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Irish Politics

Powers of state are exercised with little or no democratic accountability

Every year in Ireland about 30,000 of us die.  That is about 2,500 people every month.  Of those people, approximately 30% (770 monthly) are attributed to cancer and another 30% (about 750 per month) are attributed to heart disease.  In the last month for which official data is available, there were 25 Covid-related deaths.  The majority of those 25 deaths were cases in which there was co-morbidity i.e. underlying serious health problems other than Covid. 

These facts are of absolutely no consolation to the loved ones of those who have died.  Because they are loved, there is no comfort in cold statistics and nobody engaged in public discourse can be indifferent to or dismissive of the real anguish that Covid is causing.

Furthermore, we cannot dismiss the seriously harmful and debilitating consequences of Covid for a small minority of those who contract the illness. 

Acknowledging all of the foregoing, the question that remains is what can and should be done in response to the pandemic, a question of national policy which must be decided, our Constitution states, “according to the requirements of the common good”.  That includes the economic and social good, and the health of those not being treated for other conditions.

A very serious issue is as to whether the response to Covid by our organs of democratic government is being decided in the manner envisaged by our Constitution.  The pandemic has substantially paralysed the democratic parliamentary process in Ireland and left us in a situation where the powers of the State, powers exercised by ministers, are largely exercised with little or no democratic accountability or supervision. 

Regulations made under the Health Act 1947 by which lockdowns, local and national, and other countermeasures are made law, are made by statutory instruments, signed by the Minister for Health after consultation with cabinet colleagues in circumstances where there is virtually no parliamentary supervision or scrutiny.

In the aftermath of the crisis of March, the re-elected Dáil established a select committee to exercise some degree of scrutiny over the manner in which the State was responding to Covid.

Shockingly, in my opinion, that committee is being wound up this week and the proffered excuse for this extraordinary decision is that 14 joint Oireachtas committees will be charged with scrutinising Covid responses by reference to the departmental functions to which those committees correspond. 

The immediate consequence is that instead of having a specialist committee where from week to week the members can judge the State’s response, committees with widely differing responsibilities are to give part-time consideration to Covid matters affecting their brief.  Travelling by bus in Dublin is a case in point.  For practical reasons, passengers are required to wear masks but the two metre social distancing rule is relaxed so that about 50% of the seats are usable.  How that common sense exigency compares with arrangements for schools or restaurants will now be a matter falling between the floorboards of separate committees with only partial oversight of the overall effect. 

More worryingly, strict adherence to the two metre social distancing advice (which is not for obvious reasons applicable to the occupants of an airplane cockpit or the cabin crew, or indeed to school children in class) is being imposed on the advice of NPHET in Leinster House itself. 

The result of this wholly impractical approach is that the Dáil has been advised by so-called experts that it cannot safely conduct most of its business from its Chamber and must remove itself to the sepulchral vastness of the National Conference Centre where it is almost impossible to conduct meaningful debate. The 1947 Health Act is allowed to trump the constitution role of the Oireachtas, our national parliament.

The Constitution states that all questions in each House of the Oireachtas shall be determined by a majority of the votes of “the members present and voting”

Apparently the term “present” is interpreted as requiring presence in the physical chamber being used by each House.  This advice seems ridiculous.  In the present pandemic emergency, it should be possible to accept a vote from a member of either House in Leinster House by roll-call and allowing each member to voice-vote from a terminal in his or her office in Leinster House activated, say, by a fingerprint identification facility. There is no valid constitutional difference between presence at Leinster House to partake in the business of a House of the Oireachtas and presence in a physical chamber in which some or all of its business is carried on. 

Likewise, Section 5 (5) of the 1947 Health Act merely provides that either House of the Oireachtas may annul a ministerial regulation within 21 sitting days after the regulation is laid before it without prejudice to its previous validity. That is useless.

Such far-reaching powers need a very different approach. Section 5 of the 1947 Act must now be amended so as to require positive prior approval, scrutiny and justification for measures implemented by the Government largely on the advice of NPHET.


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