairman:   Can he get to it?

Deputy John Lahart:   I will, yes, but other people have made statements. There was the speed with which it was set up, there was the Siteserv element. There were a number of issues, not least the guillotining of the debate about it, that have brought us here, unnecessarily to some degree. We are here because of all those missteps that were taken along the way, and I think, Cathaoirleach, that has to be borne in mind by the committee.

Chairman:   What is the question?

Deputy John Lahart:   I am coming to it now. The public ownership and the lack of confidence the public developed over time in Irish Water were key findings of the commission. That was not something created by the Opposition. It was created by the manner in which Irish Water conducted itself. My questions are these. Was the privatisation of water services ever agreed or discussed with the troika at any stage? Is there anything available on that? Has the Department ever considered a model such as that currently being rolled out in England, and already exists in Scotland, where the network would be retained by Irish Water but where private operators could sell wholesale? If Irish Water or the Department had considered that, would a proposed constitutional protection safeguard against that? That question is directed to Ms. Graham and to Mr. Ó Tuathail. Thank you for your forbearance on this, Chair. We have talked about constitutional amendments, and Mr Ó Tuathail is convinced that that is the only way to handle it, so as a citizen and public representative I am interested in two aspects of this. Did you write the wording for the right to water campaign?

Mr. Séamas Ó Tuathail: Yes, I wrote it.

Deputy John Lahart:   Okay. Many of us who are old enough to remember the potential for constitutional amendments to defy the original intentions of their proponents. What kind of controls can be put in place to avoid a referendum result, and therefore decisions on water, eventually ending up being decisions of the Judiciary?

Chairman:   Good question.

Mr. Séamas Ó Tuathail: I will let Ms Graham go first.

Ms Maria Graham: If I can reflect in a general way on some of the points. The water services legislation of 2007 was approximately ten years in gestation, and it was considered serious enough at that point to put protections in against the privatisation of assets, before Irish Water was contemplated. That was an important point at that stage.  When we moved into the reform process, PricewaterhouseCoopers was specifically asked to report on the use of State utilities. Because of the time available to us under the agreement with the troika to establish the new utility, we were given a series of points which would have to be satisfied were we to have it under an existing utility such as Bord Gáis.

I have been involved in the water sector since 2009. I think I attended all of the meetings with the troika and the issue of privatisation was not raised. The Department only looked at the models included in the PricewaterhouseCoopers report such as the local authority agency model, among others. The question of privatisation or preparing for it was never on our agenda, pre or post-Irish Water.

Chairman:   I thank Ms Graham for clarifying the matter.

Mr. Séamas Ó Tuathail: The context of Deputy John Lahart's question was very well informed. Ms Graham has answered the first and second questions. Legislation should be brought forward to reflect the intent and impact of the constitutional amendment, when and if it is carried.

 

Source:  Oireachtas Debate, Jan 25, 2017